Osman et al v. Clinton et al

Filing 16

ORDER granting 4 Motion to Dismiss for Lack of Jurisdiction (Written Opinion). Signed by Judge Joan N. Ericksen on March 29, 2012. (slf)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Fadumo Osman and Ikran Ahmed,
Plaintiffs,
v.

Civil No. 11-2953 (JNE/SER)
ORDER

Hillary Clinton, Secretary, U.S. Department
of State; and John Doe, Consular Chief, U.S.
Department of State, U.S. Embassy, Nairobi,
Defendants.
Fadumo Osman is a citizen of the United States and the mother of Ikran Ahmed. In
September 2009, Osman filed a visa petition on behalf of Ahmed, who is a citizen of Somalia
and a resident of Kenya. The petition was approved and forwarded to the U.S. Consulate in
Nairobi, Kenya, for visa processing. After the petition’s approval, Ahmed sought an immigrant
visa at the U.S. Consulate in Nairobi, where she was interviewed in July 2010. Citing the
Immigration and Nationality Act (INA) § 221(g), a consular officer refused Ahmed’s visa
application in August 2011. Less than two months later, Osman and Ahmed brought this action
against the Secretary of State and the Consular Chief of the U.S. Embassy in Nairobi. Osman
and Ahmed alleged that the denial of Ahmed’s visa application took place without disclosure of
“what is not in compliance or what section of law Ms. Ahmed might be inadmissible under § 212
of the INA” and that Ahmed’s immigrant visa was unlawfully denied. Osman and Ahmed asked
the Court to order the Secretary of State and the Consular Chief, as well as those acting under
them, “to perform their duty to identify specifically what is not in compliance with . . . Ahmed’s
immigrant visa application; and if none is evident, to order Defendants to issue the visa.”1

1

The Court cannot order that a visa be issued. See City of New York v. Baker, 878 F.2d
507, 512 (D.C. Cir. 1989) (“As a court has no power to serve as a proxy consular officer, that
1

The Secretary of State and the Consular Chief moved to dismiss the action for lack of
subject-matter jurisdiction and for failure to state a claim upon which relief can be granted. See
Fed. R. Civ. P. 12(b)(1), (6). They relied on the doctrine of consular nonreviewability:
In view of the political nature of visa determinations and of the lack of any
statute expressly authorizing judicial review of consular officers’ actions, courts
have applied what has become known as the doctrine of consular
nonreviewability. The doctrine 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.
Saavedra Bruno v. Albright, 197 F.3d 1153, 1159 (D.C. Cir. 1999); see United States 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.”); Onuchukwu v. Clinton, 408 F. App’x 558, 560 (3d Cir.
2010) (per curiam) (“Although Congress could provide an avenue through which courts could
review consular decisions on visas, jurisdiction is not available through the statutes, such as the
Declaratory Judgment Act or the Administrative Procedures Act, that the Onuchukwus cited in
the District Court.” (citations omitted)); Bustamante v. Mukasey, 531 F.3d 1059, 1060 (9th Cir.
2008) (“We hold today . . . that ordinarily, a consular official’s decision to deny a visa to a
foreigner is not subject to judicial review.”); cf. Doan v. INS, 160 F.3d 508, 509 (8th Cir. 1998)
(“Administrative decisions excluding aliens are not subject to judicial review unless there is a
clear grant of authority by statute. As there is no such statutory authority here, we conclude that
Director Martin’s decision is not subject to judicial review.”).
Osman and Ahmed opposed the motion. They asserted that the doctrine of consular
nonreviewability does not apply because “they are seeking to compel the officer to apply the law
properly, or, alternatively, to challenge the consular officer’s violation of [Osman’s] fundamental
part of the district court’s order that purports to direct the issuance of visas is without force and
effect.”).
2

rights.” Osman and Ahmed argued that “there has been no final decision of the visa
application,” that “the consular office failed to comply with applicable regulations,” and that “the
consular officer’s inadequate denial” deprived Osman of “her fundamental right to the sanctity of
maintaining her family.”
In their reply, the Secretary of State and the Consular Chief contended that the doctrine of
consular nonreviewability applies here because the refusal in August 2011 constituted a final
decision on the visa application, that the Complaint contained no constitutional claims, that
“there is no constitutionally protected right to live with one’s foreign-born-child inside the
United States,” and that the consular official gave a facially legitimate and bona fide reason for
refusing to issue the visa. More than one month after the submission of their reply, the Secretary
of State and the Consular Chief filed a Notice of Superceding Final Agency Decision, which
stated:
On February 9, 2012, following a subsequent interview at which . . .
Ahmed was permitted to provide additional information in support of her
application, a consular officer once again refused . . . Ahmed’s visa application
. . . . The United States Department of State has concluded the administrative
processing for which Ahmed’s visa application was originally refused . . . .
A Refusal Worksheet was attached to the Notice. It informed Ahmed that she was found
ineligible to receive a visa under INA § 212(a)(3).
To the extent Osman and Ahmed asserted the August 2011 denial was not a final decision
and sought to compel a final decision on the visa application, the February 9 refusal of Ahmed’s
visa application renders their claims moot.2 To the extent they sought review of the denial of
2

Three days before they brought this action, Osman and Ahmed voluntarily dismissed
another action that they had brought against the Secretary of State and the Consular Chief. Rule
41(a)(1) Dismissal, Osman v. Clinton, Civil No. 11-1108 (D. Minn. Oct. 4, 2011). Osman and
Ahmed brought that action in April 2011 to compel the defendants “to complete any action
necessary in order to complete the adjudication of . . . Ahmed’s application for an immigrant
visa.” Complaint, Osman v. Clinton, Civil No. 11-1108 (D. Minn. Apr. 27, 2011).
3

Ahmed’s visa application, the Court cannot consider their claims according to the doctrine of
consular nonreviewability. The attempt to avoid the doctrine of consular nonreviewability based
on an assertion of a violation of Osman’s “fundamental right to the sanctity of maintaining her
family” fails because Osman did not assert a constitutional claim in the Complaint. See De
Castro Polo v. Fairman, 164 F. App’x 930, 933 (11th Cir. 2006) (per curiam) (finding plaintiff’s
argument to avoid doctrine of consular nonreviewability based on an alleged violation of due
process unpersuasive where the alleged violation “appear[ed] in his initial brief on appeal, not
his mandamus petition”). Even if she did, the claim fails. See de Lourdes Castro de Mercado v.
Mukasey, 566 F.3d 810, 816 n.5 (9th Cir. 2009) (“[T]he Mercados point to no authority to
suggest that the Constitution provides them with a fundamental right to reside in the United
States simply because other members of their family are citizens or lawful permanent
residents.”); Payne-Barahona v. Gonzales, 474 F.3d 1, 2 (1st Cir. 2007) (“The circuits that have
addressed the constitutional issue (under varying incarnations of the immigration laws and in
varying procedural postures) have uniformly held that a parent’s otherwise valid deportation
does not violate a child’s constitutional right.”).
Based on the files, records, and proceedings herein, and for the reasons stated above, IT
IS ORDERED THAT:
1.

The Secretary of State and the Consular Chief’s Motion to Dismiss
[Docket No. 4] is GRANTED.

2.

This case is DISMISSED for lack of subject-matter jurisdiction.

LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: March 29, 2012
s/ Joan N. Ericksen
JOAN N. ERICKSEN
United States District Judge

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