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Rohrbaugh v. Pompeo

United States District Court, District of Columbia

August 22, 2019

MICHAEL R. POMPEO, et al., Defendants.



         Plaintiffs 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.

         I. Background

         Plaintiffs 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.

         Waiver 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.

         Plaintiffs then filed suit in federal court on February 27, 2019, [1] 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.

         Defendants-various 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 Dismiss 2.

         II. Standard of Review

          When 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).[2]

         III. Analysis

         Plaintiffs 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 action”).

         But, 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 (collecting cases).

         The 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 judicial review.

         The 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 Kerry ...

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