KRISTEN H. COLINDRES, et al., Plaintiffs, v. U.S. DEPARTMENT OF STATE, et al., Defendants.
Case No. 21-cv-348 (GMH)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
December 14, 2021
G. MICHAEL HARVEY, United States Magistrate Judge
Plaintiffs are a long-married couple with a young daughter who lived together in the United States for more than thirteen years. Plaintiff Kristen H. Colindres is a United States citizen. Her spouse, Plaintiff Edvin A. Colindres Juarez (“Colindres Juarez”), is a citizen of Guatemala who, after returning to his native country for a consular interview—one of the final steps in procuring a U.S. immigrant visa—was denied such a visa by the United States Embassy in Guatemala City on the basis that there is a reasonable ground to believe he seeks to enter the United States to engage in unlawful activity. See
The Court does not take lightly the allegations of hardship that a consular official’s decision to deny Colindres Juarez a visa has worked upon Plaintiffs and their child. However, the outcome here is largely dictated by controlling Supreme Court and D.C. Circuit precedent. Defendants’ motion to dismiss must therefore be granted.2
I. BACKGROUND
According to the complaint,3 Colindres Juarez, a Guatemalan citizen born in 1980, was raised in Guаtemala until he was fourteen years old, when he entered the United States “without inspection” and moved to New York City to live with family. ECF No. 2, ¶¶ 4, 15–17; ECF No. 1-1 at 2. A few years later, he relocated to Jacksonville, Florida. ECF No. 2, ¶ 17. In December 2006, he married Colindres, who is a United States citizen. Id., ¶¶ 19, 22. They have a daughter who was born in 2008. Id., ¶ 23.
In March 2015, Colindres filed with the U.S. Citizenship and Immigration Service (“USCIS”) a Form I-130 for the benefit of her husband, which is the first step in the process of “helping an eligible relative apply to immigrate to the United States and get [a] Green Card.” Id., ¶ 24; I-130, Petition for Alien Relative (Nov. 24, 2021), https://www.uscis.gov/i-130. That petition was approved in August 2015. ECF No. 2, ¶ 25. In May 2018, Colindres Juarez filed with USCIS
In June 2019, Colindres Juarez traveled to Guatemala for the purposes of his consular interview, which was held in early July 2019. Id., ¶¶ 30–31. Pursuant to the embassy’s request, he submitted his criminal record file from the Public Ministry of Guatemala, which was clean. Id., ¶¶ 32, 34–35. He attended a follow-up interview on August 8, 2019. Id., ¶ 33; ECF No. 1-1 at 83. His counsel inquired about the status of his application repeatedly during the following months. ECF No. 2, ¶ 36. At the end of April 2020, his counsel sought assistance from the Office of the Legal Advisor for Consular Affairs,4 noting thаt Colindres Juarez had been “stuck in Guatemala for nine months due to administrative processing” of his visa application and indicating that the hold-up might be “due to a tattoo that an adjudicating officer found suspicious.” ECF No. 1-1 at 70. On May 6, 2020, the embassy informed Colindres that her husband had been “formally refused
Plaintiffs sought reconsideration of the decision denying Colindres Juarez an immigrant visa from the Immigrant Visa Section of the U.S. Embassy in Guatemala in September 2020. ECF No. 1-1. That application included letters of support from numerous members of his family—his wife, his daughter, his mother- and father-in-law, and various aunts, uncles and cousins, including the aunt and uncle who served as guardians for him when he came to the United States (id. at 97–100, 104–06, 108–09, 111, 113, 114–21, 123–24, 176–78, 192); family friends, one of whom had knоwn him since high school (id. at 95–96, 101–03, 122, 125, 138–39); co-workers (id. at 126–136); and his priest (id. at 94). It also included a submission asserting that none of his tattoos were gang-related and explaining the meaning of each of them (id. at 141–52) and a series of photographs of him with his wife and child (id. at 154–72). Plaintiffs’ counsel contacted the embassy for an update at the end of November 2020 and was informed that Colindres Juarez’s “case [had] been given to the new arrived Immigrant Visa Chief who [would] review it in the coming weeks.” ECF No. 1-2 at 2. The request for reconsideration was denied in December 2020. Id. at 4.
In February 2021, Plaintiffs filed their complaint in this Court. It alleges that “[t]he Embassy’s refusal of [ ] Colindres Juarez’s request for an immigrant visa . . . implicates fundamental constitutional rights,” particularly the “[f]reedom of personal choice in matters of marriage and family life” guaranteed to U.S. citizens. ECF No. 2, ¶¶ 42, 45. Based on that “straightforward notion” (id., ¶ 44 (internal quotation marks omitted)), Plaintiffs allege that the government hаs violated the constitutionally protected rights to substantive due process; procedural due process; equal protection of the laws; and freedom speech, expression, and association. Id., ¶¶ 86–108.
The government moved to dismiss the complaint, contending that because Plaintiffs have not plausibly alleged a constitutional violation, the doctrine of consular non-reviewability prohibits judicial review of the decision; that, even if they had plausibly alleged a constitutional violation, the decision was facially legitimate and bona fide, and thus satisfies the limited judicial review allowed of visa denials that burden a constitutional right; that Plaintiffs’ statutory claims fail; and that the provision of the INA under which Colindres Juarez was deemed inadmissible is not unconstitutionally vague. ECF No. 10.
II. LEGAL STANDARD
A motion to dismiss under
III. DISCUSSION
A. Vagueness
Before analyzing whether the consular non-reviewability doctrine insulates the decision at issue, the Court addresses Plaintiffs’ allegation that the statutory provision under which Colindres Juarez was denied entry—
The government moves to dismiss this claim, citing Boutilier v. INS, 387 U.S. 118 (1967). In that case, the Supreme Court rejected a vagueness challenge to a statutory provision that made those “afflicted with psychopathic personality”—a “term of art intended to exclude homosexuals from entry into the United States”—excludable and therefore authorized the deportation of the appellant. Id. at 118–19. The Court asserted that “[t]he constitutional requirement of fair warning has no applicability to standards such as are laid down in [that provision] for admission of aliens to the United States. It has long been held that the Congress has plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.” Id. at 123 (citing The Chinese Exclusion Case, Ping v. United States, 130 U.S. 581 (1889)). Boutilier (along with The Chinese Exclusion Case on which it relies) has rightfully been criticized as “condon[ing] . . . the most blatant discrimination.” Tineo v. Att’y Gen. of the U.S., 937 F.3d 200, 216–17 (3d Cir. 2019). And, indeed, “while continuing to recognize the broad deference owed to Congress in immigration matters, the Supreme Court has in recent years curtailed the plenary-power doctrine’s excesses,” recognizing that the doctrine “is subject to important constitutional limitations.” Id. at 217 (quoting Zadvydas v. Davis, 533 U.S. 678, 695 (2001)) (first citing Sessions v. Morales-Santana, 137 S. Ct. 1678, 1693–94 (2017), and then citing INS v. Chadha, 462 U.S. 919, 940–41 (1983)); see also Sessions v. Dimaya, 138 S. Ct. 1204, 1213 (2018) (applying the “most exacting vagueness standard” to a provision of the INA). The government’s decision to rest its fоur-sentence argument in favor of dismissal of Plaintiffs’ vagueness challenge entirely on the quoted language from Boutilier is of questionable
First, Plaintiffs have conceded the government’s argument that section 1182(a)(3)(A)(ii) is not impermissibly vague by failing to address it in their opposition. See, e.g., Bautista-Rosario v. Mnuchin, 2021 WL 4306093, at *5 (D.D.C. 2021) (“[W]hen a plaintiff files a response to a motion to dismiss but fails to address certain arguments made by the defendant, the court may treat those arguments as conceded.” (alteration in original) (quoting Lockhart v. Coastal Int’l Sec., Inc., 905 F. Supp. 2d 105, 118 (D.D.C. 2012))); Wash. Alliance of Tech. Workers v. Dep’t of Homeland Sec., 518 F. Supp. 3d 448, 459 n.4 (D.D.C. 2021) (same).
Second, the vagueness challenge fails on the merits. “The void-for-vagueness doctrine ‘guarantees that ordinary people have “fair notice” of the conduct a statute proscribes.’” Muñoz v. Dep’t of State, 526 F. Supp. 3d 709, 723 (C.D. Cal. 2021) (quoting Dimaya, 138 S. Ct. at 1212), appeal filed, No. 21-55365 (9th Cir. Apr. 16, 2021). “Vagueness challenges to statutes not threatening First Amendment interests аre examined in light of the facts of the case at hand; the statute is judged on an as-applied basis.” Maynard v. Cartwright, 486 U.S. 356, 361 (1988). A statute threatens First Amendment interests if the conduct it prohibits “implicate[s] First Amendment considerations.” United States v. Kanchanalak, 192 F.3d 1037, 1041 n.6 (D.C. Cir. 1999); see also, e.g., United States v. Requena, 980 F.3d 30, 39 (2d Cir. 2020) (“[A] challenger may raise a facial challenge if the statute implicates rights protected by the First Amendment[ ].”). Plaintiffs have made no argument that the provision itself, which makes ineligible for a visa a person whom the government has reason to believe seeks entry to the United States in order to engage in criminal activity, burdens any rights guaranteed by the First Amendment.6 Thus any
facial challenge to section 1182(a)(3)(A)(ii) fails here. Nor have Plaintiffs shown that the statute is unconstitutionally vague as applied to Colindres Juarez.
A court in the Central District of California recently addressed a strikingly similar issue. The plaintiffs were a citizen of El Salvador and his U.S. citizen spouse; like Colindres Juarez, the El Sаlvadoran was denied an immigrant visa on the basis of Section 1182(a)(3)(A)(ii). Munoz, 526 F. Supp. 3d at 713–14. The couple challenged the denial of his visa asserting, among other things, that the provision was void for vagueness. Id. at 723–26. The District Court granted summary judgment for the government, finding that the statute was not unconstitutionally vague as applied to the plaintiffs:
Although the language of this provision certainly could be construed to encompass innumerable grounds for ineligibility, the consular officer here did not apply the statute because [the non-citizen plaintiff] might incidentally partake in jaywalking, or any other potentially unreasonable grounds for denial of entry. Instead, the officer found [him] inadmissible under § 1182(a)(3)(A)(ii) because the officer determined that [he] was a member of MS-13, a recognized transnational criminal organization known for posing a threat to the safety and security of U.S. citizens. A person of averаge intelligence would reasonably understand that membership in such an organization would imply an engagement in unlawful activity, at the very least, and thus render him ineligible for entry under § 1182(a)(3)(A)(ii).
So it is here. Colindres Juarez was denied a visa under Section 1182(a)(3)(A)(ii) on the basis that there was reason to believe that he was “a member of a known criminal organization.” ECF No. 2, ¶ 37; see also ECF No. 1-1 at 68. “[A] person of average intelligence would reasonably understand that the [identified conduct]”—being a member of a known criminal organization who would engage in criminal conduct in the United States—“is proscribed.” United States v. Singhal, 876 F. Supp. 2d 82, 98 (D.D.C. 2012); see also Schall v. Martin, 467 U.S. 253, 278–79 (1984)
B. Consular Non-Reviewability
“Consular nonreviewability shields a consular official’s decision to issue оr withhold a visa from judicial review, at least unless Congress says otherwise,” because “such judgments ‘are frequently of a character more appropriate to either the Legislature or the Executive.’” Baan Rao Thai Rest., 985 F.3d at 1024 (quoting Trump v. Hawaii, 138 S. Ct. 2392, 2418–19 (2018)). In the INA, Congress “partially delegated to the Executive its power to make rules for the admission and exclusion of noncitizens” by “grant[ing] consular officers ‘exclusive authority to review applications for visas, precluding even the Secretary of State from controlling their determinations.’” Id. (quoting Saavedra Bruno v. Albright, 197 F.3d 1153, 1156 (D.C. Cir. 1999)). Notwithstanding that broad shield, courts—including the Supreme Court—have recognized that claims that would otherwise be barred by the doctrine are subject to limited judicial review where a U.S. citizen “challenge[s] the exclusion of a noncitizen [because] it burdens the citizen’s constitutional rights.” Id.; see, e.g., Kleindienst v. Mandel, 408 U.S. 753, 762 (1972) (assessing “whether the First Amendment confers upon the appellee professоrs, because they wish to hear, speak, and debate with Mandel in person, the ability to compel the Attorney General to allow Mandel’s admission” to the United States). Additionally, a plaintiff may challenge a consular decision denying admission “if a ‘statute expressly authoriz[es] judicial review of consular officers’ actions.’” Baan Rao Thai Rest., 985 F.3d at 1025 (quoting Saavedra Bruno, 197 F.3d at 1159). However, even where the plaintiff has made a plausible claim that the consular decision can be judicially reviewed, that review is limited to a determination of whether the consular official has “exercise[d]
Plaintiffs’ main argument here is that “the consulаr officer’s refusal to issue [ ] Colindres Juarez an immigrant visa” violates Colindres’ Fifth Amendment protection against deprivation of liberty without due process of law, specifically, her right to “[f]reedom of personal choice in matters of marriage and family life.”7 ECF No. 16 at 11–12. The complaint further alleges that the visa denial violates the prohibition of equal protection of the laws; infringes on Plaintiffs’ rights “to free speech, expression and association” under the First Amendment; and violates both the INA and the APA. ECF No. 2, ¶¶ 98–124.
1. Due Process
The Constitution safeguards two varieties of due process rights. The guarantee of “[s]ubstantive due process ‘prevents governmental power from being used for purposes of oppression, or abuse of government power that shocks the conscience, or action that is legally irrational [in that] it is not sufficiently keyed to any legitimate state interests.’” Bellinger v. Bowser, 288 F. Supp. 3d 71, 85–86 (D.D.C. 2017) (second alteration in original) (quoting Wash. Local Teacher‘s Union #6 v. Bd. of Educ. of D.C., 109 F.3d 774, 781 (D.C. Cir. 1997)). “To succeed on a substantive due process claim, a plaintiff must prove ‘egregious government misconduct’ that deprives [her] of a liberty or property interest.” Id. at 85 (quoting George Washington Univ. v. District of Columbia, 318 F.3d 203, 209 (D.C. Cir. 2003)). “A procedural due process violation occurs when an official deprives an individual of a liberty or property interest without providing appropriate procedural protections.” Atherton, 567 F.3d at 689. Both types of due process violations require, “[a]s a threshold matter,” an allegation that the plaintiff has been “deprived of a fundamental right or liberty or property interest.” Toms v. Office of the Architect of the Capitol, 650 F. Supp. 2d 11, 25 n.11 (D.D.C. 2009) (addressing substantive due process claims); Rangel v. Boehner, 20 F. Supp. 3d 148, 166 (D.D.C. 2013) (“It is the deprivation of a liberty or property interest [ ] that triggers procedural due process requirements . . . .”); see also Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999) (“The first inquiry in every due process challenge is whether the plaintiff has been deprived of a protected interest in ‘liberty’ or ‘property.’”). Plaintiffs’ allegations here dо not clear that initial hurdle.
In Swartz v. Rogers, the D.C. Circuit addressed a claim that a wife’s due process rights under the Fifth Amendment prevented the deportation of her husband. 254 F.2d 338, 339 (D.C. Cir. 1958). She argued “that the due process clause gave her a right, upon marriage, to establish a home, create a family, have the society and devotion of her husband, etc.; and that to deport her husband . . . would unconstitutionally destroy that marital status.” Id. The court rejected that argument, stating:
Certainly deportation would put burdens on the marriage. It would impose upon the wife the choice of living abroad with her husband or living in this country without him. But deportation would not in any way destroy the legal union which the marriage created. The physical conditions of the marriage may change, but the marriage continues. Under these circumstances we think the wife has no constitutional right which is violated by the deportation of her husband.8
Based on the holding in Swartz, numerous courts in this District have dismissed the аrgument raised here, that denial of an alien spouse’s visa implicates the due process rights of a citizen spouse. See, e.g., Rohrbaugh, 394 F. Supp. 3d at 133 (“Because the consular officer’s decision to deny Mrs. Rohrbaugh’s visa application did not interfere with Mr. Rohrbaugh’s right to marry, controlling precedent establishes that he has not suffered a violation of his constitutional rights.”); Singh v. Tillerson, 271 F. Supp. 3d 64, 71 (D.D.C. 2017) (“[W]hile the Constitution protects an individual’s right to marry and the marital relationship, these constitutional rights are not implicated when a spouse is removed or denied entry to the United States.” (citing Swartz, 254 F.2d at 339)); Udogampola v. Jacobs, 70 F. Supp 3d 33, 41 (D.D.C. 2014) (“[W]hile . . . the Constitution protects an individual’s right to marry and the marital relationship, . . . ‘these constitutional rights are not implicated when one spouse is removed or denied entry into the United States.’” (quoting Udugampola v. Jacobs, 795 F. Supp. 2d 96, 105 (D.D.C. 2011) (citing, among other cases, Swartz, 254 F.2d at 339))); Jathoul v. Clinton, 880 F. Supp. 2d 168, 171–72 (D.D.C. 2012) (rejecting a claim that a U.S. citizen’s constitutional rights were implicated when her spouse was denied a visa and noting that the сourt was “bound by Swartz . . . , which found no violation of a wife’s constitutionally protected liberty interest in her marriage when her husband was deported because deportation would not in any way destroy the legal union which the marriage created’” (quoting Swartz, 254 F.2d at 339)); Mostofi v. Napolitano, 841 F. Supp. 2d 208, 211–12 (D.D.C. 2012) (rejecting the argument that the denial of her husband’s visa application violated the plaintiff’s
To be sure, in Bustamante v. Mukasey, the Ninth Circuit held otherwise, finding that the denial of a visa to an alien spouse implicates a citizen’s “[f]reedom of personal choice in matters of marriage and family.” 531 F.3d 1059, 1062 (9th Cir. 2008). That court reaffirmed the principle in its decision in Din v. Kerry. See 718 F.3d 856, 860 (9th Cir. 2013) (“In Bustamante, we recognized that a citizen has a protected liberty interest in marriage that entitles the citizen to review of the denial of a spouse’s visa.”), vacated and remanded, 576 U.S. 86 (2015). The Supreme Court granted certiorari in that case and could have settled the Circuit split. Kerry v. Din, 573 U.S. 990 (2014) (granting cert.). Howevеr, “the Court fractured and ultimately left the question unresolved.” Rohrbaugh, 394 F. Supp. 3d at 133. A plurality of three Justices who voted to reverse the Ninth Circuit squarely asserted that the denial of an alien’s visa application does not deprive a citizen spouse of any constitutionally protected interest. Din, 576 U.S. at 101 (Scalia, J., announcing the judgment of the court and delivering an opinion). A concurrence in the judgment of two Justices explicitly refused to address that question, voting to reverse on the ground that the government had given a “facially legitimate and bona fide reason” for the denial, and thus provided all the process that was due. Id. at 104–06 (Kennedy, J. concurring in the judgment); see also id. at 102 (“Today’s disposition should not be interpreted as deciding whether a citizen has a protected liberty interest in the visa application of her alien spouse.”). The four dissenting Justices would have found a liberty interest in a citizen’s “freedom to live togethеr with her [spouse] in the United States” and also found that the government had not provided a facially legitimate and bona fide basis for the denial of the visa.
Because Plaintiffs have not alleged that they were deprived of a constitutionally protected liberty interest, the due process clause of the Fifth Amendment cannot be the basis for applying the exception to consular non-reviewability for the exclusion of a non-citizen that “burdens [a] citizen’s constitutional rights.” Baan Rao Thai Rest., 985 F.3d at 1024.
2. Equal Protection
Plaintiffs’ equal protection argument fares no better.
Even if an equal protection claim were cognizable in these circumstances, Plaintiffs have not sufficiently pleaded one. The complaint mentions equal protection only once in passing (ECF No. 2 at 1) before attempting to set out cause of action for a violation of the Fifth Amendment’s guarantee with the following paragraphs:
98. The United States Constitution prohibits the denial of equal protection of the laws based on national origin, nationality, alienage and/or being a member of a discrete and insular minority.
99. There is no substantial justification for the Embassy’s refusal to issue Plaintiff Colindres Juаrez an immigrant visa, which was based solely on his national origin, nationality, alienage and/or being a member of a discrete and insular minority.
100. The Embassy’s refusal to issue Plaintiff Colindres Juarez an immigrant visa is neither necessary nor the lease restrictive means to achieve any compelling purpose.
101. The Embassy’s refusal to issue Plaintiff Colindres Juarez an immigrant visa based solely on his purely aesthetic tattoos is discriminatory.
102. There is no rational relationship between the Embassy’s refusal to issue Plaintiff Colindres Juarez an immigrant visa based on his purely aesthetic tattoos and any legitimate state interest.
103. As a direct and proximate result of the Embassy’s unlawful refusal under color of law to issue Plaintiff Colindres Juarez an immigrant visa, Plaintiffs have suffered and will continue to suffer injury.
In fact, the claim fails even to provide an accurate or complete “recitation of the elements of [an equal protection] cause of action.” Twombly, 550 U.S. at 555. For example, invoking the terms “national origin,” “nationality,” and “alienage,” Plaintiffs seek application of heightened scrutiny, stating that the government’s action was without “substantial justification” and was “neither necessary nor the least restrictive means to achieve any compelling purpose.” ECF No. 2, ¶¶ 99–100. But that ignores the fact that “[d]istinctions on the basis of nationality may be drawn in the immigration field by the Congress or the Executive. So long as such distinctiоns are not wholly irrational they must be sustained.”11 Narenji v. Civiletti, 617 F.2d 745, 747 (D.C. Cir. 1979) (internal citations omitted); see also Malek-Marzban v. INS, 653 F.2d 113, 116 (4th Cir. 1981) (rejecting an equal protection challenge because “[w]hen the government classifies aliens on the basis of nationality, the classification must be sustained if it has a rational basis”); CASA de Md., Inc. v. Trump, 355 F. Supp. 3d 307, 324–25 (D. Md. 2018) (“In the immigration context, a government’s classifications on the basis of nationality are sensibly reviewed deferentially, as nearly all immigration policies involve some degree of classification on the basis of nationality.”). The same is true of distinctions based on alienage. See, e.g., Korab v. Fink, 797 F.3d 572, 579 (9th Cir. 2014)
Furthermore, “a viable equal protection claim . . . must allege that similarly situated persons were intentionally treated differently and the facts pled must be specific.”
In the absence of a plausible equal protection or due process claim, Plaintiffs do not fit within the exception for consular non-reviewability for decisions that burden a constitutionally protected right unless they can show a putative violation of the First Amendment.
3. First Amendment
In Mandel, the Supreme Court recognized that a visa denial that burdened a First Amendment right could be subject to a limited judicial inquiry into whether the decision was facially legitimate and bona fide. 408 U.S. at 770. More specifically, the plaintiffs in Mandel claimed that the denial of a visa to a journalist seeking to participate in an academic conference in the United States burdened their “right to receive information and ideas.” Id. at 756–57, 762 (quoting Martin v. City of Struthers, 319 U.S. 141, 143 (1943)). That is, Mandel dealt with “[t]he right of expressive association—the freedom to associаte for the purpose of engaging in activities protected by the First Amendment, such as speech, assembly, petition for the redress of grievances, and the exercise of religion.” McCabe v. Sherrett, 12 F.3d 1558, 1563 (11th Cir. 1994). Here, the complaint does not assert with sufficient factual particularity any violation of a right of “expressive association.” Id. (emphasis added). Indeed, like their equal protection claim, the complaint’s
At best, Plaintiffs appear to be asserting a violation of Colindres’ right to intimate association—the right “encompass[ing] the personal relationships that attend the creation and sustenance of family,” which some courts have grounded in the First Amendment. McCabe, 12 F.3d at 1563 (citing Roberts v. U.S. Jaycees, 468 U.S. 609, 617–20 (1984)). Notably, then, Plaintiffs do not allege an infringement of “[t]he right of expressive association” that was at issue in Mandel. Rather, the claim is merely a rehash of Plaintiffs’ due process claims concerning an infringement of their right to marry who they wish without interference from the government. See Section III.B.1, supra. Courts have held that a claim that government action burdens the right to marriage is analyzed identically whether it has been cast as a due process right or an associational right—that is, “[t]he nominal source of th[e] right . . . does not alter [the] analysis.” Muir v. Decatur Cty., 917 F.3d 1050, 1053–54 (8th Cir. 2019) (final alteration added) (quoting Singleton v. Cecil, 133 F.3d 631, 635 (8th Cir. 1998)); see also Montgomery v. Carr, 101 F.3d 1117, 1131 (6th Cir. 1996) (“[S]tate action impinging on the right to marry is to be reviewed in the same fashion whether advanced on the theory that it violates substantive due process or advanced on the theory that it violates the First Amendment’s right to intimate association.”); Parks v. City of Warner Robins, 43 F.3d 609, 616 (11th Cir. 1995) (asserting that “[a]lthough the right to marry enjoys independent
Because Plaintiffs have failed to allege “a cognizable constitutional violation on which to hang their hats,” that exception to the doctrine of consular non-reviewability cannot save their complaint. Rohrbaugh, 394 F. Supp. 3d at 134.
4. Statutory Claims
Plaintiffs have also alleged that the denial of Colindres Juarez’s visa violated their rights under the APA and the INA. As noted, generally, a statutory claim based on an adverse consular decision is also barred by the doctrine of consular non-reviewability. See, e.g., Saavedra Bruno, 197 F.3d at 1164 (“With respect to purely statutory claims, courts have made no distinction between aliens seeking review of adverse consular decisions and the United States citizens sponsoring their admission; neither is entitled to judicial review.”). However, there is also an exception where a “statute expressly authoriz[es] judicial review of consular officers’ actions.” Baan Rao Thai Rest., 985 F.3d at 1025 (quoting Saavedra Bruno, 197 F.3d at 1159). The D.C. Circuit has exprеssly held that the APA does not authorize review of consular visa decisions. See Saavedra Bruno, 197 F.3d at 1158; see also Rohrbaugh, 394 F. Supp. 3d at 131 (stating, “The APA [ ] does not provide the [plaintiffs] a vehicle for judicial review” and collecting cases); Udugampola, 70 F. Supp. 3d at 42 n.7 (“[T]he APA does not provide the plaintiffs with a cause of action to assert
This outcome is hardly surprising. Plaintiffs have failed to point to a single case finding statutory authorization for judicial review of a consular visa decision, and the Court has found none. See Saavedra Bruno, 197 F.3d at 1159–60 (“In view of the political nature of visa determinations and the lack of any statute expressly authorizing judicial review of consular officers’ actions, courts have applied . . . the doctrine of consular nonreviewability.” (emphasis added)); cf., e.g., Aboutalebi v. Dep’t of State, No. 19-CV-2605, 2019 WL 6894046, at *4 (D.D.C. Dec. 18, 2019) (“Aboutalebi has not pointed to any law that would permit this Court to review her visa denial.”). Therefore, Plaintiffs’ statutory claims shall be dismissed pursuant to the doctrine of consular non-reviewability.
* * * * *
Because Plaintiffs have not shown either that the decision denying Colindres Juarez’s visa application burdened Colindres’ constitutional rights or that a statute expressly authorized judicial review of the decision, the claims do not fall into any exception to the doctrine of consular non-
IV. CONCLUSION
For the foregoing reasons, Defendant’s motion to dismiss (ECF No. 10) will be GRANTED. An order dismissing this case will be filed concurrently with this Memorandum Opinion.
Date: December 14, 2021
G. MICHAEL HARVEY
United States Magistrate Judge