MEMORANDUM OPINION
TIMOTHY J. KELLY UNITED STATES DISTRICT JUDGE
Zahra
Aboutalebi, an Iranian citizen, brought this action to
challenge Defendants' failure to adjudicate her visa
application; she also alleged that any later denial would be
unlawful. She subsequently moved for a preliminary injunction
to compel Defendants to adjudicate her application.
Defendants have since denied her application. For that
reason, they argue that the Court lacks subject-matter
jurisdiction because Aboutalebi's claims are either moot
or unreviewable under the doctrine of consular
nonreviewability. As explained below, the Court agrees and
will dismiss the case for lack of subject-matter
jurisdiction.
I.
Background
A.
The Complaint
Aboutalebi
is an Iranian citizen pursuing a Doctor of Juridical Science
at Harvard Law School. ECF No. 1 (“Compl.”)
¶ 2. She began her studies in 2013 and was scheduled to
resume them in fall 2018. Id. ¶ 6. To do so,
she needed a J-1 Visa, which she applied for at the U.S.
Embassy in London in May 2018. Id. ¶¶ 13,
24. By August of the following year, her application was
allegedly still “in administrative processing pending
final adjudication.” Id. ¶ 25. And with
the start of the next school year approaching, she sued the
Department of State, Michael Pompeo in his official capacity
as Secretary of State, the U.S. Embassy and Consulate in
London, and Karen Ogle in her official capacity as Consular
General at the U.S. Embassy in London. Id.
¶¶ 7-10, 19. She alleges that Defendants were
unreasonable in delaying her visa because they
inappropriately applied “President Trump's extreme
vetting policy” to her. Id. ¶¶
42-44. She claims this delay jeopardizes her ability to
complete her studies and will cause her to lose scholarships
and grants. Id. ¶¶ 54-60.
Aboutalebi
asserts five causes of action. Counts I and II allege that
the government acted unlawfully in various ways by delaying
the adjudication of her application. Id.
¶¶ 72-92. Count III asks the Court to declare that
she is eligible for a visa and to “order the Defendants
to adjudicate and promptly issue the J-1 Visa to the
Plaintiff.” Id. ¶¶ 93-95. Count IV
preemptively alleges that any subsequent adverse final
decision on her application would be “a retaliatory act
designed to moot this lawsuit and avoid judicial
review” in violation of the Administrative Procedure
Act (APA). Id. ¶¶ 96-102. And Count V
alleges that Defendants violated the APA by not allowing
counsel to appear with her during various stages of the
application process. Id. ¶¶ 103-116.
B.
Aboutalebi's Motion for a Preliminary Injunction
About
two weeks after filing suit, Aboutalebi moved for a
preliminary injunction, or, in the alternative, for a
temporary restraining order. ECF No. 4.[1] In her motion,
she reiterated that “[s]he [would] lose her position as
an S.J.D. Candidate as well as her grants and scholarships,
if Defendants do not promptly issue her J-1 visa.” ECF
No. 4-1 at 2. And she specifically asked this Court “to
direct the Defendants to immediately complete the processing
of her J-1 visa . . . so that she can travel to the U.S. and
continue her S.J.D. program without further harm or
interruption.” Id. Defendants opposed the
motion, arguing in part that the doctrine of consular
nonreviewability barred judicial review of these matters. ECF
No. 7 (“Opp'n”) at 10-13 (citing in part
Saavedra Bruno v. Albright, 197 F.3d 1153, 1158-60
(D.C. Cir. 1999)). And in response, Aboutalebi argued that
that doctrine-even assuming it existed-did not apply in her
case because Defendants had not finally adjudicated her visa.
ECF No. 8 (“Reply”) at 5 (citing in part Nine
Iraqi Allies Under Serious Threat Because of Their Faithful
Serv. to the United States v. Kerry, 168 F.Supp.3d 268,
284 (D.D.C. 2016)).
C.
Defendants' Denial of Aboutalebi's Visa
Application
In
responding to Aboutalebi's motion, Defendants were
unclear about the precise status of her application. On the
one hand, in addition to arguing that her claims were barred
by the doctrine of consular nonreviewability, Defendants
argued that they were moot because a decision on her
application had already been rendered. See Opp'n
at 13-14. On the other hand, Defendants represented that the
State Department “expect[ed] that a consular officer in
the U.S. Embassy in London [would] further adjudicate
Plaintiff's visa application in the next month.”
Id. at 3 (noting also that Aboutalebi's
“application remains refused”). In any event, in
response to an Order from the Court, they subsequently
reported that the U.S. Embassy in London had notified
Aboutalebi that she had been found “ineligible for a
visa under Section 212(f) of the Immigration and Nationality
Act, pursuant to Presidential Proclamation 9932.” ECF
No. 9 at 1. That proclamation suspended entry into the United
States for senior Iranian government officials and their
immediate family members. Suspension of Entry as Immigrants
and Nonimmigrants of Senior Officials of the Government of
Iran, Proclamation 9932, 84 Fed. Reg. 51, 935 (Sept. 25,
2019). The notification letter sent to Aboutalebi explicitly
referenced the proclamation and made clear that the decision
was “final” and could not be appealed. ECF No.
9-1.
The
Court then ordered both parties to file supplemental briefing
addressing whether these developments affected the
Court's jurisdiction or otherwise precluded judicial
review. Minute Order of November 6, 2019. Aboutalebi filed a
supplemental brief in support of her motion for a preliminary
injunction, ECF No. 10 (“Supp. Br.”);
Defendants' filed a supplemental opposition, ECF No. 11
(“Supp. Opp'n”); and Aboutalebi replied, ECF
No. 12 (“Supp. Reply”).
II.
Legal Standard
“Federal
courts are courts of limited jurisdiction, ” and they
must assume that they lack subject-matter jurisdiction over a
claim. Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 377 (1994). The party asserting subject-matter
jurisdiction bears the burden of demonstrating it by a
preponderance of the evidence. Stephens v. United
States, 514 F.Supp.2d 70, 72 (D.D.C. 2007). And under
Federal Rule of Civil Procedure 12(h)(3), “[i]f the
court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”
See also Arbaugh v. Y&H Corp., 546 U.S. 500, 506
(2006).
III.
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