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Baan Rao Thai Restaurant v. Pompeo

United States District Court, District of Columbia

July 29, 2019

BAAN RAO THAI RESTAURANT, et al., Plaintiffs,
MICHAEL R. POMPEO, Sec'y, Dep't of State, et al., Defendants.



         Plaintiffs 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.


         Baan 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. (See id.)

         In June 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. . . .”).

         The 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. ¶ 17.)

         Plaintiffs 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”).)



         A. Count I - Administrative Procedure Act

         In 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 (1936)).

         Judicial 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).[1]

         An APA 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 ...

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