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Aboutalebi v. Department of State

United States District Court, District of Columbia

December 18, 2019

ZAHRA ABOUTALEBI, Plaintiff,
v.
DEPARTMENT OF STATE et al., Defendants.

          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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