575 F.Supp.3d 121
D.D.C.2021Background:
- Kristen Colindres, a U.S. citizen, and her husband Edvin Colindres Juarez, a Guatemalan citizen, are long-married with a U.S.-born daughter.
- Colindres filed an I-130 for her husband (approved); he filed for a provisional unlawful presence waiver, completed biometrics, and submitted a DS-260 for an immigrant visa.
- After consular interviews in Guatemala (2019) and apparently lengthy administrative processing, the U.S. Embassy refused the immigrant visa under INA §1182(a)(3)(A)(ii) as there were reasonable grounds to believe he was a member of a known criminal organization.
- Plaintiffs sought reconsideration with documentary support (family letters, explanations of tattoos); the embassy denied reconsideration and Plaintiffs then sued in federal court alleging constitutional (due process, equal protection, First Amendment) and statutory (INA, APA) violations, and that §1182(a)(3)(A)(ii) is unconstitutionally vague.
- Defendants moved to dismiss based on consular nonreviewability and, alternatively, that the complaint failed to plead a cognizable constitutional or statutory claim; the Court granted dismissal.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Vagueness of 8 U.S.C. §1182(a)(3)(A)(ii) | Statute is unconstitutionally vague as applied to Colindres Juarez | Boutilier/plenary-power doctrine and lack of vagueness | Claim rejected: plaintiffs conceded argument and court held statute not vague as applied when basis alleges membership in criminal organization |
| Whether denial burdens citizen spouse's due process/family liberty | Colindres’ right to family life and to live with spouse was burdened, triggering review | Visa denials to aliens do not deprive citizen spouse of a protected liberty interest; Swartz controls in D.C. Circuit | Dismissed: no constitutionally protected liberty interest pled, so exception to consular nonreviewability does not apply |
| First Amendment / expressive association | Visa denial infringes rights to speech, association, and familial association | Plaintiffs pleaded only conclusory First Amendment claims; intimate/expressive association claims mirror due process analysis | Dismissed: claims are conclusory and, to the extent they restate marital liberty, fail for same reason as due process claim |
| Statutory/APA review and consular nonreviewability | INA/APA or other statutes authorize review; denial violated INA/APA | Doctrine of consular nonreviewability bars judicial review of consular visa decisions; APA does not authorize review; INA contains no clear waiver of nonreviewability | Dismissed: statutory claims barred by consular nonreviewability; plaintiffs pointed to no statute that expressly authorizes judicial review |
Key Cases Cited
- Kleindienst v. Mandel, 408 U.S. 753 (1972) (establishes "facially legitimate and bona fide" standard for limited review of visa denials that burden constitutional rights)
- Kerry v. Din, 576 U.S. 86 (2015) (plurality/concurring opinions left unresolved whether citizen spouse has a protected liberty interest; applied Mandel standard)
- Swartz v. Rogers, 254 F.2d 338 (D.C. Cir. 1958) (holding deportation/visa denial does not destroy marital legal union and does not violate citizen spouse's constitutional rights)
- Saavedra Bruno v. Albright, 197 F.3d 1153 (D.C. Cir. 1999) (holds APA and INA do not permit judicial review of consular visa decisions; consular officers have exclusive authority)
- Baan Rao Thai Rest. v. Pompeo, 985 F.3d 1020 (D.C. Cir. 2021) (recent D.C. Circuit reaffirmation of consular nonreviewability and analysis of its exceptions)
- Boutilier v. INS, 387 U.S. 118 (1967) (plenary power precedent rejecting vagueness challenge in admission context)
- Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (applies heightened vagueness scrutiny to INA provision; limits plenary-power excesses)
- Zadvydas v. Davis, 533 U.S. 678 (2001) (recognizes constitutional limits on plenary immigration power)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (pleading standard requiring more than labels and conclusions)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (Iqbal clarifies Twombly pleading requirements)
- Munoz v. Dep’t of State, 526 F. Supp. 3d 709 (C.D. Cal. 2021) (applies §1182(a)(3)(A)(ii) and holds statute not vague as applied where denial rested on alleged gang membership)