ASSAD v. HOLDER et al

Filing 6

OPINION. Signed by Judge William J. Martini on 11/1/13. (gh, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Civ. No. 2:13-00117 (WJM)

NICHOLA HEMAWATTIE ASSAD,
Petitioner,

OPINION
v.
U.S. ATTORNEY GENERAL ERIC
HOLDER JR., et al.,
Respondents.

WILLIAM J. MARTINI, U.S.D.J.:
Petitioner Nichola Hemawattie Assad filed a Petition for Writ of Mandamus
to compel the government to issue a final decision on the visa application of her
husband Neil Reyas Assad. Respondents, who are the U.S. Attorney General, the
District Director of U.S. Citizenship and Immigration Services (“USCIS”), the U.S.
Department of State, and the U.S. Embassy in Guyana filed a motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). There was no
oral argument. L.Civ.R. 78.1(b). For the reasons set forth below, Respondents’
motion to dismiss is GRANTED in part and DENIED in part.

I.

FACTUAL BACKGROUND

In 2008, Petitioner, a U.S. Citizen, married Neil Reyas Assad (“Beneficiary”), a
citizen of Guyana. (Petition at ¶ ¶ 8, 11) Petitioner thereafter sought an immigrant
visa for Beneficiary.
Obtaining an immigrant visa for a relative alien who lives outside the United
States is a two-step process. (Respondent’s Brief at 2) First, the citizen petitioner
must file an I-130 Petition on behalf of the alien relative with USCIS. See 8 U.S.C.
§ 1154(a); 8 C.F.R. § 204.2. Second, the alien who has obtained the I-130 must
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apply for an immigrant visa from a consular official in the country in which the alien
resides. 8 U.S.C § 1201-1202.
USCIS granted an I-130 in January 2011. (Petition at ¶ 12) In June 2011,
Beneficiary appeared at the U.S. Embassy in Georgetown, Guyana for an interview.
(Id. at ¶ 13) On June 7, 2011, Beneficiary received a letter from the U.S. Embassy
stating that he was found temporarily ineligible to receive a visa pursuant to Section
221(g) of the Immigration and Naturalization Act. (Id. at Exhibit 6) The letter stated
that the case required “Administrative Review” and that “new information, when
available, will be communicated to you in writing.” (Ibid.)
The letter additionally stated, “You are welcome to contact our Visa Inquiries
Unit, from time to time, to inquire about your application.” It provided telephone
and email contact information and provided a website where the status of the visa
application could be checked. A status check in August 2012 revealed that the case
was still pending administrative review. (Petition at ¶ 16, Exhibit 7)
On January 7, 2013, Nichola Hemawattie Assad filed this Petition for Writ of
Mandamus to compel the government to make a final decision on the visa
application. In the Petition, she alleges that the U.S. Embassy has: (1) failed to
execute its duty to grant or refuse the visa; (2) sent the I-130 back to USCIS for
possible revocation. With regards to the second allegation, Respondents have
provided certifications demonstrating that the U.S. Embassy in Guyana is still in
possession of Neil Reyas Assad’s case and that USCIS is not reviewing the matter
for possible revocation. (Declaration of Chloe Dybdahl at ¶ 5; Declaration of April
Dechert at ¶ ¶ 4-5)

II.

LEGAL STANDARD
A. Rule 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) provides for the dismissal of a
complaint for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). There are
two types of challenges to subject matter jurisdiction: (1) facial attacks, which
challenge the allegations of the complaint on their face; and (2) factual attacks,
which challenge the existence of subject matter jurisdiction, quite apart from any
pleadings. Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir.
1977). In reviewing a factual attack, like the ones against the U.S. Embassy and
USCIS in this case, the court may consider evidence outside the pleadings, and no
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presumptive truthfulness attaches to the plaintiff’s allegations. Gould Electronics
Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000) (citing Gotha v. United States,
115 F.3d 176, 178-79 (3d Cir. 1997)). The plaintiff bears the burden of proving that
jurisdiction exists. Id. at 178.
B. Rule 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a
complaint, in whole or in part, if the plaintiff fails to state a claim upon which relief
can be granted. The moving party bears the burden of showing that no claim has
been stated. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding
a motion to dismiss under Rule 12(b)(6), a court must take all allegations in the
complaint as true and view them in the light most favorable to the plaintiff. See
Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 483 (3d
Cir. 1998) (citing Warth v. Seldin, 422 U.S. 490, 501 (1975)).
Although a complaint need not contain detailed factual allegations, “a
plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires
more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Thus, the factual allegations must be sufficient to raise a plaintiff’s right to relief
above a speculative level, such that it is “plausible on its face.” See id. at 570; see
also Umland v. PLANCO Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008). A claim
has “facial plausibility 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). While “[t]he plausibility standard is not akin to a ‘probability requirement’ . .
. it asks for more than a sheer possibility.” Id. at 678.

III.

DISCUSSION
A. U.S. Embassy / Department of State

Respondents argue that the doctrine of consular nonreviewability deprives this
court of jurisdiction to review the acts of the U.S. Embassy. The court disagrees.
The doctrine of consular nonreviewability generally places a consular
official’s decision to issue or withhold a visa outside the scope of judicial review.
Onuchukwu v. Clinton, 408 F. App'x 558, 560 (3d Cir. 2010) (citing Saavedra Bruno
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v. Albright, 197 F.3d 1153, 1158–64 (D.C.Cir. 1999)); see also, e.g., Centeno v.
Shultz, 817 F.2d 1212, 1213 (5th Cir. 1987) (“[T]he denial of visas to aliens is not
subject to review by the federal courts.”).
While consular nonreviewability deprives the federal courts of jurisdiction to
review the substance of a consul’s decision, the court does have jurisdiction over
suits that challenge “the authority of the consul to take or fail to take an action.”
Patel v. Reno, 134 F.3d 929, 931 (9th Cir. 1997); see also Torres v. Kerry, 12-CV2309-LAB-JMA, 2013 WL 1386344 (S.D. Cal. Apr. 4, 2013). This limited
exception permits judicial review where a consular officer has a nondiscretionary
duty to act and refuses to do so. See Shiu Ying Wong Woo v. Leavitt, 07-CV-2019GEB-GGH, 2008 WL 2774448 at * 2 (E.D. Cal. June 27, 2008). This exception has
been applied where a consular “decision” is clearly not “final” and leaves the
applicant unsure of his or her status. See Schutz v. Sec'y, Dep't of State, 11-CV1296-ORL-31, 2012 WL 275521 (M.D. Fla. Jan. 31, 2012). Mandamus relief
compelling the consulate to make a final decision is available in such circumstances.
See ibid; see also Shiu Ying Wong Woo, 2008 WL 2774448 at * 2.
Respondents argue that the finding of temporary ineligibility was a final
refusal and that mandamus is therefore inappropriate. (Respondents’ Moving Brief
at 7; Reply Brief at 2) This argument is not convincing. The U.S. Embassy has
clearly failed to execute its nondiscretionary duty to issue a visa or a final refusal.
This is evident from: (1) its failure to comply with its own refusal procedures; (2)
the language of its communications with the Assads.
1. Refusal Procedures
For every properly completed and executed visa application, a consular
official must either issue or refuse the visa. 22 C.F.R. § 42.81(a). A final refusal
must conform to the “refusal procedures” in Subsection (b) of 22 C.F.R. § 42.81.
The refusal procedures include: (1) obtaining a signed form (either DS-230 or DS260) from the applicant; (2) maintaining a “refusal file” that contains the documents
used as the basis for refusal; (3) informing the applicant of the basis for refusal; and
(4) informing the applicant of statutes and regulations which could provide
administrative relief. Moreover, any refusal carries with it the right to have “the
principal consular officer at a post . . . review the case without delay” and record that
decision. 22 C.F.R. § 42.81(c). Where a final refusal occurs, the applicant is entitled
to one year in which to submit additional evidence “tending to overcome the ground
of ineligibility on which the refusal was based.” 22 C.F.R. § 42.81(e).

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The U.S. Embassy has not complied with these refusal procedures. It failed
to provide any signed document indicated as DS-230 or DS-260, nor any documents
in the refusal file. The sole basis for refusal, according to the letter sent to Neil
Reyas Assad was that his “application does not comply with the provisions of the
INA,” which is so broad as to be effectively meaningless. See Schutz v. Sec'y, Dep't
of State, 6:11-CV-1296-ORL-31, 2012 WL 275521 at *2 (M.D. Fla. Jan. 31, 2012).
The letter did not notify the applicant of the regulatory right to consular review of
the refusal. It did not state what additional evidence could be submitted in order to
overcome the refusal, nor did it even mention the right to submit the additional
evidence.
2. Language of Communications
The language of the U.S. Embassy’s communications clearly indicate that the
decision on Assad’s visa is still pending and not final. The June 7, 2011 letter
informed Assad that the only recourse was to await the conclusion of administrative
review, which the letter stated would be forthcoming and in writing. The
Respondents have offered no evidence that this administrative review ever took
place. The letter invited Assad to follow up from time to time on the status of the
application. This very invitation to check up evidences a process that is not
complete. When Assad’s counsel sent an inquiry in August 2012, the response was
that “this case is still pending.”
Based on these facts, the court finds that the U.S. Embassy has failed to either
refuse or grant the visa. Because the Embassy has failed to make a final decision,
the court has jurisdiction to grant Petitioner relief via Writ of Mandamus.
B. USCIS
The court has no subject matter jurisdiction with respect to USCIS. The
Petition for Writ of Mandamus claims that the U.S. Embassy returned the I-130
Petition to USCIS for possible revocation pursuant to a procedure listed in the
Foreign Affairs Manual. Government Declarations have certified that Neil Reyas
Assad’s case is still in fact with the U.S. Embassy in Guyana awaiting administrative
review and that USCIS is not reviewing the matter for possible revocation.1 Since
there is no action that this court can compel USCIS to take, it has no subject matter
jurisdiction to grant relief with respect to USCIS.

1

These certifications may be considered given that this is a Rule 12(b)(1) factual attack on subject matter jurisdiction.
Gould Electronics Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000) (citing Gotha v. United States, 115 F.3d
176, 178-79 (3d Cir. 1997)).
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C. Attorney General
The Petition contains no substantive allegations pertaining to an act or
omission of the Attorney General with respect to this matter. The Petitioner has
failed to state a claim, and therefore the court will dismiss the Attorney General
pursuant to Rule 12(b)(6). Dismissal is without prejudice.

IV.

CONCLUSION

For the reasons stated above, Respondents’ motion to dismiss is GRANTED
in part, and DENIED in part. The motion to dismiss is GRANTED as to the U.S.
Attorney General and USCIS. The motion is DENIED as to the Department of State
and the U.S. Embassy in Guyana. An appropriate order follows.

/s/ William J. Martini
______________________________
WILLIAM J. MARTINI, U.S.D.J.
Date: November 1, 2013

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