                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

__________________________________________
                                          )
SHAGHAYEGH MOSTOFI                        )
                                          )
                     Plaintiff,           )
                                          )
              v.                          )
                                          )                    Civil Action No. 11-0727 (ESH)
JANET NAPOLITANO, et al.                  )
Secretary of the Department of Homeland   )
Security of the United States,            )
                                          )
                     Defendants.          )
_________________________________________ )

                                   MEMORANDUM OPINION

          Plaintiff Shaghayegh Mostofi, a United States citizen, has sued the Secretary of the

Department of Homeland Security, the Secretary of State, and the Consul General at the United

States Consulate in Sydney, Australia alleging that defendants’ refusal to issue her alien

husband, Shahriar Aghakhani, an immigrant visa violated her First Amendment right to

“freedom of personal choice in matters of marriage and family life” (Compl. ¶ 29) and Fifth

Amendment constitutional right to “fundamental fairness in administrative adjudication.” (Id. ¶¶

47-48.)

          Defendants have moved to dismiss on the grounds that this Court lacks subject matter

jurisdiction based on the doctrine of consular nonreviewability. For the reasons set forth below,

defendants’ motion to dismiss is granted.


                                          BACKGROUND

          Plaintiff Shaghayegh Mostofi, a naturalized American citizen, married Iranian citizen

Shahriar Aghakhani on August 20, 2008, in Tehran, Iran. Aghakhani had previously been denied
an immigrant visa to the United States in 2002 and 2004. On September 17, 2008, Mostofi filed

an I-130 Petition for Alien Relative with the United States Citizenship and Immigration Services

(“USCIS”) on Aghakhani’s behalf. On October 1, 2008, Mostofi filed an I-129F Petition for

Fiancé(e) with the USCIS, also on Aghakhani’s behalf.1 During the pendency of the two

petitions, Mostofi lived in the Cincinnati area while Aghakhani lived in Australia. Following a

Federal Bureau of Investigation interview with Mostofi regarding Aghakhani, the USCIS

approved the I-130 petition on August 24, 2009, and the I-129F petition on January 11, 2010. As

part of the continuing process of obtaining an immigrant visa, Aghakhani attended a March 16,

2010 interview at the United States Consulate in Sydney, Australia.

              On April 14, 2010, the Immigrant Visa Chief of the United States Consulate General in

Sydney denied Aghakhani’s visa application stating:

                             At this time, we have received a response from the Department of
                             State in your case, and we are unable to issue you an immigrant
                             visa. Your case is being refused under Section 212(a)(3) of the
                             Immigration and Nationality Act. There is no waiver available for
                             this ineligibility for an immigrant visa.

(Compl. Ex. F.) Section 212(a)(3) of the Immigration and Nationality Act (“INA”), 8 U.S.C. §

1182(a)(3), allows exclusion of a visa applicant from the United States on any of six security and

related grounds. No communication with Mostofi or Aghakhani from immigration authorities

indicated which subsection of the statute applied to Aghakhani’s visa denial. An inquiry with

consular officials regarding Aghakhani’s visa denial initiated by United States Senator George

Voinovich of Ohio ended when Senator Voinovich received a letter restating the same INA




                                                            
              1
         Approved I-130 and I-129F petitions classify an alien as an immediate relative or
fiancé(e) of a United States citizen or permanent resident, but are not alone grounds for entry
into the United States. (See Compl. Ex. E.)
                                                               ‐2-
Section 212(a)(3) grounds for refusing Aghakhani’s entry. (Compl. Ex. G.) Mostofi moved to

Australia in late 2010 to live with Aghakhani.

        On April 14, 2011, Mostofi filed a Petition for a writ of mandamus pursuant to the

Administrative Procedures Act (“APA”), 5 U.S.C. § 702, the Mandamus Act, 28 U.S.C. § 1361,

and the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq. (Compl. ¶¶ 2, 40). Plaintiff seeks a

declaration that Aghakhani’s exclusion from the United States was “not based on a facially

legitimate and bona fide reason” and that his exclusion violates the APA; a writ of mandamus

compelling defendants to review their refusal of Mostofi’s application for Aghakhani’s visa and

to identify the facts, evidence, and statutory subsections that underlie the refusal of Aghakhani’s

visa; and injunctive relief granting Aghakhani permanent residency status and compelling the

issuance of an immigrant visa. (Compl. ¶¶ 43, 56).

                                    STANDARD OF REVIEW

        On a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, plaintiff

bears the burden of establishing by a preponderance of the evidence that the court has subject

matter jurisdiction. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). A court must

accept as true all factual allegations in the complaint, and give plaintiff the benefit of all

reasonable inferences from the facts alleged. Sparrow v. United Air Lines, Inc., 216 F.3d 1111,

1113 (D.C. Cir. 2000). However, a court need not accept as true “a legal conclusion couched as

a factual allegation,” nor inferences that are “unsupported by the facts set out 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)). In considering the sufficiency of a plaintiff's allegations for this

purpose, a court may consider materials outside the pleadings. Herbert v. Nat'l Acad. of Scis.,

974 F.2d 192, 197 (D.C. Cir. 1992).



                                                  ‐3-
                                           ANALYSIS

       A consular officer’s decision to deny a visa is generally not subject to judicial review, for

as Justice Harlan stated in Lem Moon Sing v. United States:

               The power of Congress to exclude aliens altogether from the
               United States or to prescribe the terms and conditions upon which
               they may come into this country, and to have its declared policy in
               that regard enforced exclusively through executive officers without
               judicial intervention, is settled by our previous adjudications.

158 U.S. 538, 547 (1895); see also United States 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.”);

Shaughnessy v. United States ex rel. Menzei, 345 U.S. 206, 210 (1953) (“Courts have long

recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised

by the Government's political departments largely immune from judicial control.”); Bruno v.

Albright, 197 F.3d 1153, 1156-57, 1162 (D.C. Cir. 1999) (the INA grants consular officials

“exclusive authority” to review visa applications, and thus, the APA does not permit judicial

review of consular visa decisions); Udugampola v. Jacobs, 795 F. Supp. 2d 96, 102 (D.D.C.

2011) (“The power to control entry into the United States is exercised exclusively by the political

branches of government and judicial review of such matters is extremely limited.”) (internal

citations and quotations omitted).

       This established doctrine of “consular nonreviewability” is far-reaching. See Chun v.

Powell, 223 F. Supp. 2d 204, 206 (D.D.C. 2002) (consular nonreviewability applicable even

where consular officer failed to follow regulations or made decision based on factual or legal

error). However, in Kliendienst v. Mandel, 408 U.S. 753 (1972), the Supreme Court opened the

door to limited review of consular decisions. In rejecting a First Amendment challenge by U.S.



                                                ‐4-
citizens to the denial of a visa waiver for a Belgian journalist who was scheduled to speak at

several American universities, the Court held that “when the Executive exercises this power [to

deny a waiver] on the basis of a facially legitimate and bona fide reason, the courts will neither

look behind the exercise of that discretion, nor test it by balancing its justification against the

First Amendment interests of those who seek personal communication with the applicant.” Id. at

770.

       Presented with facts similar to Mandel, the D.C. Circuit noted that it had jurisdiction to

conduct limited review because “presumably, had the [Supreme] Court harbored doubts

concerning federal court subject matter jurisdiction in Mandel, it would have raised the issue on

its own motion.” Abourezk v. Reagan, 785 F.2d 1043, 1050 (D.C. Cir. 1986) (hereinafter

“Abourezk II”). In this manner, the D.C. Circuit joined the First, Second, and Ninth Circuits in

authorizing limited inquiry into the facial legitimacy of and bona fide reason for a consular

decision when the plaintiff asserts that the decision infringes upon constitutional rights. See

Abourezk II, 785 F.2d at 1061 (executive discretion in consular affairs cannot “transgress

constitutional limitations”); see also Udugampola, 795 F. Supp. 2d at 103 (Abourezk II created

an exception to consular nonreviewability “where a U.S. citizen or legal resident plaintiff asserts

that the visa decision violates a constitutionally protected liberty interest”). However, this Court

still lacks jurisdiction to review a consular officer’s denial of a visa application when the denial

fails to adversely implicate any interest protected by the Constitution. See Bruno, 197 F.3d at

1163-64 (no subject matter jurisdiction where plaintiffs asserted no constitutional claims);

Udugampola, 795 F. Supp. 2d at 103 (same).

       Plaintiff argues that the denial of Aghakhani’s visa implicates her constitutional rights,

justifying limited review of the consular decision in this case. (Compl. ¶¶ 29, 47-48; Pl’s. Opp’n



                                                  ‐5-
at 7.) She asserts that the defendants’ actions violate 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. (Compl. ¶¶ 29, 47-48.) The

Constitution certainly protects “freedom of personal choice in matters of marriage and family

life,” as well as the rights to marry and to marital privacy. Cleveland Bd. of Educ. v. LaFleur,

414 U.S. 632, 639 (1973); see also Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (citing

Loving v. Virginia, 388 U.S. 1 (1967)) (“[T]he ‘liberty’ specially protected by the Due Process

Clause includes the right[] to marry . . . .”); Griswold v. Connecticut, 381 U.S. 479, 495 (1965)

(“The entire fabric of the Constitution and the purposes that clearly underlie its specific

guarantees demonstrate that the rights to marital privacy and to marry and raise a family are of

similar order and magnitude as the fundamental rights specifically protected.”).

       However, plaintiff’s constitutional rights are not implicated by defendants’ decision to

deny her alien spouse entry into the United States. See Swartz v. Rogers, 254 F.2d 338, 339

(D.C. Cir. 1958) (citizen wife has no constitutional rights violated by deportation of husband);

Bangura v. Hansen, 434 F.3d 487, 496 (6th Cir. 2006) (citing Almario v. Attorney General, 872

F.2d 147, 151 (6th Cir. 1989)) (“A denial of an immediate relative visa does not infringe upon

[plaintiffs’] right to marry.”); Burrafato v. U.S. Dep’t of State, 523 F.2d 554, 554-55 (2d Cir.

1975) (no subject matter jurisdiction over claim that denial of alien husband’s visa “without

reason” violated citizen wife’s constitutional rights). In response, plaintiff argues that

Bustamante v. Mukasey, 531 F.3d 1059 (9th Cir. 2008), supports her contention that defendants’

decision to deny Aghakhani a visa implicates her constitutional rights. (Pl’s. Opp’n at 10.) In

Bustamante, a U.S. citizen wife alleged that consular denial of her alien husband’s visa infringed

on a right to “constitutionally adequate procedures in the adjudication of her husband’s visa



                                                 ‐6-
application” arising from a “protected liberty interest in her marriage”. 531 F.3d at 1062. The

Ninth Circuit accepted this allegation at face value and invoked Mandel to review a consular

decision without first considering whether the visa denial actually implicated the plaintiff’s

constitutional rights. Id. Plaintiff’s reliance on Bustamante here is unavailing, for this Circuit,

unlike the Ninth Circuit, does not recognize consular decisions affecting only the “physical

conditions” of a marriage as implicating any constitutionally protected interests. See Swartz, 254

F.2d at 339; see also Udugampola 795 F. Supp. 2d at 105 (no jurisdiction even though plaintiff

alleged a violation of constitutional “right to marry and the marital relationship” because the

right is not infringed by consular denial of a visa).

       Plaintiff attempts to distinguish Swartz by contending that it was limited to its facts and

involved a deportation of a spouse already in the United States, rather than a denial of a visa to

an alien. (Pl’s. Opp’n at 9.) This argument is not persuasive. In Swartz, a U.S. citizen argued

that her marriage afforded her Fifth Amendment protection against her husband’s deportation.

254 F.2d at 339. In rejecting her argument, the Circuit concluded:

               [D]eportation 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.

Id. Following the denial of Aghakhani’s visa, plaintiff faced precisely the same choice as the

wife in Swartz. Defendants’ denial of Aghakhani’s visa affected the “physical conditions of the

marriage” between plaintiff and Aghakhani, but not the marriage itself.

       Furthermore, plaintiff attempts to distinguish this case from Swartz by noting that, unlike

Aghakhani, the deported husband in Swartz had been convicted of several crimes and had been

given a chance to rebut the evidence against him. (Pl’s. Opp’n at 9-10.) According to plaintiff,

                                                  ‐7-
while the process afforded the deported husband in Swartz may have satisfied the Fifth

Amendment, the process afforded to Aghakhani in this case did not. This distinction ignores the

requirement that the government must deprive plaintiff of some protected interest before her

Fifth Amendment due process protections come into play. See Gen Elec. Co. v. Jackson, 610

F.3d 110, 117 (D.C. Cir. 2010) (citing Amer. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59

(1999)) (government deprivation of a protected liberty or property interest is a prerequisite to

successful procedural due process challenge). Because plaintiff’s constitutional right to freedom

of personal choice in marriage and family life is not implicated by defendants’ actions, and she

has failed to allege any other protected liberty or property interest upon which to base a due

process argument, her Fifth Amendment claim must be rejected.

              Defendants have not violated plaintiff’s constitutionally protected right to freedom of

personal choice in marriage and family life because they have “done nothing more than to say

that the residence of one of the marriage partners may not be in the United States.” See

Silverman v. Rogers, 437 F.2d 102, 107 (1st Cir. 1970); see also Escobar v. Immigration &

Naturalization Service, 700 F. Supp. 609, 612 (D.D.C. 1988) (citing Swartz for the proposition

that “a citizen spouse has no constitutional right to have his or her alien spouse enter or remain in

the United States.”). Since plaintiff has not stated a valid constitutional claim, the doctrine of

consular nonreviewability bars this Court from conducting even a limited Mandel review. See

Bruno, 197 F.3d at 1163-64.2



                                                            
              2
          The four statutes which plaintiff relies upon — the general federal question statute, 28
U.S.C. § 1331, the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq., the Mandamus Act, 28
U.S.C. § 1361, and the APA, 5 U.S.C. § 702 — do not give rise to jurisdiction where, as here,
“plaintiff has no clear right to relief.” See Van Ravenswaay v. Napolitano, 613 F. Supp. 2d 1, 6
(D.D.C. 2009) (same four statutes do not confer jurisdiction without accompanying substantive
cause of action).
                                                               ‐8-
                                                               CONCLUSION

              For these reasons, defendants’ motion to dismiss for lack of subject matter jurisdiction is

granted.3 A separate order accompanies this Memorandum Opinion.4



                                                                                   /s/
                                                                         ELLEN SEGAL HUVELLE
                                                                         United States District Judge

Date: January 27, 2012


 




                                                            
              3
         Having reached the conclusion that this Court lacks jurisdiction to hear plaintiff’s
claims, the Court need not address defendants’ alternative motion for failure to state a claim.
              4
         Plaintiff’s motion for leave to file a surreply will be granted, but her argument therein
does not affect the outcome of this case because without subject matter jurisdiction, this Court
cannot reach the substantive issues surrounding defendants’ failure to cite reasons or a statutory
subsection for the visa denial.
                                                                   ‐9-
