United States District Court, District of Columbia
JUSTIN ASHLEY ROHRBAUGH, OLGA LETICIA GARCIA MARROQUIN DE ROHRBAUGH, Plaintiffs,
MICHAEL R. POMPEO, et al., Defendants.
CHRISTOPHER R. COOPER, UNITED STATES DISTRICT JUDGE.
Justin and Olga Rohrbaugh brought this action seeking relief
from the denial of Mrs. Rohrbaugh's immigrant visa
application by a U.S. consular officer in Guatemala. They
claim that the denial violates the Administrative Procedure
Act as well as their Fifth Amendment rights to due process.
Defendants moved to dismiss principally for lack of subject
matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1), arguing that the doctrine of consular
non-reviewability precludes this Court's review. Because
the Court finds that the Rohrbaughs have failed to assert a
constitutionally protected interest that would permit
judicial review of a consular visa decision, the Court will
grant the motion and dismiss the case.
Justin and Olga Rohrbaugh met in 2014 and wed the following
year. Am. Compl. ¶ 42. Mr. Rohrbaugh is a U.S. citizen,
Am. Compl. ¶ 20; Mrs. Rohrbaugh, a native of Guatemala,
entered the country in 2008 outside of the proper channels.
Am. Compl. ¶ 21; Exh. B ¶ 3. Once married, the
couple followed the procedures for Mrs. Rohrbaugh to become a
lawful permanent resident based on marriage to a U.S.
citizen. Am. Compl. ¶ 42-47. First, Mr. Rohrbaugh
successfully petitioned U.S. Citizenship and Immigration
Services (“USCIS”) to establish the validity of
the marriage. Am. Compl. ¶ 43; Exh. D. Because of her
prior illegal entry, Mrs. Rohrbaugh was deemed
“inadmissible” and required a waiver from USCIS
before she could be considered for permanent residence. Am.
Compl. ¶ 36, 44; Exh. E. She applied for the necessary
waiver, which USCIS granted in June 2016. Am. Compl. ¶
44-45; Exh. E, F.
in hand, Mrs. Rohrbaugh left the United States and returned
to Guatemala to apply for her immigrant visa at the U.S.
Embassy there. Am. Compl. ¶ 46. Mrs. Rohrbaugh appeared
at the Embassy for her immigrant visa interview, during which
a U.S. consular officer determined that she was inadmissible
to the U.S. and denied her visa application. Am. Compl.
¶ 47. In particular, the consular officer determined
that Mrs. Rohrbaugh is inadmissible because she fit the
statutory definition of a “human smuggler, ”
see 8 U.S.C. § 1182(a)(6)(E), and because she
had been unlawfully present in the U.S. for more than a year
and sought admission within ten years of her departure,
see 8 U.S.C. § 1182(a)(9)(B)(i)(II).
See Am. Compl. ¶ 5; Def.'s Mot. to Dismiss
7; Derentz Decl. ¶¶ 4-6. Although they had no right
of administrative appeal, Mr. Rohrbaugh emailed the Immigrant
Visa Chief of the U.S. Embassy in Guatemala to request a
review of the consular officer's decision. Am. Compl.
¶ 48. The Immigrant Visa Chief reviewed the decision in
consultation with the Department of State in Washington, D.C.
and upheld the denial. Am. Compl. ¶ 48; Exh. H.
then filed suit in federal court on February 27, 2019,
asking the Court to set aside the consular officer's
decision as arbitrary and capricious under the Administrative
Procedure Act and contrary to the Rohrbaughs' Fifth
Amendment rights to due process. Am. Compl. ¶¶
51-81. They allege that Mrs. Rohrbaugh is “suffer[ing]
the hardships of unreasonably and unlawfully being deprived
of admission to and lawful permanent residency in the United
States, ” and that Mr. Rohrbaugh is being
“deprived of the company and support of his
wife.” Am. Compl. ¶ 10.
officials at the Department of State-have moved to dismiss
the case for lack of subject matter jurisdiction and for
failure to state a claim, arguing that the doctrine of
consular non-reviewability precludes judicial review of visa
denials. Def.'s Mot. to Dismiss 1. The government also
seeks to have the case transferred to the Northern District
of Ohio, where Mr. Rohrbaugh resides. Def.'s Mot. to
Standard of Review
analyzing a motion to dismiss for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1),
the Court “assume[s] the truth of all material factual
allegations in the complaint, and ‘construe[s] the
complaint liberally, granting plaintiff the benefit of all
inferences that can be derived from the facts
alleged.'” Am. Nat'l Ins. Co. v. FDIC,
642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v.
Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)). Even so,
the Court “may consider such materials outside the
pleadings as it deems appropriate to resolve the question
[of] whether it has jurisdiction to hear the case.”
Friends of Animals v. Zinke, 373 F.Supp.3d 70, 81
(D.D.C. 2019). Under Rule 12(b)(1), the plaintiff bears the
burden of establishing jurisdiction by a preponderance of the
evidence. See Lujan v. Defs. of Wildlife, 504 U.S.
555, 561 (1992); Shekoyan v. Sibley Int'l Corp.,
217 F.Supp.2d 59, 63 (D.D.C. 2002).
seek judicial review of a U.S. consular officer's
decision to deny Mrs. Rohrbaugh a visa. They argue that the
Administrative Procedure Act's (“APA”)
judicial review provisions open the courthouse doors to
permit review of a consular officer's visa determinations
because the APA carries a “‘presumption' of
judicial review of agency action.” See Saavedra
Bruno v. Albright, 197 F.3d 1153, 1157 (D.C. Cir. 1999)
(noting that the presumption “is said to derive from
APA § 702, ” which broadly permits judicial review
to a “person suffering legal wrong because of agency
action, or adversely affected or aggrieved by agency
under the long-standing doctrine of consular
non-reviewability, courts do not typically have
subject-matter jurisdiction to review visa denials because
consular officers “have complete discretion over
issuance and revocation of visas.” Id. at 1158
n.2. Courts routinely apply this doctrine to bar suits
seeking review of visa denials in light of “the
political nature of visa determinations and of the lack of
any statute expressly authorizing judicial review of consular
officers' actions.” Id. at 1159-60
APA's judicial review provisions are not an exception to
this general rule. The consular non-reviewability
doctrine's “limitation on judicial review”
is “unaffected by § 702's opening clause
granting a right of review to persons suffering legal wrong
from agency action.” Id. at 1160 (internal
quotations omitted). Section 702 explicitly preserves
“other limitations on judicial review” that
predated the APA, which include the doctrine of consular
non-reviewability. Id. at 1158; see also
Udugampola v. Jacobs, 70 F.Supp.3d 33, 42 n.7 (D.D.C.
2014) (“[T]he APA does not provide the plaintiffs with
a cause of action to assert a claim otherwise barred by the
doctrine of consular non-reviewability.”); Mostofi
v. Napolitano, 841 F.Supp.2d 208, 211 (D.D.C. 2012)
(“[T]he APA does not permit judicial review of consular
visa decisions[.]”); see also Chun v. Powell,
223 F.Supp.2d 204, 206 (D.D.C. 2002) (collecting cases). The
APA therefore does not provide the Rohrbaughs a vehicle for
Rohrbaughs do invoke one recognized exception to the consular
non-reviewability doctrine. The so-called
“Mandel exception” permits federal
courts to review a consular officer's decision when the
decision implicates the constitutional rights of a U.S.
citizen. See Kleindienst v. Mandel, 408 U.S. 753,
770 (1972). But that review is quite limited: If a plaintiff
can point to a constitutional violation, courts will only
review the decision to ensure that it is “facially
legitimate and bona fide.” Id.; see also