Atiffi v. Clinton et al

Filing 29

ORDER signed by Judge Lawrence K. Karlton on 11/4/13 DENYING 11 Motion to Dismiss and DENYING 22 Motion for Summary Judgment without prejudice to renewal in a format that complies with the Local Rules of the USDC Eastern District of California. (Manzer, C)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

MOHAMMED MUSA ATIFFI,

12

CIV. S-12-3001 LKK/DAD

Plaintiff,

13
14

No.

v.

ORDER

JOHN F. KERRY1, et al.,

15

Defendants.

16
17

I.

BACKGROUND

18

Plaintiff Mohammed Musa Atiffi is a U.S. citizen.

Complaint

19

(ECF No. 2) ¶ 1.

On May 28, 2010, plaintiff married Massoudah

20

Atiffi, a native and citizen of Afghanistan.

21

then commenced a two-pronged effort to obtain a U.S. immigrant

22

visa for Ms. Atiffi.

Id.

The Attifis

On August 5, 2010, plaintiff filed a Form I-130 (“Petition

23
24

for

25

Immigration Services (“USCIS”), of the Department of Homeland

26
27
28

1

Alien

Relative”),

with

the

United

States

Citizenship

and

John F. Kerry, was confirmed as U.S. Secretary of State on
January 29, 2013. 113th Congress, Cong. Rec., Daily Digest p.
8368 (January 29, 2013). He is therefore substituted for his
predecessor, pursuant to Fed. R. Civ. P. 25(d).
1

1
2

requested

3

relative.”

4

so

5

Complaint ¶ 1.2

Security, on behalf of his wife.

limitations on immigration.3

that
Id.

classified

6

Ms.

Atiffi

be

classified

as

an

This form
“immediate

This classification is important because aliens
are

not

subject

to

the

world-wide

numerical

USCIS determined that Ms. Atiffi was, in fact, an “immediate

7

relative”

8

Complaint ¶ 18; Declaration of Lynn Nguyen Ho (“Ho Decl.”) (ECF

9

No. 11-2) ¶ 6.

and

therefore

approved

plaintiff’s

I-130

petition.

USCIS then forwarded the approved I-130 petition

10

to

11

consular office in Kabul, Afghanistan.

12

¶ 6.4

the

U.S.

Department

of

State

for

visa

processing

at

the

Complaint ¶ 18; Ho Decl.

13
14
15
16
17
18

2

Congress has granted to the U.S. Citizenship and Immigration
Services (“USCIS”), the authority to adjudicate immigrant visa
petitions, including the I-130 petition. 6 U.S.C. § 271(b)(1); 8
U.S.C. § 1154(a)(1)(A)(i) (“[A]ny citizen of the United States
claiming that an alien is entitled … to an immediate relative
status under section 1151(b)(2)(A)(i) of this title may file a
petition with the Attorney General for such classification”); 8
C.F.R. 204.1 (a)(1) (requiring form I-130 to request “immediate
relative” status).

19
20
21
22

Although Section 1154 identifies the Attorney General as the
recipient of the petition, “with the 2003 creation of the
Department of Homeland Security (‘DHS’), this responsibility now
belongs to the Secretary of DHS.” Ching v. Mayorkas, 725 F.3d
1149, 1155 & n.1 (9th Cir. 2013). USCIS is a Bureau within DHS.
6 U.S.C. § 274.

23
3

24
25

See 8 U.S.C. § 1151(b)(2)(A)(i) (“immediate relatives” are “the
children, spouses, and parents” of a U.S. citizen; they are “not
subject to direct numerical limitations”).
4

26
27

See 8 U.S.C. § 1154(b) (if the alien on whose behalf the Form
I-130 is filed is determined to be an “immediate relative,” USCIS
“shall … approve the petition and forward one copy thereof to the
Department of State”).

28
2

1

To

commence

the

second

prong

of

this

visa

process,

2

Ms. Atiffi applied to the consular office for a visa, and was

3

interviewed by a consular officer.

4

¶ 6.5

5

behalf

6

Ms. Atiffi

herself,

7

authorized

to

8

“immediate relative” status previously approved by USCIS, see 22

9

C.F.R. § 42.41,6 and (2) whether to issue her the requested visa,

10

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

Based upon the approved Form I-130 filed by Mr. Atiffi on
of

Ms. Atiffi,

and

the

decide

the

visa

consular

(1)

application

official

whether

to

involved

grant

filed
was

by
then

Ms. Atiffi

the

see 8 U.S.C. § 1201(a)(1).

11
12

Complaint ¶ 19; Ho Decl.

The

consular

officer

was

required

to

grant

“immediate

5

Congress has granted to consular officers the authority to
issue, or to refuse to issue, immigrant visas, pursuant to its
“plenary power to make rules for the admission of aliens and to
exclude those who possess those characteristics which Congress
has forbidden.” Din v. Kerry, 718 F.3d 856, 860 (9th Cir. 2013)
(citing Kleindienst v. Mandel, 408 U.S. 753, 766 (1972)); 8
U.S.C. § 1201(a)(1) (granting consular officers the authority to
issue a visa to an immigrant “who has made proper application
therefor”), 1201(g) (specifying when the consular officer may not
issue a visa); Singh v. Clinton, 618 F.3d 1085, 1090 (9th
Cir. 2010) (“[a]ny alien who is eligible for an immigrant visa
must file a Form DS–230 to start the application process”)
(citing 22 C.F.R. § 42.63(a)).
In general, however, the Secretary of State has the authority to
administer and enforce the immigration laws. 8 U.S.C. § 1104(a).
Moreover, the Secretary of State retains the authority to direct
the consular office to refuse a visa. 6 U.S.C. § 236(c)(1).
6

“Consular officers are authorized to grant to an alien the
immediate relative … status accorded in a petition approved in
the alien's behalf upon receipt of the approved petition or
official notification of its approval.” 22 C.F.R. § 42.41.
However, “[t]he approval of a petition [by USCIS] does not
relieve the alien of the burden of establishing to the
satisfaction of the consular officer that the alien is eligible
in all respects to receive a visa.” Id.

28
3

1

relative” status to Ms. Atiffi if he was “satisfied” that she had

2

“the relationship claimed in the petition.”

3

The parties’ papers do not disclose whether or not the consular

4

officer ever granted “immediate relative status” to Ms. Atiffi.7

5

However, on November 8, 2012, the consular office sent a letter

6

to Ms. Atiffi stating that it was “unable to issue a visa” to

7

her, having made the determination that she was “found ineligible

8

to receive a visa.”

9

22 C.F.R. § 42.21.

Complaint ¶ 19 & Exh. A (ECF No. 2-1).

The USCIS letter gave Ms. Atiffi no information about why

10

her visa application was refused.

11

states that the statutory grounds for the denial of Ms. Atiffi’s

12

application are “marked with ‘X,’” in fact, no statutory grounds

13

were so marked.8

14

7

15
16
17
18
19

Even though the USCIS letter

Rather, the letter advised Ms. Atiffi only

Plaintiff does not allege that the consular officer granted
this status, presumably because he was never informed one way or
the other. Despite filing two declarations in support of its
motion to dismiss, the government also does not advise the court
whether this status was granted or not. However, having received
or been officially notified of the approved petition, if the
consular officer was “satisfied that the alien has the
relationship claimed in the petition,” then the officer was
required to classify the alien as an “immediate relative.”
An alien who is a spouse … of a United States
citizen … shall be classified as an immediate
relative under INA 201(b) if the consular
officer has received from DHS an approved
Petition … filed on the alien's behalf by the
U.S. citizen and approved in accordance with
INA 204, and the officer is satisfied that
the alien has the relationship claimed in the
petition.

20
21
22
23
24

22 C.F.R. § 42.21.
25
8

26
27
28

Four separate possible grounds are listed in the letter, none
of which are marked or highlighted in any way: INA Sections
221(g) (application “does not comply” with the INA), 212(a)(1)
(health-related grounds), 212(a)(4) (if the alien is likely to
become a “public charge”) and 212(a)([blank]) (the court does not
4

1

that:

2

Your petition has been returned to US
Citizenship and Immigration Services (USCIS)
through the National Visa Center (NVC) for
reconsideration and disposition.
Further
inquiries should be directed to the USCIS
office that processed your petition.

3
4
5
6

Complaint Exh. A.

7

In short, the USCIS letter did not offer any explanation for

8

the denial.

Nor did it advise Ms. Atiffi whether she could

9

overcome

consular

the

determination

“by

the

presentation

of

10

additional evidence.”

11

simply told that she was denied, with no statement of which

12

statutory or regulatory authority was the basis for the denial,

13

no

14

instructions or information on how to proceed if she wished to

15

pursue administrative remedies.9

statement

of

See 22 C.F.R. § 42.81(b).

any

factual

basis

for

the

Ms. Atiffi was

denial,

nor

any

16

Plaintiff filed this lawsuit on December 12, 2012, alleging

17

that defendants’ conduct violated the Administrative Procedure

18

Act in that their actions were done arbitrarily, capriciously and

19

contrary

20

application

21

legitimate reason.”

to

law,
for

an

in

that

defendants

immigration

visa

Complaint ¶ 23.

denied

“without

even

Ms. Atiffi’s
a

facially

Plaintiff asserts that he

22
23
24
25
26
27

know what this section refers to, as it appears to be an
incomplete citation to the law). The form instructs Ms. Atiffi:
“Please disregard the unmarked paragraphs.” An asterisked text
explains what Ms. Atiffi should do if the application had been
denied pursuant to Section 221(g), but the paragraph containing
the notations for Section 221(g) is not checked, and nothing in
the form indicates that the refusal was based upon that section.
9

The only information given was that Ms. Atiffi could call USCIS
with questions.

28
5

1

was deprived of his liberty interest in the integrity of his

2

family by the constitutionally inadequate procedures employed by

3

defendants in handling his petition and in denying the requested

4

visa to Ms. Atiffi.

5

doctrine of consular non-reviewability,” mootness and failure to

6

exhaust administrative remedies – move to dismiss the lawsuit in

7

its entirety for lack of federal jurisdiction.

8

defendants move to dismiss for failure to state a claim.

9

II.

Complaint ¶ 3.

Defendants – invoking “the

Failing that,

DISMISSAL STANDARDS

10

Rule 12(b)(1): Lack of Federal Jurisdiction.

11

The party seeking to invoke the jurisdiction of the federal

12

court has the burden of establishing that jurisdiction exists.

13

KVOS, Inc. v. Associated Press, 299 U.S. 269, 278 (1936); Assoc.

14

of Medical Colleges v. United States, 217 F.3d 770, 778-779 (9th

15

Cir. 2000).

16

P. 12(b)(1), the standards that must be applied vary according to

17

the nature of the jurisdictional challenge.

18

When

a

On a motion to dismiss pursuant to Fed. R. Civ.

party

brings

a

facial

attack

to

subject

matter

19

jurisdiction,

20

jurisdiction contained in the complaint are insufficient on their

21

face to demonstrate the existence of jurisdiction.

22

Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004), cert.

23

denied, 544 U.S. 1018 (2005).

24

type, the plaintiff is entitled to safeguards similar to those

25

applicable when a Rule 12(b)(6) motion is made.

26

Inc. v. Reyes, 23 F.3d 345, 347 (11th Cir. 1994), Osborn v.

27

United

28

factual allegations of the complaint are presumed to be true, and

States,

that

918

party

F.2d

contends

724,

that

the

allegations

of

Safe Air for

In a Rule 12(b)(1) motion of this

729

6

n.6

(8th

See Sea Vessel

Cir.

1990).

The

1

the motion is granted only if the plaintiff fails to allege an

2

element necessary for subject matter jurisdiction.

3

Glendale Union High Sch. Dist. No. 205, 343 F.3d 1036, 1039 n.1

4

(9th Cir. 2003), cert. denied, 541 U.S. 1009 (2004); Miranda v.

5

Reno, 238 F.3d 1156, 1157 n.1 (9th Cir.), cert. denied, 534 U.S.

6

1018 (2001).

7

beyond the complaint without converting the motion to dismiss

8

into

9

attack.

10

a

Nonetheless, district courts

motion

for

summary

judgment”

Savage v.

“may review evidence

when

resolving

a

facial

Safe Air, 373 F.3d at 1039.

Alternatively,

when

a

party

brings

a

factual

attack,

it

11

“disputes the truth of the allegations that, by themselves, would

12

otherwise invoke federal jurisdiction.”

13

party converts a motion to dismiss into a factual motion where it

14

“present[s] affidavits or other evidence properly brought before

15

the court” in support of its motion to dismiss.

16

motion to dismiss under Fed. R. Civ. P. 12(b)(6), the court need

17

not

18

resolving a factual attack.

19

1214, 1242 (9th Cir. 2000).

20

into

21

motion must [nonetheless] furnish affidavits or other evidence

22

necessary to satisfy its burden of establishing subject matter

23

jurisdiction.”

24

matter jurisdiction, district courts may only rely on facts that

25

are not intertwined with the merits of the action.

26

assume

a

the

motion

B.

facts

for

Id.

alleged

summary

in

a

Id.

Specifically, a

Id.

complaint

Id. (citing

Unlike in a

are

true

when

White v. Lee, 227 F.3d

While the motion is not converted
judgment,

“the

party

opposing

the

When deciding a factual challenge to subject

Id.

Rule 12(b)(6): Failure To State a Claim.

27

A dismissal motion under Fed. R. Civ. P. 12(b)(6) challenges

28

a complaint’s compliance with the federal pleading requirements.
7

1

Under Fed. R. Civ. P. 8(a)(2), a pleading must contain a “short

2

and plain statement of the claim showing that the pleader is

3

entitled

4

“‘fair notice of what the ... claim is and the grounds upon which

5

it rests.’”

6

(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

7

to

relief.”

The

complaint

must

give

the

defendant

Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007)

To meet this requirement, the complaint must be supported by

8

factual

9

(2009).

allegations.

Ashcroft

v.

Iqbal,

556

U.S.

662,

678

Moreover, this court “must accept as true all of the

10

factual allegations contained in the complaint.”

11

Pardus, 551 U.S. 89, 94 (2007).10

12

“While

legal

conclusions

can

provide

the

Erickson v.

framework

of

a

13

complaint,” neither legal conclusions nor conclusory statements

14

are themselves sufficient, and such statements are not entitled

15

to a presumption of truth.

16

Twombly therefore prescribe a two-step process for evaluation of

17

motions

18

conclusory factual allegations, and then determines whether these

19

allegations,

20

favorable

21

entitlement to relief.”

to

dismiss.

to

taken
the

The

as

true

Iqbal, 556 U.S. at 679.

court

and

plaintiff,

first

construed
“plausibly

identifies

in

the

give

Iqbal and

the

light

rise

non-

most

to

an

Iqbal, 556 U.S. at 679.

22

“Plausibility,” as it is used in Twombly and Iqbal, does not

23

refer to the likelihood that a pleader will succeed in proving

24
10

25
26
27
28

Citing Twombly, 550 U.S. at 555-56, Neitzke v. Williams, 490
U.S. 319, 327 (1989) (“What Rule 12(b)(6) does not countenance
are dismissals based on a judge’s disbelief of a complaint’s
factual allegations”), and Scheuer v. Rhodes, 416 U.S. 232, 236
(1974) (“[I]t may appear on the face of the pleadings that a
recovery is very remote and unlikely but that is not the test”
under Rule 12(b)(6)).
8

1

the

2

conclusory factual allegations, when assumed to be true, “allow[]

3

the court to draw the reasonable inference that the defendant is

4

liable for the misconduct alleged.”

Iqbal, 556 U.S. at 678.

5

“The

akin

6

requirement,’ but it asks for more than a sheer possibility that

7

a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S.

8

at 557).11

9

by lacking a cognizable legal theory or by lacking sufficient

allegations.

plausibility

Instead,

standard

it

is

refers

not

to

whether

to

a

the

non-

‘probability

A complaint may fail to show a right to relief either

10

facts alleged under a cognizable legal theory.

11

Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

12

Balistreri v.

III. ANALYSIS – SUBJECT MATTER JURISDICTION

13

A. Mootness

14

The

government

argues

that

plaintiff’s

claim

is

moot.

15

Because an assertion of mootness is an attack on this court’s

16

“power to hear a case,” this argument will be considered to be

17
18
19
20
21
22
23
24
25
26
27
28

11

Twombly imposed an apparently new “plausibility” gloss on the
previously well-known Rule 8(a) standard, and retired the longestablished “no set of facts” standard of Conley v. Gibson, 355
U.S. 41 (1957), although it did not overrule that case outright.
See Moss v. U.S. Secret Service, 572 F.3d 962, 968 (9th Cir.
2009) (the Twombly Court “cautioned that it was not outright
overruling Conley ...,” although it was retiring the “no set of
facts” language from Conley). The Ninth Circuit has acknowledged
the difficulty of applying the resulting standard, given the
“perplexing” mix of standards the Supreme Court has applied in
recent cases. See Starr v. Baca, 652 F.3d 1202, 1215 (9th Cir.
2011) (comparing the Court’s application of the “original, more
lenient version of Rule 8(a)” in Swierkiewicz v. Sorema N.A., 534
U.S. 506 (2002) and Erickson v. Pardus, 551 U.S. 89 (2007) (per
curiam), with the seemingly “higher pleading standard” in Dura
Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336 (2005), Twombly and
Iqbal), cert. denied, 132 S. Ct. 2101 (2012). See also Cook v.
Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) (applying the “no set
of facts” standard to a Section 1983 case).
9

1

part of defendant’s motion to dismiss for lack of jurisdiction

2

pursuant to Rule 12(b)(1).

3

Ltd., 561 U.S. ___, 130 S. Ct. 2869, 2877 (2010) (Rule 12(b)(1)

4

applies when the question is subject-matter jurisdiction, which

5

“refers

6

quotation marks omitted); White v. Lee, 227 at 1242 (“mootness”

7

pertains “to a federal court's subject-matter jurisdiction under

8

Article III,” and therefore is “properly raised in a motion to

9

dismiss

10

to

a

under

tribunal’s

Federal

See Morrison v. Nat’l Australia Bank

power

Rule

to

of

hear

Civil

a

case”)

Procedure

(internal

12(b)(1),

not

Rule 12(b)(6)).

11

The government asserts that the case is moot because the

12

consular office returned plaintiff’s I-130 petition to USCIS.

13

Dismissal

14

petition to USCIS, there is no longer an I-130 form “on file” at

15

the consulate, and for lack of that form, the government argues,

16

the

17

Ms. Atiffi’s visa application, citing 22 C.F.R. §§ 42.21(a) &

18

42.42.

19

authority to act, the government asserts, the matter is moot,

20

because

21

plaintiffs.12

22
23

Motion

consular

at

office

Id. at 11-12.

this

court

11.

was

Having

returned

rendered

plaintiff’s

“powerless”

to

I-130

act

on

Because of the consular office’s lack of

can

no

longer

grant

any

The court rejects the government’s position.

relief

to

First, the

cited regulations do not render the consular officer “powerless”

24
12

25
26
27

In other words, in the government’s view, the consular office
has the authority to render any challenge to its visa denials
moot – when the visa request is predicated upon the I-130
petition – even if it denies the visa on plainly illegal or
unconstitutional grounds, simply by returning the I-130 petition
to the USCIS.

28
10

1

to issue a visa simply because the I-130 petition is no longer

2

“on file” or physically present in the consular office.

3

even if the consular office were rendered powerless, there is

4

still meaningful relief this court can order.

5

1.

6

The

Second,

No Form I-130 “on file.”

government

cites

two

regulations

in

support

of

its

7

assertion that the consular office is “powerless” to act now

8

because the I-130 petition is no longer “on file” in the consular

9

office.13

The first cited regulation only recites conditions

10

under which “immediate relative” status must be granted, namely

11

“if

12

petition, and “is satisfied that the alien has the relationship

13

claimed in the petition.”

14

makes no reference to issuance of the visa itself, and certainly

15

does not render the consular officer “powerless” to issue a visa.

16

In any event, it makes no reference to any supposed need for the

17

I-130 petition to be “on file,” or physically present in the

18

consular office.

19

the consular officer “has received” the petition.

20
21

the

consular

officer

has

received”

the

22 C.F.R. § 42.21(a).

approved

I-130

The regulation

Rather, it refers only to the situation where

There is no dispute in this case that the consular officer
“has

received”

plaintiff’s

I-130

petition

on

behalf

22
23
24
25
26
27

13

The government’s assertion that the form has been returned to
USCIS is supported by the Dybdahl and Ho Declarations. The
declarations, to which plaintiffs offer no objection, are
proffered to establish a fact asserted to be jurisdictional in
nature, and are therefore properly considered on this motion.
See Safe Air, 373 F.3d at 1039 (district courts “may review
evidence beyond the complaint without converting the motion to
dismiss into a motion for summary judgment” when resolving a
facial attack).

28
11

of

1

Ms. Atiffi.

2

makes clear that the I-130 need not be “on file” or physically

3

present at the consular office in order for the consular officer

4

to grant immediate relative status.

5

Moreover, a companion regulation, 22 C.F.R. § 42.41,

To the contrary:

Consular officers are authorized to grant an
alien immediate relative … status … upon
receipt of the approved petition or official
notification of its approval.

6
7
8

22

9

consular

C.F.R.

§ 42.41.
officer

These

to

regulations

grant

immediate

–

which

relative

authorize
status

the

“upon

10

notification” of the I-130 form’s approval – simply do not render

11

the consular officer “powerless” to issue a visa unless the I-130

12

form is “on file” or physically present in the consular office.

13

The

second

regulation

the

government

cites,

22

C.F.R.

14

§ 42.42, contradicts the supposed rule or principle for which the

15

government cites it.

16

does

17

However, it specifically does not require that the I-130 petition

18

be physically present in the consular office, or “on file” there.

19

Rather, it states that the consular officer

address

20

This regulation (unlike Section 42.21(a)),

whether

the

visa

may,

or

may

not,

be

issued.

may not issue a visa to an alien as an
immediate relative entitled to status under
201(b) [8 U.S.C. § 1151(b)] … unless the
officer has received a petition filed and
approved in accordance with INA 204 or
official notification of such filing and
approval.

21
22
23
24

22 C.F.R. § 42.42.

25

and approval of the I-130 petition is sufficient for the consular

26

officer to issue the visa.

27

that

28

Indeed,

the

consular
according

Thus, “official notification” of the filing

In this case, the government concedes

officer
to

the

received

the

declarations
12

approved
submitted

petition.
by

the

1

government, the approved petition was apparently still on file

2

and

3

filed his lawsuit.

4

was not returned to USCIS until January 18, 2013, which is a

5

month after this lawsuit was filed).

physically

6

present

in

the

consular

office

when

plaintiff

See Dybdahl Decl. ¶ 6 (the approved petition

The government now asserts that the petition was returned to

7

USCIS

8

assert that the filing or approval has actually been revoked.

9

See Ho Decl. ¶ 5.

“for

review

and

possible

revocation,”

but

it

does

not

Accordingly, even after the petition was

10

returned, the consular office still had, and apparently still

11

has,

12

approval.

“official

notification”

of

the

petition’s

filing

and

13

Because the consular office is not “powerless” to issue the

14

visa, at least not pursuant to the regulations the government

15

cites, the case is not moot.

16

2.

Other meaningful relief.

17

Even if the consular office were powerless to issue the visa

18

however, this court is not powerless to render other meaningful

19

relief

to

20

below,

plaintiff

21

comply with its mandatory, non-discretionary obligation to (1)

22

provide Ms. Atiffi with notice of why her visa was refused, and

23

(2) provide Ms. Atiffi with a facially legitimate and bona fide

24

reason for refusing her visa application.

25

plaintiff.

Specifically,

alleges

that

the

as

discussed

consular

office

more

fully

failed

to

As discussed more fully below, this court has the authority

26

to order consular officials to take such action.

27

the degree plaintiff asserts that, apart from the non-issuance of

28

the visa itself, the consular office is in violation of its
13

Accordingly, to

1

mandatory duties, this case is not moot.

2

B.

3

The government asserts that the “doctrine of consular non-

4

reviewability” divests this court of authority to consider this

5

lawsuit.

Consular non-reviewability.

The court does not agree.

6

The genesis of the doctrine in this Circuit is most commonly

7

attributed to Kleindienst v. Mandel, 408 U.S. 753, 766 (1972) and

8

Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 (9th

9

Cir. 1986).

Indeed, for Ninth Circuit authority, the government

10

relies exclusively on Li Hing and Bustamante v. Mukasey, 531 F.3d

11

1059 (9th Cir. 2008), for its assertions regarding consular non-

12

reviewability.

13

typically use rather broad language in describing the doctrine,

14

examination of the cases reveals that there are circumstances

15

under which the doctrine does not apply at all, and others that

16

warrant a “limited exception” to the doctrine.

While those cases, and others that have followed,

17

In Kleindienst, the Supreme Court upheld the decision of the

18

Executive Branch to deny a visa to a scholar who sought admission

19

to accept invitations to speak at various American universities.

20

The scholar was statutorily ineligible to receive a visa because

21

he was a proponent of “world Communism.”

22

General was authorized by statute to waive the ineligibility, but

23

he declined to do so, based upon the asserted ground of the

24

scholar’s “flagrant abuse” of an earlier visa.

25

held that when the Executive Branch exercises its authority to

26

deny a visa “on the basis of a facially legitimate and bona fide

27

reason,” the courts “will neither look behind the exercise of

28

that

discretion,

nor

test

it

by
14

balancing

The U.S. Attorney

The Supreme Court

its

justification”

1

against the asserted constitutional interests of those who would

2

challenge

3

Similarly, in Li Hing, the Ninth Circuit rejected a challenge to

4

the decision of a consular officer to deny a visa.

5

stated that “it has been consistently held that the consular

6

official's decision to issue or withhold a visa is not subject

7

either to administrative or judicial review.”

8

at 970.

the

decision.

Kleindienst,

408

U.S.

769.14

at

The court

Li Hing, 800 F.2d

9

There are, however, at least two situations in which the

10

federal courts may review consular actions, as discussed more

11

fully below.

12

committed to consular discretion, the doctrine simply does not

13

apply

14

discretionary,

ministerial

15

exception”

the

16

alleges that the visa refusal violates his own constitutional

17

14

18
19
20
21
22
23
24
25
26
27

when

First, since the doctrine only applies to conduct

the

to

challenged

doctrine

consular
act.
that

action

involves

Second,

there

applies

when

is
a

a

U.S.

a

non-

“limited
citizen

The authority of Congress to make laws for the admission or
exclusion of aliens is not an issue here. Rather, it is the
authority of the Executive Branch to enforce those rules free
from review by the courts is at issue here. Kleindienst found
the specific support for the non-reviewability of the Executive’s
decisions in Lem Moon Sing v. U.S., 158 U.S. 538 (1895), which
enforced an act “to prohibit the coming of Chinese persons” into
the United States:
“The power of Congress to exclude aliens
altogether from the United States, or to
prescribe the terms and conditions upon which
they may come into this country, and to have
its declared policy in that regard enforced
exclusively
through
executive
officers,
without judicial intervention, is settled by
our previous adjudications.”
Kleindienst, 408 U.S. at 766 (emphasis added) (quoting Lem Moon
Sing, 158 U.S. at 547).

28
15

1

rights.

2

1.

Non-applicability of the doctrine when nondiscretionary, ministerial acts are challenged.

3
4

The Ninth Circuit has made it clear that the doctrine of

5

consular non-reviewability does not apply to consular actions

6

that are mandatory and non-discretionary.

7

714 F.3d 1108, 1111 (9th Cir. 2013) (the doctrine of consular

8

nonreviewability does not apply, and federal jurisdiction exists

9

when

the

consular

office

allegedly

Rivas v. Napolitano,

fails

to

carry

out

“a

10

nondiscretionary, ministerial duty”); Patel v. Reno, 134 F.3d

11

929,

12

authority of the consul to take or fail to take an action as

13

opposed

14

jurisdiction exists”).

931-32

15

to

(9th

a

Cir. 1998)

decision

taken

(“when

within

the

the

suit

challenges

consul's

the

discretion,

In Patel, the Ninth Circuit established that the district

16

court

17

action that is mandated by the applicable regulations.

18

case, the consular office failed to take action on plaintiffs’

19

visa application for eight (8) years.

20

The

21

discretionary decision to grant or deny a visa petition is not

22

subject to judicial review.”

23

action seeking mandamus “challenges the authority of the consul

24

to take or fail to take an action as opposed to a decision taken

25

within the consul’s discretion, jurisdiction exists.”

26

931-32.

has

court

the

authority

acknowledged

to

that

order

consular

normally,

officials

to

take

In that

Patel, 134 F.3d at 929.
“a

Id., at 931.

consular

official’s

However, when an

Id., at

27

The court then identified a regulation, 22 C.F.R. § 42.81,

28

under which “[a] consular office is required by law to act on
16

1

visa applications.”

2

to that regulation, “the consulate had a duty to act and that to

3

date, eight years after application of the visas, the consulate

4

has failed to act in accordance with that duty.”

5

Accordingly, “the writ should issue.”

6

reversed the district court’s denial of mandamus, and remanded

7

“for the district court to order the consulate to either grant or

8

deny the visa applications.”

Id., at 932.

The court found that pursuant

Id.

Id., at 933.

The court therefore

Id.

9

More recently, in Rivas, the consular office failed to act

10

on plaintiff’s request to the consular office that it reconsider

11

its denial of his visa application.

12

The Ninth Circuit once again acknowledged that “[f]ederal courts

13

are generally without power to review the actions of consular

14

officials.”

15

because the applicable regulation, 22 C.F.F.R. § 42.81(e), by its

16

plain terms imposed “a nondiscretionary, ministerial duty,” the

17

Ninth Circuit held that “the district court has subject matter

18

jurisdiction under the Mandamus Act where the government fails to

19

comply

20

§ 1361 and Patel, 134 F.3d at 931).

with

Rivas, 714 F.3d at 1110.

Id. (citing Li Hing, 800 F.2d at 971).

the

regulation.”

Id.

at 1112

(citing

However,

28

U.S.C.

21

Moreover, the court also found that “because the consulate's

22

attention to requests for reconsideration that fall within 22

23

C.F.R.

24

compelled under the APA.”

25

Wilderness Alliance, 542 U.S. 55, 63 (2004)).

26

determined that “because resolution of claims for mandamus relief

27

would

28

raises a federal question, “violations of 22 C.F.R. § 42.81(e)

§

42.81(e)

require

is

legally

required,

that

action

may

be

Id. (citing Norton v. Southern Utah

implementation

of

17

federal

The court also

regulations,”

which

1

give rise to subject matter jurisdiction under the Declaratory

2

Judgment

3

Liberatore, 408 F.3d 1158, 1161–62 (9th Cir. 2005)).

Act.”

Id.

(citing

Nationwide

Mut.

Ins.

Co.

v.

4

In this case, plaintiff alleges that the consular office

5

failed to carry out its non-discretionary, ministerial duty of

6

providing Ms. Atiffi with a specific statutory basis for the visa

7

refusal, as expressly mandated by 22 C.F.R. § 42.81(b) and 8

8

U.S.C.

9

consular action that is not committed to its discretion, the

10

doctrine of consular non-reviewability does not apply to that

11

aspect of this lawsuit.

§ 1182(b)(1).

12

2.

Accordingly,

since

plaintiff

challenges

Exception where constitutional rights of U.S.
citizen are involved.

13
14

Under a “limited exception” to the doctrine of consular non-

15

reviewability,

16

constitutional rights of an American citizen,” the federal courts

17

“exercise

18

whether the consular official acted on the basis of a facially

19

legitimate and bona fide reason.’”

20

860

21

1059, 1060 (9th Cir. 1986)).

22

protected liberty interest in marriage that entitles the citizen

23

to review of the denial of a spouse's visa.”

(9th

‘a

“[w]hen

highly

Cir. 2013)

the

denial

constrained

(quoting

of

a

visa

review

solely

implicates

to

the

determine

Din v. Kerry, 718 F.3d 856,

Bustamante

v.

Mukasey,

531

F.3d

That is because “a citizen has a

Id.15

24
15

25
26
27
28

See also, Ching, 725 F.3d at 1156 (the “grant of an I–130
petition for immediate relative status is a nondiscretionary
decision. Immediate relative status for an alien spouse is a
right to which citizen applicants are entitled as long as the
petitioner and spouse beneficiary meet the statutory and
regulatory requirements for eligibility. This protected interest
is entitled to the protections of due process”).
18

1

In this case, plaintiff asserts that the consular office’s

2

refusal of a visa to his wife implicates his protected liberty

3

interest in marriage.

4

to determine whether the refusal was made “on the basis of a

5

facially legitimate and bona fide reason.”

6

C.

7

The

Accordingly, this court has jurisdiction

Failure to Exhaust Administrative Remedies.

government

asserts

plaintiff

cannot

challenge

the

8

consular officer’s refusal or the decision to return Form I-130

9

to USCIS because USCIS is currently re-reviewing the Form.

The

10

government says plaintiff must wait for this second review to be

11

completed before filing any challenge.16

The government argues

12

that

its

13

petition, plaintiff will have administrative remedies at that

14

point.

15

if

on

this

review,

USCIS

revokes

approval

of

the

Dismissal Motion at 12-13.

This

argument

fails

because

plaintiff

seeks

mandamus

of

16

allegedly unlawful conduct already engaged in by the consular

17

office.17

18

already

19

manner.18

The Complaint alleges that the consular office has
“refused”
With

the

regard

visa,
to

and

the

has

done

consular

so

in

office’s

an

illegal

action,

the

20
16

24

The court notes that plaintiff has already waited over two (2)
years for the initial review of the I-130 petition to be reviewed
and approved by USCIS and then rejected by the consular office.
Also, by returning the Form I-130 to USCIS, plaintiff’s petition
was put at the end of the line of 4,419 other “consular returns,”
and possibly, at the end of the line of 477,000 petitions
awaiting initial review by USCIS. See Ho Decl. ¶¶ 8 & 9.

25

17

21
22
23

26
27
28

Plaintiff names various officials of USCIS as defendants, but
seeks no relief against them.
18

Moreover, by illegally failing to inform Ms. Atiffi of the
basis for the visa refusal, the government is preventing
plaintiff from participating meaningfully in USCIS’s current
19

1

government has identified no administrative process for plaintiff

2

to exhaust.

3

to exhaust administrative remedies.

Accordingly, this lawsuit is not barred by failure

4
5

IV.
The

consular

ANALYSIS - THE MERITS

office

twice

“refused

the

immigrant

visa

6

application” of Ms. Atiffi.

7

Complaint, Exh. A. (the consular office “is unable to issue a

8

visa” to Ms. Atiffi because she was “found ineligible to receive

9

a visa”).

10

Dybdahl Decl. ¶¶ 4 & 5; see also,

Having “refused” Ms. Atiffi a visa, the consular office was

11

then required to follow certain procedures.

12

consular

13

application was refused:

14
15
16
17

officer

must

let

the

visa

Most notably, the

applicant

know

why

her

When an immigrant visa is refused … [t]he
consular officer shall inform the applicant
of the provision of law or implementing
regulation on which the refusal is based and
of
any
statutory
provision
of
law
or
implementing
regulation
under
which
administrative relief is available.

18

22 C.F.R. § 42.81(b).

19

consular officer “a nondiscretionary, ministerial duty” to inform

20

Ms. Atiffi of the statutory and/or regulatory basis for the visa

This regulation thus imposed on the

21
22
23

review – he has no way of knowing what it is that USCIS is
reconsidering, why it is reconsidering it, or whether there are
additional documents he could submit or other information he
could provide to influence the USCIS’s reconsideration.

24
25
26
27

In essence, the government is arguing that the consular office
and USCIS can pass the application back and forth between their
offices indefinitely, preventing plaintiff from ever challenging
their actions. Patel prevents this by permitting mandamus relief
when the consular officer fails to carry out a duty imposed on
him by law.

28
20

1

refusal.19

2

Administrative Procedure Act.

3

This court is empowered to enforce this duty under the

1.

See Rivas, 714 F.3d at 1111-12.20

The refusal letter does not give any reason for
the visa refusal.

4
5

The

government

asserts

that

“[b]ecause

Ms. Atiffi

was

6

provided with the legal basis for the refusal, i.e., the statute

7

under which the application was refused, the Bustamante standards

8

of ‘facially legitimate and bona fide’ is met.”

9

p.15.

This assertion is simply and plainly false.

ECF No. 11 at
As discussed

10

above, the government did not provide Ms. Atiffi with any “legal

11

basis” for the refusal.

12

Complaint as Exhibit A, and plainly shows no statutory basis for

13

the refusal.

14

not what it purports to be, or that it was altered in any way.

15

The government simply does not meet its duty of candor to this

16

court by making this plainly false assertion.21

17

The refusal document is attached to the

The government does not assert that Exhibit A is

Plaintiff thus states a claim under the APA to compel the

18
19

19

There may be exceptions to the notice requirements, but the
government has not asserted that they apply here.

20
20

21
22
23
24
25

“Mandamus is an extraordinary remedy and is available to compel
a federal official to perform a duty only if: (1) the
individual's claim is clear and certain; (2) the official's duty
is nondiscretionary, ministerial, and so plainly prescribed as to
be free from doubt, and (3) no other adequate remedy is
available.” Patel, 134 F.3d at 931 (citing Azurin v. Von Raab,
803 F.2d 993, 995 (9th Cir. 1986), cert. denied, 483 U.S. 1021
(1987)).
21

26
27

The government, in a footnote buried at the end of its Reply
brief, finally concedes that it did not provide the required
information to Ms. Atiffi in the refusal letter. See ECF No. 25
at p.7 n.1.

28
21

1

consular office to provide an explanation for the visa refusal.

2

2.

The defendants’ declarations do not provide a
“facially legitimate and bona fide” reason for the
refusal.

3
4

Without

acknowledging

its

failure

to

comply

with

the

5

regulations, the government now – in its dismissal brief and in

6

declarations filed with the motion – has provided an ever-growing

7

series of reasons why the visa was refused.

8

reply briefs and declarations, the government now states that

9

“[t]he legal basis of the visa refusal in this case was INA

In its opening and

10

§ 221(g); 8 U.S.C. § 1201(g).”

11

p.26 n.1 (“this is a refusal under 8 U.S.C. § 1201(g)”).

12

Dybdahl Declaration, the government asserts that pursuant to INA

13

§ 221(g),

14

application

15

Dybdahl

16

government asserts that pursuant to INA § 221(g), the visa was

17

refused and the I-130 petition was returned to USCIS “for review

18

and possible revocation based on new information, not previously

19

available to USCIS, that Massaudah Attifi [sic] might not be

20

eligible

21

¶ 5.23

22
23

“a
…

Decl.

for

consular
for

officer

refused

presentation

¶ 4.22

the

ECF No. 11 at p.15; ECF No. 25 at

visa

Later

of

in

the

additional

the

classification

Dybdahl

sought.”

In the

immigrant

visa

documentation.”
Declaration,

Dybdahl

the

Decl.

All three reasons assert that the refusal was based upon INA
§ 221(g) [8 U.S.C. § 1201(g)].

Since the refusal was expressly

24
22

25
26
27

The Declaration does not say what additional documentation the
government is looking for.
23

The Declaration does not say what “new information” was
discovered, or how Ms. Atiffi might dispute or overcome that
information.

28
22

1

based upon the consular officer’s determination that Ms. Atiffi

2

was “found ineligible to receive a visa,” see Complaint, Exh. A

3

(emphasis added) and Ho Decl. ¶ 5, the refusal must have been

4

based upon 8 U.S.C. § 1201(g)(1) or (3), as those are the only

5

two

6

§ 1201(g).24

7

visa be refused if the alien applicant is ineligible under 8

8

U.S.C.

9

§ 1201(g)(1) and (g)(3).

bases

for

a

finding

of

“ineligibility”

under

8

U.S.C.

Subsections 1201(g)(1) and (3) both require that the

§ 1182,

“or

any

other

provision

of

law.”

8

U.S.C.

Accordingly, the court must conclude

10

that the consular officer found Ms. Atiffi “ineligible” under 8

11

U.S.C. § 1182, or some other provision of law.25

12

twenty-one

13

subsection 1182(a)

14

“ineligible” for visas.

(21)

subsections
identifies

of

“classes”

Within the

Section 1182,
of

aliens

only

who

are

15

Accordingly, the most specific information Ms. Atiffi could

16

possibly deduce from the clues the government has given her –

17

sprinkled like bread crumbs throughout the refusal letter, the

18

government’s opening brief, a footnote in the government’s reply

19

brief and a close examination of the applicable statutes – is

20

that her visa was refused based upon 8 U.S.C. § 1182(a).

This is

21
24

24

The only other possible basis for refusing a visa under 8
U.S.C. § 1201(g) is that “the application fails to comply with
the provisions of this chapter, or the regulations issued
thereunder.” 8 U.S.C. § 1201(g)(2). The government has never
asserted that this could possibly be the reason for the refusal.

25

25

22
23

26
27

For example, it appears that a person is “ineligible” for an
immigrant visa if he or she was previously removed from the U.S.
upon his or her request, after “falling into distress.” 8 U.S.C.
§ 1260. If the basis was “some other law,” the consular office
has not, even now, advised Ms. Atiffi what that law is.

28
23

1

plainly insufficient under the statute governing refusals made

2

pursuant to Section 1182(a), as well as the specific holding of

3

Din

4

legitimate and bona fide reason for the refusal.

v.

Kerry

5

that

a.

the

consular

office

provide

a

facially

The specificity requirement of 8 U.S.C.
§ 1182(b).

6
7

Any consular visa refusal based upon Section 1182(a), is

8

required by law to cite the specific provision of the law that

9

rendered the applicant ineligible:

10

15

[I]f an alien’s application for a visa … is
denied by a[] … consular officer because the
officer
determines
the
alien
to
be
inadmissible under subsection (a) of this
section
[listing
“[c]lasses
of
aliens
ineligible for visas”], the officer shall
provide the alien with a timely written
notice that— (A) states the determination,
and (B) lists the specific provision or
provisions of law under which the alien is
inadmissible.

16

INA 212(b)(1), 8 U.S.C. § 1182(b)(1) (emphasis added); Din v.

17

Kerry,

18

consular

19

provide the ‘specific provision or provisions of law under

20

which the alien is inadmissible’”).

21

cite the specific provision of Section 1182(a) upon which the

22

visa refusal was based.

23

submitted two briefs and two declarations about the refusal, the

24

government

25

There are ten (10) separate grounds for a refusal under Section

26

1182(a), each with their own sub-grounds and exceptions, any of

27

which could be the reason for the refusal in this case, as far as

28

the record shows:

11
12
13
14

718

F.3d

officer

has

at

864

notify

not

given

(“Section
aliens

if

1182(b)
their

requires

visa

is

that

the

denied

and

The consular office did not

Even now, after the government has

a

specific

24

reason

for

the

refusal.

1

(1)

Health-related grounds, see 8 U.S.C. § 1182(a)(1);

2

(2)

Criminal and related grounds, see id., § 1182(a)(2);

3

(3)

Security and related grounds, see id., § 1182(a)(3);26

4

(4)

“Public charge” grounds, see id., § 1182(a)(4);

5

(5)

Labor-related grounds, see id., § 1182(a)(5);

6

(6)

Immigration violation grounds, see id., § 1182(a)(6);

7

(7)

Inadequate documentation grounds, see id.,

8

§ 1182(a)(7);

9

(8)

Ineligibility for citizenship, see id., § 1182(a)(8);

10

(9)

Previous removal grounds, see id., § 1182(a)(9); and

11

(10) Miscellaneous grounds, see id., § 1182(a)(10).27

12

The consular office plainly failed to give Ms. Atiffi the

13

notice they were required to give her under the regulations, and

14

it

15

jurisdiction

still

has

not
to

done
order

so.
the

For

that

consular

reason,

office

to

the

court

provide

has
that

16
26

20

Note that if 1182(a)(2) or (3) were the grounds for the visa
refusal, the government may possibly be excused from so notify
the visa applicant. The government has not asserted that these
provisions apply here. Even if it had done so, the government
could, “as it does in other contexts, disclose the reason” for
the visa denial to the court “in camera.” Din v. Kerry, 718 F.3d
at 866.

21

27

17
18
19

22
23
24
25
26
27

In addition, the regulations appear to contemplate that the
refusal letter will advise the applicant of what additional
information, if any, needs to be submitted in order to “overcome”
the “ground of ineligibility”). See 22 C.F.R. § 42.81(b). “If
the ground of ineligibility may be overcome by the presentation
of additional evidence and the applicant indicates an intention
to submit such evidence, all documents may, with the consent of
the alien, be retained in the consular files for a period not to
exceed one year.” 22 C.F.R. § 42.81(b). However, this part of
the regulation is not phrased as a clear, nondiscretionary duty,
so at this point, the court will not rely on it as a basis for
review of consular action.

28
25

1

information.

28

2

b.

Din v. Kerry.

3

Since the visa refusal in this case is alleged to violate

4

plaintiff’s liberty interest in his marriage, the court must also

5

review the refusal to determine whether or not it was refused for

6

a “facially legitimate and bona fide” reason.

7

F.3d at 860.

8

instead cited only a broad statutory basis for the refusal, thus

9

failing to meet its mandatory duty.

10

Din v. Kerry, 718

However, as in Din v. Kerry, the government has

In Din v. Kerry, a U.S. citizen filed a visa petition on

11

behalf of her spouse, a citizen of Afghanistan.

12

The visa was denied.

13

couple

14

§ 1182(a)(3)(B), “a broad provision that excludes aliens on a

15

variety of terrorism-related grounds.”

16

held that this general recitation of the statute was insufficient

that

the

718 F.3d at 858.

The consular office ultimately advised the
visa

had

been

denied

Id.

under

8

The Ninth Circuit

17
18
19
20
21
22
23
24
25
26
27
28

28

Accord, Schutz v. Secretary, Department of State:
the consular office simply referred to a
broad
portion
of
the
Immigration
and
Naturalization Act and stated that it will
not be issuing a visa “at this time”.
The
cited portion of the INA – Section 221(g),
which is codified at 8 U.S.C. § 1182 –
includes dozens of categories of aliens
ineligible for visas. These range from
individuals with communicable diseases or
without proof of certain vaccinations to
those who have engaged in human trafficking
or
who
have
been
affiliated
with
the
Communist Party or who seek entry so as to
perform unskilled labor.
Simply citing to
this section cannot be said to “inform the
applicant of the provision of law ... on
which the refusal is based.”

2012 WL 275521 at *3 (M.D. Fla. 2012) (citations omitted).
26

U.S.C.

1

to meet the consular office’s obligation to provide a “facially

2

legitimate and bona fide” reason for the visa denial.

3

In this case, the proffered basis for refusal – 8 U.S.C.

4

§ 1201(g), and giving the government the benefit of every doubt,

5

8

6

§ 1182(a)(3)(B), the proffered basis that the Ninth Circuit found

7

to

8

explanation for refusal here excludes aliens on a variety of

9

terrorism-related

10

described above.29

U.S.C.

be

§ 1182(a)

not

specific

–

is

even

enough

grounds

in

as

less

Din

well

specific

v.

as

than

Kerry.

the

8

The

U.S.C.

proffered

additional

grounds

11

Plaintiff thus has stated a claim under the APA to compel

12

the consular office to provide a specific statutory citation, and

13

a

14

refusal.

15

“facially

V.

legitimate

and

bona

fide”

reason,

for

the

visa

ANALYSIS – PLAINTIFF’S CROSS-MOTION FOR SUMMARY
JUDGMENT

16
17

Plaintiff

cross-moves

for

summary

judgment.

The

above

18

discussion

19

certainly

20

compelling the consular office to provide the specific grounds

21

for the visa refusal so that the court can review the refusal

relating
indicates

to
that

the

government’s

plaintiff

is

motion

entitled

to
to

dismiss
an

order

22
23
24
25
26
27

29

The court notes that every visa refusal “must be in conformance
with the provisions of 22 CFR 40.6.” 22 C.F.R. § 42.81(a). The
referenced regulation states that “[a] visa can be refused only
upon a ground specifically set out in the law or implementing
regulations.” By citing only the most general provision of law
that applies to this refusal, the consular office has deprived
this court of the ability to know what the ground for refusal
was, and therefore, the court cannot determine if that ground was
“facially legitimate and bona fide.”

28
27

1

properly.

2

P. 56, as well as this court’s Local Rules governing summary

3

judgment

4

undisputed facts, and alternatively, no identification of the

5

administrative record.

6

However, plaintiff failed to comply with Fed. R. Civ.

motions.

This

case

Critically,

involves

arcane

there

agency

is

no

statement

action

not

of

normally

7

presented for review in this court, and involves consular action

8

alleged

to

9

Branch.

The court is reluctant therefore to guess about what the

be

committed

to

the

discretion

of

the

Executive

10

record is, or what facts are really material to a decision here.30

11

Also, the court notes that several possible bases for the

12

visa refusal might possibly not require notice to plaintiff or

13

Ms. Atiffi,

14

parties’ papers.

15

State can waive notice,31 and certain refusals may not require

16

notice

17

Secretary of State is authorized to direct the consular officer

18

to refuse a visa, and it is not clear if notice is required in

to

but

the

they

have

not

been

discussed

at

all

in

the

For example, it appears that the Secretary of

visa

applicant.32

Also,

it

appears

that

the

19
20
21
22
23
24
25
26

30

For example, it appears that the entire process can be
“suspended” under certain conditions: “The consular officer shall
suspend action in a petition case and return the petition, with a
report of the facts, for reconsideration by DHS … if the officer
knows or has reason to believe that approval of the petition was
obtained by fraud, misrepresentation, or other unlawful means, or
that the beneficiary is not entitled, for some other reason, to
the status approved.” 22 C.F.R. § 42.43(a). The absence of an
explanation for the visa refusal leaves the court unable to
determine if this provision is involved in this case.
31

See 8 U.S.C. § 1182(b)(2).

32

See 8 U.S.C. § 1182(b)(3).

27
28
28

1

such a case.33

2

VI.

CONCLUSION

3

1.

Defendant’s motion to dismiss (ECF No. 11), is DENIED;

4

2.

Plaintiff’s

cross-motion

for

summary

judgment

(ECF

5

No. 22), is DENIED without prejudice to its renewal in a format

6

that

7

Procedure and the Local Rules of the U.S. District Court for the

8

Eastern District of California.

9

complies

with

the

applicable

IT IS SO ORDERED.

10

DATED:

November 4, 2013.

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
33

See 6 U.S.C. § 236(c)(1).

28
29

Federal

Rules

of

Civil