Saleh v. Holder
84 F. Supp. 3d 135
E.D.N.Y2014Background
- Kamal Saleh, a U.S. citizen, sues three current or former executive branch heads under the APA and the mandamus statute to compel adjudication of his wife and three children's visa applications.
- Saleh filed 1-130 petitions in March 2010; CIS approved and forwarded them to the National Visa Center for processing.
- Visa applications were transmitted to the U.S. Embassy in Sana’a, Yemen, on December 14, 2012 and interviews occurred January 20, 2013.
- Embassy medical exams for two sons purportedly confirmed paternity and ages, but a “Visa Pick-Up Receipt” later appeared to apply only to Saleh’s wife’s case.
- In February 2013, Saleh was told all four applications were under “administrative review”; he could not obtain progress updates and filed this action on December 16, 2013, alleging unreasonable delay and unlawful withholding of agency action.
- Defendants moved to dismiss for lack of subject matter jurisdiction, or, alternatively, for failure to state a claim; the court dismisses for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court has subject matter jurisdiction over visa adjudication claims | Saleh seeks mandamus/APA relief to compel adjudication within a reasonable time | Court lacks jurisdiction over consular visa adjudication | Lack of jurisdiction; complaint must be dismissed |
| Whether consular nonreviewability bars any judicial review | Doctrine does not apply to a request for adjudication within a reasonable period | Courts do not review consular decisions on visa issuance | Consular nonreviewability applies; no subject matter jurisdiction |
| Whether mandamus can compel adjudication where decisions have discretionary aspects | Action seeks nondiscretionary adjudication within 30 days | Embassy discretionary in denying two visas pending further documentation | No nondiscretionary act for court to compel; mandamus unavailable |
| Whether the Declaratory Judgment Act or the APA provide independent jurisdiction or relief | Declaratory Judgment Act/APA provide relief | These statutes do not independently create jurisdiction over discretionary visa decisions | Neither act provides independent jurisdiction or relief here |
Key Cases Cited
- Wan Shih Hsieh v. Kiley, 569 F.2d 1179 (2d Cir.1978) (consular nonreviewability governs visa decisions)
- Makarova v. United States, 201 F.3d 110 (2d Cir.2000) (subject-matter jurisdiction as a threshold issue; look to evidence beyond pleadings)
- Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635 (2d Cir.2005) (jurisdictional burdens; preponderance standard; use of outside evidence on Rule 12(b)(1))
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility standard for Rule 12(b)(6) complaints)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (pleading standard requiring plausible claims)