The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
Plaintiff Shaghayegh Mostofi, a United States citizen, has sued the Secretary of the Department of Homeland Security, the Secretary of State, and the Consul General at the United States Consulate in Sydney, Australia alleging that defendants' refusal to issue her alien husband, Shahriar Aghakhani, an immigrant visa violated her First Amendment right to "freedom of personal choice in matters of marriage and family life" (Compl. ¶ 29) and Fifth Amendment constitutional right to "fundamental fairness in administrative adjudication." (Id. ¶¶ 47-48.)
Defendants have moved to dismiss on the grounds that this Court lacks subject matter jurisdiction based on the doctrine of consular nonreviewability. For the reasons set forth below, defendants' motion to dismiss is granted.
Plaintiff Shaghayegh Mostofi, a naturalized American citizen, married Iranian citizen Shahriar Aghakhani on August 20, 2008, in Tehran, Iran. Aghakhani had previously been denied an immigrant visa to the United States in 2002 and 2004. On September 17, 2008, Mostofi filed an I-130 Petition for Alien Relative with the United States Citizenship and Immigration Services ("USCIS") on Aghakhani's behalf. On October 1, 2008, Mostofi filed an I-129F Petition for Fiance(e) with the USCIS, also on Aghakhani's behalf.*fn1 During the pendency of the two petitions, Mostofi lived in the Cincinnati area while Aghakhani lived in Australia. Following a Federal Bureau of Investigation interview with Mostofi regarding Aghakhani, the USCIS approved the I-130 petition on August 24, 2009, and the I-129F petition on January 11, 2010. As part of the continuing process of obtaining an immigrant visa, Aghakhani attended a March 16, 2010 interview at the United States Consulate in Sydney, Australia.
On April 14, 2010, the Immigrant Visa Chief of the United States Consulate General in Sydney denied Aghakhani's visa application stating:
At this time, we have received a response from the Department of State in your case, and we are unable to issue you an immigrant visa. Your case is being refused under Section 212(a)(3) of the Immigration and Nationality Act. There is no waiver available for this ineligibility for an immigrant visa. (Compl. Ex. F.) Section 212(a)(3) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(a)(3), allows exclusion of a visa applicant from the United States on any of six security and related grounds. No communication with Mostofi or Aghakhani from immigration authorities indicated which subsection of the statute applied to Aghakhani's visa denial. An inquiry with consular officials regarding Aghakhani's visa denial initiated by United States Senator George Voinovich of Ohio ended when Senator Voinovich received a letter restating the same INA Section 212(a)(3) grounds for refusing Aghakhani's entry. (Compl. Ex. G.) Mostofi moved to Australia in late 2010 to live with Aghakhani.
On April 14, 2011, Mostofi filed a Petition for a writ of mandamus pursuant to the Administrative Procedures Act ("APA"), 5 U.S.C. § 702, the Mandamus Act, 28 U.S.C. § 1361, and the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq. (Compl. ¶¶ 2, 40). Plaintiff seeks a declaration that Aghakhani's exclusion from the United States was "not based on a facially legitimate and bona fide reason" and that his exclusion violates the APA; a writ of mandamus compelling defendants to review their refusal of Mostofi's application for Aghakhani's visa and to identify the facts, evidence, and statutory subsections that underlie the refusal of Aghakhani's visa; and injunctive relief granting Aghakhani permanent residency status and compelling the issuance of an immigrant visa. (Compl. ¶¶ 43, 56).
On a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, plaintiff bears the burden of establishing by a preponderance of the evidence that the court has subject matter jurisdiction. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). A court must accept as true all factual allegations in the complaint, and give plaintiff the benefit of all reasonable inferences from the facts alleged. Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). However, a court need not accept as true "a legal conclusion couched as a factual allegation," nor inferences that are "unsupported by the facts set out in the complaint." Trudeau v. Fed. Trade Comm'n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). In considering the sufficiency of a plaintiff's allegations for this purpose, a court may consider materials outside the pleadings. Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992).
A consular officer's decision to deny a visa is generally not subject to judicial review, for as Justice Harlan stated in Lem Moon Sing v. United States:
The power of Congress to exclude aliens altogether from the United States or to prescribe the terms and conditions upon which they may come into this country, and to have its declared policy in that regard enforced exclusively through executive officers without judicial intervention, is settled by our previous adjudications. 158 U.S. 538, 547 (1895); see also 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."); Shaughnessy v. United States ex rel. Menzei, 345 U.S. 206, 210 (1953) ("Courts have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control."); Bruno v. Albright, 197 F.3d 1153, 1156-57, 1162 (D.C. Cir. 1999) (the INA grants consular officials "exclusive authority" to review visa applications, and thus, the APA does not permit judicial review of consular visa decisions); Udugampola v. Jacobs, 795 F. Supp. 2d 96, 102 (D.D.C. 2011) ("The power to control entry into the United States is exercised exclusively by the political branches of government and judicial review of such matters is extremely limited.") (internal citations and quotations omitted).
This established doctrine of "consular nonreviewability" is far-reaching. See Chun v. Powell, 223 F. Supp. 2d 204, 206 (D.D.C. 2002) (consular nonreviewability applicable even where consular officer failed to follow regulations or made decision based on factual or legal error). However, in Kliendienst v. Mandel, 408 U.S. 753 (1972), the Supreme Court opened the door to limited review of consular decisions. In rejecting a First Amendment challenge by U.S. citizens to the denial of a visa waiver for a Belgian journalist who was scheduled to speak at several American universities, the Court held that "when the Executive exercises this power [to deny a waiver] on the basis of a facially legitimate and bona fide reason, the courts will neither look ...