United States District Court, District of Columbia
SEGAL HUVELLE UNITED STATES DISTRICT JUDGE
are Baan Rao Thai Restaurant (“Baan Rao”),
located in Minot, North Dakota, and two Thai nationals,
Somporn Phomson and Napaket Suksai, who worked as Thai cooks
for several years at Baan Rao on E-2 “essential
employee” non-immigrant visas. (See Compl.
¶¶ 4-6, 9-17, ECF No. 1.) Both Mr. Phomson and Ms.
Suksai applied on two occasions in 2018 to renew their visas.
Their applications were rejected by the U.S. Embassy in
Bangkok, Thailand. Plaintiffs now seek review of the visa
denials as arbitrary and capricious and contrary to law under
the Administrative Procedure Act (“APA”) and
provisions of a treaty between the United States and
Thailand. Because the doctrine of consular nonreviewability
precludes judicial review of plaintiffs' claims, the
Court will grant defendants' motion to dismiss.
Rao has operated in Minot, North Dakota, since 2008. (See
Id. ¶ 4.) Ms. Suksai received an E-2 visa and was
admitted to the United States in E-2 status from 2010 to
2012, during which time she worked at Baan Rao. (See
Id. ¶¶ 6, 10.) Mr. Phomson worked as a cook at
the restaurant for approximately six years, from 2012 until
2018. (See Id. ¶¶ 5, 10-11.) Mr. Phomson
was first granted an E-2 visa and admitted to the United
States in 2012. (See Id. ¶ 10.) He successfully
applied to the United States Citizenship and Immigration
Services (“USCIS”) to extend his E-2 visa status
in 2014 and 2016. (See id.) In 2017, the USCIS
California Service Center denied Mr. Phomson's
application for an extension on the basis that he was not an
“essential” employee of Baan Rao. (See
Id. ¶ 11.) After Baan Rao challenged the decision
in federal court, USCIS reopened the application and approved
the extension, which was valid until October 1, 2018.
2018 Mr. Phomson and Ms. Suksai applied at the U.S. Embassy
in Bangkok for new E-2 visas as employees of Baan Rao,
arguing that they are “employed . . . in a responsible
capacity” within the meaning of a treaty between the
United States and Thailand, which is the underlying authority
for a Thai national to receive an E-2 visa. See
Treaty of Amity and Economic Relations, U.S.-Thail., art. I,
¶ 1, 19 U.S.T. 5843 (1968) (“U.S.-Thail.
Treaty”). (See also Compl. ¶¶
12-13.) E-2 visas must be authorized by such a treaty.
See 8 U.S.C. § 1101(a)(15)(E)(ii) (providing
that an individual may seek entry into the United States
under “a treaty of commerce and navigation between the
United States and the foreign state of which he is a national
. . . solely to develop and direct the operations of an
enterprise. . . .”).
Embassy denied both applications because they “did not
meet all of the requirements of an E-2 essential employee as
specified in 9 FAM 402.9-7.” (Compl. ¶ 14 (citing
U.S. Dep't of State Foreign Affairs Manual).) Mr. Phomson
and Ms. Suksai reapplied in September 2018, and included in
their applications a statement from the owner of Baan Rao
“explaining the shortage of qualified Thai chefs in
Minot, North Dakota.” (See Id. ¶¶
15-16.) The applications again were denied. (See Id.
initiated this action on January 10, 2019. They bring two
causes of action: (1) a claim that defendants “erred as
a matter of law and acted arbitrarily and capriciously in
denying” Mr. Phomson and Ms. Suksai's E-2 visa
applications, in violation of the APA (Count I); and (2) an
ultra vires claim that a treaty between the United
States and Thailand bars defendants' requirement that
those seeking E-2 employee visas must be
“essential” to the business (Count II). (See
Id. ¶¶ 24-28.) Defendants have moved to
dismiss, or in the alternative, for a transfer of venue to
federal court in North Dakota. (See Mem. of Points
& Auth. in Support of Defs.' Mot. to Transfer or to
Dismiss, ECF No. 7-1 (“Mot. to Dismiss”).)
Plaintiffs opposed (Pls.' Mem. in Opp'n to Mot. to
Dismiss or to Transfer Case, ECF No. 8
(“Opp'n”)), and defendants filed a reply.
(Defs.' Reply to Opp'n to Mot. to Dismiss or to
Transfer, ECF No. 10 (“Reply”).)
MOTION TO DISMISS
Count I - Administrative Procedure Act
Count I, plaintiffs challenge the denials of their visa
applications as contrary to law and arbitrary and capricious
in violation of the APA, 5 U.S.C. § 706(2). Defendants
argue that the doctrine of consular nonreviewability bars
judicial review of any claim for relief, and therefore, the
Court should dismiss for lack of subject-matter jurisdiction
pursuant to Federal Rule of Civil Procedure 12(b)(1).
Plaintiffs bear the burden “to establish that the Court
has subject matter jurisdiction over the action.”
Logan v. Dep't of Veterans Affairs, 357
F.Supp.2d 149, 153 (D.D.C. 2004) (citing McNutt v. Gen.
Motors Acceptance Corp. of Ind., 298 U.S. 178, 182-83
review of visa denials by consular officials at United States
Embassies, such as the denials at issue here, is generally
precluded under the broad and established doctrine of
consular nonreviewability. See Saavedra Bruno v.
Albright, 197 F.3d 1153, 1159-60 (D.C. Cir. 1999)
(“For the greater part of this century, our court has
therefore refused to review visa decisions of consular
officials.”); see also Castaneda-Gonzalez v.
INS, 564 F.2d 417, 428 n.25 (D.C. Cir. 1977) (explaining
that a consular official may refuse to issue a visa to an
alien “without fear of reversal since visa decisions
are nonreviewable”). This doctrine is rooted in the
separation of powers and the principle that it 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.”
Saavedra Bruno, 197 F.3d at 1159 (quoting United
States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543
(1950)). The doctrine precludes review even where it is
alleged that the consular officer failed to follow
regulations, Burrafato v. Dep't of State, 523
F.2d 554, 555-57 (2d Cir. 1975); the applicant challenges the
validity of the regulations on which the decision was based,
Ventura-Escamilla v. INS, 647 F.2d 28, 32 (9th Cir.
1981); or the decision is alleged to have been based on a
factual or legal error. Loza-Bedoya v. INS, 410 F.2d
343, 346-47 (9th Cir. 1969).
challenge based on a consular official's visa denial
falls well within the scope of the consular nonreviewability
doctrine, as interpreted by the D.C. Circuit. See
Saavedra Bruno, 197 F.3d at 1162; see also Van
Ravenswaay v. Napolitano, 613 F.Supp.2d 1, 6 (D.D.C.
2009) (holding that the APA “provides no basis for
challenging consular visa decisions”). In
Saavedra Bruno, the D.C. Circuit concluded
that a visa denial or revocation by a consular officer was
not reviewable for factual errors on which the decision
allegedly relied, because “the immigration laws
preclude judicial review of consular visa decisions.”
Saavedra Bruno, 197 F.3d at 1162. In rejecting the
argument that an APA challenge constitutes an exception to
the doctrine, the Court stated:
There was no reason for Congress to say as much expressly.
Given the historical background against which it has
legislated over the years, . . . Congress could safely assume
that aliens residing abroad were barred from challenging
consular visa decisions in federal court unless legislation
specifically permitted such actions. The ...