Mostofi v. Napolitano
841 F. Supp. 2d 208
D.D.C.2012Background
- Mostofi, a U.S. citizen, married Aghakhani, an Iranian, in Tehran in 2008.
- USCIS approved both an I-130 and an I-129F petitions for Aghakhani while they resided in different countries.
- Aghakhani attended a 2010 visa interview in Sydney and was denied immigration visa on INA § 212(a)(3) grounds with no stated subsection.
- Mostofi relocated to Australia in 2010 to live with him.
- In 2011, Mostofi filed an APA mandamus, Declaratory Judgment Act, and related claims seeking review of the visa denial and related relief.
- Court moves to dismiss on subject-matter jurisdiction grounds based on consular nonreviewability; court grants dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court has jurisdiction to review consular visa denial | Mostofi asserts limited Mandel review for constitutional rights. | Defendants rely on consular nonreviewability to foreclose review. | No jurisdiction; consular nonreviewability applies. |
| Whether plaintiff’s Fifth Amendment rights are implicated by denial | Denial infringes freedom of personal choice in marriage. | Denial affects only residence, not a protected liberty. | Not implicated; no due process claim. |
| Whether Mandel Abourezk framework allows limited review | argues for Mandel review of facial legitimacy of the decision. | Consular decisions generally nonreviewable; limited review only when rights implicated. | Limited Mandel review not available here. |
| Whether Swartz-style reasoning permits review for liberty interests | Swartz supports review of marriage liberty in visa denial. | Swartz does not apply; citizen spouse has no constitutional right to entry. | Distinguishable; no constitutional right at stake. |
Key Cases Cited
- Lem Moon Sing v. United States, 159 U.S. 538 (1895) (establishes general consular nonreviewability)
- Knauff v. Shaughnessy, 338 U.S. 537 (1950) (review of political branch decisions limited)
- Shaughnessy v. United States ex rel. Menzei, 345 U.S. 206 (1953) (executive power to exclude aliens largely immune from review)
- Bruno v. Albright, 197 F.3d 1153 (D.C. Cir. 1999) (INA grants consular officials exclusive authority; no APA review)
- Abourezk v. Reagan, 785 F.2d 1043 (D.C. Cir. 1986) (limits on consular review when constitutional rights asserted)
- Udugampola v. Jacobs, 795 F. Supp. 2d 96 (D.D.C. 2011) (consular nonreviewability with limited inquiry only in certain contexts)
- Swartz v. Rogers, 254 F.2d 338 (D.C. Cir. 1958) (citizen wife has no constitutional right to spouse entry)
- Bustamante v. Mukasey, 531 F.3d 1059 (9th Cir. 2008) ( Ninth Circuit recognized liberty-based procedures for visa adjudication)