The opinion of the court was delivered by: Reggie B. Walton United States District Judge
Henri Keli, the petitioner in this civil lawsuit, seeks declaratory relief and a writ of mandamus to compel Condoleeza Rice, the Secretary of State, Janice Jacobs, the Assistant Secretary of State for the Bureau of Consular Affairs,*fn1 and Stephen A. Edson, the Deputy Assistant Secretary of State for Visa Services (the respondents in this civil lawsuit in their official capacity) to take "action on the . . . processing of a diversity visa application filed by the [petitioner]." Complaint (the "Compl.") ¶ 1. The petitioner also claims that the respondents violated the Administrative Procedures Act, 5 U.S.C. §§ 551-59, 701-06, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2000) (the "APA"), by "unlawfully withholding action on the petitioner's [diversity visa] application," Compl. ¶ 15. Finally, the petitioner seeks "reasonable attorney's fees pursuant to the Equal Access to Justice Act," 5 U.S.C. § 504(a) (2000) (the "EAJA"). Compl. ¶ 17. Currently before the Court is the respondents' motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1). After carefully considering the petitioner's complaint, the respondents' motion to dismiss, and all other memoranda and exhibits relating thereto, the Court concludes that the respondents' motion to dismiss must be granted for the reasons that follow.*fn2
The following facts are either alleged by the petitioner in his complaint or are matters of public record. The Immigration and Nationality Act, 8 U.S.C. §§ 1101-05a, 1151-60, 1181-89, 1201-04, 1221-31, 1252-60, 1281-88, 1301-06, 1321-30, 1351-63a, 1401-09, 1421-31, 1433, 1435-55, 1457-58, 1481-83, 1488-89, 1501-04, 1521-24, 1531-37, 18 U.S.C. § 1429 (2000) (the "INA"), as amended by the Immigration and Nationality Act of 1990, 8 U.S.C. §§ 1186(b), 1288, 1254a, 1304, 1324c, 1252b, 29 U.S.C. § 2920 (2000), provides a limited number of immigrant visas each year to natives of countries that have been designated "low-admission states" by the Attorney General. This diversity visa ("DV") program utilizes a lottery system to allocate 55,000 visas per fiscal year to a pool of applicants from low-admission states. 8 U.S.C. § 1151(e) (2000).*fn3 However, because the diversity visa lottery selects approximately 100,000 immigrants annually, "[s]election does not guarantee that [lottery winners] will receive a visa because the number of applicants selected is greater than the number of visas available." Compl., Ex. 1 (miscellaneous documents submitted by the petitioner) (the "Pet'r's Docs.") at 16 (emphasis added) (notification letter for selection in DV program). Moreover, "[a]liens who qualify [through the lottery] . . . remain eligible to receive such [a] visa onlythrough the end of the specific fiscal year for which they were selected." 8 U.S.C. § 1154(a)(1)(I)(ii)(II) (2000) (emphasis added). Therefore, diversity visa eligibility expires annually on September 30, the last day of the fiscal year. See 2 U.S.C. § 631 (2000) (designating October 1 as the first day of the federal government's fiscal year). There are no exceptions to the fiscal year deadline: "Under no circumstances may a consular officer issue a visa . . . to an alien after the end of the fiscal year during which an alien possesses diversity visa eligibility." 22 C.F.R. § 42.33(a)(1) (2007).
The petitioner, a resident of the Netherlands and a dual French and British national, was selected as a winner in the DV program lottery for fiscal year 2007. Compl. ¶ 2; id., Pet'r's Docs. at 13. On January 10, 2007, id. ¶ 9, "[t]he [petitioner] properly filed an application to the [United States] Embassy of London . . . to register for a visa under the diversity visa program," id. ¶ 8. The petitioner also provided various "forms and supporting documentation," including "fingerprints, police clearances and photo [identification]." Id. ¶ 9; see also id., Pet'r's Docs. at 8-15 (forms submitted by the petitioner along with his visa application). At the time of his initial application, United States consular officers in London interviewed the petitioner and requested that he submit further evidence of the nature of his relationship with his wife, who applied for a visa based on her derivative status as an immediate family member. Id. The petitioner complied with this request for additional evidence "in [a] timely manner (within 5 working days)." Id.
Despite his compliance with the consulate's request, the petitioner heard nothing in reply until August 10, 2007, when consular officials invited him back to London for a follow-up interview. Id. At the conclusion of that interview, the petitioner was informed that "there [were] no reasons to deny the visa." Id. Two weeks later, however, consular officials informed him that his application still required a final security clearance from the Department of State before his visa could be granted. Id. As the September 30, 2007 deadline for approval of all diversity visa applications approached, id. ¶ 9, the petitioner attempted to contact the Department of State, the United States Embassy in London, and the Federal Bureau of Investigation several times by email but received no explanation about the delay in processing his visa application, id. ¶ 10. And at the time this complaint was filed, the petitioner's diversity visa application had yet to be processed. Id. ¶ 1.
The petitioner filed his complaint in this Court on September 20, 2007. He alleges that because he has provided the respondents with "sufficient information to determine [his] eligibility [for a diversity visa] . . . and [to] complete processing procedures," id. ¶ 12, the "[respondents'] delay in this case is, as a matter of law, arbitrary and not in accordance with the law," id. ¶ 13. Accordingly, the petitioner seeks an order "[r]equiring [the respondents] to properly adjudicate [his] application." Id. ¶ 17.
The respondents filed their motion to dismiss the petitioner's complaint on December 3, 2007. In support of their motion, the respondents argue that on September 30, 2007, the petitioner's eligibility to receive a diversity visa expired with the end of the fiscal year. Resp'ts' Mem. at 1, 9. Respondents therefore contend that as "[t]here is no legal authority to issue a visa after the end of that fiscal year," the petitioner's claim is moot because the relief sought is unavailable. Id. at 9. Additionally, the respondents argue that even if the petitioner's claim were not moot, the Court would lack subject-matter jurisdiction over them because "under the doctrine of consular nonreviewability . . . courts have no jurisdiction to consider requests for review of consular visa decisions." Id. at 6.
In his opposition to the respondents' motion to dismiss, the petitioner counters that the respondents' mootness argument is premature, unsupported by the record, and legally erroneous. Pet'r's Opp'n at 40-45. He also disputes the respondents' assertion that the Court lacks subject-matter jurisdiction, arguing that jurisdiction is proper under the APA and 28 U.S.C. § 1331. Id. at 13-15. Finally, the petitioner introduces several entirely new grounds for his requested relief, including due process and equal protection claims and an estoppel-based theory of recovery. Id. 29-34, 39-40.
In addition to reiterating their initial mootness argument, the respondents rejoin in their reply that the case law cited by the petitioner is irrelevant because "none of the case law . . . stands for the proposition that a visa can be issued in connection with the DV [l]ottery [p]rogram after the end of the fiscal year." Resp'ts' Reply at 6-7. The respondents further submit that the petitioner's reliance on the APA is misplaced as "the APA does not apply to decisions of consular officers regarding visa issuance." Id. at 7. Moreover, they contend that the petitioner relies in error on decisions involving judicial review of the Immigration and Naturalization Service (the "INS"), which, unlike the decision at issue here, do not implicate the doctrine of consular nonreviewability. Id. at 3-6. The respondents also assert that the petitioner's due process and equal protection claims have no merit because "[h]e has no claim to [c]onstitutional protections as an alien outside the United States," id. at 10, and he "has not made a colorable estoppel claim" because he can establish neither justifiable reliance on his part nor affirmative misconduct by the respondents, id. at 10-11.
Broadly speaking, there are two types of Rule 12(b)(1) motions. "A facial challenge attacks the factual allegations of the complaint that are contained on the face of the complaint, while a factual challenge is addressed to the underlying facts contained in the complaint." Al-Owhali v. Ashcroft, 279 F. Supp. 2d 13, 20 (D.D.C. 2003) (internal quotation and citations omitted). Where a defendant makes a facial challenge, "the [district] court must accept as true the allegations in the complaint and consider the factual allegations of the complaint in the light most favorable to the non-moving party," Erby v. United States, 424 F. Supp. 2d 180, 182 (D.D.C. 2006), just as it would on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), see Price v. Socialist People's Libyan Arab Jamahiriya, 294 F.3d 82, 93 (D.C. Cir. 2002) (noting that the standard for facial challenge to subject-matter jurisdiction "is similar to that of Rule 12(b)(6)"). Where a factual challenge is made, the district court "may consider materials outside the pleadings" to determine whether it has subject-matter jurisdiction over the challenged case or claims, Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005), and "the plaintiff bears the burden of establishing the factual predicates of jurisdiction by a preponderance of the evidence," Erby, 424 F. Supp. 2d at 182.
Based upon the arguments raised by the parties in their memoranda of law, the only issues before the Court are (1) whether the petitioner's mandamus petition is moot in light of the statutory deadline set forth in the INA (taking into account the claims raised for the first time in his opposition to the respondents' motion to dismiss), and, if not, (2) whether the Court lacks subject-matter jurisdiction over the petitioner's mandamus petition under the doctrine of consular nonreviewability.*fn4 Because the Court concludes that the petitioner's mandamus petition is moot and ...