Moreira v. Cissna

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ANAYELI MOREIRA, et al. :

:

:

v. : CIVIL ACTION NO. 19-CV-1642

:

L. FRANCIS CISSNA, et al., :

:

MEMORANDUM

SCHMEHL, J. /s/ JLS MARCH 3, 2020

In this immigration case, Plaintiffs seek judicial review of a consular officer’s

decision to deny the visa application of Wife-Plaintiff, a citizen of Mexico. Citing the

doctrine of consular nonreviewability, the Defendants have filed a motion to dismiss

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that

follow, the motion is granted.

STANDARD OF REVIEW

In considering a motion to dismiss pursuant to Rule 12(b)(6), the district court

should “accept all factual allegations as true, construe the complaint in the light most

favorable to the plaintiff, and determine whether, under any reasonable reading of the

complaint, the plaintiff may be entitled to relief.” Phillips v. Cnty. of Allegheny, 515 F.3d

224, 233 (3d Cir. 2008) (internal quotation marks and citations omitted). “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, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id. The

plaintiff need not satisfy any “probability” requirement, but must set forth “more than a

sheer possibility” that the defendant’s actions give rise to the claim. Id.

FACTS

The Complaint alleges that Wife-Plaintiff is a native and citizen of Mexico.

(Compl. ¶¶ 7,15.) Husband-Plaintiff is a citizen of the United States. (Id. at ¶¶ 8,17.)

Plaintiffs reside with their three children in Easton, Pennsylvania. (Id. ¶ 7,8.) All three

children are citizens of the United States. (Id. ¶¶ 8,17.)

Wife-Plaintiff was born in Mexico in 1988 and entered the United States without

inspection on July 27, 1992. (Id. ¶ 15.) At the time of her entry, Wife-Plaintiff was three

years old. (Id.)

In March of 2007, Wife-Plaintiff left the United States and returned to Mexico to

assist with family issues. (Id. ¶16.) At the time she departed the United States, she was

18 years and 5 months old. (Id.) She resided in Mexico for approximately one year and

eight months before returning to the United States without inspection in November,

2008. (Id.) The Complaint alleges that Wife-Plaintiff was subsequently “subject to

removal proceedings which were administratively closed by the Immigration Court in

Philadelphia, Pennsylvania on September 30, 2015.” (Id.)

On January 4, 2016, Wife-Plaintiff married Husband-Plaintiff. (Id. ¶ 17.) Husband-

Plaintiff subsequently filed an I-130 Petition for Alien Relative on behalf of Wife-Plaintiff

with United States Citizenship and Immigration Services (“USCIS”). (Id. ¶ 19.) On May

9, 2016, the USCIS approved the Petition. (Id.)

On February 21, 2017, Wife-Plaintiff applied to USCIS for a I-601A Application

for Provisional Unlawful Presence Waiver, citing the extreme hardship her removal

would cause her husband and children. (Id. ¶ 20.) Wife-Plaintiff “disclosed on the

application that she had entered the U.S. as a three-year old minor child and

subsequently left and reentered the United States, relying on the “minor exception”

under INA § 212(a)(9)(B)(iii)(I) for admissibility purposes.” (Id.)

On June 15, 2017, USCIS approved Wife-Plaintiff’s I-601A provisional waiver,

finding that her removal and/or inadmissibility would result in extreme hardship to

Husband-Plaintiff. (Id. ¶ 21.) As a result, on October 4, 2017, an immigration judge in

Philadelphia terminated removal proceedings based on Wife-Plaintiff’s “eligibility for an

immigrant visa and for the purposes of traveling to the U.S. Consulate in Ciudad Juarez,

Mexico.” (Id. ¶ 22.)

On January 5, 2018, Wife-Plaintiff appeared at the U.S. Consulate in Ciudad

Juarez, Mexico for an appointment on her approved I-601A waiver. (Id. ¶ 23.) Wife-

Plaintiff alleges she “appeared for her appointment relying on INA §212 and its

interpretation by the U.S. Consulate in Ciudad Juarez as was the general practice of the

consul.” (Id. ¶ 24.) On that same date, the U.S. Consulate in Ciudad Juarez did not find

Wife-Plaintiff was eligible for an immigrant visa and reserved decision. (Id. ¶ 25.)

On June 20, 2018, a consular officer found Wife-Plaintiff ineligible for an

immigrant visa and revoked her approved I-601A waiver “based on the ‘additional

ineligibility under section 212(a)(9)(C)(i)(I).’” (Id. ¶ 26.) “The officer stated an ‘individual

found ineligible under section 212(a)(9)(C)(i)(I) cannot apply for permission to reenter

the United States until 10 years after his or her date of last departure. There are no

exceptions to this ineligibility. Therefore, [Wife-Plaintiff] cannot apply for permission to

reenter the United States until after January 2018.”1 (Id.)

The consular officer did not provide an initial explanation as why Wife-Plaintiff

was found inadmissible under INA § 212(a)(9)(C) or why the “minor exception” did not

apply. (Id. 27.)

The Complaint alleges that “[in] practice at the U.S. Consulate in Ciudad Juarez,

the ‘minor exception’ had been applied to the INA 212(a)(9)(C) permanent bar for aliens

who have been unlawfully present for an aggregate of one year, . . .who then returned

to the U.S. without inspection.” (Id. 48.) However, the Complaint alleges that “[i]n this

case, and upon information and belief, the U.S. Consulate in Ciudad Juarez has now

been taking the position that the unlawful presence exception for minors does not apply

to the permanent bar of INA § 212(a)(9)(C), on the basis that the statutory exception is

only listed under INA § 212(a)(9)(B).” (Id. 49.)

The Complaint alleges that “[u]pon inquiry by counsel, the Visa Office indicated

that ‘[i]t is well settled that the ‘minor exception’ to the accrual of unlawful presence

applies only to section INA § 212(a)(9)(B), and does not apply to INA § 212(a)(9)(C),’

citing only to an administrative agency memorandum from May 6, 2009, ‘Neufeld,

Scialabba, Chang USCIS Memorandum: Revision to and Redesignation of Adjudicator's

1 The January 2018 date is obviously a typographical error by the consular officer.

Field Manual Chapter 30.1(d) as Chapter 40.9, May 6, 2009 at page 28.’ The basis for

the Visa Office’s finding was that this memorandum stated: ‘There are two reasons for

this conclusion: 1) the terms of sections 212(a)(9)(B)(iii) and (iv) of the Act refer only to

specific subsections of 212(a)(9)(B)(i) of the Act; and 2) Inadmissibility under section

INA §212(a)(9)(C) rests on a more serious immigration violation than simple unlawful

presence.’” (Id. ¶ 28.)

As a result of the denial of her immigrant visa, Wife-Plaintiff is stranded in Mexico

with no means of returning to the United States for 10 years. (Id. ¶¶ 7, 8.)

In Count One, Plaintiffs assert that “[t]he agency’s finding of additional

inadmissibility under INA § 212(a)(9)(C)(i)(I) is inconsistent with the plain language of

the statute and therefore not in accordance with the law.” (Id. at ¶ 33.) In Count Two,

Plaintiffs assert that “[t]he unannounced change in the interpretation of unlawful

presence at the U.S. Consulate in Ciudad, Juarez, Mexico as it relates to minors is an

arbitrary and capricious agency action.” (Id. at 47.) Count Three asserts a violation of

procedural due process and erroneous deprivation of fundamental liberty interest and

Count Four asserts a claim for violation of substantive due process. (Id. at ¶¶ 67-86.)

Plaintiffs request that the Court declare the agency’s actions unlawful and Wife-

Plaintiff admissible as a matter of law under the plain statutory terms of INA §

212(a)(9)(B) and INA § 212(a)(9)(C); declare the agency’s policy reversal to be arbitrary

and capricious and a violation of the due process clause of Fifth and Fourteenth

Amendments; order USCIS to reinstate the I-601A approved petition and to compel the

agency to grant Wife-Plaintiff’s immigration visa. (Id., Prayer for Relief, a-d.)

Defendants argue that all of Plaintiffs’ claims are barred by the doctrine of

consular nonreviewability. That doctrine “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.” Saavedra Bruno v. Albright, 197 F. 3d 1153, 1159 (D.C. Cir. 1999). See also

Morfin v. Tillerson, 851 F. 3d 710, 711 (7th Cir. 2017) (“[T]he fact remains that for more

than a hundred years courts have treated visa decisions as discretionary and not

subject to judicial review for substantial evidence and related doctrines of administrative

law.”); Onuchukwu v. Clinton, 408 F. App’x 558, 560 (3d Cir. 2010)(non-precedential)

(“The widely applied doctrine of consular nonreviewability generally places a consular

official's decision to issue or withhold a visa outside the scope of judicial review.”)

In Kleindienst v. Mandel, 408 U.S. 753 (1972), the United States Supreme Court

carved out a narrow exception to the doctrine of consular nonreviewability for situations

in which denial of a visa violates the constitutional rights of a U.S. citizen. Id. at 765-

770. However, the Mandel Court held that even where it is alleged that the denial of a

visa violates the constitutional rights of a U.S. citizen, courts must give deference to the

consular officer's decision so long as “that reason was facially legitimate and bona

fide.” Id. at 769. Specifically, the Mandel Court stated:

We hold that when the Executive exercises this power [of

exclusion] negatively 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.

In Kerry v. Din, 135 S.Ct. 2128 (2015) 2, the Supreme Court rejected a due

process challenge to a consular’s denial of an immigrant visa, when it held that the

consular officer provided a facially legitimate and bona fide reason for denying the visa

even though he offered no explanation other than a citation to 8 U.S.C. § 1182(a)(3)(B).

That provision prohibited issuing visas to persons engaged in or otherwise related to

statutorily defined “terrorist activity.” See 8 U.S.C. § 1182(a)(3)(B)(iii). According to Din,

as long as the statute cited by the consular officer contains “specific criteria” for

determining inadmissibility and “discrete factual predicates” that the consular officer

must find to exist before denying a visa, in the absence of an affirmative showing of

bad faith by the consular officer, the consular officer’s citation will satisfy the facially

legitimate and bona fide standard of Mandel. Din at 2140-41.

Here, Husband-Plaintiff, a U.S. citizen, has challenged the consular officer’s

decision to deny his wife an immigration visa on constitutional grounds. The consular

officer denied Wife-Plaintiff’s request for an immigration visa, citing 8 U.S.C.

§1182(a)(9)(C)(i)(I) and §1182(a)(9)(B)(i)(II). Both of these statutes contain specific

criteria for denying a visa application. Under the tenets of Din, the consular officer’s

mere citation to a valid statute of inadmissibility pursuant to which the consular officer

was required to evaluate and establish specific criteria for denying Wife-Plaintiff’s visa

constituted a facially legitimate and bona fide factual basis reason for denying the visa.

2 Although Din was a plurality opinion, Justice Kennedy’s concurring opinion is controlling. See Allen v.

Milas, 896 F. 3d 1094, 1106 (9th Cir. 2018)(“Justice Kennedy, joined by Justice Alito, concurred in the

judgment alone, in the narrowest and thus controlling opinion in that case.”); International Refugee

Assistance Project v. Trump, 857 F. 3d 554, 590 n.15 (4th Cir. 2017)(“We agree that Justice Kennedy’s

opinion sets for the narrowest grounds for the Court’s holding in Din and likewise recognize it as the

controlling opinion.”); Bano v. Pompeo, 377 F. Supp. 3d 464, 469 (E.D. Pa. 2019).

In addition, unlike in Din, the consular officer here cited to specific subsections of the

two statutes upon which he relied. Further, Plaintiffs allege that “[u]pon further inquiry by

counsel, the Visa Office further specified that ‘[i]t is well settled that the ‘minor

exception’ to the accrual of unlawful presence applies only to section INA §

212(a)(9)(B), and does not apply to INA § 212(a)(9)(C). Since Plaintiffs have not

alleged with any particularity that the consular officer’s reason was not bona fide by

making an “affirmative showing of bad faith on the part of the consular officer who

denied [ ] a visa,” Din at 2141, Husband-Plaintiff’s constitutional challenge to the

consular officer’s decision must fail.

Plaintiffs argue that Justice Kennedy’s ruling in Din is limited to a consular

officer’s denial of a visa based solely on terrorist grounds. This Court does not agree.

See Trump v. Hawaii, 138 S.Ct. 2392, 2419 (2018) quoting Din, 135 S.Ct. at 2141 (“In

Din, Justice Kennedy reiterated that ‘respect for the political branches’ broad power

over the creation and administration of the immigration system meant that the

Government need provide only a statutory citation to explain a visa denial.”)

Husband-Plaintiff also argues that the consular officer’s decision cannot be

considered facially legitimate because the consular officer misconstrued the statutory

provision he used to deny Wife-Plaintiff’s visa application. Under Din, however, all that

is required for the officer’s decision to be considered facially legitimate is that the

consular officer cites to a statute containing specific criteria pursuant to which he denied

an immigrant’s visa application. The Din decision simply does not permit a court to

“look behind” the consular officer’s decision by reviewing whether the consular officer

misconstrued the statutes in reaching his decision.

However, even if such review was permitted under Din, the Court finds that the

consular officer properly interpreted the statute. Section 212(a)(9)(B)(i)(I) provides:

(B) Aliens unlawfully present

(i) In general

Any alien (other than an alien lawfully admitted for permanent

residence) who--

(I) was unlawfully present in the United States for a period of more than

180 days but less than 1 year, voluntarily departed the United States

(whether or not pursuant to section 1254a(e)2 of this title) prior to the

commencement of proceedings under section 1225(b)(1) of this title

or section 1229a of this title, and again seeks admission within 3 years

of the date of such alien's departure or removal, or

(II) has been unlawfully present in the United States for one year or

more, and who again seeks admission within 10 years of the date of

such alien's departure or removal from the United States is

inadmissible.

(ii) Construction of unlawful presence

For purposes of this paragraph, an alien is deemed to be unlawfully

present in the United States if the alien is present in the United States

after the expiration of the period of stay authorized by the Attorney

General or is present in the United States without being admitted or

paroled.

(iii) Exceptions

(I) Minors

No period of time in which an alien is under 18 years of age shall be

taken into account in determining the period of unlawful presence in

the United States under clause (i).

8 U.S.C. § 1132(a)(9)(B) (emphasis added.)

Because Wife-Plaintiff qualified under the “minor exception” the

USCIS approved Wife-Plaintiff’s application for a provisional I-601A

Application for Provisional Unlawful Presence Waiver. However, the

consular officer also found that Wife-Plaintiff was not eligible for an

immigration visa under section 212(a)(9)(C)(i)(I). That section provides:

(C) Aliens unlawfully present after previous immigration

violations

(i) In general

Any alien who--

(I) has been unlawfully present in the United States for an aggregate

period of more than 1 year, or

(II) has been ordered removed under section 1225(b)(1) of this

title, section 1229a of this title, or any other provision of law, and who

enters or attempts to reenter the United States without being admitted

is inadmissible.

(ii) Exception

Clause (i) shall not apply to an alien seeking admission more than 10

years after the date of the alien's last departure from the United States

if, prior to the alien's reembarkation at a place outside the United States

or attempt to be readmitted from a foreign contiguous territory, the

Secretary of Homeland Security has consented to the alien's

reapplying for admission.

8 U.S.C. § 1132(a)(9)(C)

Noticeably absent from this section is the “minor exception” contained in §

212(a)(9)(B)(iii)(I). Plaintiffs allege, however, that the minor exception contained in §

212(a)(9)(B)(iii)(I) is actually incorporated into section 212(a)(9)(C)(i)(I) since both

sections share the same definition of “unlawful presence.” Specifically, Plaintiffs allege

that “[b]y specifically stating the definition of unlawful presence under INA §

212(a)(9)(B)(ii) is ‘for the purposes’ of INA 212(a)(9)(B), and omitting that definition from

INA §212(a)(9)(C)(i), the only reading of INA § 212(a)(9)(C)(i) is that inadmissibility

under that provision is dependent on whether aliens are unlawfully present as defined

and calculated under INA § 212(a)(9)(B).” (Compl. at 39.) “Because in order to calculate

unlawful presence under INA § 212(a)(9)(C), the alien must have accrued unlawful

presence as calculated under INA § 212(a)(9)(B)(i), the ‘minor exception’ necessarily

applies to the calculation of unlawful presence under INA § 212(a)(9)(C)(I) pursuant to

the plain language of the statutory provisions.” (Id. at 41.)

The Court of Appeals for the Ninth Circuit has rejected a similar argument,

holding that although “unlawful presence” has the same general meaning in both

subsections 1182(a)(9)(B) and 1182(a)(9)(C), there is no automatic presumption “that

the waiver provisions are also incorporated, particularly where they are contained in

separate provisions and not within the definition itself.” Acosta v. Gonzales, 439 F. 3d

550, 557 (9th Cir. 2006)(holding that “hardship” waiver of §1182(a)(9)(B) was not

incorporated into §1182(a)(9)(C)) (overruled on other grounds Garfias-Rodriguez v.

Holder, 702 F. 3d 504 (9th Cir. 2012); see also Rodriguez v. Mukasey, 298 Fed. App’x

306, 307 (5th Cir. 2008) (per curiam)(unpublished).

Indeed, the “minor exception” contained in § 212(a)(9)(B)(iii)(I) specifically states

that it is to be taken into account in determining the period of unlawful presence in the

United States under clause (i) of Section 212(a)(9)(B). It does not say it is to be taken

into account in determining the period of unlawful presence in § 212(a)(9)(C). See Equal

Access Education v. Merten, 325 F. Supp. 2d 655, 665-67 (E.D. Va. 2004) (“[t]he fact

that the [minor] exception[] specifically refers back to clause (i) necessarily limits the

applicability of [that] exception[] to that clause, i.e., calculation of unlawful presence for

the purpose of the 3- and 10-year bars to admission.” ); See also Rodriguez, 298 Fed.

Appx. at 307 (per curiam)(unpublished).

Section 1182(a)(9)(C) does not contain any such “minor exception,” but rather

contains its own list of exceptions, none of which are applicable here. The reason

section 1182(a)(9)(B) contains a “minor exception” and section 1182(a)(9)(C) does not

is because Congress considered the conduct at issue in section 1182(a)(9)(C)(i)

(multiple illegal entries) more serious and culpable than that described in section

1182(a)(9)(B) (a one-time illegal entry). Berrum-Garcia v. Comfort, 390 F.3d 1158,

1166-1168 (10th Cir. 2004) Mortera-Cruz v. Gonzales, 409 F.3d 246, 255-56 (5th Cir.

2005). In making this distinction, the Tenth Circuit Court of Appeals in Berrum-Garcia,

“focused in particular on the fact that illegal aliens falling under the more severe section

1182(a)(9)(C)(i), . . . face a lifetime ban on admissibility, whereas those under section

1182(a)(9)(B) are inadmissible only for certain discrete periods based on the amount of

illegal presence they accumulate.” Mortera-Cruz v. Gonzales, 409 F.3d 246, 255-56 (5th

Cir. 2005).

Indeed, the USCIS May 6, 2009 Interoffice Memorandum "Consolidation of

Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and

2l2(a)(9)(C)(i)(I) of the Act," referenced in Plaintiffs’ Complaint at ¶ 28 supports the

consular officer’s interpretation. (“The exceptions listed in this section (b)(2) apply only

to grounds of inadmissibility listed in section 212(a)(9)(B) of the Act, and do not apply

for purposes of inadmissibility under section 212(a)(9)(C) of the Act. . . Since the

precise language of sections 212(a)(9)(B)(iii) and (iv) of the Act clearly make them apply

only to inadmissibility under section 212(a)(9)(B) of the Act and not to inadmissibility

under section 212(a)(9)(C)(i)(I) of the Act, and because violations of section

212(a)(9)(C)(i)(I) of the Act are more culpable than mere unlawful presence, USCIS has

concluded that these statutory exceptions do not apply to section 2I2(a)(9)(C)(i)(I)

cases."). (ECF 29, Ex. 3 at pp. 40-41).

In short, had Wife-Plaintiff entered the United States without inspection only one

time when she was a minor, she would have remained eligible for an immigrant visa

pursuant to the “minor exception” contained in section 1182(a)(9)(B). However, since

Wife-Plaintiff also entered the United States a second time without inspection in 20083,

and her initial illegal entry in 1992 lasted more than one year, she was now subject to

the more severe strictures of section 1182(a)(9)(C) which clearly does not contain a

“minor exception.” Therefore, any contention that the consular officer misconstrued the

statutes is without merit. In addition, having found that the Wife-Plaintiff ineligible for an

immigrant visa under section 1182(a)(9)(C)(i)(I), the consular officer properly revoked

Wife-Plaintiff’s I-601 A provisional unlawful presence waiver, thus rendering her also

ineligible under section 1182(a)(9)(B)

In the alternative, Husband-Plaintiff seeks review of the consular officer’s

decision under the Administrative Procedures Act (“APA”), 5 U.S.C. §§ 702,706.4 It has

been repeatedly held, however, that the APA does not provide an avenue for judicial

review of a consular officer’s decision to deny an immigration visa. Allen, supra at 1108

(9th Cir. 2018) (“[w]e join the D.C. Circuit in holding the APA provides no avenue for

review of a consular officer’s adjudication of a visa on the merits.”); Morfin, supra at 714;

3 Although not alleged in the Complaint, it appears that Wife-Plaintiff entered the United States a third time

without inspection in November, 2007. The Court’s decision is not based on this possible third entry.

4 The APA provides that “[a] person suffering legal wrong because of agency action, or adversely affected or

aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C.

§ 702. The APA also instructs a reviewing court to “compel agency action unlawfully withheld or unreasonably

delayed,” 5 U.S.C. § 706(1), and to “hold unlawful and set aside agency action, findings, and conclusions found to

be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C §. 706(2)(A).

Saavedra Bruno, supra at 1159; Onuchukwu, supra (“Although Congress could provide

an avenue through which courts could review consular decisions on visas….jurisdiction

is not available through…the Administrative Procedure Act..”); Bano supra at 470 (E.D.

Pa. 2019).

In sum, because the consular officer articulated a facially legitimate and bona

fide reason for denying Wife-Plaintiffs immigration visa, Husband-Plaintiff’s

constitutional claims and claims that the consular officer did not act in accordance with

the law and that the INS acted in an arbitrary and capricious manner are barred by the

doctrine of consular nonreviewability. In addition, the Husband-Plaintiff may not pursue

his claims under the Administrative Procedures Act.

This Court is very sympathetic to the plight of Husband-Plaintiff and his spouse

who are seeking to become a reunited family in the United States. Unfortunately, the

doctrine of consular nonreviewability as interpreted by the United States Supreme

Court, bars this Court from providing any assistance to that end or granting the

requested relief.