MORALEZ et al v. BLINKEN et al

Filing 15

OPINION. Signed by Judge Joseph H. Rodriguez on 11/17/2021. (rtm, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MARITZA MORALEZ, JUAN CARLOS
VALLECILLO LOPEZ

:
:
:
Petitioners,
:
:
v.
:
:
ANTHONY BLINKEN in his official
:
Capacity as Secretary of the UNITED
:
STATES DEPARTMENT OF STATE;
:
MERRICK GARLAND in his official
:
Capacity as ATTORNEY GENERAL OF :
THE UNITED STATES; IAN G.
:
BROWNLEE in his official capacity
:
as ACTING ASSISTANT SECRETARY, :
BUREAU OF CONSULAR AFFAIRS;
:
TIM STATER in his official capacity as
:
DEPUTY CHIEF OF MISSION, UNITED :
STATES EMBASSY, MANAGUA,
:
NICARAGUA; JOHN DOE in his capacity :
as CONSULAR OFFICE, UNITED
:
STATES EMBASSY, MANAGUA,
:
NICARAGUA; GURBIR S. GREWAL in :
his official capacity As UNITED STATES :
ATTORNEY,
:
:
Respondents.
:

Civil Action No. 1:21-cv-05726
OPINION

Plaintiffs Maritza Moralez (“Moralez”) and her husband Juan Carlos Vallecillo Lopez
(“Lopez”) (collectively “Plaintiffs”) ask the Court to review a consular official’s decision to
deny Lopez’s application for an immigrant visa. However, as Respondents Merrick Garland,
Anthony Blinken, Ian G. Brownlee, Tim Stater, and Gurbir S. Grewal (“Defendants” or “the
Government”) argue in their motion to dismiss presently before the Court [Dkt. 9], the doctrine
of consular nonreviewability precludes the Court from reviewing visa denials unless the denial

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violates the constitutional rights of a United States citizen. Because Plaintiffs have not pled a
constitutional injury, the Court will grant Defendants’ motion.
I.

Background
Plaintiffs filed this lawsuit to challenge the denial of Lopez’s immigration visa

application. According to their Complaint, Lopez was born in Nicaragua and entered the United
States without inspection or apprehension when he was eleven years old. [Compl. ¶ 15]. In May
2001, Lopez began a relationship with Moralez, a natural-born citizen of the United States, and
the couple married on September 29, 2014. [Compl. ¶ 19]. They have five children together.
[Compl. ¶¶ 6, 18].
After marrying, Plaintiffs pursued an immigration visa for Lopez based on Moralez’s
citizenship. On March 5, 2015, Moralez filed an I-130 Petition for Alien Relative to classify
Lopez as an immediate relative spouse, which was approved. [Compl. ¶ 21]. On February 11,
2020, Lopez flew from the United States to Nicaragua to attend a consular interview at the
United States Embassy in Managua. [Compl. ¶ 23]. The consular officer did not grant Lopez a
visa at Lopez’s first interview but required Lopez to return with his “migratory profile.” [Compl.
¶ 25]. A “migratory profile” is a “Nicaraguan document which denotes an individual’s travel in
and out of the country.” [Compl. ¶ 25]. Lopez obtained his migratory profile, which showed
“various trips in and out of Nicaragua.” [Compl. ¶ 26]. According to Plaintiffs, the migratory
profile was inaccurate because Lopez never left the United States after arriving at age eleven.
[Compl. ¶¶ 26, 28]. Despite the inaccuracy, Lopez provided his migratory profile to the United
States Embassy. [Compl. ¶ 27].
On March 5, 2021, Lopez returned to the United States Embassy in Nicaragua, where a
consular officer provided Lopez with a letter rejecting his application (the “Rejection Letter”).

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[Compl. ¶ 30]. The Rejection Letter cited Section 212(a)(A)(3)(A)(II) of the Immigration and
Nationality Act (“INA”) as the statutory basis for the rejection. [Compl. ¶ 30]. This subsection
of the INA does not exist. Plaintiffs assume that the consular official intended to cite INA §
212(a)(3)(A)(ii), 8 U.S.C. § 1182(a)(3)(A)(ii), which states that “[a]ny alien who a consular
officer or the Attorney General knows, or has reasonable ground to believe, seeks to enter the
United States to engage solely, principally, or incidentally in … any other unlawful activity … is
inadmissible.”1 [Compl. ¶ 30]. Plaintiffs are “dumbfounded” by this rejection, not only because
Lopez never left the United States before his consular visit, but also because he “was never
questioned about” any illegal activity. [Compl. ¶¶ 2, 31]. Plaintiffs further allege that Lopez’s
rejection letter “did not indicate Lopez was inadmissible due to his migratory profile” [Compl. ¶
32], and that “[t]here is no connection between this ground of inadmissibility and Lopez’s
migratory profile.” [Compl. ¶ 33]. As a result of this denial, Lopez cannot return to the United
States. [Compl. ¶ 34].
Plaintiffs filed their Complaint alleging that the denial of Lopez’s immigrant visa violated
Moralez’s constitutional rights under the First, Fifth, Ninth, and Fourteenth Amendments, and
the Administrative Procedures Act, 5 U.S.C. § 701 et seq. (“APA”), and that Lopez’s visa was
denied without a “bona fide and facially legitimate reason.” [Compl. ¶¶ 39, 41, 46]. After
Plaintiffs filed their Complaint, the Government sent a revised refusal letter (the “Revised
Letter”) which cites INA § 212(a)(3)(A)(ii), 8 U.S.C. § 1182(a)(3)(A)(II) as the statutory basis
for denial. [Dkt. 9-1 at 6]. The Government then moved to dismiss the Complaint under Federal

The Complaint alleges that § 212(a)(3)(A)(ii) “renders an alien inadmissible who engaged in
any activity involving the illegal export of goods, technology, or sensitive information.”
[Compl. ¶ 30]. However, § 212(a)(3)(A)(i) applies to aliens believed to be engaged in this
conduct.
1

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Rule of Civil Procedure 12(b)(6) for failure to state a claim. [Dkt. 9]. After Plaintiffs failed to
file a timely response, the Court issued an order to show cause why the Court should not treat the
Government’s motion as unopposed and dismiss Plaintiffs’ case. [Dkt. 11]. Plaintiffs then filed
an opposition asking the Court to order the Government “to provide Plaintiffs a substantive
explanation as to their amended determination of inadmissibility under INA § 212(a)(3)(A)(ii),
which was cited without explanation.” [Dkt. 12 at 1].
II.

Jurisdiction
The Court has federal question jurisdiction over this case under 28 U.S.C. § 1331.

III.

Standard of Review
Federal Rule of Civil Procedure 12(b)(6) permits dismissal for “failure to state a claim

upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A complaint should be dismissed
pursuant to Rule 12(b)(6) if the alleged facts, taken as true, fail to state a claim. Id. In general,
only the allegations in the complaint, matters of public record, orders, and exhibits attached to
the complaint, are taken into consideration when deciding a motion to dismiss under Rule
12(b)(6). See Chester Cnty. Intermediate Unit v. Pa. Blue Shield, 896 F.2d 808, 812 (3d Cir.
1990). It is not necessary for the plaintiff to plead evidence. Bogosian v. Gulf Oil Corp., 561
F.2d 434, 446 (3d Cir. 1977). The question before the Court is not whether the plaintiff will
ultimately prevail. Watson v. Abington Twp., 478 F.3d 144, 150 (3d Cir. 2007). Instead, the
Court simply asks whether the plaintiff has articulated “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).

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“A claim has facial plausibility2 when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). “Where there are
well-pleaded factual allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679.
The Court need not accept “unsupported conclusions and unwarranted inferences,”
Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (citation omitted), however, and “[l]egal
conclusions made in the guise of factual allegations . . . are given no presumption of
truthfulness.” Wyeth v. Ranbaxy Labs., Ltd., 448 F. Supp. 2d 607, 609 (D.N.J. 2006) (citing
Papasan v. Allain, 478 U.S. 265, 286 (1986)); see also Kanter v. Barella, 489 F.3d 170, 177 (3d
Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005) (“[A] court need not
credit either ‘bald assertions’ or ‘legal conclusions’ in a complaint when deciding a motion to
dismiss.”)). Accord Iqbal, 556 U.S. at 678–80 (finding that pleadings that are no more than
conclusions are not entitled to the assumption of truth).
Further, although “detailed factual allegations” are not necessary, “a plaintiff’s obligation
to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions,
and a formulaic recitation of a cause of action’s elements will not do.” Twombly, 550 U.S. at
555 (internal citations omitted). See also Iqbal, 556 U.S. at 678 (“Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.”).

2

This plausibility standard requires more than a mere possibility that unlawful conduct has
occurred. “When a complaint pleads facts that are ‘merely consistent with’ a defendant’s
liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.’’”
Id.
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Thus, a motion to dismiss should be granted unless the plaintiff’s factual allegations are
“enough to raise a right to relief above the speculative level on the assumption that all of the
complaint’s allegations are true (even if doubtful in fact).” Twombly, 550 U.S. at 556 (internal
citations omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged—but it has not ‘shown’—‘that the
pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
IV.

Analysis
“It is well-settled that the decision of a consular [official] to grant or deny a visa is not

subject to judicial review.” Khachatryan v. United States, No. CV 17-07503-BRM-TJB, 2018
WL 4629622, at *4 (D.N.J. Sept. 27, 2018) (collecting cases). “This principle is known as the
Doctrine of Consular Nonreviewability.” Id. (citing Am. Acad. of Religion v. Napolitano, 573
F.3d 115, 123 (2d Cir. 2009)). See also Onuchukwu v. Clinton, 408 F. App’x 558, 560 (3d Cir.
2010) (“The widely applied doctrine of consular nonreviewability generally places a consular
official's decision to issue or withhold a visa outside the scope of judicial review.” (citation
omitted)). Under this doctrine, courts “cannot review a consular officer’s decision even upon
allegations that the consular officer acted on erroneous information … that the INA did not
authorize the officer’s decisions … or that the State Department failed to follow its own
regulations.” Khachatryan, 2018 WL 4629622, at *5 (citations and quotations omitted).
“[E]ven an erroneous decision escapes review.” Onuchukwu, 408 F. App'x at 560 (citing Loza–
Bedoya v. Immigration & Naturalization Serv., 410 F.2d 343, 347 (9th Cir. 1969)). “[A]s long
as the State Department considers the merits of an application for an immigrant visa, this Court
may not alter or even review the Department's decision.” Onuchukwu v. Clinton, No. CIV.A. 101490 JLL, 2010 WL 3614217, at *2 (D.N.J. Sept. 7, 2010), aff’d, 408 F. App'x 558 (3d Cir.

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2010) (citing Elhabash v. Untied States Dept. of State, No. 09–5847, 2010 WL 1742116, at *2
(D.N.J. April 27, 2010)).
In Kleindienst v. Mandel, the Supreme Court recognized a narrow exception to the
doctrine of consular nonreviewability where a visa denial violates the constitutional rights of a
United States citizen. 408 U.S. 753, 765–70 (1972). “However, even if constitutional rights
[are] implicated, a court’s review is limited.” Khachatryan, 2018 WL 4629622, at *6 (citing
Mandel, 498 U.S. at 770). The Mandel Court held that “when the Executive exercises this power
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” a citizen’s
constitutional rights. Mandel, 498 U.S. at 770. Thus, so long a consular officer provides a
“legitimate and bona fide reason” for a visa denial that violates a citizen’s constitutional rights,
courts cannot review that decision any further. Id.; see also Ruiz-Herrera v. Holder, No. 120194, 2013 WL 1136849, at *5 (N.D. Ga. Mar. 15, 2013) (“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.” (citations omitted)). To establish a bona fide and facially
legitimate reason for denying a visa, “the Government need provide only a statutory citation to
explain a visa denial.”2 Trump v. Hawaii, 138 S. Ct. 2392, 2419, 201 L. Ed. 2d 775 (2018)
(citations omitted).

The Court rejects Plaintiffs’ argument that this rule applies only where the Government denies
a visa application based on “terrorism or national security” concerns, and that a plaintiff is
otherwise entitled to a fuller or more detailed explanation. [Dkt. 12 at 3]. See Bano v. Pompeo,
377 F. Supp. 3d 464, 469 (E.D. Pa. 2019) (finding that there need not “be evidence in the record
of an alien's association with terroristic activities for a citation to § 1182(a)(3)(B) to be
sufficient.”).
2

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a. Whether a Second Mandel Exception Exists
Plaintiffs maintain that a second exception to the doctrine of consular nonreviewability
exists where the consular official fails to provide a bona fide and facially legitimate reason for
denial regardless of whether the denial violated a citizen’s constitutional rights. [Compl. ¶ 36].
Plaintiffs cite Seventh Circuit case law to support their position. [Compl. ¶ 36]. In Hazama v.
Tillerson,3 the Seventh Circuit found that
[t]he language in Mandel suggests at least two possible exceptions to the
general norm of nonreviewability:
“We hold that when the Executive exercises [the power to
admit] 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.”
In addition, as the final allusion to the First Amendment implies, some
courts have held that if a visa denial affects the constitutional rights of
American citizens, then it may be reviewable.

851 F.3d 706, 708–09 (7th Cir. 2017) (quoting Mandel, 408 U.S. at 770). As this excerpt
demonstrates, the Seventh Circuit permits courts to consider whether the Government denied a
visa application for a “facially legitimate and bona fide reason” without first confirming that the
denial “affect[ed] the constitutional rights of American citizens.” Plaintiffs urge this Court to
follow suit.
The Court declines to do so. The Third Circuit, like many others, does not recognize
this second exception. See Romero v. Att'y Gen. United States, 972 F.3d 334, 340 (3d Cir. 2020)
(“[A] court may review a visa denial in the limited circumstance where the visa denial

3

Hazama is cited in Matushkina v. Nielsen, 877 F.3d 289, 294 (7th Cir. 2017), which Plaintiffs
cite throughout their Complaint.
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potentially infringes on the constitutional rights of American citizens.” (citing Mandel, 408 U.S.
at 765–70)); accord Sesay v. United States, 984 F.3d 312, 315 (4th Cir. 2021) (“The Supreme
Court recognized a narrow exception to this general rule in Mandel, allowing for limited judicial
review when a U.S. citizen's own constitutional rights … are assertedly burdened by a visa
denial.”); Baaghil v. Miller, 1 F.4th 427, 432 (6th Cir. 2021) (“If a consulate’s decision
implicates the constitutional rights of United States citizens or lawful permanent residents, a
court may review a challenge to the application.”); Bustamante v. Mukasey, 531 F.3d 1059, 1062
(9th Cir. 2008) (“Joining the First, Second, and D.C. Circuits, we hold that 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.”). Constitutional injury is a necessary precondition
for limited judicial review of a visa denial.
Even if Third Circuit precedent did not foreclose this second exception, the Court
disagrees with the Seventh Circuit’s reading of Mandel. In Mandel, the appellees were college
professors who claimed that the Government violated their First Amendment rights when it
rejected the visa application of Ernest Mandel—a Belgian “revolutionary Marxist” author—
whom the professors had invited to participate in a conference in the United States. 408 U.S. at
755–57. The main issues in the case were whether and two what extent the citizen-professors’
First Amendment rights permitted a court to review the consular decision to deny Mandel’s
application. See Mandel, 408 U.S. at 754 (“Does appellants' action in refusing to allow an alien
scholar to enter the country to attend academic meetings violate the First Amendment rights of
American scholars and students who had invited him?”); id. at 762 (“The case, therefore, comes
down to the narrow issue whether the First Amendment confers upon the appellee professors …
the ability to determine that Mandel should be permitted to enter the country or, in other words,

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to compel the Attorney General to allow Mandel's admission.”). It was only after determining
that the visa denial implicated the professors’ First Amendment rights that the Mandel Court
considered the extent of judicial review that was permissible. See id. at 766 (“Recognition that
First Amendment rights are implicated, however, is not dispositive of our inquiry here….”). And
the Mandel Court concluded that the proper scope of review was to consider whether the
consular official provided a legitimate and bona fide reason for denial. Id. at 770. Thus, the
Mandel Court’s decision not to “test” “facially legitimate and bona fide” reason for a visa denial
“by balancing its justification against [] First Amendment interests” addressed the extent of
judicial review that follows a constitutional injury, not whether a constitutional injury was
required. This decision did not relieve plaintiffs of their obligation to establish a constitutional
violation altogether.
In this context, the Court does not read the passage from Mandel cited in Hazama as
creating a second, free-floating exception to consular nonreviewability untethered from a
citizen’s constitutional rights. Not requiring a threshold constitutional violation would
“convert[] consular nonreviewability into consular reviewability” by making “all claims …
reviewable under some standard.” Allen v. Milas, 896 F.3d 1094, 1107 (9th Cir. 2018). Such an
expansive reading of Mandel “flies in the face of more than a century of decisions limiting our
review of consular visa decisions.” Id. The Court therefore rejects Plaintiffs’ argument that they
are entitled to judicial review of Lopez’s visa denial even if the denial did not deprive Moralez of
her constitutional rights.
b. Analysis of Constitutional Claims
Plaintiffs allege that Lopez’s visa denial violates Moralez’s constitutional rights under the
First, Fifth, Ninth, and Fourteenth Amendments. [Compl. ¶ 3]. The Complaint clarifies that the

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denial deprived Moralez of her “right to life, liberty, and the pursuit of happiness without proper
due process” under the Fifth and Fourteenth Amendments; that Moralez “has the right to petition
her husband” under the First Amendment; and that “[s]he has the right to be reunited with her
spouse and live with him in the United States with their five (5) children” under the Ninth
Amendment. [Compl. ¶ 35]. The Court disagrees.
Plaintiffs’ Complaint fails to plead cognizable due process violations under the Fifth and
Fourteenth Amendments. The Fifth Amendment provides that “[n]o person shall be ... deprived
of life, liberty, or property, without due process of law.” U.S. Const. amend V. However, “no
process is due if one is not deprived of ‘life, liberty, or property.’” Kerry v. Din, 576 U.S. 86, 90
(2015) (Scalia, J.) (citing Swarthout v. Cooke, 562 U.S. 216, 219 (2011)). The same is true with
respect to Fourteenth Amendment due process rights. See Nicholas v. Pa. State Univ., 227 F.3d
133, 138–40 (3d Cir. 2000). Thus, no process is due to Moralez unless she can first establish that
Lopez’s visa denial deprived her of “life, liberty, or property.”
Moralez fails to do so. Courts nationwide have rejected the argument that citizens have
protected constitutional interests in having their non-citizen spouses present in the United States.
See, e.g., Din, 576 U.S. at 101 (Scalia, J.) (“Because Fauzia Din was not deprived of ‘life,
liberty, or property’ when the Government denied [her husband’s] admission to the United
States, there is no process due to her under the Constitution. To the extent that she received any
explanation for the Government's decision, this was more than the Due Process Clause
required.”)4; Baaghil v. Miller, 1 F.4th 427, 433 (6th Cir. 2021) (“Nothing in the Constitution

The Supreme Court’s decision in Kerry v. Din is a plurality decision authored by Justice Scalia
and joined by Justices Alito and Roberts. See Din, 576 U.S. at 87–88. As in this case, the
respondents in Din alleged that the consular decision to deny an immigrant visa violated the Fifth
Amendment due process rights of the visa applicant’s citizen spouse. Id. at 88. The respondents
argued that this Fifth Amendment injury triggered the Mandel exception to consular
4

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creates a right to bring a noncitizen spouse into the United States.” (citations and quotations
omitted)); Bakran v. Sec'y, United States Dep't of Homeland Sec., 894 F.3d 557, 565 (3d Cir.
2018) (“[N]o court has recognized that a citizen spouse has a constitutional right to have his or
her alien spouse reside in the United States.” (collecting cases)); Singh v. Tillerson, 271 F. Supp.
3d 64, 72 (D.D.C. 2017) (“The Court concludes therefore that the defendants' denial of Plaintiff's
family members' visas did not implicate a liberty interest protected by the Fifth Amendment, and
the Plaintiff's claim does not fall within the narrow exception to consular nonreviewability.”);
Movimiento Democracia, Inc. v. Chertoff, 417 F. Supp. 2d 1350, 1353 (S.D. Fla. 2006) (“[T]here
is no statutory or constitutional right to familial association with a person trying to immigrate to
the United States….” (citations omitted)). Because Moralez fails to establish a constitutionally
protected interest in having her husband present in the United States, her Fifth and Fourteenth
Amendment due process claims cannot stand.

nonreviewability. Id. Justice Scalia rejected this argument, finding that United States citizens do
not have a constitutionally protected interest in having their spouses reside in the United States.
Id. at 101. Justices Kennedy and Alito concurred in the judgment but declined to reach the
constitutional issue. They found that, even if the citizen’s constitutional rights were violated, the
consular official provided a facially legitimate and bona fide justification for the denial. Id. at
104–05 (Kennedy, J. concurring).
“When a court is confronted with a Supreme Court plurality decision, ‘the holding of the Court
may be viewed as that position taken by those Members who concurred in the judgments on the
narrowest grounds.’” Bano v. Pompeo, 377 F. Supp. 3d 464, 469 (E.D. Pa. 2019) (quoting
Marks v. United States, 430 U.S. 188, 193 (1977)). A concurrence that “is essential to
maintaining the majority … can assuredly narrow what the majority opinion holds, by
explaining the more limited interpretation adopted by that necessary member[s] of the majority.”
B.H. ex rel. Hawk v. Easton Area Sch. Dist., 725 F.3d 293, 310–11 (3d Cir. 2013) (citations and
quotations omitted). Courts applying Din treat Justice Kennedy’s concurrence as controlling
because it sets forth the narrowest grounds for the holding. See, e.g., Bano, 377 F. Supp. 3d at
469 (collecting cases); accord Cardenas v. United States, 826 F.3d 1164, 1171 (9th Cir. 2016).
The Court will follow suit here. However, Justice Scalia’s opinion still provides persuasive
authority. See Creasy v. Charter Commc'ns, Inc., 489 F. Supp. 3d 499, 505 (E.D. La. 2020),
judgment entered, No. CV 20-1199, 2020 WL 7646640 (E.D. La. Dec. 23, 2020).

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Plaintiffs’ remaining constitutional claims also fail. While Plaintiffs allege that Moralez
has a First Amendment right to “petition her husband,” the Complaint does not plead facts
stating that the Government prevented Moralez from petitioning on her husband’s behalf. See
Twombly, 550 U.S. at 570. Nor do Plaintiffs allege or cite any law stating that a visa denial—
without more—violates First Amendment rights. Although Plaintiffs argue that Moralez has a
Ninth Amendment right to be reunited with her family, “[t]he Ninth Amendment is not an
independent source of individual rights; rather, it provides a ‘rule of construction’ that we apply
in certain cases.” Jenkins v. C.I.R., 483 F.3d 90, 92 (2d Cir. 2007) (citing United States v.
Bifield, 702 F.2d 342, 349 (2d Cir. 1983)); see also Kuromiya v. United States, 37 F. Supp. 2d
717, 725 (E.D. Pa. 1999) (“[T]he Ninth Amendment has not been interpreted as independently
securing any constitutional rights for purposes of making out a constitutional violation. Rather,
the Ninth Amendment may be applied only as a rule of construction to other constitutional
provisions.” (citations and quotations omitted)). Plaintiffs’ Ninth Amendment argument merely
recasts “their other constitutional challenges, which are ‘rooted in [the] historical interpretation
of the principles embodied by’ separate constitutional provisions.” Alharbi v. Miller, 368 F.
Supp. 3d 527, 569–70 (E.D.N.Y. 2019), aff'd in part, dismissed in part, 829 F. App'x 570 (2d
Cir. 2020) (quoting Jenkins, 483 F.3d at 92). Therefore, Plaintiffs’ First and Ninth Amendment
claims must also be dismissed.
Finally, Plaintiffs do not cite any authority stating that the Government’s alleged APA
violation amounts to a constitutional injury. Moreover, “the APA does not provide an avenue for
judicial review of a consular officer's decision to deny an immigration visa.” Moreira v. Cissna,
442 F. Supp. 3d 850, 857–58 (E.D. Pa. 2020) (collecting cases); see also Allen v. Milas, 896 F.3d
1094, 1108 (9th Cir. 2018) (“[T]he APA provides no avenue for review of a consular officer's

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adjudication of a visa on the merits.”); Saavedra Bruno v. Albright, 197 F.3d 1153, 1160 (D.C.
Cir. 1999) (finding that courts cannot review visa denials under the APA).
In sum, the Complaint does not plead facts showing that the Government violated
Moralez’s constitutional rights by denying Lopez’s visa application. The Complaint therefore
fails to show that the limited exception to consular nonreviewability articulated in Mandel
applies in this case. As a result, Lopez’s visa application denial “escapes review” even if the
decision was “erroneous.” Onuchukwu, 408 F. App'x at 560.
V.

Conclusion
The Court is sympathetic to Plaintiffs’ unfortunate situation and their attempts to reunite

their family. But under the facts of this case, the law is clear that the Court cannot intervene in
the Government’s decision to deny Lopez’s visa application, or even conduct a limited review of
that denial absent a constitutional injury. The Court will therefore grant the Government’s
motion to dismiss. An appropriate order will follow.

November 17, 2021

/s/ Joseph H. Rodrigez
Joseph H. Rodriguez, USDJ

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