Adeyemo et al v. Clinton et al

Filing 17

MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 2/7/13. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
MONISOLA A. ADEYEMO, ET AL.
:
v.

:

Civil Action No. DKC 12-0874

:
JOHN F. KERRY, ET AL.
:
MEMORANDUM OPINION
Presently pending and ready for review in this immigration
case is the motion to dismiss filed by Defendants John F. Kerry
and Joseph D. Strafford, III (ECF No. 11).1

The issues have been

fully briefed, and the court now rules, no hearing being deemed
necessary.

Local Rule 105.6.

For the following reasons, the

motion to dismiss will be granted.
I.

Background
The

complaint

alleges

the

following

facts.

Monisola Adeyemo and Juliana Ogunlusi are sisters.

Plaintiffs
Adeyemo is a

U.S. citizen and resides in Maryland; Ogunlusi is a Nigerian
citizen and resides there.

In June 1998, Adeyemo petitioned the

Immigration and Naturalization Service to classify Ogunlusi as a
sister of a U.S. Citizen, so that she could obtain an immigrant
visa.

This

1

petition

was

approved,

and

in

November

2008,

Pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure, the current Secretary of State, John F. Kerry, has
been substituted for former Secretary Hillary Rodham Clinton.

Ogunlusi applied for an immigrant visa with the U.S. Department
of State.
Nigeria.

She was interviewed at the U.S. Consulate in Lagos,
Included in Ogunlusi’s application were the names of

her three children, with whom she intended to immigrate.

The

consular officer required Ogunlusi and her children to submit to
a DNA test to verify their familial relationship.
excluded
children.

Ogunlusi

as

the

biological

mother

of

The results
one

of

the

Plaintiffs allege, however, that Ogunlusi raised the

excluded child from birth as her own and was completely unaware
of the possibility that the child might not be her biological
child.
On
denied.

January

26,

2012,

Ogunlusi’s

visa

application

was

The consular officer concluded that she was ineligible

because she qualified as a smuggler under the Immigration and
Nationality Act, 8 U.S.C. § 1182(a)(6)(E)(i).2
Plaintiffs filed a complaint with this court on March 21,
2012,

seeking

(ECF No. 1).

to

set

aside

the

consular

decision.

Defendants filed a motion to dismiss on June 21,

2012, which Plaintiffs opposed (ECF No. 14).
reply.

officer’s

Defendants filed a

(ECF No. 15).

2

This statute provides:
“Any alien who at any time
knowingly has encouraged, induced, assisted, abetted, or aided
any other alien to enter or to try to enter the United States in
violation of law is inadmissible.” 8 U.S.C. § 1182(a)(6)(E)(i).
2

II.

Standard of Review
Defendants

argue

that

this

court

does

not

matter jurisdiction over Plaintiffs’ claims.

have

subject

Plaintiffs bear

the burden of proving that subject matter jurisdiction properly
exists in federal court.

See Evans v. B.F. Perkins Co., a Div.

of Standex Int’l Corp., 166 F.3d 642, 647 (4th Cir. 1999).
considering

a

Rule

12(b)(1)

motion,

the

court

“may

In

consider

evidence outside the pleadings” to help determine whether it has
jurisdiction over the case before it.

Richmond, Fredericksburg

& Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.
1991); see also Evans, 166 F.3d at 647.

The court should grant

such a motion “only if the material jurisdictional facts are not
in dispute and the moving party is entitled to prevail as a
matter of law.”

Richmond, 945 F.2d at 768.

III. Analysis
Although Defendants have framed their argument in terms of
“subject matter jurisdiction,” the issue is more aptly concerned
with whether normal subject matter jurisdiction is overcome by
the

doctrine

of

consular

nonreviewability.

This

subtle

difference was discussed in Am. Acad. of Religion v. Napolitano,
573 F.3d 115, 123 (2d Cir. 2009):
The Supreme Court has cautioned that the
term
“jurisdiction”
is
often
used
imprecisely, see Kontrick v. Ryan, 540 U.S.
443, 454-55 (2004). We do not believe that
traditional subject matter jurisdiction is
3

lacking in this case. The Plaintiffs allege
that the denial of Ramadan’s visa violated
their First Amendment rights, and subject
matter jurisdiction to adjudicate that claim
is clearly supplied by 28 U.S.C. § 1331.
See Abourezk v. Reagan, 785 F.2d 1043, 1050
(D.C.Cir. 1986) (“The district court had
subject matter competence in this case
[involving visa denials] under both its
general federal question jurisdiction, see
28 U.S.C. § 1331 (1982), and its specific
jurisdiction over claims arising under the
Immigration and Nationality Act, see 8
U.S.C. § 1329 (1982) [repealed]”), aff’d by
an equally divided court, 484 U.S. 1 (1987);
Burrafato v. U.S. Dep’t of State, 523 F.2d
Cir.
1975)
(noting
that
554,
557
(2d
[Kleindienst
v.]
Mandel
[408
U.S.
753
(1972)] considered “an alleged violation of
First Amendment rights of American citizens
over which the federal courts clearly had
jurisdiction”) (emphasis added).
Perhaps
the doctrine of consular nonreviewability,
where applicable, means that the generally
available
federal
question
jurisdiction
provided by section 1331 to adjudicate First
Amendment claims is withdrawn where the
claim is based on a consular officer’s
denial of a visa, or that prudential
considerations,
perhaps
arising
from
separation
of
powers
concerns,
counsel
against
exercising
normally
available
jurisdiction.
Regardless

of

nonreviewability

its

label,

prohibits

the

doctrine

judicial

review

of
a

of

consular
consular

officer’s decision to grant or deny a visa to foreign nationals.
See, e.g., U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543
(1950)

(finding

court,

unless

determination

that

“it

expressly
of

the

is

not

within

authorized

political
4

by

branch

the

province

law,
of

the

to

of

any

review

the

Government

to

exclude a given alien”); Onuchukwu v. Clinton, 408 F. App’x 558,
560 (3d

Cir. 2010) (per curiam) (unpublished);

Bustamante v.

Mukasey, 531 F.3d 1059, 1060–61 (9th Cir. 2008); Saavedra Bruno
v. Albright, 197 F.3d 1153, 1159–60 (D.C.Cir. 1999); Adams v.
Baker, 909 F.2d 643, 649 (1st Cir. 1990); Centeno v. Shultz, 817
F.2d 1212, 1213–14 (5th

Cir. 1987) (per curiam);

Sec’y,

No.

Dep’t

of

State,

6:11–cv–1296–Orl31DAB,

Schutz v.
2012

WL

275521, at *1 (M.D.Fla. Jan. 31, 2012); Romero v. Consulate of
U.S., Barranquilla, Colombia, 860 F.Supp. 319, 322, 324 (E.D.Va.
1994).

“Importantly,

the

doctrine

of

nonreviewability

of

consular officers’ visa determinations is essentially without
exception.”

Romero, 860 F.Supp. at 322.

Plaintiffs
nonreviewability

argue
does

that
not

the

apply

doctrine

because

the

of

consular

complaint

raises

allegations that the rights of Adeyemo, a U.S. citizen, were
violated by the consular officer’s decision.

The Fourth Circuit

has not addressed the issue, but other circuits have found a
limited exception to the doctrine of consular nonreviewability
where a U.S. citizen asserts a violation of a constitutional
right.3

See, e.g., Am. Acad. of Religion, 573 F.3d at 125

3

Judicial review in such a case was first described in
Mandel, 408 U.S. 753.
Because “Congress has delegated
conditional exercise” of its “plenary . . . power to make
policies and rules for exclusion of aliens” to the executive
branch, the United States Supreme Court has held that judicial
5

(concluding that “where a plaintiff, with standing to do so,
asserts a First Amendment claim to have a visa applicant present
views in this country, we should apply Mandel to a consular
officer’s

denial

of

a

visa”);

Bustamante,

531

F.3d

at

1061

(noting that “courts have identified a limited exception to the
doctrine [of consular nonreviewability] where the denial of a
visa implicates the constitutional rights of American citizens”)
(citations

omitted);

Saavedra

Bruno,

197

F.3d

at

1163-64

(“Judicial review was proper . . . when United States sponsors
of a foreign individual claim that the State Department’s denial
of a visa to an alien violated their constitutional rights”).
Defendants point out that this exception is limited, and
applies only where a plaintiff actually alleges a constitutional
violation

in

his

or

her

complaint.

The

complaint

does

allege that Adeyemo’s constitutional rights were violated.
argument is first raised in her opposition:

not
This

“Ms. Adeyemo, as a

U.S. citizen, has a protected liberty interest in her family
life protected under the Due Process Clause.”
8).

(ECF No. 14-1 at

Such a claim, raised for the first time in Plaintiffs’

review of consular decisions to deny visa applications is
significantly circumscribed. Id. at 770. The consular decision
need only be based on “a facially legitimate and bona fide
reason.” Id.; see also Bustamante, 531 F.3d at 1062 (affirming
visa denial because consular officer’s reasoning was both
facially legitimate and bona fide under Mandel inquiry). Where
such a reason is given, courts will not “look behind the
exercise of that discretion.” Mandel, 408 U.S. at 770.
6

opposition to a dispositive motion, is not properly before the
court.4
Furthermore, it appears that, even if the complaint had
raised this claim, it would not survive a motion to dismiss
under

rule

Amendment

12(b)(6).
provides

The
certain

Due

Process

substantive

Clause

of

rights,

the

Fifth

including

“[f]reedom of personal choice in matters of marriage and family
life.”

Bustamante, 531 F.3d at 1062 (upholding visa denial

under Mandel where U.S. citizen brought constitutional claims
when alien husband was denied a visa).

The Fourth Circuit’s

willingness to acknowledge this right is limited and does not
extend to familial association with one’s siblings.

See Shaw v.

Stroud, 13 F.3d 791, 805 (4th Cir. 1994) (refusing “to recognize
a substantive due process claim arising from the deprivation of
the love and support of a family member”) (citations omitted);
Kangalee v. Baltimore City Police Dep’t, No. 12-1566, 2012 WL

4

The allegations of the complaint relate solely to the
alleged error of the consular official and Ogunlusi’s inability
to challenge his decision at the consular level. To the extent
that
the
complaint
alleges
violations
of
Ogunlusi’s
constitutional rights, they will not be reviewed because she is
a “non-admitted, not-physically present alien.”
Ramirez v.
Clinton, No. 12-252, 2013 WL 227732, at *4 (E.D.N.C. Jan 22,
2013) (invoking doctrine of consular nonreviewability to deny
judicial review of permanent resident’s alien son’s visa denial
because, inter alia, son has no constitutionally protected
rights).
As an unadmitted, offshore alien, Ogunlusi has no
standing to challenge the denial of her entry.
7

5457231, at *6 (D.Md. Nov. 7, 2012) (refusing to acknowledge
substantive due process claims for loss of familial association
with

brother);

Williard

v.

City

of

Myrtle

Beach,

SC,

728

F.Supp. 397, 400 (D.S.C. 1989) (concluding that parents’ right
to

liberty

interest

in

familial

association

is

usually

only

available where they have “alleged a permanent, physical loss of
association
(emphasis

with
in

F.Supp.2d

their

child

original);

168,

172

due

see

to

also

(D.D.C.

unlawful

Jathoul

2012)

state

v.

action”)

Clinton,

(dismissing

880

complaint

challenging consular decision to deny citizen’s alien husband a
visa where citizen lacked liberty interest in living in United
States with her spouse).
Moreover, to be viable, any such claim would have to allege
that Defendants lacked a good faith basis for denying the visa.
As set forth in Bustamante, 531 F.3d at 1062:
under Mandel, a U.S. citizen raising a
constitutional challenge to the denial of a
visa is entitled to a limited judicial
inquiry
regarding
the
reason
for
the
decision. As long as the reason given is
facially
legitimate
and
bona
fide
the
decision will not be disturbed. 408 U.S. at
770.
Plaintiffs do not challenge the accuracy of the DNA tests or the
good

faith

smuggler.

reliance
Rather,

on

them

they

to

only

deny
claim

the
that

visa

as

Ogunlusi

an

alien

herself

believed in good faith that the child was her biological child.

8

IV.

Conclusion
For the foregoing reasons, the motion to dismiss filed by

Defendants John F. Kerry and Joseph D. Strafford, III, will be
granted.

A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

9