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Sesay v. United States

United States District Court, D. Maryland

February 19, 2019

ANTHONY M. SESAY, et al.
v.
UNITED STATES OF AMERICA, et al.

          MEMORANDUM OPINION

          DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE.

         Presently 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”).[1](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.

         I. Factual Background

         The 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.

         Just 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).

         II. Analysis

         Defendants 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 available jurisdiction.

         Regardless 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).[2]

         Plaintiffs 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 and bonafide.

         A. Constitutional Rights

         Plaintiffs 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.[3] Plaintiffs specifically state:

[1] 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.
[2] 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 ...

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