Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BIANCA UDUGAMPOLA, et al. ,
Plaintiffs,
Civil Action No. 13-cv-0460 (BAH) v.
Judge Beryl A. Howell JANICE JACOBS,
Assistant Secretary for Consulate Affairs
U.S. Department of State, et al. ,
Defendants. MEMORANDUM OPINION
For almost twenty years, the family of the plaintiff Premadasa Udugampola (“Mr. Udugampola” or “the applicant”), [1] a Sri Lankan citizen, has been trying unsuccessfully to obtain a visa enabling him to immigrate to the United States. For the second time, the family has filed suit in this Court to obtain the relief denied to them administratively by the United States Department of State. Although the basis for the visa denial at issue in this second suit differs from the first suit, the claims and relevant legal doctrines remain unchanged, necessitating the same outcome of dismissal.
The applicant’s daughter, plaintiff Bianca Uduguampola, and the applicant’s wife, Plaintiff Somie Udugampola (“Mrs. Udugampola”), allege in this suit against Janice Jacobs, Assistant Secretary for Consular Affairs at the U.S. Department of State, Edward Ramotowski, Deputy Assistant Secretary for Visa Service, and Christopher R. Green, Consul General at the U.S. Embassy in Colombo, Sri Lanka, that the defendants violated the plaintiffs’ Fifth *2 Amendment procedural Due Process rights by failing to provide a facially legitimate and bona fide reason for denying Mr. Udugampola’s visa application for a third time. The defendants have moved to dismiss the plaintiffs’ Amended Complaint and, for the reasons discussed below, this motion is granted. See generally Def.’s Mot. to Dismiss Am. Compl. (“Def.’s Mot.”), ECF No. 11.
I. BACKGROUND
This Court dismissed the plaintiffs’ first suit for lack of subject matter jurisdiction,
pursuant to the doctrine of consular non-reviewability, and for failure to state a claim under
12(b)(6).
See Udugampola v. Jacobs
,
The applicant worked as a Sri Lankan police officer from 1957 to 1992, rising to the position of Deputy Inspector General of Police before his retirement. Am. Compl. ¶ 11, ECF No. 9. Mr. Udugampola’s wife was granted asylum in the United States on February 23, 1995, and became a naturalized U.S. citizen on August 24, 2012. Id. ¶¶ 15, 23. Mr. and Mrs. Udugampola have four children, all of whom are U.S. citizens or lawful permanent residents. Id. ¶ 15.
Shortly after arriving in this country, Mrs. Udugampola filed, on March 22, 1995, a Form I-730 Refugee/Aslyee relative petition on behalf of her husband, Mr. Udugampola. Id. ¶ 16. Four years later, on September 15, 1999, the Immigration and Naturalization Service (“INS”) *3 issued a Notice of Decision denying the I-730 petition, under 8 C.F.R. § 208.19, on the grounds that the applicant was ineligible for derivative asylum for allegedly having “ordered, incited, assisted, or otherwise participated in the persecution of any persons on account of race, nationality, membership, in a particular social group, or political opinion,” when he served as Deputy Inspector General of Police for the Southern Province of Sri Lanka. Id. ¶ 17. [2]
The applicant’s daughter, plaintiff Bianca Udugampola, subsequently filed, on September 5, 2003, a Form I-130 Petition for Alien Relative on behalf of her father, Mr. Udugampola. [3] Am. Compl. ¶ 18; see also I-130 Petition for Alien Relative, Complaint Ex. 1, ECF No. 1-7. This Petition was approved by U.S. Citizenship and Immigration Services (“USCIS”) on April 23, 2004, but no action was taken on Mr. Udugampola’s immigrant visa application for over five years until September 24, 2009, when the U.S. Embassy in Colombo, Sri Lanka, denied the request based on INA Section 212(a)(3)(B), 8 U.S.C. §1182(a)(3)(B), for the applicant’s alleged participation in terrorism. Am. Compl. ¶¶ 18-20.
This 2009 visa application denial was the subject of the plaintiffs’ first suit, which asserted, as in the instant suit, that the defendants, who were U.S. State Department officials, had violated the applicant’s wife and daughter’s Fifth Amendment Due Process rights for failing to supply a legitimate and bona fide reason for the visa denial. See Udugampola I , 795 F. Supp. 2d at 100. Following dismissal of that suit, plaintiff Bianca Udugampola, on behalf of her father, entered into an agreement with the U.S. Department of Justice, permitting Mr. Udugampola to submit a new visa application, along with new supporting documentation and a new interview, which State Department officials would adjudicate “without undue delay,” based on the *4 previously approved Form I-130 petition submitted by the applicant’s daughter. Am. Compl. ¶ 22; see also Compl., Ex. 2 (Letter, dated November 8, 2011, to plaintiffs’ counsel from Michelle Lo, Assistant U.S. Attorney, U.S. Attorney’s Office for the District of Columbia (“USAO Letter”), ¶ 3), ECF No. 1-8. The agreement expressly stated that “the State Department does not make any representation as to the outcome of its adjudication of the new visa application.” See USAO Letter ¶ 5.
On March 14, 2012, Mr. Udugampola appeared for his interview at the U.S. Embassy in Colombo, Sri Lanka, and submitted his third visa application, along with new supporting documentation. Am. Compl. ¶ 22. When no decision was forthcoming within a year, the plaintiffs filed suit in this Court, on April 9, 2013, seeking mandamus and declaratory relief to compel the State Department to issue a decision on Mr. Udugampola’s visa. Am. Compl. ¶¶ 23- 24. Less than two months later, on July 8, 2013, the Consulate issued a decision on Mr. Udugampola’s new application, again denying the applicant’s visa application, but based on a different statutory provision, namely, Section 212(a)(3)(E)(iii)(II) of the INA, 8 U.S.C. §1182(a)(3)(E)(iii)(II), which authorizes exclusion of any alien who has been involved in “extrajudicial killing[s].” Am. Compl. ¶¶ 24, 36. This consular action prompted the plaintiffs to amend their Complaint in this case and modify the relief sought.
In sum, over the last fifteen years, the applicant’s three visa applications have been consistently denied but on different grounds: in 1999, the applicant’s visa application was denied, pursuant to 8 C.F.R. § 208.13(c)(2)(i)(E), due to his alleged participation in the “persecution of any persons on account of race, nationality, membership, in a particular social group, or political opinion,” id. ¶ 17; in 2009, the applicant’s visa application was denied, under 8 U.S.C. §1182(a)(3)(B), due to his alleged participation in terrorism, id. ¶ 20; and, finally, in *5 2013, the applicant’s visa application was denied, under 8 U.S.C. §1182(a)(3)(E)(iii)(II), due to his alleged involvement in “extrajudicial killing[s],” id. ¶ 24. The plaintiffs allege that the varying bases for denial are internally inconsistent, noting that “one line of reasoning precludes the application of another,” because allegations of “past persecution or extrajudicial killings . . . requires that Mr. Udugampola be categorized as a state actor,” while accusing him of being “engaged in terrorist activity,” amounts to calling the Government of Sri Lanka a “terrorist organization” under 8 U.S.C. §1182(a)(3)(B)(iv), when, as a “foreign sovereign[] . . . recognized by the U.S. Government,” it “cannot be [so] characterized.” Am. Compl., ¶ 43,n. 1.
The plaintiffs’ Amended Complaint asserts that the defendants violated the plaintiffs’ Fifth Amendment Due Process Rights by failing to provide a facially legitimate or bona fide reason for denial of Mr. Udugampola’s visa application, under 8 U.S.C. § 1182(a)(3)(E)(iii)(II), Am. Compl. ¶¶ 37-40, and for either not considering or denying a waiver, under 8 U.S.C. §1182(d)(3), which would permit Mr. Udugampola to enter the country even if deemed otherwise inadmissible. Am. Compl. ¶ 41. The plaintiffs seek a declaratory order that the most recent visa denial in 2013 violates both the Fifth Amendment Due Process Clause and the Administrative Procedure Act, and an injunction barring the defendants from relying on 8 U.S.C. § 1182(a)(3)(E)(iii)(II) as a basis for excluding the applicant from the United States . See Am. Compl., Prayer of Relief. The defendants have moved to dismiss the Amended Complaint and that motion is ripe for decision.
II. LEGAL STANDARDS
A. Motion to Dismiss for Lack of Subject Matter Jurisdiction
“‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power
authorized by Constitution and statute.’”
Gunn v. Minton,
–––U.S. ––––,
When considering a motion to dismiss under Rule 12(b)(1), the court must accept as true
all uncontroverted material factual allegations contained in the complaint and “construe the
complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the
facts alleged and upon such facts determine jurisdictional questions.”
Am. Nat’l Ins. Co. v.
FDIC
,
B. Failure to State a Claim Under Rule 12(b)(6)
Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain “a short and
plain statement of the claim showing that the pleader is entitled to relief,” to encourage brevity
and, at the same time, “give the defendant fair notice of what the . . . claim is and the grounds
upon which it rests.”
Bell Atlantic Corp. v. Twombly
,
III. DISCUSSION
The defendants move to dismiss the plaintiffs’ Amended Complaint on the same two grounds that they successfully moved to dismiss the same plaintiffs’ claims in Udugampola I : that the court lacks subject matter jurisdiction, pursuant to Federal Rule 12(b)(1), due to the doctrine of consular nonreviewability, Defs.’ Mem. Supp. of Mot. to Dismiss (“Defs.’ Mem.”) at 6-9; and, second, assuming subject matter jurisdiction exists, that the plaintiffs fail to state a claim for relief, pursuant to Federal Rule 12(b)(6), because defendants have a legitimate and bona fide reason for denying Mr. Udugampola’s visa application and the “[p]laintiffs do not *9 allege any plausible claim of bad faith,” id. at 11. The Court addresses each basis for dismissing the suit seriatim below. [4]
A. The Court Lacks Subject Matter Jurisdiction to Review Plaintiffs’ Claims
The parties do not dispute that under the doctrine known as consular non-reviewability,
“a consular official’s decision to grant or deny a visa is not subject to judicial review.” Am.
Compl. ¶ 27 (citing
Saavedra Bruno v. Albright
,
To establish entitlement to this limited exception to the consular nonreviewability
doctrine, the plaintiffs bear the burden of demonstrating that the visa decision violated a
constitutionally protected interest.
See Saavedra Bruno
,
*11
The defendants are correct that, contrary to the holdings of certain cases decided in the
Ninth Circuit, in this Circuit the exception to the consular nonreviewability doctrine has been
found generally inapplicable to spousal visa denials. Indeed, while noting that the Constitution
protects an individual’s right to marry and the marital relationship, this Court concluded in
Udugampola I
that “these constitutional rights are not implicated when one spouse is removed or
denied entry into the United States.”
*12
The Court is cognizant that denial of Mr. Udugampola’s visa application to immigrate to
this country will assuredly place “burdens upon the marriage.”
Swartz
,
Accordingly, since no constitutional liberty interest of the plaintiffs is implicated by the applicant’s visa denial, this Court does not have subject matter jurisdiction, under the doctrine of consular nonreviewability, to review the defendants’ denial of the visa application. [7]
B. The Amended Complaint Must be Dismissed for Failure to State a Claim
Even assuming
arguendo
, that the applicant’s wife was entitled to
Mandel
review, the
plaintiffs would still fail to state a claim for relief. The limited judicial review granted when
constitutional rights are implicated by a visa application decision only tests whether the consular
office provided a facially legitimate and bona fide reason to deny the alien entry into the United
States.
Mandel
,
The plaintiffs argue that the defendants’ decision “lacks the minimum specificity required to qualify as a facially legitimate and bona fide reason for the visa denial” because “the Consulate not only has failed to point to its specific legal basis for denying Mr. Udugampola’s visa, it also has not explained its reason for invoking 8 U.S.C. § 1182 (a)(3)(E)(iii)(II) to exclude him from the United States.” Pls.’ Opp’n at 7 (citations omitted). The Court disagrees. For the same reasons that there was a facially legitimate and bona fide reason to deny Mr. Udugampola’s second visa application under 8 U.S.C. § 1182(a)(3)(B) in Udugampola I , a facially legitimate and bona fide reason was provided to deny his third visa application under 8 U.S.C. § 1182 (a)(3)(E)(iii)(ii).
First, the defendants’ decision is facially legitimate, since a reason for the visa denial is
given in the form of a citation to Section 212(a)(3)(E)(iii)(II) of the INA, 8 U.S.C. § 1182
(a)(3)(E)(iii)(ii). The INA clearly states that the defendants need not provide a specific statutory
basis for a visa denial when the reason for exclusion falls, as here, within Section 212(a)(2) or
(a)(3). 8 U.S.C. § 1182 (b)(3);
see Udugampola I
,
The plaintiffs’ pursuit of a more detailed explanation for the applicant’s most recent visa denial is unavailing. They complain that INA’s Section 212(a)(3)(E)(iii)(II), under which the applicant’s most recent visa application was denied, is “broad and vague,” Pl.’s Opp’n at 6, and does not make clear “whether the Consulate is accusing Mr. Udugampola of extrajudicial killing in and of itself, of ordering extrajudicial killing, of inciting extrajudicial killing, of assisting in extrajudicial killing, or ‘otherwise participat[ing] in the commission of extrajudicial killing,’” Pl.’s Opp’n at 7 (quoting 8 U.S.C. § 1182 (a)(3)(E)(iii)(II)). [9] While the precise nature of the alleged conduct underlying the visa denial may help the plaintiffs come to terms with the defendants’ decision to exclude Mr. Udugampola from the United States, such precision is not necessary to find the Consulate’s decision facially legitimate. Indeed, whether the applicant “committed, ordered, incited, assisted, or otherwise participated in the commission of . . . any extraditional killing,” the outcome would be the same—he is inadmissible.
*15 Second, the plaintiffs contend that even if providing a statutory citation as the basis for the visa denial is sufficient to deem the Consulate’s decision “facially legitimate,” the decision is not “bona fide” because the “consulate acted in bad faith.” See Pl.’s Opp’n at 7-8. In support of this bad faith claim, the plaintiffs aver that the applicant’s visa has been denied over the years for various reasons, including “past persecutor,” “terrorism,” and now “extrajudicial killing,” “as though the Consulate keeps trying in hopes that one will ‘stick.’” Am. Compl. ¶ 43. According to the plaintiffs, “[t]he Consulate’s series of visa denials on different grounds thus appears to be in bad faith, which likewise renders its decision not bona fide.” Id . To the contrary, all three denials of the applicant’s visa applications have been based on his “actions as Deputy Inspector General of the Sri Lankan Police and alleged participation in the persecution of others.” Defs.’ Reply at 7. Thus, no matter the specific INA provision cited as the basis for the denial, the genesis for the denials has remained consistent. [10]
Moreover, the defendants are correct that the plaintiffs’ “claim for bad faith is not well supported where this [C]ourt has previously found that information in the public record supported the Consulate’s” prior decision to deny Mr. Udugampola’s visa. Defs.’ Reply at 7. Indeed, news articles reporting on the Sri Lankan civil war that were previously submitted by the defendants during the proceedings in Udugampola I , lend credence to the conclusion that the visa denial decision is bona fide rather than predicated on bad faith. See Udugampola I , 795 F. Supp. 2d at 107 (citing articles reporting, inter alia , that “[the applicant] has led an elite squad of similarly motivated men on a singular mission—to wipe out the insurgency at whatever human *16 cost,” and was perhaps involved in “government death squads [which] killed nearly 40,000 people in a crackdown on left-wing rebels”).
Finally, the plaintiffs miss the mark when they argue that the Consulate’s bad faith may somehow be reflected by the adjudication of “the new visa application based on documents and evidence that were submitted in 2004,” because “[s]uch an unsatisfactory review would be in clear violation of the government’s Agreement that the Consulate would adjudicate a new application de novo, in light of new supporting evidence and a new interview of the applicant.” Pl.’s Opp’n at 8. The plain terms of the USAO Letter make clear that “[a]ll standard procedures will be followed for the [new visa] application.” USAO Letter at ¶ 1. Such “standard procedures” presumably allow, if not require, review of information available and relevant to the adjudication of the application, including any information considered in prior consular decisions to deny the applicant’s visa. Although the defendants were willing to take yet another look at Mr. Udugampola’s visa application, including new information he could provide to obtain a visa, “[t]he consular officer has no authority or discretion to disregard information relevant to an applicant’s eligibility for a visa in their adjudication.” Defs.’ Reply at 8. Moreover, the USAO Letter makes clear that no promises were made by the State Department that the outcome of the adjudication of the visa application would differ in any way from the prior adjudications. Thus, the fact that the outcome of the 2013 visa application adjudication was the same as the prior two visa application denials cannot be viewed as violative of the agreement nor any indication of bad faith.
IV. CONCLUSION
For the foregoing reasons, the defendants’ motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim is GRANTED. The plaintiffs’ Amended Complaint is dismissed.
An order consistent with this Memorandum Opinion will be entered.
Date: September 29, 2014
__________________________ BERYL A. HOWELL United States District Judge
Notes
[1] Although Mr. Udugampola is named as a plaintiff, “[i]t is beyond dispute that Mr. Udugampola has no
constitutional right to enter the United States, and also does not have standing to seek review of his visa denial.”
Udugampola v. Jacobs (“Udugampola I”)
,
[2] A form I–730 may be used by an alien admitted to the United States as a refugee or granted asylum status to obtain admission for a minor child or spouse pursuant to 8 C.F.R. § 208.21(c).
[3] A form I–130 Petition for Alien Relative is a family-based avenue for obtaining an immigration visa. A family member, who is either a United States citizen or lawful permanent resident, may file a Form I–130 as the petitioner on behalf of an alien relative seeking to gain entry into the United States. See 8 U.S.C. § 1151(b)(2)(A)(i).
[4] The defendants also contend that since “this is the same action as the earlier one,” the “Plaintiffs’ Claim Fails on Res Judicata Grounds.” Id . at 12 (capitalization in original). Since the defendants’ motion is resolved on other grounds, this ground for dismissal need not be addressed.
[5] The defendant raises the same threshold issue here noted in
Udugampola I
whether the applicant’s wife “has
standing as the current visa denial is based on a petition filed on the applicant’s behalf by his daughter.” Defs.’
Mem. at 12; Defs.’ Reply at 4 n. 2;
Udugampola I,
[6] The fact that the applicant’s wife has become a U.S. citizen in the interim since
Udugampola I
was decided,
see
Am. Compl. ¶ 35, is immaterial. The Court made clear in
Udugampola I
that the exception to the consular
nonreviewability doctrine, if applicable, would be available to both U.S. citizens and legal resident aliens.
See
Udugampola I
,
[7] The Amended Complaint requests relief under both the Fifth Amendment and “the Administrative Procedure[]
Act,” (“APA”), Am. Compl., Prayer of Relief, but the APA cannot provide a statutory basis for relief. As the
defendants correctly point out, the APA does not provide the plaintiffs with a cause of action to assert a claim
otherwise barred by the doctrine of consular non-reviewability. Defs.’ Mem. at 7;
see Van Ravenswaay v.
Napolitano
,
[8] The plaintiff points to a recent Ninth Circuit case holding that citation to a statutory basis under Section 212(a)(2),
standing alone, is insufficient to provide a facially legitimate and bona fide reason for denying a visa application.
See Din v. Kerry
,
[9] 8 U.S.C. § 1182 (a)(3)(E)(iii)(II) provides that: “Any alien who, outside the United States, has committed, ordered, incited, assisted, or otherwise participated in the commission of-- . . . (II) under color of law of any foreign nation, any extrajudicial killing, as defined in section 3 (a) of the Torture Victim Protection Act of 1991 (28 U.S.C. 1350 note), is inadmissible.”
[10] The plaintiffs argue that this case is like
Abourezk II
where the D.C. Circuit found that the State Department had
“so obscured its position” for denying the visa that its reason could not be facially legitimate or bona fide.
Abourezk
,