ASHBY v. UNITED STATES DEPARTMENT OF STATE

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

SHON ASHBY and JHONIER ALONSO )

ROJAS HERRERA, )

)

Plaintiffs, )

)

v. ) 1:18CV614

)

UNITED STATES DEPARTMENT OF )

STATE, UNITED STATES DEPARTMENT )

OF JUSTICE, BUREAU OF CONSULAR )

AFFAIRS, DONALD J. TRUMP, MIKE )

POMPEO, CARL RISCH, JEFF )

SESSIONS, and STACEY I. YOUNG, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Now before this court are pro se Plaintiffs’ motion for

default judgment, (Doc. 7), and Federal Defendants’ motion to

dismiss for failure to state a claim.1 (Doc. 10.) Plaintiffs have

also filed numerous other motions, notices, and requests for

production. For the reasons stated herein, the court finds that

1 Plaintiffs’ summons was issued as to all defendants, (see

Doc. 4). Plaintiffs filed an affidavit of service, (Doc. 6),

which is of some concern to this court as service was effected

by mailing, but did not include any return receipts or evidence

of proper service. (See Fed. R. Civ. P. 4(a)(1) (contents of

summons) and 4(i)). Nevertheless, a notice of appearance was

filed on behalf of “all Federal Defendants.” (Doc. 8.) Because

the named individual defendants are all federal employees, sued

in their official capacity, (see Doc. 1 and Doc. 10), this court

construes the motion to dismiss as filed on behalf of all

defendants. This case will be dismissed in its entirety.

Plaintiffs’ motion for default judgment should be denied,

Defendants’ motion to dismiss should be granted, Plaintiffs’

claims should be dismissed, and Plaintiffs’ miscellaneous other

motions should be denied.

I. FACTUAL BACKGROUND AND PRIOR LITIGATION

Plaintiff Shon Ashby (“Ashby”) is “a[n] American business

owner” who “seeks . . . to train and educate, Plaintiff [Jhonier

Alonso Rojas] Herrera, in the areas of business [and] religious

training.” (Pls.’ Resp. to Defs.’ Mot. to Dismiss (“Pls.’

Resp.”) (Doc. 14) ¶ 27.) Plaintiff Jhonier Alonso Rojas Herrera

(“Herrera”) is, apparently, a resident and citizen of Colombia

and Ashby’s “friend/religious partner.” See Ashby v. U.S. Dep’t

of State, Docket No. 3:16-cv-00585-FDW-DCK, 2017 WL 1363323, at

*1 (W.D.N.C. Apr. 12, 2017) (“Ashby I”). Ashby sponsored Herrera

for a B-1 visa and paid for the application, “so that Plaintiff

Herrera could come to the United States, as a student, and take

part in Plaintiff Ashby’s training and religious tenants [sic],

etc.” (Pls.’ Resp. (Doc. 14) ¶ 32.) Herrera was allegedly denied

a visa, “causing

. . . Plaintiff Ashby financial harm” and depriving Ashby of the

opportunity to provide religious instruction to Herrera. (Id.

¶ 30.) Plaintiffs are proceeding pro se.

While this court does not necessarily agree fully with

Defendants’ contention that “Ashby appears to be reasserting

claims and arguments raised in earlier litigation,” (Defs.’ Br.

in Supp. of Mot. to Dismiss (“Defs.’ Br.”) (Doc. 11) at 2),

Plaintiffs’ claims are at least closely related to an earlier

lawsuit filed in the Western District of North Carolina. See

Ashby I, 2017 WL 1363323, at *1 (“Plaintiff alleges that a

consular office in Bogota, Columbia denied a nonimmigrant

tourist visa to Plaintiff’s friend/religious partner, Jhonier

Alonso Rojas Herrera . . . , because Jhonier did not overcome

the presumption of immigrant intent.”) (internal punctuation

omitted). The principal, and perhaps only, distinction between

Ashby I and this case is not factual, but rather Plaintiffs’

allegation in this case that the visa process is facially

discriminatory based on age and that Herrera’s visa adjudication

therefore implicates the constitutional right of equal

protection. In Ashby I, Ashby alleged that Herrera’s visa

application was reviewed “in an indifferent and reckless manner”

and that this review “placed a substantial burden upon the

Plaintiff’s fundamental liberties.” 2017 WL 1363323, at *1. It

appears that Ashby is now challenging that very same visa denial

on age discrimination and other grounds. (See Complaint

(“Compl.”) (Doc. 1) ¶¶ 5–7, 20.)

The district court in Ashby I concluded that Herrera’s visa

was properly denied, see 2017 WL 1363323, at *3, and that

decision was promptly affirmed by the Fourth Circuit Court of

Appeals, see Ashby v. U.S. Dep’t of State, 697 F. App’x 219 (4th

Cir. 2017). It appears to this court that Ashby should be

collaterally estopped from again challenging the denial of

Herrera’s visa because he had a “full and fair opportunity to

litigate the issue” in Ashby I and received a final judgment.

See In re Microsoft Corp. Antitrust Litigation, 355 F.3d 322,

326 (4th Cir. 2004) (setting forth the test for collateral

estoppel). This court, frankly, finds it both disrespectful to

other litigants and wasteful of judicial resources that Ashby

now seeks a “second bite at the apple” by bringing the same

challenge under the guise of different constitutional

protections.

Defendants have not argued that collateral estoppel

applies. While aware of its authority to consider sua sponte

whether collateral estoppel should bar the claims in this case,

see, e.g., Eriline Co. S.A. v. Johnson, 440 F.3d 648, 655 (4th

Cir. 2006), this court will nevertheless address the motion to

dismiss and complaint on the merits.

II. JURISDICTION AND VENUE

This court has subject matter jurisdiction over Plaintiffs’

visa-related challenges because they arise under the United

States Constitution. 28 U.S.C. § 1331; see also Brown v.

Schlesinger, 365 F. Supp. 1204, 1206 (E.D. Va. 1973). When a

federal court has federal question jurisdiction over some

claims, it may exercise supplemental jurisdiction over all

claims that “form part of the same case or controversy.” 28

U.S.C. § 1367; see also Hinson v. Norwest Fin. S.C., Inc., 239

F.3d 611, 616 (4th Cir. 2001). Claims are part of the same “case

or controversy” when they “derive from a common nucleus of

operative fact . . . such that [the plaintiff] would ordinarily

be expected to try them all in one judicial proceeding.” United

Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966). This court is

satisfied that the pendant state-law defamation claim against

Defendant Stacey I. Young (“Young”) arises from the same nucleus

of operative fact — namely, the circumstances surrounding

Herrera’s visa denial. Therefore, this court has supplemental

jurisdiction over the defamation claim.

Defendants argue that “Plaintiffs have alleged no facts

showing that venue is proper here in the Middle District of

North Carolina” and that the court is therefore free to transfer

this case to the Western District of North Carolina, where venue

is apparently proper because the Ashby I court considered the

merits of Plaintiffs’ prior claims. (Defs.’ Br. (Doc. 11) at 16

n.10.)2 This court agrees that the complaint fails to make any

allegation that venue is proper in this judicial district.

However, in the interest of liberally construing a pro se

complaint and because Defendants have proceeded to argue that

the claims should be dismissed on substantive legal grounds,

this court will assume for argument that venue is proper in the

Middle District of North Carolina.

III. MOTION FOR DEFAULT JUDGMENT

This court may enter default judgment “[w]hen a party

against whom a judgment for affirmative relief is sought has

failed to plead or otherwise defend.” Fed. R. Civ. P. 55(a). The

Fourth Circuit has “repeatedly expressed a strong preference

that, as a general matter, defaults be avoided and that claims

and defenses be disposed of on their merits.” Colleton

Preparatory Acad., Inc. v. Hoover Universal, Inc., 616 F.3d 413,

417 (4th Cir. 2010). “A court must ‘exercise sound judicial

discretion’ in deciding whether to enter default judgment, and

‘the moving party is not entitled to default judgment as a

2 All citations in this Memorandum Opinion and Order to

documents filed with the court refer to the page numbers located

at the bottom right-hand corner of the documents as they appear

on CM/ECF.

matter of right.’” Reynolds Innovations, Inc. v.

E-CigaretteDirect, LLC, 851 F. Supp. 2d 961, 962 (M.D.N.C. 2012)

(quoting EMI April Music, Inc. v. White, 618 F. Supp. 2d 497,

505 (E.D. Va. 2009)).

Plaintiffs filed their complaint in this matter on July 12,

2018, and a summons issued to Defendants on that same day. (See

Complaint (“Compl.”) (Doc. 1); Doc. 4.) Plaintiffs then filed an

affidavit of service, (see Doc. 6), on September 12, 2018,

asserting that all Defendants had been served as of August 30,

2018.

Plaintiffs moved for a default judgment pursuant to Fed. R.

Civ. P. 55 on October 10, 2018. (See Doc. 7.) Attorney Aaron S.

Goldsmith then entered an appearance on behalf of Defendants on

October 16, 2018, (Doc. 8), and on October 17,2018, filed both a

motion to dismiss, (Doc. 10), and a response to the motion for

default judgment, (Doc. 12). Plaintiffs were permitted to reply

“within 14 days after service of the response,” LR 7.3(h), which

they failed to do. Instead, Plaintiffs filed a second motion for

default judgment on November 20, 2018, (Doc. 24), to which

Defendants responded, (Doc. 34), and Plaintiffs replied, (Doc.

37).

The second motion for default judgment does not appear to

raise any new legal arguments related to a possible default by

Defendants, but rather addresses the merits of Plaintiffs’

claims. (See Doc. 24.) To the extent the second motion actually

asks for an entry of default against Defendants due to failure

to respond, it is duplicative of Plaintiffs’ first motion. This

court finds that the second motion for default judgment, (Doc.

24), should be denied as moot. This court will therefore not

consider the briefing of that motion.

Plaintiffs argue in their first motion that “Defendants

were to respond by October 9th 2018,” (Doc. 7 ¶ 3), and that a

default judgment is appropriate because “Defendants have failed

to respond to the Plaintiff’s complaint, by the dates issued by

[the] Court.” (Id. ¶ 6.) Defendants contend that they responded

by filing a motion to dismiss “within 60 days after service on

the United States attorney” for the judicial district where the

action was commenced, as required by Fed. R. Civ. P. 12(a)(2).

(Doc. 12 at 1.)

Plaintiffs’ affidavit indicates that Matthew G.T. Martin,

United States Attorney for the Middle District of North

Carolina, was served on August 17, 2018. (Doc. 6 at 5.)

Therefore, pursuant to Rule 12(a)(2), Defendants had until

October 16, 2018, to respond. See, e.g., Treece v. Colvin, No.

1:14-CV-1077, 2016 WL 225698, at *3 (M.D.N.C. Jan. 19, 2016)

(explaining the 60-day rule for lawsuits against government

agencies). Defendants filed their motion to dismiss on

October 16, 2018, within the time permitted by the Federal

Rules.3

Even had Defendants failed to respond within the allotted

time, Fed. R. Civ. P. 55(d) imposes an additional evidentiary

requirement to obtain a default judgment against the United

States. The plaintiff must “establish[] a claim or right to

relief by evidence that satisfies the court.” Fed. R. Civ. P.

55(d). The Rule 55(d) inquiry implicates the substance of

Plaintiffs’ claims. Here, this court finds that Plaintiffs have

failed to put forward sufficient evidence at the current stage

of the litigation. Further, “courts have held that entry of

default judgment against the United States will not be based

simply on a failure to file an answer or responsive pleading.”

Sun v. United States, 342 F. Supp. 2d 1120, 1124 (N.D. Ga.

2004). Even after a default is entered, courts will generally

set it aside if the government later appears and files a

responsive pleading. See Mason v. Lister, 562 F.2d 343, 345 (5th

Cir. 1977).

3 Defendants’ corrected motion to dismiss, (see Doc. 10),

filed on October 17, 2018, relates back to the original filing

date because it was permitted as a matter of course, corrected a

purely ministerial error, and relates to “the conduct,

transaction, or occurrence set out — or attempted to be set out

— in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B).

This court finds that Defendants have responded within the

sixty-day period permitted by Fed. R. Civ. P. 12(a)(2) and that

Plaintiffs’ motion for default judgment should be denied.

IV. MOTION TO DISMISS

A. Standard of Review

“To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (internal punctuation omitted). In other

words, the plaintiff must plead facts that “allow[] the court to

draw the reasonable inference that the defendant is liable” and

must demonstrate “more than a sheer possibility that a defendant

has acted unlawfully.” Iqbal, 556 U.S. at 678.

When ruling on a motion to dismiss, this court must accept

the complaint’s factual allegations as true. Iqbal, 556 U.S. at

678. Further, “the complaint, including all reasonable inferences

therefrom, [is] liberally construed in the plaintiff’s favor.”

Estate of Williams-Moore v. All. One Receivables Mgmt., Inc., 335

F. Supp. 2d 636, 646 (M.D.N.C. 2004) (citation omitted). Despite

this deferential standard, a court will not accept legal

conclusions as true, and “[t]hreadbare recitals of the elements

of a cause of action, supported by mere conclusory statements,

[will] not suffice.” Iqbal, 556 U.S. at 678.

The pleading standards are relaxed for pro se plaintiffs.

See Estelle v. Gamble, 429 U.S. 97, 106 (1976) (stating that pro

se complaints must be “liberally construed”); see also Haines v.

Kerner, 404 U.S. 519, 520–21 (1972). However, pro se plaintiffs

are still required to plead facts that fairly put the defendant

on notice of the nature of the claims and “contain more than

labels and conclusions.” Giarratano v. Johnson, 521 F.3d 298,

304 & n.5 (4th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007)).

B. Plaintiffs’ Claims

This court interprets the pleadings in this case to allege

four separate claims. First, Plaintiffs bring a facial challenge

to the Foreign Affairs Manual (“FAM”) regulations implementing

the Student and Exchange Visitor Program that grants visas to

foreign students for study in the United States. Specifically,

the regulations acknowledge that a student is generally younger

than the average visa applicant and thus is less likely to be

able to demonstrate substantial concrete “ties” to his or her

home country (such as property ownership, a spouse or children,

and long-term employment), which are normally required to rebut

the presumption of “immigrant intent.” See 9 FAM 402.5-5(E)(1).

Plaintiffs contend that the FAM regulations violate equal

protection because they discriminate on the basis of age by

creating a stricter “immigrant intent” inquiry for older non-

student visa applicants. (See Compl. (Doc. 1) ¶¶ 6–7; Pls.’

Resp., Attach. Two (Doc. 14-1).)

Plaintiffs request an order relating to “Counselor officers

in Bogota, Colombia.” (Compl. (Doc. 1) ¶ 20.) However,

Plaintiffs then assert in their response that they have not

asked for “[j]udicial review of a counselor’s visa denial.”

(Pls.’ Resp. (Doc. 14) ¶¶ 9-10.) And Plaintiffs repeatedly refer

to regulations that are “discriminat[ory] on [their] face.” (See

id. ¶ 17, Attach. Two.) Therefore, this court concludes that

Plaintiffs intend to bring a facial challenge to the FAM

regulations under the equal protection clause.

Second, Plaintiffs argue that the FAM regulations burden

their right to religious expression under the free exercise

clause and deny them equal treatment as compared to other

religious groups and institutions. (Compl. (Doc. 1) ¶¶ 8–9.) As

explained more fully in Plaintiffs’ response, Plaintiffs contend

that religiously-affiliated colleges such as Boston College and

Liberty University receive unconstitutional benefits under the

regulations because they sponsor only student visa applicants

who are subject to a less-probing “immigrant intent” inquiry.

(See Pls.’ Resp. (Doc. 14) ¶ 30.) The court interprets this

claim as a facial challenge under either the Free Exercise or

Equal Protection clause, alleging that the regulations

impermissibly discriminate against certain religious beliefs

while favoring others.

Third, by invoking Burwell v. Hobby Lobby Stores, Inc., 573

U.S. 682 (2014), (see Pls.’ Resp. (Doc. 14) ¶¶ 31, 33),

Plaintiffs have alleged a claim under the Religious Freedom

Restoration Act, or RFRA. Specifically, Plaintiffs allege that

the FAM regulations substantially burden their exercise of

religion by denying Plaintiff Ashby the right “to train a

nonimmigrant (Herrera) [in] his own religious tenants [sic] here

in the United States.” (Id. ¶ 32.)

Fourth, Plaintiffs attempt to state a claim against Young,

a lawyer in the U.S. Department of Justice Office of Immigration

Litigation who represented the U.S. Department of State and

other defendants in Ashby I.4 See 2017 WL 1363323, at *1.

Plaintiffs allege that Young denied Plaintiffs due process of

law by “plac[ing] a false statement in Federal Court.” (Compl.

(Doc. 1) ¶ 15.) In their response, Plaintiffs clarify that their

claim against Young is grounded in state defamation law and is

4 Plaintiffs further name numerous high-level government

officials, including President Donald J. Trump and Secretary of

State Mike Pompeo, as defendants. (See Compl. (Doc. 1) at 1.) As

Defendants do not raise governmental immunity as a defense, this

court will assume for argument that these Defendants are not

immune from suit. The substantive analysis of Plaintiffs’ visa

denial claims is the same for all Defendants, other than Young.

based on an alleged statement by Young in the prior case in

which Young suggested that “Ashby sought judicial review of a

counselor’s visa denial.” (Pls.’ Resp. (Doc. 14) at 25.)

C. Consular Non-reviewability

Defendants assert that Plaintiffs lack standing under the

doctrine of consular non-reviewability and that, even if

Plaintiffs are not barred from proceeding by this doctrine,

“they have failed to . . . demonstrate any harm traceable to”

the FAM regulations. (Defs.’ Br. (Doc. 11) at 14–15.)

This court acknowledges that Plaintiffs’ request for an

order prohibiting age discrimination only in the context of visa

adjudications in Bogota, Colombia, (see Compl. (Doc. 1) ¶ 20),

does raise some concern that Plaintiffs are attempting to

disguise a challenge to the denial of Herrera’s individual visa

application as a facial challenge to the entire policy.

Plaintiffs may not challenge an individual visa denial without

asserting a broader constitutional violation, because the

determination of whether to grant or deny entry to an alien is

“so exclusively entrusted to the political branches of

government as to be largely immune from judicial inquiry or

interference.” Harisiades v. Shaughnessy, 342 U.S. 580, 589

(1952); see also Lem Moon Sing v. United States, 158 U.S. 538,

547 (1895) (“The power of congress to exclude aliens altogether

from the United States, or to prescribe the terms and conditions

upon which they may come to 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.”); Li Hing of Hong Kong, Inc. v.

Levin, 800 F.2d 970, 971 (9th Cir. 1986) (holding that an

alien’s lawsuit challenging the denial of his visa application

was non-reviewable and subject to dismissal).

However, consular non-reviewability does not mean that any

claim premised upon a visa denial is entirely beyond the reach

of the federal courts. Rather, when an American plaintiff

alleges a constitutional violation related to an alien’s visa

denial, courts will perform a limited review to confirm that

“the Executive exercise[d its] power negatively on the basis of

a facially legitimate and bona fide reason, . . . [and] will

neither look behind the exercise of that discretion, nor test it

by balancing its justification against the [constitutional]

interests of those who seek personal communication with the

applicant.” Kleindienst v. Mandel, 408 U.S. 753, 770 (1972); see

also Morfin v. Tillerson, 851 F.3d 710, 713–14 (7th Cir.), cert.

denied, ____ U.S. ____, 138 S. Ct. 380 (2017); Am. Acad. of

Religion v. Napolitano, 573 F.3d 115, 125 (2d Cir. 2009);

Bustamante v. Mukasey, 531 F.3d 1059, 1062 (9th Cir. 2008)

(“Joining the First, Second, and D.C. Circuits, we hold that

under Mandel, a U.S. citizen raising a constitutional challenge

to the denial of a visa is entitled to a limited judicial

inquiry regarding the reason for the decision.”); Adams v.

Baker, 909 F.2d 643, 650 (1st Cir. 1990); Udugampola v. Jacobs,

795 F. Supp. 2d 96, 103 (D.D.C. 2011) (collecting cases).

Plaintiffs’ claims in this case are almost identical to

those brought in Mandel.5 There, a Belgian citizen and Marxist

scholar who intended to speak at various colleges in the U.S.

was refused a visa. See Mandel, 408 U.S. at 756–57. The “persons

who invited Mandel to speak at universities and other forums in

the United States or who expected to participate in colloquia

with him” sued, claiming (among other allegations) that the

5 This court generally agrees with the Second Circuit’s

rejection of the government’s argument in Napolitano that Mandel

does not apply to a visa denial “because Mandel reviewed the

Attorney General’s discretionary decision not to waive an

alien’s inadmissibility, rather than the consular officer’s

threshold decision that the alien was inadmissible.” Napolitano,

573 F.3d at 123 (footnote omitted). The Department of State

recommended that the I.N.S. waive Ernest Mandel’s ineligibility

and admit him; it was the refusal to follow this waiver

recommendation that the plaintiffs in Mandel sought to contest.

See Mandel, 408 U.S. at 759. While the Supreme Court’s holding

might be read as limited to waiver decisions, “[i]t seems

counterintuitive to review a cabinet officer’s discretionary

decision, but not a consular officer’s decision as to statutory

ineligibility.” Napolitano, 573 F.3d at 125. Further, the

overwhelming judicial approach since Mandel has been to review

visa denials under the same standard. Id. at 124; see also

Bustamante, 531 F.3d at 1062 n.1.

statutes governing the visa adjudication process both (1)

violated their First Amendment rights by “prevent[ing] them from

hearing and meeting with Mandel in person for discussions,” and

(2) violated the Equal Protection Clause by treating “leftist”

and “rightist” visa applicants differently. Id. at 759–60. The

Court reviewed these claims only to determine whether the reason

identified by the government for denying Mandel’s visa — that

Mandel had engaged in activities that violated the terms of his

visa during a prior visit to the United States — was “facially

legitimate and bona fide,” and concluded that it was. Id. at

759, 770. Courts have applied Mandel to challenges involving a

variety of constitutional rights, and “[t]he analysis does not

differ depending on the right that is alleged to have been

impinged.” Int’l Refugee Assistance Project v. Trump, 373 F.

Supp. 3d 650, 670 (D. Md. 2019) (“IRAP III”).

This court finds that Mandel review applies only to a

constitutional violation alleged by a United States citizen who

either sponsors the visa application or alleges some protected

interest in the applicant’s presence.6 See Trump v. Hawaii, 585

U.S. ____, 138 S. Ct. 2392, 2419 (2018); Bustamante, 531 F.3d at

1062 (applying Mandel review when presented with a procedural

due process claim by a U.S. citizen). On the other hand, an

alien seeking admission may not bring such a challenge because

that alien “has no constitutional rights regarding his

application.” Landon v. Plasencia, 459 U.S. 21, 32 (1982); see

also Burrafato v. U.S. Dep’t of State, 523 F.2d 554, 556–57 (2d

Cir. 1975) (“The significant distinguishing feature of the

instant case is that no constitutional rights of American

citizens over which a federal court would have jurisdiction are

implicated here.”) (internal punctuation omitted). Therefore,

this court finds that any claims by Herrera are barred by the

doctrine of consular non-reviewability and that those claims

should be dismissed pursuant to Fed. R. Civ. P. 12(b)(1).

Ashby, however, is a U.S. citizen and thus may potentially

bring a Mandel challenge to Herrera’s visa adjudication process.

6 There may be a colorable argument that consular non-

reviewability precludes even the limited Mandel review in cases

where a constitutional challenge is used only as a mechanism to

challenge an underlying visa adjudication. However, the cases

that apply this approach either (a) do not involve a facial

challenge, see Ben-Issa v. Reagan, 645 F. Supp. 1556, 1558–59

(W.D. Mich. 1986), or (b) proceed to examine the merits of any

constitutional claim before dismissing that claim, see Ventura-

Escamilla v. I.N.S., 647 F.2d 28, 32 (9th Cir. 1981) (evaluating

vagueness a challenge to FAM regulations). Therefore, the court

finds this case should be examined under Mandel.

However, the legal analysis of Ashby’s claim will be limited to

whether the government provided a facially legitimate and bona

fide reason for the visa denial. This court will first evaluate

Ashby’s standing to contest the constitutionality of the visa

process as it relates to Herrera’s denial. Then, if standing

exists, the court will proceed to evaluate whether Ashby has

plausibly alleged a non-legitimate or bad-faith reason for the

denial.

D. Standing

1. Legal Framework

The federal judicial power extends only to cases or

controversies within the scope of Article III of the United

States Constitution. See U.S. Const. art. III, § 2. To have

standing, “[t]he plaintiff must have (1) suffered an injury in

fact, (2) that is fairly traceable to the challenged conduct of

the defendant, and (3) that is likely to be redressed by a

favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U.S.

____, ____, 136 S. Ct. 1540, 1547 (2016). Stated differently,

“[a] plaintiff must allege personal injury fairly traceable to

the defendant's allegedly unlawful conduct and likely to be

redressed by the requested relief.” Allen v. Wright, 468 U.S.

737, 751 (1984), abrogated on other grounds by Lexmark Int’l,

Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014).

First, the plaintiff must have either suffered an injury or

be in imminent fear of an injury. “A plaintiff who challenges a

statute must demonstrate a realistic danger of sustaining a

direct injury as a result of the statute's operation or

enforcement.” Babbitt v. United Farm Workers Nat’l Union, 442

U.S. 289, 298 (1979). That injury must be “(a) concrete and

particularized, and (b) actual or imminent, not conjectural or

hypothetical.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560

(1992) (internal citations and punctuation omitted). Plaintiffs

generally may challenge alleged violations prospectively,

provided that “the threatened injury is real, immediate, and

direct.” Davis v. Fed. Election Comm’n, 554 U.S. 724, 734

(2008). “Past exposure to illegal conduct does not in itself

show a present case or controversy regarding injunctive relief,

however, if unaccompanied by any continuing, present adverse

effects.” O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974).

Second, the injury must be “fairly traceable” to the

defendant’s conduct. This does not mean that the plaintiff must

prove to an absolute certainty that the defendant’s actions

caused or are likely to cause injury; rather the “plaintiffs

need only show that there is a substantial likelihood that

defendant's conduct caused plaintiffs’ harm.” Pub. Interest

Research Grp. of N.J., Inc. v. Powell Duffryn Terminals Inc.,

913 F.2d 64, 72 (3d Cir. 1990) (quoting Duke Power Co. v.

Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 75 n.20 (1978))

(internal punctuation omitted). While this standard excludes any

injury that is “the result of the independent action of some

third party not before the court, [it] does not exclude injury

produced by determinative or coercive effect upon the action of

someone else.” Bennett v. Spear, 520 U.S. 154, 169 (1997)

(quoting Lujan, 504 U.S. at 560–61).

Third and finally, the law requires that it be “likely, as

opposed to merely speculative, that the injury will be redressed

by a favorable decision” from the court. Friends of the Earth,

Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181

(2000). This requirement “examines the causal connection between

the alleged injury and the judicial relief requested” and asks

whether a judicial decision granting the requested relief will

alleviate plaintiffs’ alleged injury. See Allen, 468 U.S. at 753

n.19 (explaining the distinction between the “fairly traceable”

and “redressable” components of standing).

2. Analysis

Defendants argue that “Ashby lacks any constitutional

interest in the denial of a visa to his friend, Herrera — with

whom he shares no familial connection — and therefore cannot

seek even limited judicial review over the denial.” (Defs.’ Br.

(Doc. 11) at 4.) Additionally, Defendants contend that Ashby has

failed to allege an injury-in-fact and that Plaintiffs “have

failed to meet their burden of establishing standing or

demonstrate any harm traceable to these provisions of the

Foreign Affairs Manual.” (Id. at 14–15.)

While the Supreme Court in Mandel did not directly address

the standing of Mandel’s American friends and patrons, the lower

court found standing due to “[t]he special relation of

plaintiffs to Mandel’s projected visit.” See Mandel v. Mitchell,

325 F. Supp. 620, 632 (E.D.N.Y. 1971) (“Here the plaintiffs

other than Mandel are directly involved with Mandel’s entry

because they have invited him, and they expect to participate in

meeting with him or expect to be among his auditors. No more is

required to establish their standing.”), rev’d sub nom.

Kleindienst v. Mandel, 408 U.S. 753 (1972). This court reads

Kerry v. Din, 576 U.S. ____, ____, 135 S. Ct. 2128, 2138 (2015),

as generally consistent with the standing analysis in Mandel v.

Mitchell. In light of this case law and because the complaint is

subject to dismissal on other grounds, this court will assume

without deciding that Ashby has standing to assert a limited

constitutional challenge to the denial of Herrera’s visa.7

7 As previously discussed, Ashby’s constitutional challenges

to the visa adjudication process — though grounded in different

E. Mandel Analysis

The next question is whether the government has put forth a

“facially legitimate and bona fide” reason for denying Herrera’s

visa. Defendants identify Section 1184(b) of the Immigration and

Nationality Act (“INA”), 8 U.S.C. § 1184(b), as the statutory

basis for denial. (See Defs.’ Br. (Doc. 11) at 13–14.) In other

words, Defendants assert that they “provided Herrera with a

facially legitimate bona fide reason for the denial”: Herrera

failed to rebut the presumption that he intended to immigrate to

the United States, was properly classified as an immigrant, and

was denied a nonimmigrant visa on that basis. (Id. (internal

punctuation omitted).)

The limited Mandel inquiry asks only whether the reason

provided is “facially legitimate and bona fide.”8 The inquiry

does not look behind the proffered reason or attempt to discern

any ulterior motive. See Napolitano, 573 F.3d at 137 (“We

legal protections — are evaluated under the same standard. See

IRAP III, 373 F. Supp. 3d at 670.

8 See also Cardenas v. United States, 826 F.3d 1164, 1172

(9th Cir. 2016) (“Under the Din concurrence, the facially

legitimate and bona fide reason test has two components. First,

the consular officer must deny the visa under a valid statute of

inadmissibility. Second, the consular officer must cite an

admissibility statute that specifies discrete factual predicates

the consular officer must find to exist before denying a visa,

or there must be a fact in the record that provides at least a

facial connection to the statutory ground of inadmissibility.”)

(internal punctuation omitted); Int’l Refugee Assistance Project

v. Trump, 883 F.3d 233, 263–64 (4th Cir. 2018) (“IRAP I”).

conclude that we have to take literally the statement in Mandel

that courts may not look behind exclusion decisions, . . . at

least in the absence of a well supported allegation of bad

faith”); Bustamante, 531 F.3d at 1062 (“This is plainly a

facially legitimate reason, as it is a statutory basis for

inadmissibility.”). The reason provided in this case is of

course facially legitimate, because the INA expressly provides

that applicants who fail to convince the consular officer that

they are “entitled to nonimmigrant status under Section

1101(a)(15) of this title” are classified as immigrants and thus

ineligible to receive admission under a nonimmigrant visa. See

8 U.S.C. § 1184(b). As the district court correctly observed in

Ashby I, “the decision to deny Jhonier’s visa easily qualifies

as facially legitimate because it is based on Section 1184(b) of

the INA.” 2017 WL 1363323, at *3. Ashby has provided nothing to

rebut that finding.

As to the “bona fide” prong, Justice Kennedy’s Din

concurrence (the holding of the court pursuant to Marks v.

United States, 430 U.S. 188, 193 (1977)) suggests that “an

affirmative showing of bad faith on the part of the consular

officer” is required for the court to undertake any substantive

review. Din, 135 S. Ct. at 2141 (Kennedy, J., concurring in the

judgment). And the two circuit courts to directly consider the

question have found that a plausible allegation of bad faith by

the consular officer is an essential element of any Mandel claim

contesting the bona fide nature of the determination.9 See

Napolitano, 573 F.3d at 137; Bustamante, 531 F.3d at 1062–63

(“[T]he Bustamantes’ allegation that Jose was asked to become an

informant in exchange for immigration benefits fails to allege

bad faith; if anything, it reflects the official’s sincere

belief . . . .”). Here, Plaintiffs seem to agree that the

consular official applied the law and regulations correctly

based upon the information provided; they only assert that the

regulations themselves are discriminatory.

9 While this court appreciates the distinction in the case

law between facial legitimacy and a bona fide rationale for

denial, these two concepts can also come into conflict with one

another. Specifically, Mandel’s promise that “courts will [not]

look behind the exercise of that discretion” is plainly

inapplicable when a plaintiff has plausibly alleged bad faith.

In that event, as Justice Kennedy explains, a court would in

fact look behind the stated rationale to determine its

legitimacy. Din, 135 S. Ct. at 2141 (Kennedy, J., concurring in

the judgment). This second step in the analysis has created

obstacles to applying Mandel in a uniform manner; specifically,

it has spurred disputes regarding how broadly courts may search

for evidence of bad faith. See IRAP I, 883 F.3d at 364

(Niemeyer, J., dissenting) (“[R]ather than determining from the

face of the Proclamation whether the reasons given for the entry

restrictions were legitimate and bona fide, which would preclude

a look behind it for extrinsic evidence of bad faith, the court

looked behind it first to conclude that the Proclamation was not

bona fide.”) (internal punctuation omitted), judgment vacated by

Int’l Refugee Assistance Project v. Trump, ____ U.S. ____, 138

S. Ct. 2710 (2018) (“IRAP II”).

Courts have generally interpreted the “bona fide” prong of

the Mandel standard to require a rudimentary factual showing

that the alien was validly excluded for the stated reason. See

Cardenas, 826 F.3d at 1172 (stating that the consular officer

relied on “the belief that Mora was a gang associate with ties

to the Sureno gang” (footnote omitted)); Napolitano, 573 F.3d at

117 (“The Government contends that the visa was properly

rejected on the ground that Ramadan’s contributions to a

charity, [ASP], which provided some financial support to Hamas,

rendered him inadmissible.”). However, this court finds it

appropriate to require such a showing only where the consular

officer makes an affirmative determination that the alien falls

within a specific prohibited category based on certain evidence.

Here, on the contrary, the lack of evidence that Herrera

intended to return to Colombia supported his exclusion. Ashby

thus does not plausibly allege bad faith by the consular officer

who denied Herrera’s visa.

Because Defendants have provided a facially legitimate and

bona fide statutory rationale for excluding Herrera, Ashby fails

to plausibly state a Mandel challenge to the visa adjudication

process under either the Equal Protection Clause or the First

Amendment. Those claims will be dismissed pursuant to Rule

12(b)(6).

F. Rational Basis Review

Even assuming for argument that Ashby’s constitutional

claims are not limited by the holding in Mandel, Ashby has

failed to plead viable claims under either the Equal Protection

Clause or the First Amendment.10 As to the age discrimination

claim, age is not a suspect class and an age classification must

be upheld when it is rationally related to a legitimate state

interest. See Gregory v. Ashcroft, 501 U.S. 452, 470–71 (1991);

Mass. Bd. of Retirement v. Murgia, 427 U.S. 307, 313 (1976);

Hatten v. Rains, 854 F.2d 687, 690–91 (5th Cir. 1988). The

challenged FAM regulations appear easily justified by a

10 Based on the Supreme Court’s approach in Hawaii v. Trump,

the next step in the analysis after Mandel is to evaluate the

substantive constitutionality of the contested policy. See

Hawaii v. Trump, 138 S. Ct. at 2420 (“A conventional application

of Mandel, asking only whether the policy is facially legitimate

and bona fide, would put an end to our review. But the

Government has suggested that it may be appropriate here for the

inquiry to extend beyond the facial neutrality of the order.”).

Due to the government’s concession in that case, the Court

proceeded to apply rational basis review. The majority and

dissent disagreed about the correct standard of review, compare

id. at 2420, with id. at 2441, with the dissent arguing that a

heightened standard was appropriate due to the proclamation’s

allegedly discriminatory purpose. While the decision here does

not require anything beyond a simple application of Mandel, this

court will proceed to briefly explain why Ashby’s claims also

fail under rational basis review.

legitimate state interest in facilitating cross-cultural

exchange.

The religion-based equal protection claim also is not

plausibly alleged because the FAM regulations are facially

neutral regarding religion.11 In order to challenge a facially

neutral law under the equal protection clause, a plaintiff must

show that the law has both a discriminatory impact and a

discriminatory purpose or intent “to disapprove of a particular

religion or of religion in general.” See Church of the Lukumi

Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531–32 (1993)

(“[O]ur cases establish the general proposition that a law that

is neutral and of general applicability need not be justified by

a compelling governmental interest even if the law has the

incidental effect of burdening a particular religious

practice.”). While Ashby might have plausibly alleged a

disparate impact in favor of religious institutions, he fails to

plausibly allege that any law or regulation is religiously-

targeted.

11 Ashby provides little guidance as to the specific laws or

regulations that allegedly favor applicants sponsored by

religious colleges over other visa applicants. This court has no

trouble concluding, however, that any such law or program would,

at least facially, merely treat college-sponsored applicants

differently from non-college-sponsored applicants (without

regard to religion). Ashby has not identified any section of the

INA or FAM regulations that refers to religion specifically.

G. RFRA Claim

Plaintiffs’ RFRA claim is grounded in federal statute,

rather than the U.S. Constitution. As an initial matter, because

Plaintiffs’ RFRA claim ultimately seeks to challenge the denial

of Herrera’s visa application, (see Pls.’ Resp. (Doc. 14) ¶ 34

(“Nor should Plaintiff[’s] student Herrera, be unfairly excluded

and treated differently”)), that claim is barred by consular

non-reviewability even if re-cast as a claim under RFRA. See,

e.g., Chun v. Powell, 223 F. Supp. 2d 204, 206–07 (D.D.C. 2002)

(collecting cases, noting that “[s]uch attempts to manufacture

subject matter jurisdiction by recasting a complaint have

consistently been rejected by the courts”).

Even if not barred by that doctrine, RFRA requires at least

a plausible allegation that the government has substantially

burdened the exercise of religion. See 42 U.S.C. § 2000bb-1(a).

A substantial burden involves some form of government coercion.

See, e.g., Fazaga v. Fed. Bureau of Investigation, 916 F.3d

1202, 1247 (9th Cir. 2019); Real Alts., Inc. v. Sec’y Dep’t of

Health & Human Servs., 867 F.3d 338, 358 (3d Cir. 2017);

Lovelace v. Lee, 472 F.3d 174, 187 (4th Cir. 2006) (defining

“substantial burden” as “one that puts substantial pressure on

an adherent to modify his behavior and to violate his beliefs”)

(quoting Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S.

707, 718 (1981)) (internal punctuation omitted).

Here, this court will assume for argument that Plaintiffs

have alleged a sincere religious belief. See Hobby Lobby, 573

U.S. at 725 (“[I]t is not for us to say that their religious

beliefs are mistaken or insubstantial.”). However, Plaintiffs

have not alleged government coercion of any kind, nor has the

government pressured Plaintiffs to alter their behavior in any

way. See Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S.

439, 449 (1988) (“In neither case, however, would the affected

individuals be coerced by the Government’s action into violating

their religious beliefs; nor would either governmental action

penalize religious activity.”). Rather, the government has

merely refused to grant a requested discretionary benefit.

Plaintiffs are free to carry on practicing religion under the

status quo without any government interference.

Additionally, “Plaintiffs’ allegations must . . . show an

actual incompatibility between their religious beliefs and the

conduct at issue.” New Doe Child #1 v. Congress, 891 F.3d 578,

587 (6th Cir. 2018). Plaintiffs make no factual allegations

describing what their religion is, why Herrera’s presence in the

United States is necessary to practice that religion, or how

Herrera might enable Ashby to achieve some specific religious

objective or participate in any religious ritual. In other

words, Plaintiffs do not allege any specific incompatibility

between Herrera’s exclusion and their religious exercise. The

complaint only asserts in conclusive fashion that Ashby was

“denied equal religious association and equal religious

assembly” because he could not train Herrera. (Pls.’ Resp. (Doc.

14) ¶ 32.) While Ashby may have a sincere desire to train

Herrera on religious topics, this desire does not itself make

Herrera’s presence necessary to Ashby’s religious exercise.

Because Plaintiffs lack standing and fail to plausibly allege a

substantial burden that prevents or inhibits them from

practicing their religion, the RFRA claim will be dismissed.

H. Defamation Claim

Plaintiffs’ defamation claim against Young appears to be

limited to an allegation that Young “placed a false statement in

Federal Court” by mischaracterizing Plaintiffs’ position in the

Ashby I case. (Compl. (Doc. 1) ¶ 15; Pls.’ Resp. (Doc. 14)

¶ 14.) Specifically, Plaintiffs allege that Young made false

statements in the motion to dismiss that she filed in Ashby I.

(See Doc. 19-1.)

The statements Plaintiffs have identified are legal

arguments about the substantive merits of the claims in Ashby I.

Those statements were clearly related to the subject matter of

that litigation and Young, as a lawyer in that litigation, is

absolutely immune to civil liability for making those

statements. See Burns v. Reed, 500 U.S. 478, 490–92 (1991)

(noting that “absolute immunity for this function serves the

policy of protecting the judicial process”); Imbler v. Pachtman,

424 U.S. 409, 424–31 (1976) (recognizing the absolute civil

immunity of prosecutors for official actions, observing that

“[t]he public trust of the prosecutor’s office would suffer if

he were constrained in making every decision by the consequences

in terms of his own potential liability in a suit for damages”);

Nero v. Mosby, 890 F.3d 106, 117–18 (4th Cir. 2018) (stating

that a prosecutor enjoys absolute immunity for “advocative

functions” such as when he “prepares and files charging

documents”).

Therefore, this court finds that all claims against Young

should be dismissed pursuant to Rule 12(b)(6).

V. MISCELLANEOUS MOTIONS

In addition to the motions for default judgment discussed

above and their response to Defendants’ motion to dismiss,

Plaintiffs have made numerous additional filings in this case.

This court initially notes that many of these documents relate

to the same central issue: Plaintiffs contend that they are not

seeking review of a consular officer’s visa denial and

strenuously object to Defendants characterizing their claims in

that manner. (See, e.g., Docs. 17, 19.)

Under the Federal Rules of Civil Procedure, Plaintiffs were

permitted to amend their complaint as a matter of course within

twenty-one days after Defendants filed their motion to dismiss.

See Fed. R. Civ. P. 15(a)(1). This court construes the following

motions as motions to amend the complaint within the allotted

time: Docs. 15, 16, and 19. These motions will be granted

because they were permitted by the Federal Rules, and this court

has considered the substance of those motions in its ruling.

Plaintiffs also seek to add Defendants’ counsel, Aaron Goldsmith

(“Goldsmith”), as a party and sue Goldsmith for defamation based

on “LIE and FALSE statement [sic]” allegedly made in Defendants’

motion to dismiss. (Doc. 18 at 1-2.) As described previously,

Goldsmith is absolutely immune from civil liability for any

official advocative function performed in connection with this

case. Therefore, this court finds that the claim against

Goldsmith is futile and Doc. 18 will be denied.

This court construes Docs. 21, 32, 36, and 41 as additional

motions to amend the complaint, specifically to add claims

relating to an R-Visa application made by EMETchurch (a

religious organization formed by Ashby) on behalf of Herrera.

(See, e.g., Doc. 41 at 4–5.) Plaintiffs’ complaint, however,

relates only to “F-1, M-1, J-1 nonimmigrant visa[s],” (Compl.

(Doc. 1) ¶ 6), and Plaintiffs did not mention an R-Visa

application until November 13, 2018 (over twenty-one days after

Defendants moved to dismiss the complaint). The motions are

untimely under Fed. R. Civ. P. 15(a)(1)(B) and wholly irrelevant

to the original claims. These motions will be denied.

Plaintiffs have further moved for this court to order

Defendants to produce certain documents related to the visa

adjudication process. (See Docs. 17, 20.) Because this court has

proceeded to the merits and finds that Plaintiffs’ claims should

be dismissed, these motions will be denied as moot. Plaintiffs’

motion to stay proceedings or defer hearings during the month of

May, (Doc. 38), is no longer applicable and will also be denied

as moot.

In Doc. 35, Plaintiffs seek a court order related to the

defamation claim against Young and possible claims against other

DOJ attorneys. Any such claim is futile as described herein, and

this motion will therefore be denied. In Doc. 39, Plaintiffs

request an order compelling current and former North Carolina

congressmen to provide a report to this court regarding

application of the “immigrant intent” standard. The requested

order would violate the separation of powers and the motion will

be denied for that reason. See Trimble v. Johnston, 173 F. Supp.

651, 653 (D.D.C. 1959) (“It is no part of the judicial function

to supervise or control the business of the executive or

legislative departments of the Government. Otherwise the

judiciary, instead of being one of three coordinate branches,

would be supreme over the other two.”).

This court finds Docs. 31, 33, 40, 42 and 43 substantially

duplicative of the arguments in Plaintiffs’ response to the

motion to dismiss and both untimely and improper under the

Federal Rules. These motions will therefore be denied.

Ashby has now filed two cases asserting substantially the

same claims in two different judicial districts. Plaintiff

cannot continue to use the federal court system for rolling

consideration of the same visa-related grievances. Defendants

have not moved to dismiss the complaint with prejudice. However,

given the similarities between this case and Ashby I as observed

in this order, the court has seriously considered whether to

dismiss the claims with prejudice sua sponte. Cf. Curley v.

Perry, 246 F.3d 1278, 1283–84 (10th Cir. 2001). Although the

denial of a new visa application might lead to a meritorious

claim, this court cautions Plaintiff against: (1) filing any new

lawsuit based on the same events underlying this case; or (2)

filing untimely or legally improper motions in any future

judicial proceeding; specifically, any motion that attempts to

sue a government lawyer for making legal arguments.

VI. CONCLUSION

For the reasons stated herein, the court finds that

Plaintiffs’ motion for default judgment should be denied,

Defendants’ motion to dismiss should be granted, and the claims

should be dismissed.

IT IS THEREFORE ORDERED that Plaintiffs’ Motion for Default

Judgment, (Doc. 7), is DENIED.

IT IS FURTHER ORDERED that Plaintiffs’ Motion for Default

Judgment, (Doc. 24), is DENIED AS MOOT.

IT IS FURTHER ORDERED that Plaintiffs’ motions filed as

Doc. 15, Doc. 16, and Doc. 19 are construed as motions to amend

the complaint and are GRANTED.

IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss,

(Doc. 10), is GRANTED and this case is dismissed in its

entirety.

IT IS FURTHER ORDERED that the claims in the complaint, as

amended, are DISMISSED, pursuant to Fed. R. Civ. P. 12(b)(1) and

12(b)(6).

IT IS FURTHER ORDERED that Plaintiffs’ motions filed as

Doc. 17, Doc. 20, and Doc. 38 are DENIED AS MOOT.

IT IS FURTHER ORDERED that Plaintiffs’ motions filed as

Doc. 18, Doc. 21, Doc. 31, Doc. 32, Doc. 33, Doc. 35, Doc. 36,

Doc. 39, Doc. 40, Doc. 41, Doc. 42, and Doc. 43 are DENIED.

A judgment dismissing this action will be entered

contemporaneously with this Memorandum Opinion and Order.

This the 17th day of September, 2019.

*

by Winn L.- ahi. ~

United States District Ju

-37-