ZigZag LLC et al v. Kerry et al
Filing
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Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER - The Court DENIES Plaintiffs' motion for a preliminary injunction, D. 2, and ALLOWS Defendants' motion to dismiss, D. 10.(Hourihan, Lisa)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_________________________________________
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ZIGZAG, LLC and
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MARINA KOSTOCHKA,
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Plaintiffs,
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v.
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JOHN KERRY, U.S. Secretary of State, and
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JULIE KAVANAGH, Consul General of the
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United States, Moscow, Russia,
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Defendants.
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________________________________________ )
Civil Action No. 14-14118-DJC
MEMORANDUM AND ORDER
CASPER, J.
I.
March 10, 2015
Introduction
Plaintiffs ZigZag, LLC (“ZigZag”), a Massachusetts company, and Marina Kostochka
(“Kostochka”), an employee of a Russian-based affiliate of ZigZag (collectively, “Plaintiffs”),
instituted this action seeking a writ of mandamus against Defendants John Kerry and Julie
Kavanagh (collectively, “Defendants”) pursuant to 28 U.S.C. § 1361 and the Administrative
Procedure Act (“APA”), 5 U.S.C. § 706 (2)(A). D. 1. Plaintiffs seek to compel Defendants to
conduct a visa interview for Kostochka at the U.S. Embassy in Moscow “in accordance with all
legal requirements.” Id. at 9. Plaintiffs have also moved for a preliminary injunction to enjoin
Defendants from returning Kostochka’s visa application to U.S. Citizenship and Immigration
Services (“USCIS”) pending the resolution of this action. D. 2. Defendants have moved to
dismiss the complaint, arguing that under the doctrine of consular nonreviewability, the Court
lacks the jurisdiction to review the decision of the consular officer in Moscow denying
1
Kostochka’s visa. D. 10. For the reasons stated below, the Court DENIES Plaintiffs’ motion for
a preliminary injunction, D. 2, and ALLOWS Defendants’ motion to dismiss, D. 10.
II.
Standard of Review
A.
Preliminary Injunction
To obtain a preliminary injunction, the party seeking the injunction must demonstrate:
“1) a substantial likelihood of success on the merits, 2) a significant risk of irreparable harm if
the injunction is withheld, 3) a favorable balance of hardships, and 4) a fit (or lack of friction)
between the injunction and the public interest.” Nieves-Márquez v. Puerto Rico, 353 F.3d 108,
120 (1st Cir. 2003) (citing McGuire v. Reilly, 260 F.3d 36, 42 (1st Cir. 2001)). A preliminary
injunction is an “extraordinary remedy that may only be awarded upon a clear showing that the
plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22
(2008) (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)); see also Voice of the Arab
World Inc. v. MDTV Med. News Now, Inc., 645 F.3d 26, 32 (1st Cir. 2011) (labeling a
preliminary injunction as an “extraordinary and drastic remedy”) (quoting Munaf v. Geren, 553
U.S. 674, 689-90 (2008)).
B.
Motion to Dismiss
In considering a motion to dismiss for failure to state a claim upon which relief can be
granted pursuant to Fed. R. Civ. P. 12(b)(6), the Court will dismiss a complaint or a claim that
fails to plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007). To state a plausible claim, a complaint need not contain
detailed factual allegations, but it must recite facts sufficient to at least “raise a right to relief
above the speculative level . . . on the assumption that all the allegations in the complaint are true
(even if doubtful in fact).”
Id. at 555.
“In determining whether a complaint crosses the
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plausibility threshold, ‘the reviewing court [must] draw on its judicial experience and common
sense.’” García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009) (alteration in original). “This context-specific inquiry does not
demand ‘a high degree of factual specificity.’ Even so, the complaint ‘must contain more than a
rote recital of the elements of a cause of action.’” García-Catalán, 734 F.3d at 103 (internal
citations omitted).
III.
Background
A.
Factual Background
Unless otherwise noted, the Court summarizes the following facts as alleged in the
complaint, D 1.
On May 8, 2014, ZigZag filed a non-immigrant worker visa petition (Form I-129) with
USCIS to allow Kostochka to transfer from the Russian-based affiliate of ZigZag to a U.S.
office.
Id. ¶ 7.
On October 2, 2014, USCIS approved Kostochka’s L-1A visa petition
classifying Plaintiff Kostochka as an intracompany transferee. Id. ¶¶ 1, 7. The approved petition
entitled Kostochka to apply for an L visa under section 101(a)(15)(L) of the Immigration and
Nationality Act (“INA”), 8 U.S.C. § 1101(a)(15)(L). D. 9 at 1. Kostochka subsequently filed an
application for an L-1A visa with the U.S. Embassy’s Consular Section in Moscow, Russia. D. 1
¶ 8.
On October 29, 2014, Kostochka appeared for her visa interview with a copy of the
approved I-129 petition, including the receipt number as per the instructions posted on the
Consular Section’s website. Id. ¶ 9. According to the Foreign Affairs Manual instructions to
consular officers in adjudicating L visa applications, applicants are not required to provide their
approved I-129 petition and “[a]ll petition approvals must be verified either through the Petition
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Information Management Service (PIMS) or through the Person Centric Query Service (PCQS),
in the CCD under the Cross Applications tab.” Id. ¶ 11 (quoting 9 F.A.M. 41.54 N3.2). Once
the petition approval has been verified, consular officers are instructed to “consider this as prima
facie evidence that the requirements for L classification, which are examined in the petition
process, have been met.” Id. The consular officers “may not question the approval of L petitions
without specific evidence, unavailable to DHS at the time of petition approval, that the
beneficiary may not be entitled to status.” Id.
During the interview, however, the consular officer allegedly stated that he did not have
access to copies of Kostochka’s L-1A petition and repeatedly asked her for copies of the
documents that she had submitted to USCIS in support of her L-1A visa petition. Id. ¶ 10. The
consular officer allegedly then “went on an extensive fishing expedition concerning Kostochka’s
prior immigration history and the birth of her child in the United States.” Id. ¶ 22. The consular
officer also challenged the USCIS approval of Kostochka’s change of status while in the United
States from B-2 (visitor) to F-1 (student). Id. ¶ 13. The consular officer informed Kostochka
that “he could not understand how USCIS could have approved [her] L-1A visa petition” even
though the officer admitted that he did not have access to the petition file. Id. ¶ 14.
At the conclusion of the interview, the officer concluded that USCIS’s approval had been
made in error and the officer refused to issue the visa to Kostochka. Id. ¶ 17. The officer
provided Kostochka with a visa refusal letter, which stated that the case was being “sent back to
DHS [Department of Homeland Security, i.e., USCIS] for reconsideration/revocation of
petition.”1 Id. (quoting D. 1-8, Visa Refusal Letter). Although the officer did not provide
Kostochka further reasons for the denial, later that day the Vice Consul of the American
1
A consular officer who denies an L visa is required to return the petition to USCIS. See
22 C.F.R. § 41.54(c).
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Embassy in Moscow, Gavin Piercy, informed Kostochka’s counsel that “[a]fter considerable
review, the Embassy has found compelling reason to send Mrs. Kostochka’s nonimmigrant visa
petition to USCIS with a memorandum for revocation.” Id. ¶ 18 (quoting D. 1-9, Embassy
Response Letter) and D. 1-9 at 2. The Vice Consul further stated that Kostochka’s application
would remain open pending internal deliberations and that as a final decision had not yet been
reached, the Embassy was not required to provide detailed information before the case had been
decided. See D. 9 at 3 (quoting D. 1-9).
B.
Procedural History
Plaintiffs commenced this action on November 8, 2014 seeking a writ of mandamus2
pursuant to 28 U.S.C. § 1361 and the Administrative Procedure Act (“APA”), 5 U.S.C. § 706
(2)(A). D. 1. Plaintiffs subsequently moved for a preliminary injunction to enjoin Defendants
from returning Kostochka’s visa application to USCIS pending the resolution of this action. D.
2. Defendants opposed Plaintiffs’ motion for a preliminary injunction, D. 9, and simultaneously
moved to dismiss the action arguing that the Court lacks the jurisdiction to review the decision of
the consular officer in Moscow denying Kostochka’s visa. D. 1. On January 8, 2015, the Court
heard argument on the pending motions and took the matters under advisement. D. 19.
IV.
Discussion
The INA, 8 U.S.C. § 1101 et seq., contains “the terms and conditions under which aliens
are permitted to enter the United States – either as visitors or immigrants” and apart from certain
limited exceptions (not at issue here0, “an alien must apply for and obtain an immigrant or
2
The Court notes that mandamus is a “drastic and extraordinary” remedy. Cheney v. U.S.
Dist. Court for D.C., 542 U.S. 367, 380 (2004) (citing Ex parte Fahey, 332 U.S. 258, 259–260
(1947); see also Esteves Gonzales v. Embajada De La Republica Dominicana, 497 F. Supp. 2d
279, 280 (D.P.R. 2007) (noting that “[m]andamus is an extraordinary writ reserved for special
situations”); In re City of Fall River, Mass., 470 F.3d 30, 32 (1st Cir. 2006) (same).
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nonimmigrant visa prior to entering the United States.” Adams v. Baker, 909 F.2d 643, 645 (1st
Cir. 1990) (citing 8 U.S.C. §§ 1181(a) and 1182(a)(26)). Nonimmigrant visas, like the one
sought by Kostochka, may be granted for a variety of reasons; however, it is the alien “who bears
the burden of establishing ‘that [she] is eligible to receive such a visa . . . or is not subject to
exclusion under any provision of [the Act] . . .’” Id. (quoting 8 U.S.C. § 1361). And “[i]n no
area is the scope of judicial inquiry more limited than the area of immigration legislation.”
Pishdadiyan v. Clinton, No. 11-CV-10723-JLT, 2012 WL 601907, at *7 (D. Mass. Feb. 7, 2012)
(citations omitted).
A.
Under the Doctrine of Consular Nonreviewability, the Court May Not
Review the Denial of Kostochka’s Visa Application
Under the doctrine of consular nonreviewability, courts are generally not authorized to
review the decisions of consular officers. Adams, 909 F.2d at 649 (explaining that “in the
absence of statutory authorization or mandate from Congress, factual determinations made by
consular officers in the visa issuance process are not subject to review by the Secretary of State,
8 U.S.C. § 1104(a)(1), and are similarly not reviewable by courts”); Saavedra Bruno v. Albright,
197 F.3d 1153, 1159–60, 1162–63 (D.C. Cir. 1999) (noting that “[t]he doctrine [of consular
nonreviewability] 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”). The doctrine provides that
“irrespective of jurisdictional statutes or in the absence of constitutional issues, immigration
disputes generally fall outside the jurisdiction of federal district courts.” Pishdadiyan, 2012 WL
601907, at *13 (citing Chiang v. Skeirik, 582 F.3d 238, 242 (1st Cir. 2009)); United States ex rel.
Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950) (citations omitted) (noting that “it 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”). And, due to “the political nature
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of visa determinations and of the lack of any statute expressly authorizing judicial review of
consular officers' actions, courts adhere to the view that consular visa determinations are not
subject to judicial review.” Pishdadiyan, 2012 WL 601907, at *13 (quoting Saavedra Bruno, 197
F.3d at 1159–60) (internal quotation marks omitted).
Plaintiffs argue, however, that the doctrine of consular nonreviewability should not apply
to this case for two reasons. First, Plaintiffs argue that “[w]hen the court is reviewing the
procedural validity of a consular action rather [than] a visa denial” the doctrine does not apply.
D. 11 at 3. Next, Plaintiffs argue that under the exception articulated by the Supreme Court in
Kleindienst v. Mandel, 408 U.S. 753, 762 (1972), the Court has authority to review visa denials
that lack a “‘facially legitimate and bona fide reason.’” D. 11 at 4-7 (quoting Mandel, 408 U.S.
at 770).
1.
Allegations of Procedural Irregularities Do Not Circumvent the
Doctrine of Consular Nonreviewability
Plaintiffs’ argument that they “are not seeking a review of a consular decision,” D. 11 at
3, is unavailing. Plaintiffs contend that the consular officer who conducted Kostochka’s visa
interview committed multiple procedural and legal errors and, as a result, Kostochka “was never
properly interviewed in connection with her L-1A visa application.” D. 2 at 2. Plaintiffs allege,
in part, that during the October 29, 2014 visa interview, the consular officer did not have access
to Kostochka’s L-1A visa file, which had been approved by USCIS, the officer asked Kostochka
for documentation that she was not required to have and the officer asked Kostochka a series of
inappropriate questions. D. 1 ¶¶ 10-15.
Plaintiffs contend that due to the consular officer’s
allegedly improper behavior and the resulting alleged procedural violations, the denial of
Kostochka’s visa was not a “decision for purposes of the consular non-reviewability doctrine.”
D. 11 at 4.
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In support of their argument, Plaintiffs rely on Patel v. Reno, 134 F.3d 929 (9th Cir.
1997), for the proposition that “[w]hen the suit challenges the authority of the consul to take or
fail to take action as opposed to a decision taken with the consul’s discretion, jurisdiction exists.”
D. 11 at 3 (quoting Patel, 134 F.3d at 931-32). In Patel, the plaintiffs’ visa application had been
pending before the U.S. Consulate in Bombay for eight years without any action and the
plaintiffs brought suit challenging the authority of the consul to suspend their visa applications
without any decision. Patel, 134 F.3d at 931-32. Here, the consul did not refuse to act, as was
the case in Patel.
Rather, on October 29, 2014, the consular office in Moscow refused
Kostochka’s visa application pursuant to INA § 221(g), instructing that the application be
returned to DHS “for reconsideration/revocation of petition.” D. 1 ¶ 17. Unlike in Patel, the
consular office in this case took timely action in deciding to deny the visa application.
Therefore, the doctrine of consular nonreviewability, which applies to the decisions of consular
officers, is applicable. Furthermore, allegations of procedural irregularities and errors of law are
not sufficient to circumvent the doctrine of consular non-reviewability and “[c]ourts will not
review the decisions of consular officers even where those decisions are based on action
unauthorized by the INA, on procedural irregularities or on errors of law.” Pishdadiyan, 2012
WL 601907, at *13 (quoting Doan v. I.N.S., 990 F. Supp. 744, 746–47 (E.D. Mo. 1997)); see
also Chiang, 582 F.3d at 242-43 (noting that “[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”) (quoting Knauff, 338 U.S. at 543).
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2.
Mandel Review is not Applicable to Plaintiffs’ Claim
Moreover, Plaintiffs’ reliance on the limited exception articulated in Mandel is
misplaced. In that case, a Belgian Marxist journalist, Ernest Mandel, was invited by U.S.
citizens to speak at an academic conference at a prominent American university. Mandel, 408
U.S. at 756-57. Mandel had been admitted to the United States twice before, however, “[o]n
each occasion . . . his admission followed a finding of ineligibility under [§] 212(a)(28), and the
Attorney General’s exercise of discretion to admit him temporarily, on recommendation of the
Secretary of State.” Id. at 756. On this occasion, however, when Mandel’s application was
denied the Attorney General chose not to exercise his discretion to admit Mandel. Id. at 757-58.
In response, Mandel and several American professors filed suit, challenging the denial of
Mandel’s visa and arguing, in part, that the denial “prevent[ed] them from hearing and meeting
with Mandel in person for discussions, in contravention of the First Amendment.” Id. at 759-60.
The Mandel plaintiffs acknowledged the power of Congress to prohibit the entry of aliens, but
argued that “by providing a waiver procedure” Congress intended that the waiver should be
granted for “reasons of public interest” and, therefore, should be granted when U.S. citizens
evidence a First Amendment interest. Id. at 767-68 (citing S. Rep. No. 1137, 82d Cong., 2d
Sess., 12 (1952)). The Supreme Court, after reaffirming that “[t]he Court without exception has
sustained Congress’ plenary power to make rules for the admission of aliens and to exclude those
who possess those characteristics which Congress has forbidden,” id. at 766 (citation and internal
quotation mark omitted), upheld the visa denial by the consulate, but in doing so held that:
when the Executive exercises [the power to grant or deny a visa] negatively on the
basis of a facially legitimate and bona fide reason, the courts will neither look
behind the exercise of that discretion, nor test it by balancing its justification
against the First Amendment interests of those who seek personal communication
with the applicant.
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Mandel, 408 U.S. at 770. In other words, the Supreme Court found only that a visa denial is
unreviewable when the denial is based on “a facially legitimate and bona fide reason,” id., “even
if exclusion might impair the constitutionally protected interests of United States’ citizens.”
Pishdadiyan, 2012 WL 601907, at *14 (citing Mandel, 408 U.S. at 770). The Court explicitly
did not address whether a First Amendment claim should prevail “where no justification is
advanced for denial of a waiver” because the Attorney General had provided Mandel’s counsel a
“facially legitimate and bona fide” reason. Mandel, 408 U.S. at 769-70.
In the wake of the Mandel decision, however, other courts, including courts in this
circuit, have interpreted the decision as potentially providing for a limited exception to the
doctrine of consular nonreviewability “when a consular official’s denial of a visa petition
infringes upon a constitutional right of an American citizen.” Pishdadiyan, 2012 WL 601907, at
*14; see also Chiang, 582 F.3d at 242-43 (affirming the district court’s dismissal where plaintiff
alleged a constitutional violation based on his right to marry a foreign national where there was
no basis to conclude that a U.S. citizen had a constitutional right to have the marriage ceremony
in the U.S. and “the Executive presented a ‘facially legitimate and bona fide’ reason for the
denial”); Am. Sociological Ass'n v. Chertoff, 588 F. Supp. 2d 166, 169 (D. Mass. 2008) (citing
Mandel, 408 U.S. at 770) (noting that Mandel established “one limited exception to the doctrine
of consular nonreviewability that permits judicial review when the consular denial of a visa may
impact the First Amendment rights of persons within the United States”); Allende v. Shultz, 845
F.2d 1111, 1114 (1st Cir.1988) (affirming the grant of summary judgment in plaintiffs’ favor
where plaintiffs raised First Amendment claim and the State Department had failed to advance a
“facially legitimate and bona fide reason for exclusion”). Absent this limited exception for
claims raising First Amendment issues, or perhaps for claims invoking other constitutional
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rights, however, the doctrine of consular nonreviewability stands as a bar to judicial review. See
e.g., Pishdadiyan, 2012 WL 601907, at *14.
As an initial matter, the Court notes that Kostochka, “as an unadmitted and nonresident
alien,” Mandel, 408 U.S. at 762, does not “have standing to seek either administrative or judicial
review of the consular officer’s decision to deny [her] a visa.”3 Adams, 909 F.2d at 647, n.3.
So, “while it is permissible to join [Kostochka] as a symbolic plaintiff,” id., the Court’s focus is
on the possible impairment of a U.S. citizen’s constitutional rights. Therefore, ZigZag, as the
organization whose constitutional rights would be implicated, “are the proper plaintiffs in a claim
for Mandel review.” Am. Sociological Ass'n, 588 F. Supp. 2d at 174.
Regardless, Mandel review requires ZigZag to allege, at minimum, some constitutional
interest, if not a First Amendment challenge. See e.g., Chiang, 582 F.3d at 242 (noting that
“[u]nder the doctrine of consular nonreviewability, in immigration disputes nonconstitutional
issues are generally outside the jurisdiction of the courts”). ZigZag has made no such allegation
here, see generally, D.1, and in the absence of a constitutional issue the Mandel exception is
inapposite.
Pishdadiyan, 2012 WL 601907, at *14 (explaining that “[a]bsent this limited
3
Although not determinative here, the Court notes that at hearing Plaintiffs relied on Patel
v. U.S. Citizenship and Immigration Services, 732 F.3d 633 (6th Cir. 2013) and Kurapati v. U.S.
Bureau of Citizenship & Immigration Servs., No. 13-13554, 2014 WL 7242841 (11th Cir. Dec.
22, 2014) to argue that alien beneficiaries have standing to challenge adverse visa
determinations. Those cases, however, did not address “unadmitted and nonresident alien[s],”
Mandel, 408 U.S. at 762, denied visas by consular officers abroad, and the doctrine of consular
nonreviewability did not apply. Those cases addressed only whether employee-beneficiaries,
whose employer’s employment-based visa petitions (I-140) are revoked or denied, have standing
to challenge errors made by the defendant agencies. Kurapati, 2014 WL 7242841, at *5 (holding
that the district court had jurisdiction to review plaintiffs’ procedural arguments relating to their
alleged right to be given notice and an opportunity to respond to the intent to revoke their
employment-based visa); Patel v. U.S. Citizenship and Immigration Services, 732 F.3d at 636-38
(holding that a resident alien had standing to challenge the denial of his prospective employer’s
petition for an employment visa and emphasizing that approval of an employment-based petition
makes the alien-employee eligible for a permanent visa rather than a temporary one).
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exception for claims raising constitutional issues concerning visa denials, nonconstitutional
issues are generally outside the jurisdiction of the courts”) (citations and internal quotation marks
omitted); Udugampola v. Jacobs, No. 13-CV-0460-BAH, 2014 WL 4809287, at *5 (D.D.C. Sept.
29, 2014) (noting that “[t]o establish entitlement to this limited exception to the consular
nonreviewability doctrine, the plaintiffs bear the burden of demonstrating that the visa decision
violated a constitutionally protected interest”). As a result, the limited review that is potentially
authorized under Mandel is unavailable, and the doctrine of consular nonreviewability applies.
Although the treatment of Kostochka’s visa application, at least as alleged in the
complaint, may cry out for some remedy, given the clear application of the consular
nonreviewability doctrine to this case, it is not a judicial one. Accordingly, the Court lacks the
authority to review the consular officer’s decision to deny Kostochka’s visa application.4
B.
Plaintiffs Have Not Met Their Burden to Prevail on Their Motion for a
Preliminary Injunction
As noted above, the Plaintiffs have moved for a preliminary injunction to enjoin
Defendants from returning Kostochka’s visa application to USCIS pending the resolution of this
action. D. 2. Courts traditionally employ the well settled, four-part inquiry to determine whether
an injunction should issue. González-Droz v. González-Colon, 573 F.3d 75, 79 (1st Cir. 2009).
“The sine qua non of this four-part inquiry is likelihood of success on the merits: if the moving
party cannot demonstrate that [it] is likely to succeed in [its] quest, the remaining factors become
4
Given the Court’s conclusion regarding the application of the doctrine of
nonreviewability to this case, the Court need not address Defendants’ arguments that Plaintiffs
have failed to exhaust their administrative remedies, D. 9 at 12-13. The Court notes, however,
that the doctrine of consular nonreviewability stands as an exception to review under the APA.
See, e.g., Pishdadiyan, 2012 WL 601907, at *15 (noting that [a]nalysis of the APA’s language
likewise shows that consular nonreviewability stands as one of the limited exceptions to
review”); Saavedra, 197 F.3d at 1160 (interpreting section 702(1) to incorporate doctrine of
consular nonreviewability).
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matters of idle curiosity.” New Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9
(1st Cir. 2002). In light of this Court’s decision to ALLOW Defendants’ motion to dismiss,
Plaintiffs cannot demonstrate a likelihood of success on the merits. Accordingly, the Court need
go no further, and Plaintiffs’ motion for a preliminary injunction, D. 2, is DENIED.
V.
Conclusion
For these reasons, the Court DENIES Plaintiffs’ motion for a preliminary injunction, D.
2, and ALLOWS Defendants’ motion to dismiss, D. 10.
So Ordered.
/s/ Denise J. Casper
United States District Judge
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