                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



MANJIT KAUR JATHOUL,

       Plaintiff,
               v.                                          Civil Action No. 12-492 (JEB)
HILLARY CLINTON,

       Defendant.


                                  MEMORANDUM OPINION

       Plaintiff Manjit Kaur Jathoul has filed the present action in response to a consular

decision to deny her alien husband a United States visa. In suing the Secretary of State, she

claims this administrative decision violated her Fifth Amendment due-process right to live with

her spouse. Defendant now brings the instant Motion to Dismiss for lack of subject-matter

jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and failure to state a claim under

Rule 12(b)(6). In support, Defendant largely relies on the principle of consular non-

reviewability. Finding that Plaintiff has failed to assert a constitutionally protected liberty

interest that permits judicial review of the consular decision, the Court will grant the Motion and

dismiss the case.

I.     Background

       Plaintiff filed her initial Complaint on March 29, 2012. While Defendant’s Motion to

Dismiss was pending, she filed an Amended Complaint on July 24. To give her the benefit of

the doubt, the Court will consider Plaintiff’s Amended Complaint for purposes of Defendant’s

Motion.



                                                  1
        According to the Amended Complaint, which must be presumed true at this stage,

Plaintiff initially filed an I-130 Immigrant Petition for her husband, Amarpeet Pal Singh Riar, a

citizen of India, on December 27, 2007. See Am. Compl., ¶¶ 8-9. The petition was approved on

April 1, 2008, and Riar interviewed at a consular office in New Delhi on December 4, 2008. Id.,

¶¶ 9-10. Following that interview and the processing of additional material submitted by the

pair, Plaintiff received notice that Riar’s visa application had been formally denied on February

10, 2011. Id., ¶ 16. The United States Citizenship and Immigration Services (USCIS) found

Riar not admissible under Immigration and Nationality Act § 212 (a)(3)(B) [8 U.S.C. §

1182(a)(3)(B)], which relates generally to “Terrorist Activities.” See id., ¶¶ 16-17. Plaintiff

claims her husband has “never engaged in terrorism” and that her husband was “never given the

opportunity to demonstrate the knowledge or lack of knowledge required by several subsections

of [§ 1182(a)(3)(B)].” Id., ¶¶ 19-20. She claims the USCIS violated her due process rights by

“failing to provide a specific reason for denying [her husband’s] visa application” and for

“impos[ing] an undue burden on [the] fundamental liberty interest” of her marriage. Id., ¶¶ 21,

24.

        Defendant has now moved to dismiss the case for lack of subject-matter jurisdiction or, in

the alternative, for failure to state a claim.

II.     Legal Standard

          Defendant’s Motion invokes the legal standards for dismissal under Rules 12(b)(1) and

12(b)(6). In evaluating a motion to dismiss under Rule 12(b)(1), the Court must “treat the

complaint’s factual allegations as true . . . and must grant plaintiff ‘the benefit of all inferences

that can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc., 216 F.3d 1111,

1113 (D.C. Cir. 2000) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979))



                                                   2
(internal citation omitted); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253

(D.C. Cir. 2005). The Court need not accept as true, however, “a legal conclusion couched as a

factual allegation,” nor an inference unsupported by the facts set forth in the Complaint.

Trudeau v. Fed. Trade Comm’n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain,

478 U.S. 265, 286 (1986)) (internal quotation marks omitted).

          To survive a motion to dismiss under Rule 12(b)(1), Plaintiff bears the burden of

proving that the Court has subject-matter jurisdiction to hear her claims. See Lujan v. Defenders

of Wildlife, 504 U.S. 555, 561 (1992); U.S. Ecology, Inc. v. U.S. Dep’t of Interior, 231 F.3d 20,

24 (D.C. Cir. 2000). A court has an “affirmative obligation to ensure that it is acting within the

scope of its jurisdictional authority.” Grand Lodge of Fraternal Order of Police v. Ashcroft, 185

F. Supp. 2d 9, 13 (D.D.C. 2001). For this reason, “‘the [p]laintiff’s factual allegations in the

complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion’ than in resolving a

12(b)(6) motion for failure to state a claim.” Id. at 13-14 (quoting 5A Charles A. Wright &

Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1987) (alteration in original)).

          Rule 12(b)(6) provides for the dismissal of an action where a complaint fails to “state a

claim upon which relief can be granted.” When sufficiency of a complaint is challenged under

Rule 12(b)(6), the factual allegations presented in it must be presumed true and should be

liberally construed in plaintiff’s favor. Leatherman v. Tarrant Cty. Narcotics & Coordination

Unit, 507 U.S. 163, 164 (1993). Although the notice-pleading rules are “not meant to impose a

great burden on a plaintiff,” Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005), and

“detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion, Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), “a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.



                                                   3
Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation omitted). Plaintiff must put forth “factual

content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. Though a plaintiff may survive a 12(b)(6) motion even if “recovery is

very remote and unlikely,” Twombly, 550 U.S. at 555 (citing Scheuer v. Rhodes, 416 U.S. 232,

236 (1974)), the facts alleged in the complaint “must be enough to raise a right to relief above

the speculative level.” Id. at 555.

III.   Analysis

       Plaintiff here is seeking judicial review of the USCIS decision to deny her husband a

visa. Courts, however, do not typically have subject-matter jurisdiction to review such claims

because consular officials “have complete discretion over issuance and revocation of visas.”

Saavedra Bruno v. Albright, 197 F.3d 1153, 1158 n.2 (D.C. Cir. 1999). Matters of policy toward

aliens are “so exclusively entrusted to the political branches of government as to be largely

immune from judicial inquiry or interference.” Id. at 1159 (quoting Harisiades v. Shaughnessy,

342 U.S. 580, 589 (1952)) (internal quotation marks omitted); see also U.S. ex rel. Knauff v.

Shaughnessy, 338 U.S. 537, 543 (1950) (“[I]t is not within the province of any court, unless

expressly authorized by law, to review the determination of the political branch of the

Government to exclude a given alien.”).

       In Saavedra Bruno, a Bolivian national and his U.S.-citizen sponsors brought an action

against the Secretary of State to review decisions made by American consulates in Panama and

Bolivia regarding his visas. To determine whether the plaintiff was entitled to judicial review of

the consular denial of his visa application, the D.C. Circuit first offered a brief history of

American immigration law. Id. at 1156-57. The court found that, although there is typically a

“‘presumption’ of judicial review of agency action,” id. at 1157, there exists a doctrine of



                                                   4
consular non-reviewability that holds that “a consular official's decision to issue or withhold a

visa is not subject to judicial review, at least unless Congress says otherwise.” Id. at 1159. This

non-reviewability represents a “limitation[] on judicial review unaffected by [Administrative

Procedure Act] § 702's opening clause granting a right of review to persons suffering legal

wrong from agency action.” Id. at 1160 (internal quotations omitted). As a result, the Court held

it lacked subject-matter jurisdiction to hear the case. See id. at 1162.

       Saavedra Bruno is not, however, dispositive of this case. As Defendant has

acknowledged, there is a limited exception to the doctrine of consular non-reviewability when

“the denial of a visa implicates the constitutional rights of American citizens.” Mot. at 9 (citing

Bustamante v. Mukasey, 531 F.3d 1059, 1062 (9th Cir. 2008)); see also Abourezk v. Reagan,

785 F.2d 1043, 1061 (D.C. Cir. 1986) (“Executive has broad discretion over the admission and

exclusion of aliens, but that discretion is not boundless.”); Udugampola v. Jacobs, 795 F. Supp.

2d 96, 103 (D.D.C. 2011) (holding that exception applies when visa decision “violates a

constitutionally protected liberty interest”). Plaintiff bears the burden of establishing that the

consular action falls within this exception, see Dunn & Black, P.S. v. United States, 492 F.3d

1084, 1088 (9th Cir. 2007), and, even where the exception applies, judicial review should be

“extremely limited.” Udugampola, 795 F. Supp. 2d at 102.

       Plaintiff here asserts that she falls within the exception because the barring of her

husband infringes on her liberty interest in living in the United States with her spouse. Two

courts in this District, however, have recently rejected this precise claim. In Udugampola, a Sri

Lankan citizen was denied an immigration visa pursuant to 18 U.S.C. § 1182(a)(3)(B), see 795 F.

Supp. 2d at 99 – the same provision pursuant to which Riar’s application was rejected. Along

with his daughter, a United States citizen, and his wife, who had been granted asylum in the



                                                  5
United States, he brought an action seeking judicial review of the decision. See id. at 98. In

rejecting the liberty interest claimed by the wife, the court explained:

        The Constitution certainly protects an individual’s right to marry and the marital
        relationship. … Courts have repeatedly held that these constitutional rights are not
        implicated when one spouse is removed or denied entry into the United States,
        however. Swartz v. Rogers, 254 F.2d 338, 339 (D.C. Cir. 1958) (“Certainly
        deportation would put burdens upon 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.”); see also Bangura v.
        Hansen, 434 F.3d 487, 496 (6th Cir. 2006) (“A denial of an immediate relative
        visa does not infringe upon [the] right to marry.... [T]he Constitution does not
        recognize the right of a citizen [spouse] to have his or her alien [spouse] remain in
        the country,” citing Almario v. Attorney General, 872 F.2d 147, 151 (6th Cir.
        1989)); Burrafato v. U.S. Dep't of State, 523 F.2d 554 (2d Cir. 1975) (reaffirming
        that “no constitutional right of a citizen spouse is violated by deportation of his or
        her alien spouse,” citing Noel v. Chapman, 508 F.2d 1023, 1027–28 (2d Cir.
        1975)).

Id. at 105.

        Similarly, in Mostofi v. Napolitano, 841 F. Supp. 2d 208 (D.D.C. 2012), a United States

citizen sued the Secretary of State, among others, after her alien husband was denied an

immigration visa. She, too, claimed that this action “violate[d] her Fifth Amendment rights

because those actions deprived her of a constitutionally protected liberty interest in freedom of

personal choice in matters of marriage and family life without due process.” Id. at 211-12

(internal quotation marks omitted). The court disagreed, finding that “plaintiff's constitutional

rights are not implicated by defendants' decision to deny her alien spouse entry into the United

States.” Id. at 212. In sum, “Defendants’ denial of [the plaintiff’s] visa affected the physical

conditions of the marriage … but not the marriage itself.” Id. at 212-13 (internal quotation

marks omitted).




                                                  6
       Plaintiff urges the Court to reject these cases and instead to follow Bustamante, 531 F.3d

1059, in which the Ninth Circuit appeared to find a liberty interest where a United States citizen

alleged the consular denial of her alien husband’s visa infringed on her constitutionally protected

liberty interest in her marriage. Id. at 1062. This Court declines the invitation because in

Bustamante “[t]he Ninth Circuit accepted [the plaintiff’s] allegation at face value” and did not

consider “whether the visa denial actually implicated the plaintiff's constitutional rights.”

Mostofi, 841 F. Supp. 2d at 212.

       In any event, this Court is bound by Swartz v. Rogers, 254 F.2d 338 (D.C. Cir. 1958),

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.” Id. at 339; see also Escobar v. I.N.S., 700 F. Supp. 609, 612

(D.D.C. 1988) (holding that a United States citizen “has no constitutional right to have his or her

alien spouse enter or remain in the United States”). Plaintiff acknowledges that “[c]ourts have

held that fundamental marriage rights are not implicated” by a visa denial to a spouse, but

nonetheless maintains that this “imposes a substantial obstacle in the path of that marriage.” See

Amend. Compl., ¶ 25. While it may well be true that exclusion of her husband imposes burdens

on their married life, the Court cannot find any constitutional violation. As a result, Plaintiff’s

claims are barred by the doctrine of consular non-reviewability and the Court has no subject-

matter jurisdiction to hear the case.

       Even if the Court were to find that Plaintiff had a liberty interest that overcame the

general principle of consular non-reviewability and conferred jurisdiction, her claim would still

fail. Because “Congress has delegated conditional exercise” of its “plenary . . . power to make

policies and rules for exclusion of aliens” to the Executive, see Kleindienst v. Mandel, 408 U.S.



                                                  7
753, 770 (1972), the Supreme Court has held that judicial review of consular decisions to deny

visa applications is significantly circumscribed. See id. Specifically, such decisions need only

be based on “a facially legitimate and bona fide reason.” Mandel, 408 U.S. at 770; see also

Bustamante, 531 F.3d at 1062 (affirming visa denial because reasoning was both facially

legitimate and bona fide under Mandel inquiry); Udugampola, 795 F. Supp. 2d at 106 (affirming

Mandel standard). Where such a reason is presented, “courts will neither look behind the

exercise of that discretion nor test it by balancing its justification against constitutional interests.”

Udugampola, 795 F. Supp. 2d at 106 (quoting Mandel, 408 U.S. at 470) (internal quotation mark

omitted).

        Plaintiff’s husband was denied a visa because the consulate determined that he was

unable to receive one under 8 U.S.C. § 1182(a)(3)(B). See Am. Compl., ¶ 16. Section

1182(a)(3)(B) is comprised of numerous grounds for inadmissibility on the basis of the

applicant’s involvement in terrorist activities. That provision, of course, provides a facially

legitimate reason for denial of a visa application. See Din v. Clinton, 2010 WL 2560492, at *3

(N.D. Cal. June 22, 2010) (“reference to Section 1182(a)(3) is sufficient to be facially

legitimate”); Bustamante, 531 F.3d at 1062 (“statutory basis for inadmissibility” is “facially

legitimate reason”) (citing 8 U.S.C. § 1182(a)(2)(C)); Udugampola, 795 F. Supp. 2d at 106 (“By

providing the applicant the statutory basis for the denial of his visa, the defendants provided a

facially legitimate justification.”).

        While Plaintiff may desire a more detailed explanation for the consulate’s decision, see

Am. Compl., ¶ 28 (complaining that a particular subsection of § 1182(a)(3) was not identified),

the explanation that her husband failed to qualify for admission under § 1182(a)(3) suffices to

confer facial legitimacy. That is because 8 U.S.C. § 1182(b)(3) expressly provides that the



                                                   8
government need not identify “the specific provision or provisions of law under which the alien

is inadmissible” where it finds him inadmissible under §§ 1182(a)(2) or (a)(3). 8 U.S.C. §

1182(b)(3) (cross-referencing 8 U.S.C. 1182(b)(1)). As a result, the more general reference to 8

U.S.C. § 1182(a)(3) is adequate. See Udugampola, 795 F. Supp. 2d at 106 (“INA states clearly

that the defendants need not provide an applicant even the statutory basis for denial if the reason

for denial is based under Sections 212(a)(2) or (a)(3).”); Din, 2010 WL 2560492, at *3

(“granularity” concerning which subprovision of § 1182(a)(3) “need not be provided”). A

facially legitimate statutory justification also qualifies as bona fide, unless a plaintiff raises an

“allegation of bad faith sufficient to withstand dismissal.” Bustamonte, 531 F.3d at 1062; see

also Udugampola, 795 F. Sipp. 2d at 106 (“[W]here the consulate provides a statutory basis for

denial, a legal challenge to the visa denial must be dismissed unless a plaintiff alleges that the

consulate acted in bad faith.”); Din 2010 WL 2560492, at *4 (“valid statutory basis also qualifies

as a bona fide reason for denial” absent “well-supported allegation of bad faith”).

        Plaintiff, however, has failed to present such an allegation. Plaintiff’s Amended

Complaint lacks any facts that might plausibly suggest that the consulate acted in bad faith. See

Din, 2010 WL 2560492, at *4 (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (“[W]hile the

facts that Din has pled may be ‘consistent’ with a finding of bad faith; they do not cross the line

from possibility to plausibility of entitlement to relief.”). As a result, the Court can only

conclude that the consulate’s explanation is both facially legitimate and bona fide, and its denial

of Riar’s application thus would survive the Court’s scrutiny even if Plaintiff had established

reviewability.

IV. Conclusion




                                                   9
       Since Plaintiff has failed to present a constitutional claim, the doctrine of consular non-

reviewability bars this Court from conducting a review. Defendant’s Motion to Dismiss will be

granted in a separate Order that accompanies this Memorandum Opinion.


                                                     /s/ James E. Boasberg
                                                     JAMES E. BOASBERG
                                                     United States District Judge
Date: August 2, 2012




                                                10
