JATHOUL v. CLINTON
MEMORANDUM OPINION regarding 9 Order granting Defendant's Motion to Dismiss. Signed by Judge James E. Boasberg on 8/2/2012. (lcjeb3)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MANJIT KAUR JATHOUL,
Civil Action No. 12-492 (JEB)
Plaintiff Manjit Kaur Jathoul has filed the present action in response to a consular
decision to deny her alien husband a United States visa. In suing the Secretary of State, she
claims this administrative decision violated her Fifth Amendment due-process right to live with
her spouse. Defendant now brings the instant Motion to Dismiss for lack of subject-matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and failure to state a claim under
Rule 12(b)(6). In support, Defendant largely relies on the principle of consular nonreviewability. Finding that Plaintiff has failed to assert a constitutionally protected liberty
interest that permits judicial review of the consular decision, the Court will grant the Motion and
dismiss the case.
Plaintiff filed her initial Complaint on March 29, 2012. While Defendant’s Motion to
Dismiss was pending, she filed an Amended Complaint on July 24. To give her the benefit of
the doubt, the Court will consider Plaintiff’s Amended Complaint for purposes of Defendant’s
According to the Amended Complaint, which must be presumed true at this stage,
Plaintiff initially filed an I-130 Immigrant Petition for her husband, Amarpeet Pal Singh Riar, a
citizen of India, on December 27, 2007. See Am. Compl., ¶¶ 8-9. The petition was approved on
April 1, 2008, and Riar interviewed at a consular office in New Delhi on December 4, 2008. Id.,
¶¶ 9-10. Following that interview and the processing of additional material submitted by the
pair, Plaintiff received notice that Riar’s visa application had been formally denied on February
10, 2011. Id., ¶ 16. The United States Citizenship and Immigration Services (USCIS) found
Riar not admissible under Immigration and Nationality Act § 212 (a)(3)(B) [8 U.S.C. §
1182(a)(3)(B)], which relates generally to “Terrorist Activities.” See id., ¶¶ 16-17. Plaintiff
claims her husband has “never engaged in terrorism” and that her husband was “never given the
opportunity to demonstrate the knowledge or lack of knowledge required by several subsections
of [§ 1182(a)(3)(B)].” Id., ¶¶ 19-20. She claims the USCIS violated her due process rights by
“failing to provide a specific reason for denying [her husband’s] visa application” and for
“impos[ing] an undue burden on [the] fundamental liberty interest” of her marriage. Id., ¶¶ 21,
Defendant has now moved to dismiss the case for lack of subject-matter jurisdiction or, in
the alternative, for failure to state a claim.
Defendant’s Motion invokes the legal standards for dismissal under Rules 12(b)(1) and
12(b)(6). In evaluating a motion to dismiss under Rule 12(b)(1), the Court must “treat the
complaint’s factual allegations as true . . . and must grant plaintiff ‘the benefit of all inferences
that can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc., 216 F.3d 1111,
1113 (D.C. Cir. 2000) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979))
(internal citation omitted); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253
(D.C. Cir. 2005). The Court need not accept as true, however, “a legal conclusion couched as a
factual allegation,” nor an inference unsupported by the facts set forth in the Complaint.
Trudeau v. Fed. Trade Comm’n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain,
478 U.S. 265, 286 (1986)) (internal quotation marks omitted).
To survive a motion to dismiss under Rule 12(b)(1), Plaintiff bears the burden of
proving that the Court has subject-matter jurisdiction to hear her claims. See Lujan v. Defenders
of Wildlife, 504 U.S. 555, 561 (1992); U.S. Ecology, Inc. v. U.S. Dep’t of Interior, 231 F.3d 20,
24 (D.C. Cir. 2000). A court has an “affirmative obligation to ensure that it is acting within the
scope of its jurisdictional authority.” Grand Lodge of Fraternal Order of Police v. Ashcroft, 185
F. Supp. 2d 9, 13 (D.D.C. 2001). For this reason, “‘the [p]laintiff’s factual allegations in the
complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion’ than in resolving a
12(b)(6) motion for failure to state a claim.” Id. at 13-14 (quoting 5A Charles A. Wright &
Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1987) (alteration in original)).
Rule 12(b)(6) provides for the dismissal of an action where a complaint fails to “state a
claim upon which relief can be granted.” When sufficiency of a complaint is challenged under
Rule 12(b)(6), the factual allegations presented in it must be presumed true and should be
liberally construed in plaintiff’s favor. Leatherman v. Tarrant Cty. Narcotics & Coordination
Unit, 507 U.S. 163, 164 (1993). Although the notice-pleading rules are “not meant to impose a
great burden on a plaintiff,” Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005), and
“detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion, Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), “a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation omitted). Plaintiff must put forth “factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. Though a plaintiff may survive a 12(b)(6) motion even if “recovery is
very remote and unlikely,” Twombly, 550 U.S. at 555 (citing Scheuer v. Rhodes, 416 U.S. 232,
236 (1974)), the facts alleged in the complaint “must be enough to raise a right to relief above
the speculative level.” Id. at 555.
Plaintiff here is seeking judicial review of the USCIS decision to deny her husband a
visa. Courts, however, do not typically have subject-matter jurisdiction to review such claims
because consular officials “have complete discretion over issuance and revocation of visas.”
Saavedra Bruno v. Albright, 197 F.3d 1153, 1158 n.2 (D.C. Cir. 1999). Matters of policy toward
aliens are “so exclusively entrusted to the political branches of government as to be largely
immune from judicial inquiry or interference.” Id. at 1159 (quoting Harisiades v. Shaughnessy,
342 U.S. 580, 589 (1952)) (internal quotation marks omitted); see also U.S. ex rel. Knauff v.
Shaughnessy, 338 U.S. 537, 543 (1950) (“[I]t is not within the province of any court, unless
expressly authorized by law, to review the determination of the political branch of the
Government to exclude a given alien.”).
In Saavedra Bruno, a Bolivian national and his U.S.-citizen sponsors brought an action
against the Secretary of State to review decisions made by American consulates in Panama and
Bolivia regarding his visas. To determine whether the plaintiff was entitled to judicial review of
the consular denial of his visa application, the D.C. Circuit first offered a brief history of
American immigration law. Id. at 1156-57. The court found that, although there is typically a
“‘presumption’ of judicial review of agency action,” id. at 1157, there exists a doctrine of
consular non-reviewability that holds that “a consular official's decision to issue or withhold a
visa is not subject to judicial review, at least unless Congress says otherwise.” Id. at 1159. This
non-reviewability represents a “limitation on judicial review unaffected by [Administrative
Procedure Act] § 702's opening clause granting a right of review to persons suffering legal
wrong from agency action.” Id. at 1160 (internal quotations omitted). As a result, the Court held
it lacked subject-matter jurisdiction to hear the case. See id. at 1162.
Saavedra Bruno is not, however, dispositive of this case. As Defendant has
acknowledged, there is a limited exception to the doctrine of consular non-reviewability when
“the denial of a visa implicates the constitutional rights of American citizens.” Mot. at 9 (citing
Bustamante v. Mukasey, 531 F.3d 1059, 1062 (9th Cir. 2008)); see also Abourezk v. Reagan,
785 F.2d 1043, 1061 (D.C. Cir. 1986) (“Executive has broad discretion over the admission and
exclusion of aliens, but that discretion is not boundless.”); Udugampola v. Jacobs, 795 F. Supp.
2d 96, 103 (D.D.C. 2011) (holding that exception applies when visa decision “violates a
constitutionally protected liberty interest”). Plaintiff bears the burden of establishing that the
consular action falls within this exception, see Dunn & Black, P.S. v. United States, 492 F.3d
1084, 1088 (9th Cir. 2007), and, even where the exception applies, judicial review should be
“extremely limited.” Udugampola, 795 F. Supp. 2d at 102.
Plaintiff here asserts that she falls within the exception because the barring of her
husband infringes on her liberty interest in living in the United States with her spouse. Two
courts in this District, however, have recently rejected this precise claim. In Udugampola, a Sri
Lankan citizen was denied an immigration visa pursuant to 18 U.S.C. § 1182(a)(3)(B), see 795 F.
Supp. 2d at 99 – the same provision pursuant to which Riar’s application was rejected. Along
with his daughter, a United States citizen, and his wife, who had been granted asylum in the
United States, he brought an action seeking judicial review of the decision. See id. at 98. In
rejecting the liberty interest claimed by the wife, the court explained:
The Constitution certainly protects an individual’s right to marry and the marital
relationship. … Courts have repeatedly held that these constitutional rights are not
implicated when one spouse is removed or denied entry into the United States,
however. Swartz v. Rogers, 254 F.2d 338, 339 (D.C. Cir. 1958) (“Certainly
deportation would put burdens upon the marriage. It would impose upon the wife
the choice of living abroad with her husband or living in this country without him.
But deportation would not in any way destroy the legal union which the marriage
created. The physical conditions of the marriage may change, but the marriage
continues. Under these circumstances we think the wife has no constitutional right
which is violated by the deportation of her husband.”); see also Bangura v.
Hansen, 434 F.3d 487, 496 (6th Cir. 2006) (“A denial of an immediate relative
visa does not infringe upon [the] right to marry.... [T]he Constitution does not
recognize the right of a citizen [spouse] to have his or her alien [spouse] remain in
the country,” citing Almario v. Attorney General, 872 F.2d 147, 151 (6th Cir.
1989)); Burrafato v. U.S. Dep't of State, 523 F.2d 554 (2d Cir. 1975) (reaffirming
that “no constitutional right of a citizen spouse is violated by deportation of his or
her alien spouse,” citing Noel v. Chapman, 508 F.2d 1023, 1027–28 (2d Cir.
Id. at 105.
Similarly, in Mostofi v. Napolitano, 841 F. Supp. 2d 208 (D.D.C. 2012), a United States
citizen sued the Secretary of State, among others, after her alien husband was denied an
immigration visa. She, too, claimed that this action “violate[d] her Fifth Amendment rights
because those actions deprived her of a constitutionally protected liberty interest in freedom of
personal choice in matters of marriage and family life without due process.” Id. at 211-12
(internal quotation marks omitted). The court disagreed, finding that “plaintiff's constitutional
rights are not implicated by defendants' decision to deny her alien spouse entry into the United
States.” Id. at 212. In sum, “Defendants’ denial of [the plaintiff’s] visa affected the physical
conditions of the marriage … but not the marriage itself.” Id. at 212-13 (internal quotation
Plaintiff urges the Court to reject these cases and instead to follow Bustamante, 531 F.3d
1059, in which the Ninth Circuit appeared to find a liberty interest where a United States citizen
alleged the consular denial of her alien husband’s visa infringed on her constitutionally protected
liberty interest in her marriage. Id. at 1062. This Court declines the invitation because in
Bustamante “[t]he Ninth Circuit accepted [the plaintiff’s] allegation at face value” and did not
consider “whether the visa denial actually implicated the plaintiff's constitutional rights.”
Mostofi, 841 F. Supp. 2d at 212.
In any event, this Court is bound by Swartz v. Rogers, 254 F.2d 338 (D.C. Cir. 1958),
which found no violation of a wife’s constitutionally protected liberty interest in her marriage
when her husband was deported because “deportation would not in any way destroy the legal
union which the marriage created.” Id. at 339; see also Escobar v. I.N.S., 700 F. Supp. 609, 612
(D.D.C. 1988) (holding that a United States citizen “has no constitutional right to have his or her
alien spouse enter or remain in the United States”). Plaintiff acknowledges that “[c]ourts have
held that fundamental marriage rights are not implicated” by a visa denial to a spouse, but
nonetheless maintains that this “imposes a substantial obstacle in the path of that marriage.” See
Amend. Compl., ¶ 25. While it may well be true that exclusion of her husband imposes burdens
on their married life, the Court cannot find any constitutional violation. As a result, Plaintiff’s
claims are barred by the doctrine of consular non-reviewability and the Court has no subjectmatter jurisdiction to hear the case.
Even if the Court were to find that Plaintiff had a liberty interest that overcame the
general principle of consular non-reviewability and conferred jurisdiction, her claim would still
fail. Because “Congress has delegated conditional exercise” of its “plenary . . . power to make
policies and rules for exclusion of aliens” to the Executive, see Kleindienst v. Mandel, 408 U.S.
753, 770 (1972), the Supreme Court has held that judicial review of consular decisions to deny
visa applications is significantly circumscribed. See id. Specifically, such decisions need only
be based on “a facially legitimate and bona fide reason.” Mandel, 408 U.S. at 770; see also
Bustamante, 531 F.3d at 1062 (affirming visa denial because reasoning was both facially
legitimate and bona fide under Mandel inquiry); Udugampola, 795 F. Supp. 2d at 106 (affirming
Mandel standard). Where such a reason is presented, “courts will neither look behind the
exercise of that discretion nor test it by balancing its justification against constitutional interests.”
Udugampola, 795 F. Supp. 2d at 106 (quoting Mandel, 408 U.S. at 470) (internal quotation mark
Plaintiff’s husband was denied a visa because the consulate determined that he was
unable to receive one under 8 U.S.C. § 1182(a)(3)(B). See Am. Compl., ¶ 16. Section
1182(a)(3)(B) is comprised of numerous grounds for inadmissibility on the basis of the
applicant’s involvement in terrorist activities. That provision, of course, provides a facially
legitimate reason for denial of a visa application. See Din v. Clinton, 2010 WL 2560492, at *3
(N.D. Cal. June 22, 2010) (“reference to Section 1182(a)(3) is sufficient to be facially
legitimate”); Bustamante, 531 F.3d at 1062 (“statutory basis for inadmissibility” is “facially
legitimate reason”) (citing 8 U.S.C. § 1182(a)(2)(C)); Udugampola, 795 F. Supp. 2d at 106 (“By
providing the applicant the statutory basis for the denial of his visa, the defendants provided a
facially legitimate justification.”).
While Plaintiff may desire a more detailed explanation for the consulate’s decision, see
Am. Compl., ¶ 28 (complaining that a particular subsection of § 1182(a)(3) was not identified),
the explanation that her husband failed to qualify for admission under § 1182(a)(3) suffices to
confer facial legitimacy. That is because 8 U.S.C. § 1182(b)(3) expressly provides that the
government need not identify “the specific provision or provisions of law under which the alien
is inadmissible” where it finds him inadmissible under §§ 1182(a)(2) or (a)(3). 8 U.S.C. §
1182(b)(3) (cross-referencing 8 U.S.C. 1182(b)(1)). As a result, the more general reference to 8
U.S.C. § 1182(a)(3) is adequate. See Udugampola, 795 F. Supp. 2d at 106 (“INA states clearly
that the defendants need not provide an applicant even the statutory basis for denial if the reason
for denial is based under Sections 212(a)(2) or (a)(3).”); Din, 2010 WL 2560492, at *3
(“granularity” concerning which subprovision of § 1182(a)(3) “need not be provided”). A
facially legitimate statutory justification also qualifies as bona fide, unless a plaintiff raises an
“allegation of bad faith sufficient to withstand dismissal.” Bustamonte, 531 F.3d at 1062; see
also Udugampola, 795 F. Sipp. 2d at 106 (“[W]here the consulate provides a statutory basis for
denial, a legal challenge to the visa denial must be dismissed unless a plaintiff alleges that the
consulate acted in bad faith.”); Din 2010 WL 2560492, at *4 (“valid statutory basis also qualifies
as a bona fide reason for denial” absent “well-supported allegation of bad faith”).
Plaintiff, however, has failed to present such an allegation. Plaintiff’s Amended
Complaint lacks any facts that might plausibly suggest that the consulate acted in bad faith. See
Din, 2010 WL 2560492, at *4 (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (“[W]hile the
facts that Din has pled may be ‘consistent’ with a finding of bad faith; they do not cross the line
from possibility to plausibility of entitlement to relief.”). As a result, the Court can only
conclude that the consulate’s explanation is both facially legitimate and bona fide, and its denial
of Riar’s application thus would survive the Court’s scrutiny even if Plaintiff had established
Since Plaintiff has failed to present a constitutional claim, the doctrine of consular nonreviewability bars this Court from conducting a review. Defendant’s Motion to Dismiss will be
granted in a separate Order that accompanies this Memorandum Opinion.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: August 2, 2012
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