United States District Court, D. Maryland
ANTHONY M. SESAY, et al.
UNITED STATES OF AMERICA, et al.
DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE.
pending and ready for resolution in this immigration case is
the motion to dismiss filed by Defendants United States of
America, William P. Barr, Kirstjen Nielsen, Michael R.
Pompeo, Maria E. Brewer, and Jane Doe
(“Defendants”).(ECF No. 4). The issues have been
fully briefed, and the court now rules, no hearing being
deemed necessary. Local Rule 105.6. For the following
reasons, the motion to dismiss will be granted.
complaint alleges the following facts. Plaintiff Mabinty
Sesay (“Ms. Sesay”) is the biological daughter of
Plaintiff Anthony M. Sesay (“Mr. Sesay”). (ECF
No. 1, at 1). Mr. Sesay is a naturalized citizen of the
United States residing in Maryland; Ms. Sesay is a citizen of
Sierra Leone and resides there. On October 14, 2016, Mr.
Sesay filed a family-petition (Form I-130) with the
Department of Homeland Security, United States Citizenship
and Immigration Services, on behalf of Ms. Sesay so that she
could immigrate to the United States. After the petition was
approved, Ms. Sesay completed a DS-260 form which requires
detailed personal information and supporting documents,
including a passport and birth certificate. On November 14,
2017, Ms. Sesay was interviewed at the U.S. Consulate in
Freetown, Sierra Leone. During the interview, the consular
officer accused Ms. Sesay of lying about her age. After the
interview, Ms. Sesay received a letter stating that her
application would remain pending until she provided
“proof of age.” Ms. Sesay submitted further
documents pertaining to her age on December 11, 2017,
including: (1) a formal letter from Sierra Leone Ministry of
Health and Sanitation, Birth and Death Office, to confirm the
authenticity of her birth certificate; (2) a letter from the
hospital where Ms. Sesay was born, confirming their records
match her birth certificate; (3) a letter from Ms.
Sesay's secondary school, confirming their records match
Ms. Sesay's birth certificate; and (4) Ms. Sesay's
school transcripts for the 2015-16 and 2016-17 school years.
After a delay in processing, Plaintiffs filed a lawsuit in
this court on April 17, 2018, for declaratory judgment and
writ of mandamus to compel Defendants to render a decision of
Ms. Sesay's visa application. Sesay v. United
States, Civil Action No. TDC-18-01112 (D.Md. Apr. 17,
2018, ECF No. 1). While that case was pending, counsel
communicated regarding the status of Ms. Sesay's visa
application. Defendants' counsel confirmed that Ms.
Sesay's visa had been refused in November 2017 under INA
§ 221(g) for administrative processing. Defendants'
counsel further asserted that in December 2017, Ms. Sesay was
asked to provide her National Primary School Examination
(“NPSE”) and Basic Educational Certificate
Examination (“BECE”) school test results. Both
counsel then learned that Ms. Sesay had not taken those tests
because she was behind in school, resulting in the request to
provide “proof of age.” On May 10, 2018,
Plaintiffs informed the court of their intent to file a
motion for temporary restraining order (“TRO”),
and the court scheduled a telephone conference for May 11,
2018. Defendants' counsel then informed Plaintiffs'
counsel that the consular officer denied Ms. Sesay's visa
application under INA § 212(a)(6)(C)(i), 8 U.S.C. §
1182(a)(6)(C)(i), which prohibits the issuance of a visa to a
person “who, by fraud or willfully misrepresenting a
material fact, seeks to procure a . . . visa[.]”
Plaintiffs asked for a factual basis to support this denial,
but claim they did not receive a response. On May 11, 2018,
Ms. Sesay was asked to come to the Consulate on May 14, 2018,
with a copy of the denial letter and her passport, in order
to receive, personally, a copy of the May 8, 2018 refusal
letter. Also on May 11, counsel participated in a conference
call with the court during which Plaintiffs' request to
file a motion for a TRO was granted. Later that day,
Defendants submitted an affidavit to the court from a U.S.
Department of State employee asserting that the Consular
Consolidated Database reflected that Ms. Sesay's visa was
denied under § 1182(a)(6)(C)(i) for material
misrepresentation and “presenting a passport in a false
identity.” (ECF No. 4-1, at 18). Plaintiffs then
inquired whether Ms. Sesay's passport could be
reconsidered during the scheduled May 14, 2018 visit, under
22 C.F.R. § 42.81(e). Ms. Sesay returned to the
Consulate on May 14, 2018. The receptionist denied her an
appointment because all information she was required to pick
up had already been sent to her. Because Ms. Sesay's visa
application had been denied, Plaintiffs voluntarily dismissed
the mandamus action on May 14, 2018.
before dismissing the mandamus case, Plaintiffs filed this
case, seeking judicially mandated reconsideration of Ms.
Sesay's visa denial, among other related relief. (ECF No.
1). Defendants filed a motion to dismiss on July 16, 2018.
(ECF No. 4). Plaintiffs responded on July 31, 2018, (ECF No.
5), and Defendants replied on August 10, 2018, (ECF No. 6).
frame their argument in terms of both “subject matter
jurisdiction” and, in the alternative, whether normal
subject matter jurisdiction is overcome by the doctrine of
consular nonreviewability. This subtle difference was
discussed in Am.Acad. of Religion v. Napolitano, 573
F.3d 115, 123 (2d Cir. 2009):
The Supreme Court has cautioned that the term
“jurisdiction” is often used imprecisely, see
Kontrick v. Ryan, 540 U.S. 443, 454-55  (2004). We do
not believe that traditional subject matter jurisdiction is
lacking in this case. The Plaintiffs allege that the denial
of Ramadan's visa violated their First Amendment rights,
and subject matter jurisdiction to adjudicate that claim is
clearly supplied by 28 U.S.C. § 1331. See Abourezk
v. Reagan, 785 F.2d 1043, 1050 (D.C. Cir. 1986)
(“The district court had subject matter competence in
this case [involving visa denials] under both its general
federal question jurisdiction, see 28 U.S.C. §
1331 (1982), and its specific jurisdiction over claims
arising under the Immigration and Nationality Act,
see 8 U.S.C. § 1329 (1982) [repealed]”),
aff'd by an equally divided court, 484 U.S. 1');">484 U.S. 1
(1987); Burrafato v. U.S. Dep't of State, 523
F.2d 554, 557 (2d Cir. 1975) (noting that
[Kleindienst v. ]Mandel[, 408 U.S. 753
(1972)] considered “an alleged violation of First
Amendment rights of American citizens over which the federal
courts clearly had jurisdiction”) (emphasis added).
Perhaps the doctrine of consular nonreviewability, where
applicable, means that the generally available federal
question jurisdiction provided by section 1331 to adjudicate
First Amendment claims is withdrawn where the claim is based
on a consular officer's denial of a visa, or that
prudential considerations, perhaps arising from separation of
powers concerns, counsel against exercising normally
of its label, the doctrine of consular nonreviewability
prohibits judicial review of a consular officer's
decision to grant or deny a visa to foreign nationals.
See, e.g., U.S. ex rel.Knauff v.
Shaughnessy, 338 U.S. 537, 543 (1950) (finding that
“it 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”). As explained by Justice Kennedy in his
concurring opinion in Kerry v. Din, 134 S.Ct. 2128,
2140 (2015), the Court held, in Kleindienst v.
Mandel, 408 U.S. 753 (1972), “that an executive
officer's decision denying a visa that burdens a
citizen's own constitutional rights is valid when it is
made ‘on the basis of a facially legitimate and bona
fide reason.' Once this standard is met, ‘courts
will neither look behind the exercise of that discretion, nor
test it by balancing its justification against' the
constitutional interests of citizens the visa denial might
implicate.” (internal citations omitted). “Absent
an affirmative showing of bad faith on the part of the
consular officer . . . Mandel instructs us not to
‘look behind' the Government's exclusion . . .
for additional factual details[.]” Id. at 2141
(Kennedy, J., concurring).
contend that both Mr. Sesay and Ms. Sesay have viable
constitutional claims, and the consular officer's
decision was not based on a facially legitimate and bonafide
reason. Defendants argue in parallel that neither Mr. Sesay
nor Ms. Sesay have viable constitutional claims, and the
decision to deny Ms. Sesay's visa was facially legitimate
argue that the doctrine of consular nonreviewability does not
bar their claims because the complaint raises allegations
that the rights of both Mr. Sesay, a U.S.citizen, and Ms.
Sesay, a citizen of Sierra Leone, were violated by the
consular officer's decision. Plaintiffs specifically
 Defendants' actions (or lack thereof) unlawfully
infringe upon [Mr. Sesay's] liberty interest to make
personal choices with regard to family matters free from
unjustifiable government interference in violation of his
right to substantive due process guaranteed by the Fifth
Amendment [to] the United States Constitution.
 Defendants' actions (or lack thereof) unlawfully
infringe upon [Ms. Sesay's] interest in having her
immigrant visa application adjudicated in a manner consistent
with her constitutional equal protection interests, as well
as her subsequent right to vote as a U.S. citizen should her
application [be] adjudicated fairly and in accordance with