Ruiz-Herrera et al v. Holder et al
Filing
8
ORDER AND OPINION granting 5 Defendants' Motion to Dismiss. Signed by Judge Julie E. Carnes on 3/15/13. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CHRISTOPHER RUIZ-HERRERA,
and TAMMY MICHELE-WILLIAMS,
Plaintiff,
v.
CIVIL ACTION NO.
1:12-cv-0194-JEC
ERIC HOLDER, Attorney General
of the United States, JANET
NAPOLITANO, Secretary,
Department of Homeland
Security, HILLARY RODHAM
CLINTON, Secretary of State,
U.S. Department of State,
THOMAS G. ROGAN, U.S. Consul
General in Ciudad Juarez,
LYNNE P. SKEIRIK, Director,
National Visa Center,
Department of State, and
ALEJANDRO MAYORKAS, Director,
U.S. Citizenship and
Immigration Services,,
Defendants.
ORDER & OPINION
This case is before the Court on defendants’ Motion to Dismiss
[5].
The Court has reviewed the record and the arguments of the
parties
and,
for
the
reasons
set
out
defendants’ Motion [5] should be GRANTED.
AO 72A
(Rev.8/82)
below,
concludes
that
BACKGROUND
This case arises from the denial of plaintiff Christopher RuizHerrera’s Immigrant Visa Application by the United States Citizenship
and Immigration Services (“USCIS”).
a citizen of Mexico.
(Compl. [1] at 2.)
(Id. at Ex. 2-B.)
Herrera is
In 1999, Herrera married
plaintiff Tammy Michele-Williams, a United States citizen.
Ex. 2-D.)
(Id. at
In May, 2010, Williams submitted an I-130 Immediate
Relative Petition to the USCIS on behalf of Herrera.
(Id. at ¶ 15.)
Submission of the I-130 is the first step in acquiring an immigrant
visa for the spouse of a US citizen.1
8 U.S.C. § 1154.
approved Williams’ I-130 Petition in November, 2010.
The USCIS
(Id.)
Plaintiffs subsequently submitted an Application to obtain an
Immigrant Visa for Herrera to the National Visa Center.
at ¶ 17.)
(Compl. [1]
The Application was sent to the Immigrant Visa Section of
the US Consulate in Ciudad Juarez for processing. (Id. at Exs. 3-4.)
Prompted
by
one
of
the
questions
on
the
Application,
Herrera
disclosed that he had been “charged for drugs in 1995” but that the
“charges and case [were] dismissed.”
(Id. at Ex. 2-B.)
The US
Consulate requested all available documents related to the 1995
1
After the I-130 is approved, a consular official in the
country of origin must approve the applicant’s visa. 8 U.S.C. at §
1201(a). Once the immigrant visa is obtained and other requirements
are met, the applicant may begin the naturalization process. Id. at
§ 1430.
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incident and instructed Herrera to schedule a consular interview.
(Id. at ¶¶ 17, 18 and Exs. 3, 4.)
In response, plaintiffs submitted
to the Consulate a copy of the police report concerning the 1995
arrest and a 2001 order from a state court in Denver, Colorado
dismissing the case.
(Id. at ¶ 19 and Ex. 5.)
On June 28, 2011 the Consulate sent plaintiffs a letter denying
Herrera’s Visa Application.
(Compl. [1] at ¶ 20 and Ex. 6.)
The
stated reason for the denial was that the Consulate had “reason to
believe” that Herrera had been involved in drug trafficking.
(Id.)
The Consulate’s decision was presumably based on Herrera’s 1995 drug
arrest.
Pursuant to the Immigration and Nationality Act (“INA”), an
applicant is ineligible for an immigrant visa if a consular officer
“knows or has reason to believe” that the applicant “is or has been
an illicit trafficker in any controlled substance” or “is or has been
a knowing aider, abettor, assister, conspirator, or colluder with
others” in such trafficking.
8 U.S.C. § 1182(a)(2)(C)(I).
Plaintiffs filed this lawsuit in an attempt to obtain judicial
review of the Consulate’s decision on Herrera’s visa. (Compl. [1] at
8.)
In their complaint, plaintiffs assert claims against defendants
under
the
Declaratory
Judgment
Act,
28
U.S.C.
§
2201,
the
Administrative Procedures Act, 5 U.S.C. § 701, and the Mandamus Act,
28 U.S.C. § 1361.)
plaintiffs
seek
(Id. at 3.)
injunctive
and
3
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On the basis of those claims,
declaratory
relief
compelling
defendants to: (1) find that there is insufficient “reason to
believe” that Herrera is or was a drug trafficker and (2) issue an
Immigrant Visa to Herrera.
(Id. at 2.)
Defendants have filed a
motion to dismiss the complaint for lack of jurisdiction under
Federal Rule 12(b)(1) and for failure to state a claim under Federal
Rule 12(b)(6).
(Defs.’ Mot. to Dismiss [5].)
DISCUSSION
I.
APPLICABLE STANDARDS
A.
Rule 12(b)(1)
“‘Federal
courts
are
courts
of
limited
jurisdiction.’”
Federated Mut. Ins. Co. v. McKinnon Motors, LLC, 329 F.3d 805, 807
(11th Cir. 2003)(quoting Burns v. Windsor Ins. Co., 31 F.3d 1092,
1095 (11th Cir. 1994)).
A party invoking federal jurisdiction thus
“bears the burden of establishing its existence.”
Parker v. Scrap
Metal Processors, Inc., 386 F.3d 993, 1003 (11th Cir. 2004).
That
party must allege facts sufficient to show jurisdiction and, when the
Court’s jurisdiction is appropriately challenged, support those facts
by competent evidence.
McNutt v. Gen. Motors Acceptance Corp. of
Indiana, Inc., 298 U.S. 178, 189 (1936).
As suggested by McNutt, the Court may consider evidence outside
of the pleadings to determine whether it has jurisdiction.
See
Goodman ex rel. Goodman v. Sipos, 259 F.3d 1327, 1332 (11th Cir.
2001)(citing Smith v. GTE Corp., 236 F.3d 1292, 1299 (11th Cir.
4
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2001)).
To that end, the Court has the power to grant a Rule
12(b)(1) motion on any of three separate bases:
“(1) the complaint
alone; (2) the complaint supplemented by undisputed facts evidenced
in the record; or (3) the complaint supplemented by undisputed facts
plus the Court’s resolution of disputed facts.”
McElmurray v.
Consol. Gov’t of Augusta-Richmond Cnty., 501 F.3d 1244, 1251 (11th
Cir. 2007)(citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.
1981)).
In a case involving disputed facts, however, it may be
necessary to provide an opportunity for discovery and a hearing “that
is appropriate to the nature of the motion to dismiss.”
Id.
In this case, the Court is able to decide the jurisdiction
question without resolving any factual disputes. For purposes of the
motion to dismiss, the Court assumes all of the allegations in the
complaint are true and construes all facts in favor of plaintiffs.
Accordingly, discovery and a hearing are not necessary.
B.
Rule 12(b)(6)
In deciding a motion to dismiss for failure to state a claim,
the Court assumes that all of the allegations in the complaint are
true and construes the facts in favor of the plaintiff.
Scott, 610 F.3d 701, 705 (11th Cir. 2010).
Randall v.
So viewed, a complaint
“must contain sufficient factual matter, accepted as true, to ‘state
a claim [for] relief that is plausible on its face’” in order to
survive a motion to dismiss under Federal Rule 12(b)(6). Ashcroft v.
5
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Iqbal, 556 U.S. 662, 678 (2009)(quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
A claim is “facial[ly] plausib[le]” when
it is supported with facts that “allow[] the court to draw the
reasonable inference that the defendant is liable for the misconduct
alleged.”
II.
Id.
CONSULAR NONREVIEWABILITY
Defendants
support
of
cite
both
12(b)(6) argument.
the
their
consular
nonreviewability
jurisdictional
challenge
and
doctrine
their
in
Rule
(Defs.’ Br. in Supp. of Mot. to Dismiss (“Defs.’
Br.”) [5] at 1.) The consular nonreviewability doctrine reflects the
longstanding principle that national immigration policy is entrusted
to the political branches of government, and is largely immune from
judicial inquiry and interference.
See United States ex rel. Knauff
v. Shaughnessy, 338 U.S. 537, 544 (1950)(“[w]hatever the procedure
authorized by Congress is, it is due process as far as an alien
denied entry is concerned”) and The Kuei Liu v. INS, 645 F.2d 279,
285 (5th Cir. 1981)(“Nor is it within the ambit of our review to
consider the actions of the American Consul in . . . Canada”).2
The
doctrine holds that “a consular official’s decision to issue or
withhold a visa is not subject to judicial review.”
2
De Castro v.
Decisions of the former Fifth Circuit rendered prior to
October 1, 1981, are binding precedent in the Eleventh Circuit.
Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981)(en
banc). Te Kuei Liu was decided on May 15, 1981.
6
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Fairman, 164 Fed. App’x 930, 932 (11th Cir. 2006).
It has been
applied by the Supreme Court, and by every Circuit Court that has
been asked to review the visa determination of a US consul.
Id. at
932-33 (collecting consular nonreviewability cases from the Supreme
Court and the 2nd, 5th, 8th, 9th and D.C. Circuits).
Assuming all of the allegations in the complaint are true, there
is no question that the consular nonreviewability doctrine applies to
this case.
The basis for the claims asserted in the complaint is the
alleged wrongful finding by the US Consulate in Mexico of “reason to
believe” that Herrera is or was a drug trafficker, and its denial of
Herrera’s Immigrant Visa Application on that ground.
2.)
(Compl. [1] at
As relief, plaintiffs seek a declaration from the Court that
Herrera is eligible for an Immigrant Visa as a matter of law and an
order compelling the US Consulate to issue a Visa to Herrera.
(Id.)
Numerous courts, including the Eleventh Circuit and the pre-split
Fifth Circuit, have rejected similar claims on jurisdictional grounds
pursuant to the consular nonreviewability doctrine.
See De Castro,
164 Fed. App’x at 932 and The Kuei Liu, 645 F.2d at 285.
A.
Review Under The APA Is Unavailable In This Case.
In spite of the above well-settled authority, plaintiffs contend
that the Court retains jurisdiction to review Herrera’s visa denial
under the Administrative Procedures Act (“APA”).
(Pls.’ Resp. to
Defs.’ Mot. to Dismiss (“Pls.’ Resp.”) [6] at 2.)
Although the APA
7
AO 72A
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generally
provides
for
judicial
review
of
final
agency
determinations, the Act expressly precludes review if the operative
statute disallows it or if the action at issue is committed to agency
discretion by law.
5 U.S.C. § 701(a)(1) and (2).
The Act further
provides that the right to judicial review of agency action may be
limited by preexisting legal or equitable doctrines. 5 U.S.C. § 702.
Courts have uniformly held that immigrant visa denials lie
within one of these categories of unreviewable agency decisions under
the APA.
See Haitian Refugee Ctr., Inc. v. Baker, 953 F.2d 1498,
1505-06 (11th Cir. 1992)(“judicial review under the APA is foreclosed
because the relevant provisions of the INA provide the sole and
exclusive
avenue
for
judicial
review”)
and
Saavedra
Bruno
v.
Albright, 197 F.3d 1153, 1158-59 (D.C. Cir. 1999)(dismissing a claim
seeking judicial review of a visa denial under the APA).
As the D.C.
Circuit Court explained in Saavedra Bruno, courts have generally
inferred that the immigration laws “preclude judicial review” of
consular
visa
decisions.
Saavedra
Bruno,
197
F.3d
at
1160.
Alternatively, courts have concluded that the doctrine of consular
nonreviewability, which predates the passage of the APA, is one of
the “limitations on judicial review” that is expressly preserved in
the APA.
Id.
Contrary
to
the
suggestion
of
plaintiffs,
passage
of
the
Homeland Security Act of 2002 does not alter this analysis or even
8
AO 72A
(Rev.8/82)
arguably give rise to a right of judicial review under the APA.
Among
other
Secretary
things,
of
Homeland
the
Homeland
Security
Security
and
intervene in certain visa decisions.
(c)(1).
the
Act
authorizes
Secretary
of
State
the
to
6 U.S.C. § 236(b)(1) and
Plaintiffs thus cite the Act as evidence that the authority
to issue visas is not exclusive to consular officers.
[6] at 2.)
(Pls.’ Resp.
Be that as it may, the Homeland Security Act does not
authorize courts to intervene in or review consular visa decisions.
Moreover, the Act expressly preserves the autonomy of consular
officers with respect to visa denials.
Id. at (b)(1).
To that end,
the Act states that the Secretary “shall not have authority to alter
or reverse the decision of a consular officer to refuse a visa to an
alien.”
B.
Id.
The Mandel Exception Is Inapplicable.
Plaintiffs also urge the Court to apply the narrow exception to
consular nonreviewability that has emerged from the Supreme Court’s
decision in Kleindienst v. Mandel, 408 U.S. 753 (1972).3
3
The Mandel
Plaintiffs apparently concede that there is no factual or
legal basis for applying any of the other limited exceptions to
consular nonreviewability. See Martinez v. Bell, 468 F. Supp. 719,
725-26 (D.C.N.Y. 1979)(holding that the court could examine the
constitutionality of an underlying immigration statute without
violating the consular nonreviewability doctrine) and Patel v. Reno,
134 F.3d 929, 933 (9th Cir. 1998)(granting judicial review where a US
consulate refused to take any action on a visa application).
9
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Court reiterated that “an unadmitted and nonresident alien . . .
ha[s]
no
constitutional
right
nonimmigrant or otherwise.”
of
entry
to
Id. at 762.
this
country
as
a
Nevertheless, the Court
indicated that limited review of a consul’s decision to deny a visa
may be available where the decision implicates the constitutional
rights of a US citizen.4
Id. at 769-70.
Where applicable, Mandel
authorizes a court to ensure that a visa denial is based on a
“facially legitimate and bona fide reason.”
Id.
Based on the allegations in the complaint, the Mandel exception
does not apply to this case.
The Court can infer from the complaint
that plaintiff Williams is a US citizen.
However,
Williams
constitutional
does
rights
not
were
allege
violated
in
by
(Compl. [1] at ¶ 15.)
the
complaint
Herrera’s
that
visa
her
denial.
Rather, plaintiffs allege that the visa denial exacted generalized
harms
on
potential
both
loss
authorization.”
Williams
of
work
and
Herrera
such
authorization,
as
“grief,
[and]
loss
hardship,
of
travel
(Id. at ¶ 13.)
Plaintiffs suggest in their response brief that Herrera’s visa
denial impinges on Williams’ constitutionally protected right to
marry.
(Pls.’ Resp. [6] at 4.)
The Due Process Clause protects a
4
The plaintiffs in Mandel were US citizens. Mandel, 408 U.S.
at 756.
They claimed that the exclusion of a Communist Belgian
citizen violated their First Amendment rights. Id. at 759-60.
10
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citizen’s “freedom of personal choice in matters of marriage and
family life.”
40 (1974).
Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-
But numerous courts have held that neither deportation
nor denial of a spouse’s immigrant visa infringes upon that freedom.
See Jathoul v. Clinton, 880 F. Supp. 2d 168, 171 (D. D.C. 2012)
(collecting cases from the 2nd, 6th and D.C. Circuits). These courts
have reasoned that, while an American citizen has the constitutional
right
to
marry
whomever
she
chooses,
she
does
not
have
a
constitutional right to have that person live in the United States.
Bangura
v.
Hansen,
434
F.3d
487,
496
(6th
Cir.
2006)(“‘[t]he
Constitution does not recognize the right of a citizen spouse to have
his or her alien spouse remain in the country’”)(quoting Almario v.
Att’y Gen., 872 F.2d 147, 151 (6th Cir. 1989)).
See also Burrafato
v. U.S. Dep't of State, 523 F.2d 554, 555 (2d Cir. 1975)(“no
constitutional right of a citizen spouse is violated by deportation
of his or her alien spouse”).5
The Eleventh Circuit has indicated its agreement with the above
cases, albeit in an unpublished decision.
5
De Castro v. Fairman, 164
But see Bustamante v. Mukasey, 531 F.3d 1059, 1063 (9th Cir.
2008)(applying Mandel review to a consul official’s decision to deny
a spousal immigrant visa, but upholding the decision as “facially
legitimate and bona fide”). The Court notes that in Bustamante, the
Ninth Circuit accepted the plaintiff’s constitutional allegation at
face value, rather than analyzing whether her spouse’s visa denial
actually implicated any of the plaintiff’s constitutional rights.
Id.
11
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Fed. App’x 930, 933 (11th Cir. 2006).
Court
rejected
the
spousal
plaintiffs in this case.
Id.
due
In De Castro, the Circuit
process
argument
advanced
by
Moreover, the Court is persuaded by
the reasoning of cases like Jathoul and Bangura.
Although Herrera’s
exclusion from the United States may impose burdens on plaintiffs’
marriage, it does not “destroy the legal union which the marriage
created.”
Jathoul, 880 F. Supp. 2d at 172 (citing Swartz v. Rogers,
254 F.2d 338, 339)(D.C. Cir. 1958)).
As such, there is no basis for
reviewing Herrera’s visa denial under Mandel.
Even assuming Williams’ constitutional rights were implicated,
plaintiffs have not alleged a plausible claim for relief under
Mandel.
See Iqbal, 556 U.S. at 678.
extremely limited.
As discussed, Mandel review is
Mandel, 408 U.S. at 769.
A consulate’s decision
to deny an immigrant visa will be upheld under Mandel as long as the
decision is based on a “facially legitimate and bona fide” reason.
Id.
See also Gonzalez v. Reno, 212 F.3d 1338, 1354 (11th Cir.
2000)(suggesting that a “legitimate and bona fide” review is more lax
than the review required by the “arbitrary, capricious, or [] abuse
of discretion” standard).
It is apparent from the complaint and its
exhibits that Herrera’s visa denial meets both requirements.
Plaintiffs acknowledge in the complaint that Herrera’s visa was
denied because the US Consulate determined that there was “reason to
believe” Herrera is or was a drug trafficker.
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(Compl. [1] at 2.)
That clearly is a facially legitimate reason.
The INA expressly
designates as inadmissible any visa applicant whom the consul “knows
or has reason to believe . . . is or has been an illicit trafficker
in any controlled substance.”
8 U.S.C. § 1182(a)(2)(C)(I).
The exhibits to the complaint further show that the denial was
bona fide.
In his visa application, Herrera disclosed that he had
been arrested in 1995 on a drug charge.
(Compl. [1] at Ex. 2-B.)
Related documents, which were provided to the Consulate, show that
the arrest occurred while Herrera was in the United States on a
tourist visa, traveling on a Greyhound bus from Los Angeles to
Chicago.
(Id. at Ex. 5.)
During a stop in Denver, Colorado, a
police officer conducted a routine search of the bus’s luggage with
a drug-sniffing dog.
(Id.)
The dog alerted to Herrera’s bag.
(Id.)
The officer conducting the search connected the bag to Herrera via
the bag number and asked Herrera for his name.
(Id.)
Herrera said
his name was “Chris Estevez”--a falsehood that the officer discovered
after inspecting Herrera’s photo identification.
(Compl. [1] at Ex.
5.) When police subsequently searched Herrera’s bag, it was found to
contain approximately half a pound of methamphetamine.
(Id.)
Herrera claims that the methamphetamine found in his bag in 1995
was placed there by a traveling companion, and that he never has been
involved in drug trafficking.
(Pls.’ Resp. [6] at 5.)
However,
Herrera does not explain why he provided a false name to his
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arresting officer or why he was traveling from Los Angeles to Chicago
with
a
companion
who
was
transporting
methamphetamine.
More
generally, plaintiffs fail to allege that the consular officer who
processed Herrera’s visa application did not in good faith believe
the information he had.
To prevail under Mandel, it is not enough to
simply allege that the consular official’s information was incorrect,
as plaintiffs have done here.
Bustamante, 531 F.3d at 1062-63
(upholding an immigrant visa denial as facially legitimate and bona
fide).
Herrera also points out that the drug charges against him were
dismissed.
(Id.)
But the dismissal order does not explain why the
charges were dismissed.
(Compl. [1] at Ex. 5.)
And in any case, a
conviction is not necessary to support the consul’s decision under
the INA.
All the statute requires is that the consular officer have
“reason to believe” that the applicant is or was involved in drug
trafficking. 8 U.S.C. § 1182(a)(2)(C)(I). The documents reviewed by
the Consulate were sufficient in that regard.6
6
Garces v. U.S. Att’y Gen., 611 F.3d 1337 (11th Cir. 2010) is
inapposite. Plaintiffs cite the case for the proposition that one
drug arrest cannot be grounds for the exclusion of an alien. (Pls.’
Resp. [6] at 6.) However, the Court in Garces court was reviewing a
BIA decision to deport a foreigner who had lived in this country for
nearly three decades, rather than a Consul’s decision to deny an
immigrant visa. The applicable standard in Garces was whether the
BIA’s decision was “supported by reasonable, substantial, and
probative evidence on the record considered as a whole.”
Id. at
1346. A “facially legitimate and bona fide” review under Mandel is
14
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CONCLUSION
Based on the facts alleged in the complaint, the consular
nonreviewability doctrine precludes the Court’s review of Herrera’s
visa application.
any
of
the
There is no factual or legal basis for applying
limited
exceptions
to
the
doctrine
in
this
case.
Accordingly, defendant’s motion to dismiss [5] is GRANTED. The clerk
is directed to DISMISS and CLOSE this action.
SO ORDERED, this 15th day of MARCH, 2013.
/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE
more deferential and constrained.
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