Opinion
2:07-cv-2019-GEB-GGH.
June 27, 2008
ORDER
This motion was determined to be suitable for decision without oral argument. L.R. 78-230(h).
Defendants move to dismiss Plaintiffs Shiu Ting `Wong Woo ("Woo") and Kennedy Yueh Kiong Woo Wong's ("Wong") (collectively, "Plaintiffs") complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, arguing the consular nonreviewability doctrine bars jurisdiction over Plaintiffs' claims that Wong was wrongfully denied an immigrant visa.
Wong applied for an immigrant visa in 2005, based upon an approved immigrant visa petition filed by his mother, Woo. (Compl. ¶ 43.) As part of the visa application process, Wong appeared at the United States Embassy in the Philippines for a medical examination by a panel physician. (Id. ¶ 44.) Wong admitted during this examination he had tried marijuana several times in the past. (Id.) Subsequently, a consular officer at the United States Embassy informed Plaintiffs that Wong's visa was denied since he was inadmissible into the United States because he was a controlled substance violator. (Id. ¶ 46.) The consular officer did not inform Wong whether he had an opportunity to seek administrative review of the inadmissibility finding. (Id. ¶ 47.)
Plaintiffs allege Defendants exceeded their statutory authority when denying Wong's visa application "based solely upon his admission to experimental drug use, in the absence of any evidence of his prosecution or conviction for violating controlled substances laws." (Id. ¶ 6.) Plaintiffs also allege that the panel physician improperly reported Wong's admission to past drug use was a "Class A" or "Class B" medical condition, which would make him inadmissible to the United States. (Id. ¶ 95.) Plaintiffs further allege Defendants exceeded their statutory authority by "delegating their statutory mandate to independently review and adjudicate Mr. Wong's immigrant visa application to a panel physician . . ." (Id. ¶ 9.) Plaintiffs also allege Defendants violated Plaintiffs' due process rights by denying them an opportunity to challenge the inadmissibility finding through administrative review. (Id. ¶ 8.) Plaintiffs seek declaratory and injunctive relief under the Declaratory Judgment Act and the Administrative Procedures Act, including an order vacating the consular officer's denial of Wong's visa application and compelling another medical examination. (Id. at 54-55.)
Defendants seek dismissal, arguing "[i]t is well-settled federal courts lack jurisdiction to review visa-related decisions made by United States consular officers. Accordingly, the doctrine of consular nonreviewability . . . precludes . . . review [of] any decision of a consular officer regarding the adjudication of a visa." (Mot. at 2:3-9.)
The Ninth Circuit recently held in an unpublished disposition that the doctrine of consular nonreviewability deprives district courts of subject matter jurisdiction over a complaint alleging government officials exceeded their statutory authority when denying a visa application based on an applicant's admission of onetime or experimental drug use. Capistrano v. Dep't of State, 2008 WL 466181, at *1 (9th Cir. Feb. 19, 2008). The Ninth circuit stated in Capistrano: "We have consistently held that this doctrine prevents us from reviewing decisions reached by consular officials regarding the entry of visa applicants." Id. (citing Ventura-Escamilla v. Immigration and Naturalization Service, 647 F.2d 28, 30 (9th Cir. 1981) (holding that district courts lack jurisdiction when "the relief sought is a review of the Consul's decision denying [plaintiff's] application for a visa")).
This decision is citable under Federal Rule of Appellate Procedure 32.1 and Ninth Circuit Rule 36-3. Although Capistrano is not binding precedent (Ninth Circuit Rule 36-3), its reasoning is persuasive.
Plaintiffs counter that their complaint is not barred by the consular nonreviewability doctrine, relying on Patel v. Reno, 134 F.3d 929, 931-32 (9th Cir. 1997), in which the Ninth Circuit held that "when [a] suit challenges the authority of the consul to take or fail to take an action as opposed to a decision within the consul's discretion," the consular nonreviewability doctrine does not bar jurisdiction. Id. However, "Patel simply holds that where a consular officer has a nondiscretionary duty to act but refuses to do so, the court can grant mandamus relief and force the consulate to issue a decision." Nwansi v. Rice, 2006 WL 2032578, at *3 (N.D. Cal. July 18, 2006). In Patel, the consular officers "refused to act" on pending visa applications. Patel, 134 F.3d at 932. Patel does not address the situation here, since Defendants have acted by denying Wong's visa application.
Plaintiffs further argue the consular nonreviewability doctrine does not apply because they challenge the "consular officials' failure to exercise their discretionary authority to issue or refuse visas," the "unlawful delegat[ion] [of Defendants'] statutory and regulatory authority" to the panel physician, and the denial of an opportunity to challenge the inadmissibility finding. (Opp'n at 5:18-6:2.) The essence of Plaintiff's challenge is to the process in which Defendants denied Wong's visa application. But a "challeng[e] [to] the process followed by the consulate rather than its ultimate decision" is "not exempt . . . from th[e] well-settled doctrine" of consular nonreviewability since "[a]t its core, the relief sought . . . would require the consulate to revisit its decision denying the visa applications[; and,] [i]ssuing such relief would be exactly what the doctrine of consular nonreviewability prevents [federal courts] from doing." Capistrano, 2008 WL 466181, at *1; see also Aggarwal v. Sec'y of State, 951 F. Supp. 642, 649 (S.D. Tex. 1996) (holding consular nonreviewability doctrine barred plaintiff's suit which alleged procedural due process claim based on lack of opportunity to rebut reason for visa denial decision). Accordingly, Defendants' dismissal motion is granted. This action is dismissed, and judgment shall be entered in favor of Defendants.
IT IS SO ORDERED.