Macena v. U.S. Citizenship and Immigration Services

Filing 18

MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 11/2/2015. (kns, Deputy Clerk)(c/m 11/2/15)

UNITED STATES DISTRICT COURT
IJISTRICT OF :\IARYLAND

GARRY MACENA,
Plaintiff,

v.
Civil Action No. TDC-14-3464
U.S. CITIZENSHIP AND IMMIGRATION
SERVICES,
Defendant.

MEMORANDUM

OPINION

On November 4, 2014, pro fie Plaintiff Garry Maceoa filed his Complaint against
Defendant U.S, Citizenship and Immigration Services

("use IS")

arising from the denial of a

visa to his fiancee, Rosancttc Poulard, a Haitian national, to enter the United States in order to
marry Maceoa. ECF No. 1. Pending before the

COUIt

is USCIS's Motion to Dismiss, ECF No.

9, in which USCIS asserts that this Court may not review the denial of a visa by a consular
officer at the United States Embassy in Haiti under the doctrine of consular nonreviewability.
Also pending is Macena's Request for Permission to Submit a Surreply. ECF No. 16. The Court
has reviewed the pleadings and briefs, and no hearing is necessary. See D. Md. Local R. 105.6.
For the reasons set forth below, Macena's
GRANTED, and uscrs's

Request for Permission to Submit a Surreply is

Motion to Dismiss is GRANTED.
BACKGROUND

On June 18,2013,

Macena filed a Petition for Alien Fiancee (the "K-I Petition") on

behalf of his fiancee, Rosanette Poulard, in which he sought a nonimmigrant visa for Poulard to
enter the United States for their wedding. USCIS approved Macena's K-l Petition on December

11,2013 and forwarded it to the United States Department of State ("DOS").

On May 29, 2014,

a DOS consular officer interviewed Poulard at the United States Embassy in Port-au-Prince,
Haiti (the "Embassy"), but denied the visa application. The consular officer "refused her the visa
because he thought she was inconsistent with the answers at the interview."

CampI. 2, ECF No.

1.
On November 4, 2014, Macena filed his Complaint against USCIS in \vhich he asks the
Court to order USCIS to reopen the case and grant a visa to Poulard.

Having alleged that he

spent "[I]ots of money" on travel expenses and application fees. Maccna also seeks $20,000 in
damages.

Id. at 3. On April 2, 2015, USCIS filed its Motion to Dismiss.

Macena filed a

Response to the Motion on April 20, 2015, and USCIS filed a Reply Memorandum on April 29,
2015.

On June 17, 2015, Macena filed his Request for Permission to Submit a SUITeply and

attached his proposed submission.
IJISCUSSION
I.

Maccna's Request for Permission to Submit a Surrepl)'
The Court first addresses iv1acena's Request for Permission to Submit a SUITeply. It is

within the sound discretion of district courts to grant leave to tile a sUITeply brief. See FDIC v.
Cashion, 720 F.3d 169, 176 (4th Cir. 2013) (reviewing a district court's decision to grant a
motion to strike a sUITeply under the abuse of discretion standard).

Surreply briefs are not

permitted without leave of the Court. D. Md. Local R. 105.2(a). The Court generally disfavors
sUITep!y briefs and typically does not permit their liling.

In this specific instance, however,

because courts are to construe pro se submissions liberally, see Gordon v. Leeke, 574 F.2d 1147,
liS I (4th Cir. 1978), and because the Court finds no prejudice to USClS from the filing of the

2

surreply brief, it grants the request and will consider Macena's surreply m its analysis and
disposition of the Motion to Dismiss.
II.

USClS's Motion to Dismiss
In its Motion, USCIS principally argues that (I) the Court lacks jurisdiction

Macena's claim under the doctrine of consular nonreviewability;

over

and (2) there is no cause of

action against USCIS because it complied \vith all legal requirements and approved the K-I
Petition. For the reasons set forth below, the Motion is granted.
A. Legal Siandlud
USCIS filed its Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(I)
based on its argument that the Court lacks subject mattcr jurisdiction
consular

nonreviewability.

jurisdictional

under the doctrine of

The la\v is not clear, hO\"rever, whether

that doctrine

IS

a

limitation on federal courts. See Am. Acad of Religion v. Napolitano, 573 F.3d

115, 123 (2d Cir. 2009) (questioning whether consular nonrevicwability

is jurisdictional

and

noting that subject matter jurisdiction may exist under gencral federal question jurisdiction);
Adeyamo v. Kerry, No. DKC 12-0874,2011

WL 498169, at '2 (D. Md. Feb. 7, 2013) (citing

American Academy of Religion and declining to decide \vhether consular nonrevic\'O"ability is a
jurisdictional bar). Particularly where, as USCIS acknowledges, it is not entirely certain whether
Macena's claim in fact challenges the consular officer's determination as opposed to the actions
of USC IS, the Court will treat the Motion as one for failure to state a claim under Rule 12(b)(6).
See Holloway v. Pagan River Dock.>;ideSeafood. Inc., 669 F.3d 448, 452 (4th Cir. 2012)
(emphasizing the distinction between lack of subject matter jurisdiction and failure to state a
claim and cautioning against improperly labeling matters as jurisdictional).

3

To defeat a Rule l2(b)(6) motion, a complaint must allege enough facts to state a
plausible claim for relief.

Asheroji v. Iqbal, 556 U.S. 662, 678 (2009).

A claim is plausible

when "the plaintiff pleads factual content that allows the Court to draw the reasonable inference
that the defendant is liable for the misconduct alleged." Id. Complaints filed by pro se plaintiffs
are "to be liberally construed" and "must be held to less stringent standards than formal
pleadings drafted by lawycrs." Erick.'ion v. Pardus, 551 U.S. 89,94 (2007). Nevertheless, legal
conclusions or conclusory statements do not suffice and are not entitled to the assumption of
truth.

Id.; Nemer Chevrolet, Lrd. v. ConsumerajJairs.com.

Inc., 591 F.3d 250, 255 (4th Cir,

2009). In evaluating the sutliciency of the plaintifl"s claims, courts examine the complaint as a
whole, consider the factual allegations in the complaint as true, and construe the factual
allegations in the light most favorable to the plaintiff.

Albright v. Oliver, 510 U.S. 266, 268

(1994); Lambeth v. Bd. ofComm 'rs of Davidson Cn/y., 407 F.3d 266, 268 (4th Cir. 2005).
D.

USCIS Aclion on the K41 Petition

Although Macena appears to object to the consular officer's refusal to issue a visa to
Poulard, this action is brought against USCIS, and the relief sought by Macena is an injunction
requiring USCIS to "reopen the case" and to "grant Ms. Poulard the K-l visa." CampI. 2. On
the issue of whether USCIS should be required to grant the visa, Macena has failed to state a
plausible claim against USCIS because under the legal regime for the issuance of nonimmigrant
visas to fiancees of U.S. citizcns, USCIS had no role in the denial of the visa and has no
authority to issue it. The Immigration and Nationality Act ("INA"), 8 U.S.c.

SS

1101-537

(2012), and the relevant regulations delineate the various steps to be completed to obtain a K-l
visa and the ditTering roles of USCIS and DOS oflicials at embassies around the world. The
process begins when a U.S. citizen tiles a petition for a nonimmigrant visa for thc petitioner's

4

foreign national fiance or fiancee to enter the United States for the purpose of marrying the
petitioner within 90 days of entry.

S

8 U.S.C.

1184(d)(I);

8 C.F.R.

S

214.2(k)(5) (2015).

USCIS, a component of the United States Department of Homeland Security, is charged with
reviewing and approving petitions based on a number of statutory and regulatory factors. See 8
U.S.C.

S

1184(d)(I), (2) (describing the role of the Secretary of Homeland Security); 8 C.F.R.

214.2(k).

S

If USCIS approves a petition, USCIS forwards it to DOS, which sends it to the

American embassy in home country of the fiance or fiancee. The approval of the petition is valid
for four months from the date that USCIS approved it. 8 C.F.R.

S 214.2(k)(5).

At the embassy, a DOS consular officer is charged with issuing the actual visa. See 8
USC.

S

1184(d)(I); 8 U.S.C.

S

1201(a)(I) (stating that consular officers issue immigrant and

nonimmigrant visas). The consular oflicer, however, may refuse to issue the visa if the consular
officer "knows or has reason to believe" that the person seeking the visa is ineligible to receive
it. 8 U.S.c.

S

1201(g); 22 C.F.R.

S 41.121.

The person seeking the visa has the burden to prove

eligibility, and "riJfsuch person fails to establish to the satisfaction of the consular officer that he
is eligible to receive a visa or other document required for entry, no visa ...
such person." 8 U.S.c.

S

shall be issued to

1361. In the event of such a refusal, the consular officer is required to

"inform the alien of the ground(s) of ineligibility."

22 C.F.R. S 41.121 (b)( I).

Here, Macena does not dispute that USCIS approved his K-1 Petition in December 2013
and fOf\varded it to DOS, whose consular officer refused to issue the visa. The Complaint's
demand that USCIS issue the visa is therefore misplaced. Because USCIS has no authority to
issue the visa, Macena cannot state a plausible claim for this relief against USCIS.
Macena also claims that USCIS should be required to "reopen the case," USCIS has
asserted that following the consular official's action, the K-1 Petition was returned to USCIS on

5

December 4, 2014. Because the four-month period of validity had ended in April 2014,

uscrs

administratively closed the ease tile. Macena, hO\vever, alleges in his Response that since the
filing of his Complaint, information on the USCIS website stated that the K-I Petition \vas
"reapproved" and sent to DOS. PL's Resp. at 3. He further alleges that he spoke to a USCIS
official in January 2015 and received a letter from USCIS in February 2015 stating that the case
was back at the Embassy in Haiti. He claims to have scheduled another appointment for Poulard
with a consular officer.

On March 25, 2015, however, Poulard was informed that the

appointment needed to be canceled because the Embassy had no pending petition or tile. In the
same time frame, USCIS sent a letter to Macena on March 20, 2015 informing him that the
Embassy had returned the K-I Petition because a consular official had refused to issue the visa,
that the K-l Petition had expired, and that the file had been administratively closed.
Although there may be a factual dispute on whether USCIS reapproved the K-I Petition,
the Court need not resolve that dispute or consider the information submitted outside the
pleadings.

There is no dispute that the K-I Petition has now been closed, "vhether in December

2014 or March 2015.
"reopen the case."

At issue is \vhether Macena has a plausible claim that USCIS must

Compl. 2. There can be no dispute that the original K-l Petition, which is

valid for four months, expired in April 2014.

See 8 C.F.R. ~ 214.2(k)(S).

The applicable

regulations provide that "[a] petition which has expired due to the passage of time may be
revalidated by a director or consular officer for a period of four months from the date of
revalidation upon a finding that the petitioner and K-l beneficiary are free to marry and intend to
marry each other within 90 days of the beneficiary's

entry into the United States."

Id

It is

unclear whether in this instance, where Macena's K-l Petition expired after a consular officer

6

refused to issue the visa, rather than simply due to the passage of time, that USCIS has the
authority to revalidate it.
Even if it had such discretionary authority, however, USCIS is not required by this
regulation to revalidate the K-I Petition, and Macena has identified no authority for this Court to
require it to do so. A petition for a \'vTitof mandamus under the Mandamus and Venue Act, 28
V.S.c.

S

1361, would fail because "[m]andamus against a public official will not lie unless the

alleged duty to act involves a mandatory or ministerial obligation," and if there is a "clear right
to the relief sought," there is a "clear duty" to do the particular act requested, and "no other
adequate remedy is available."

First Federal Savings & Loan Ass 'n of Durham v. Baker, 860

F.2d 135, 138 (4th Cir. 1988).
revalidated, 8 C.F.R.

S 214.2(k)(5),

The regulation provides only that the petition "may" be
so there is no mandatory requirement or "clear duty" to do

so. As USCIS has acknowledged, the failure to revalidate the original K-I Petition "does not
preclude" a petitioner such as Macena from filing another K-I Petition, so there is an alternative
remedy available. Def.'s Mot. Dismiss 8, ECF NO.9. l11us, construing the factual allegations in
the light most favorable to Macena, the Court finds that he has not stated a plausible claim for
relicf against USCIS.
C.

ConsuJ"r Nonrc\'icwabilit)'

Although USCIS is the named defendant in this case, USCIS maintains that Macena's
Complaint effectively challenges the actions of the consular officer. To the extent that Macena
challengcs the actions of thc consular officer, either the original decision to refuse to issue the
visa, or any subsequent decision not to revalidate the K-l Petition under 8 C.F.R.

S 214.2(k)(5),

the doctrine of consular nonreviewability prevents the Court from reviewing those actions.

7

In general, the Supreme Court has held that "it is not within the province of any court,
unless expressly authorized by law, to revie,,\" the detennination
Government to exclude a given alien."

of the political branch of the

United States ex rei, KnaufJv. Shaughnessy, 338 U.S.

537,543 (1950). Although the United States Court of Appeals for the Fourth Circuit has yet to
address the doctrine of "consular nonreviewability;'

see Adeyemo v. Kerry, No. DKC 12-0874,

2013 WL 498169, at '2 (D. Md. Feb. 7, 2013), other Courts of Appeals have consistently held
that a doctrine of "consular nonreviewability"

precludes courts from reviewing a consular

officer's decision to grant or deny a visa to a foreign national. See, e.g., Am. Acad. of Religion,
573 F.3d at 123; Bustamante v. Ml/kasey, 531 F.3d 1059, 1061 (9th Cir. 2008); City of New York
v. Boker, 878 F.2d 507, 512 (D.C. Cir. 1989).
In one limited circumstance, when a visa is denied in a manner that burdens a citizen's
constitutional rights, courts may review the decision to see if it was made "on the basis of a
facially legitimate and bona fide reason."

Kleindienst v, Mandel, 408 U.S. 753, 770 (1972);

Kerry v. Din, 135 S. Ct. 2128, 2140 (2015) (Kennedy, J. concurring); Am. Academy of Religion,
573 F.3d at 125; Bustamante, 531 F.3d at 1060.
circumstances,

However, outside of these constitutional

the doctrine of consular nonreviewability

is "essentially without exception."

Romero v. Consulate a/the United States, Barranquilla, Columbia, 860 F. Supp, 319, 322 (E.D.
Va. 1994); see also Bustamante, 531 F.3d at 1061 (finding that the constitutional exception to the
doctrine is "limited"),
In his Complaint, Macena did not assert that the denial of Poulard's visa burdened his
constitutional

rights or that there is any other basis for judicial review of the K-I Petition.

Rather, he challenges the consular officer's detcnnination, arguing that the officer "discredited

1Poulard} without proof," rendering futile his payment of wedding expenses, travel costs, and

8

application fees. Compl. 2. This is precisely the type of consular decision that is "not within the
province" of this Court to review. See Shaughnessy, 338 U.S. at 539-40, 543 (upholding the
Auorney General's decision to deny a visa to a U.S. citizen's foreign national wife without a
hearing and solely because "her admission would be prejudicial to the interests of the United
States").

For better or worse, even if the consular officer made erroneous conclusions from the

interview of Poulard, the Court is not in a position to review those conclusions.

See Loza-

Bedoyo v. INS, 410 F.2d 343, 347 (9th Cir. 1969) ("Though erroneous this Court is without
jurisdiction to order an American consular official to issue a visa to any alien whether excludable
or not.").
In his Response to the Motion to Dismiss, Macena arguably asserts a violation of his
constitutional

rights when he asks, "How is [the consular officer] required to inform the

applicant of the reason for the refusal but I have no constitutional[)
officer's decision?"

interest in the consular

PI.'s Resp. 3. Even if this statement could be construed as an amendment to

the Complaint, see Smith v. Blockledge, 451 F.2d 1201, 1202-DJ (4th Cir. 1971) (holding that
the district court should have considered a pro se plaintiff's hand\\Titten document denominated
as "one to 'Further Particularize' the complaint" as an amended complaint), he has not asserted a
plausible constitutional claim. Construed liberally, Macena could be asserting a claim that the
denial of his fiancee's nonimmigrant visa to enter the United States to marry him violated a
constitutionally

protected liberty interest.

However, the Supreme Court recently reversed a

lower court ruling that a U.S. citizen, who challenged the denial of an immigrant visa to her
foreign national husband, has a constitutionally protected liberty interest in living in the United
States \vith her spouse. Kerry v. Din, 135 S. C1. 2128, 2138 (2015). Although only a plurality of
the Supreme Court definitivcly concluded that no such right exists, id., the alleged right at issue

9

here is far more tenuous.

Unlike in Din, \vhere the citizen claimed a constitutional right arising

from her marriage-that

she had a constitutional right to live with her spouse in her home

country-here,

Macena would be claiming a constitutional right arising from his status as a

fiancee. Moreover, the denial of the nonimmigrant K-l visa to Poulard docs not prevent Macena
from marrying Poulard or eventually living with her together.

It only prevents Macena from

having someone with whom he is not yet married enter the United States for a 90-day period to
have a marriage ceremony in the United States. Macena has identified no legal authority for the
proposition that constitutional

rights flow from one's status as a fiancee or that there is a

constitutional right to have a marriage ceremony in the United States.

Indeed, the Supreme

Court's failure to endorse the constitutionally protected liberty interest asserted in Din indicates
that no such authority currently exists. Thus, Macena has not asserted a plausible constitutional
claim that would allow for even a limited review of the consular officer's decision.

I

See Mandel,

408 U.S. at 770. Accordingly, to the extent that Macena seeks review of the consular officer's
determination or an order requiring the consular omcer to grant a visa to Poulard, the doctrine of
consular nonreviewability bars consideration of that claim. Once again, as USCIS notes, Macena
is not precluded from tiling another K-l Petition to restart the process.

Even if such a right existed, Macena would be entitled to judicial review only to determine if
there was a "facially legitimate and bona fide reason" for the consular officer's decision. See
,Handel, 408 U.S. at 770. Although the Court need not reach that issue, it appears that the
explanation provided to Poulard as required by 22 C.F.R. S 41.121 (b)(l), that she was
inconsistent in her responses at the consular interview, would meet this standard, because a
question about the bona tide nature for the relationship would provide a basis for concluding that
she was not eligible for the visa. See 8 U.S.C. ~ I 182(a)(6)(C)(i) (providing that any "alien who,
by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure
or has procured) a visa" may be rendered ineligible for a visa); .Mandel, 408 U.S. at 770; Am.
Acad. of Reli~ion.573 F.3d at 126 (holding that "the identification of both a properly construed
statute that provides a ground of exclusion and the consular officer's assurance that he or she
'"knows or has reason to believe" that the visa applicant has done something fitting within the
proscribed category constitutes a facially legitimate reason"').
I

10

COI'(CLUSIOl\'
For the foregoing reasons, Macena's Request for Permission to Submit a Surreply is
GRANTED, USCIS's Motion to Dismiss is GRANTED, and the case is DISMISSED WITH

PREJUDICE. A separate Order follows.

Date: November 2. 2015

II