The opinion of the court was delivered by: James E. Boasberg United States District Judge
Plaintiff Manjit Kaur Jathoul has filed the present action in response to a consular decision to deny her alien husband a United States visa. In suing the Secretary of State, she claims this administrative decision violated her Fifth Amendment due-process right to live with her spouse. Defendant now brings the instant Motion to Dismiss for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and failure to state a claim under Rule 12(b)(6). In support, Defendant largely relies on the principle of consular nonreviewability. Finding that Plaintiff has failed to assert a constitutionally protected liberty interest that permits judicial review of the consular decision, the Court will grant the Motion and dismiss the case.
Plaintiff filed her initial Complaint on March 29, 2012. While Defendant's Motion to Dismiss was pending, she filed an Amended Complaint on July 24. To give her the benefit of the doubt, the Court will consider Plaintiff's Amended Complaint for purposes of Defendant's Motion.
According to the Amended Complaint, which must be presumed true at this stage, Plaintiff initially filed an I-130 Immigrant Petition for her husband, Amarpeet Pal Singh Riar, a citizen of India, on December 27, 2007. See Am. Compl., ¶¶ 8-9. The petition was approved on April 1, 2008, and Riar interviewed at a consular office in New Delhi on December 4, 2008. Id., ¶¶ 9-10. Following that interview and the processing of additional material submitted by the pair, Plaintiff received notice that Riar's visa application had been formally denied on February 10, 2011. Id., ¶ 16. The United States Citizenship and Immigration Services (USCIS) found Riar not admissible under Immigration and Nationality Act § 212 (a)(3)(B) [8 U.S.C. § 1182(a)(3)(B)], which relates generally to "Terrorist Activities." See id., ¶¶ 16-17. Plaintiff claims her husband has "never engaged in terrorism" and that her husband was "never given the opportunity to demonstrate the knowledge or lack of knowledge required by several subsections of [§ 1182(a)(3)(B)]." Id., ¶¶ 19-20. She claims the USCIS violated her due process rights by "failing to provide a specific reason for denying [her husband's] visa application" and for "impos[ing] an undue burden on [the] fundamental liberty interest" of her marriage. Id., ¶¶ 21, 24.
Defendant has now moved to dismiss the case for lack of subject-matter jurisdiction or, in the alternative, for failure to state a claim.
Defendant's Motion invokes the legal standards for dismissal under Rules 12(b)(1) and 12(b)(6). In evaluating a motion to dismiss under Rule 12(b)(1), the Court must "treat the complaint's factual allegations as true . . . and must grant plaintiff 'the benefit of all inferences that can be derived from the facts alleged.'" Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)) (internal citation omitted); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). The Court need not accept as true, however, "a legal conclusion couched as a factual allegation," nor an inference unsupported by the facts set forth 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)) (internal quotation marks omitted).
To survive a motion to dismiss under Rule 12(b)(1), Plaintiff bears the burden of proving that the Court has subject-matter jurisdiction to hear her claims. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); U.S. Ecology, Inc. v. U.S. Dep't of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000). A court has an "affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority." Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). For this reason, "'the [p]laintiff's factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim." Id. at 13-14 (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1987) (alteration in original)).
Rule 12(b)(6) provides for the dismissal of an action where a complaint fails to "state a claim upon which relief can be granted." When sufficiency of a complaint is challenged under Rule 12(b)(6), the factual allegations presented in it must be presumed true and should be liberally construed in plaintiff's favor. Leatherman v. Tarrant Cty. Narcotics & Coordination Unit, 507 U.S. 163, 164 (1993). Although the notice-pleading rules are "not meant to impose a great burden on a plaintiff," Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005), and "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation omitted). Plaintiff must put forth "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Though a plaintiff may survive a 12(b)(6) motion even if "recovery is very remote and unlikely," Twombly, 550 U.S. at 555 (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)), the facts alleged in the complaint "must be enough to raise a right to relief above the speculative level." Id. at 555.
Plaintiff here is seeking judicial review of the USCIS decision to deny her husband a visa. Courts, however, do not typically have subject-matter jurisdiction to review such claims because consular officials "have complete discretion over issuance and revocation of visas." Saavedra Bruno v. Albright, 197 F.3d 1153, 1158 n.2 (D.C. Cir. 1999). Matters of policy toward aliens are "so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference." Id. at 1159 (quoting Harisiades v. Shaughnessy, 342 U.S. 580, 589 (1952)) (internal quotation marks omitted); see also U.S. 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.").
In Saavedra Bruno, a Bolivian national and his U.S.-citizen sponsors brought an action against the Secretary of State to review decisions made by American consulates in Panama and Bolivia regarding his visas. To determine whether the plaintiff was entitled to judicial review of the consular denial of his visa application, the D.C. Circuit first offered a brief history of American immigration law. Id. at 1156-57. The court found that, although there is typically a "'presumption' of judicial review of agency action," id. at 1157, there exists a doctrine of consular non-reviewability that 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." Id. at 1159. This non-reviewability represents a "limitation on judicial review unaffected by [Administrative Procedure Act] § 702's opening clause granting a right of review to persons suffering legal wrong from agency action." Id. at 1160 (internal quotations omitted). As a result, the Court held it lacked subject-matter jurisdiction to hear the case. See id. at 1162.
Saavedra Bruno is not, however, dispositive of this case. As Defendant has acknowledged, there is a limited exception to the doctrine of consular non-reviewability when "the denial of a visa implicates the constitutional rights of American citizens." Mot. at 9 (citing Bustamante v. Mukasey, 531 F.3d 1059, 1062 (9th Cir. 2008)); see also Abourezk v. Reagan, 785 F.2d 1043, 1061 (D.C. Cir. 1986) ("Executive has broad discretion over the admission and exclusion of aliens, but that discretion is not boundless."); Udugampola v. Jacobs, 795 F. Supp. 2d 96, 103 (D.D.C. 2011) (holding that exception applies when visa decision "violates a constitutionally protected liberty interest"). Plaintiff bears the burden of establishing that the consular action falls within this exception, ...