Macias et al v. Clinton et al, No. 3:2013cv00201 - Document 9 (S.D. Cal. 2013)
Court Description: ORDER Denying 6 Defendants' Motion to Dismiss. The Court VACATES the hearing set for Friday, July 19, 2013. Signed by Judge Gonzalo P. Curiel on 7/18/2013. (srm)
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Macias et al v. Clinton et al Doc. 9 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 MAREL MACIAS and JOEL BELTRAN ANGULO, vs. Plaintiffs, CASE NO. 13cv0201-GPC-JMA ORDER DENYING DEFENDANTS’ MOTION TO DISMISS [Dkt. No. 6] JOHN F. KERRY, Secretary of Department of State; JANICE JACOBS, Assistant Secretary of State for Consular Affairs; DAVID DONAHUE, Deputy Assistant Secretary of State for Visa Services; IAN BROWNLEE, Consul General of the U.S. Consulate Ciudad Juarez, Defendants. 19 20 21 22 23 24 25 26 Plaintiffs Marel Macias and Joel Beltran Angulo (“Plaintiffs”) filed the instant action against various governmental defendants (“Defendants”) seeking review of the government’s determination that Joel Beltran Angulo is inadmissible into the United States under section Section 212(a)(3)(B) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(a)(2)(C). Defendants seek dismissal pursuant to Fed. R. Civ. P. 12(b)(1), lack of subject matter jurisdiction, and 12(b)(6), failure to state a claim. For the reasons below, the Court hereby DENIES Defendants’ motion to dismiss. 27 28 -1- 13cv0201-GPC-JMA Dockets.Justia.com BACKGROUND1 1 2 Plaintiff Marel Macias (“Macias”), a United States citizen residing in 3 California, is married to Plaintiff Joel Beltran Angulo (“Angulo”), a Mexican 4 citizen residing in Mexico. On January 13, 2011, Macias filed a Petition to 5 Immigrate Alien Relative (also known as Form I-130) to immigrate her husband 6 Angulo to the United States. The petition was approved sometime in October 2011. 7 On September 4, 2012, Angulo attended his immigrant visa interview at the U.S. 8 Consulate in Ciudad Juarez, Mexico. In October 2012, the consular officer denied 9 Plaintiff Angulo’s immigrant visa application finding he was inadmissible under 8 10 U.S.C. § 1182(a)(2)(C). 11 Plaintiffs allege the consular officer did not provide any reason or evidence 12 for his reason to believe Plaintiff Angulo is or has been a drug trafficker as required 13 under the statute. Plaintiffs further allege Angulo has no previous conviction and/or 14 arrests for drug trafficking. Plaintiffs state that although Angulos’ E-2 visa and 15 border crossing card was cancelled in December 2010 “due to violation of the terms 16 of admission,” they were cancelled without prejudice. Plaintiffs assert the 17 government did not provide information to show Angulo was involved with drug 18 trafficking, and there is no reasonable basis to believe Angulo is or has been a drug 19 trafficker. 20 Plaintiffs allege the consular officer acted in bad faith because he did not 21 provide a bona fide reason to deny Angulos’ immigrant visa application. Plaintiffs 22 further allege the government’s denial of Angulo’s visa application has violated 23 Macias’ constitutional right to her marriage and choices regarding her family life. 24 Plaintiffs allege the government’s actions have caused them irreparable harm, and 25 request the Court order the U.S. Consulate approve Angulo’s immigrant visa 26 application. 27 28 1 Unless otherwise noted, all facts are taken from Plaintiffs’ complaint. (Dkt. No. 1, “Complaint.”) -2- 13cv0201-GPC-JMA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 LEGAL STANDARD A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). To survive a motion to dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While a plaintiff need not give “detailed factual allegations,” a plaintiff must plead sufficient facts that, if true, “raise a right to relief above the speculative level.” Twombly, 550 at 545. “[F]or a complaint to survive a motion to dismiss, the non-conclusory ‘factual content,’ and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. 15 Secret Service, 572 F.3d 962, 969 (9th Cir.2009). In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume 16 17 the truth of all factual allegations and must construe all inferences from them in the 18 light most favorable to the nonmoving party. Thompson v. Davis, 295 F.3d 890, 19 895 (9th Cir. 2002). Legal conclusions, however, need not be taken as true merely 20 because they are cast in the form of factual allegations. Ileto v. Glock, Inc., 349 21 F.3d 1191, 1200 (9th Cir. 2003). In practice, “a complaint . . . must contain either 22 direct or inferential allegations respecting all the material elements necessary to 23 sustain recovery under some viable legal theory.” Twombly, 550 U.S. at 562. 24 25 DISCUSSION Defendants move to dismiss for lack of subject matter jurisdiction, asserting 26 the consular doctrine of nonreviewability restricts judicial review, and failure to 27 state a claim with sufficient particularity. (Dkt. No. 6, “Def. Mtn.”) Plaintiffs 28 counter, arguing Ninth Circuit precedent authorizes this Court to review Plaintiffs’ -3- 13cv0201-GPC-JMA 1 2 3 4 5 6 7 8 9 10 11 12 13 claim and Plaintiffs have sufficiently alleged that the consular officer did not have a facially legitimate or bona fide reason to deny Angulo’s visa. (Dkt. No. 7, “Pl. Response.”) 1. Doctrine of Consular Nonreviewability The Court first addresses whether the doctrine of consular nonreviewability prevents judicial review of Plaintiffs’ claim. The doctrine of consular nonreviewability begins with the premise that an alien has “no constitutional right of entry” to the United States. Kleindienst v. Mandel, 408 U.S. 753, 762 (1972). The Supreme Court “without exception has sustained Congress' ‘plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.’ ” Id. at 766 (quoting Boutilier v. INS, 387 U.S. 118, 123 (1967)). Accordingly, “[f]ederal courts are generally 14 without power to review the actions of consular officials.” Rivas v. Napolitano, 677 15 F.3d 849, 850 (9th Cir. 2012) (citing Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 16 970, 971 (9th Cir. 1986)). However, a limited exception exists when the denial of a 17 visa implicates the constitutional rights of a U.S. citizen. Under these 18 circumstances, courts exercise “a highly constrained review solely to determine 19 whether the consular official acted on the basis of a facially legitimate and bona fide 20 reason.” Bustamante v. Mukasey, 531 F.3d 1059, 1062 (9th Cir. 2008); See also 21 Mandel, 408 U.S. at 770 (As long as the reason given is facially legitimate and bona 22 fide the decision will not be disturbed). Upon offering a facially legitimate and 23 bona fide reason for the denial, “courts have no authority or jurisdiction to go 24 behind the facial reason to determine whether it is accurate.” Chiang v. Skeirik, 582 25 F.3d 238, 243 (1st Cir. 2009). 26 A. Plaintiff has a Protected Liberty Interest Authorizing Judicial Review 27 The Ninth Circuit recently reaffirmed that “a citizen has a protected liberty 28 interest in marriage that entitles the citizen to review of the denial of a spouse’s -4- 13cv0201-GPC-JMA 1 2 3 4 5 6 7 8 9 10 11 12 13 visa.” Din v. Kerry, 10-16772, 2013 WL 2249289 (9th Cir. May 23, 2013)(citing Bustamante, 531 F.3d at 1062). Here, Plaintiff Macias, a U.S. citizen, alleges the denial of her husband’s visa violates her constitutional right to marriage and choices regarding her family life. (Complaint at ¶ 12.) The Court concludes Plaintiff Macias has sufficiently alleged the visa denial implicated her constitutional rights. See Bustamante, 531 F.3d 1059, 1062 (“Freedom of personal choice in matters of marriage and family life is, of course, one of the liberties protected by the Due Process Clause”) (citing Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-340 (1974); Israel v. INS, 785 F.2d 738, 742 n. 8 (9th Cir. 1986)). In so finding, the Court rejects Defendants’ attempt to dissuade this Court from applying Bustamante’s holding that a citizen has a protected liberty interest in marriage.2 Accordingly, Plaintiff Macias may be 3 14 afforded limited judicial review of her husband’s visa denial. The Court next turns 15 to whether Plaintiffs have sufficiently alleged the government failed to offer a 16 facially legitimate and bona fide reason for denying Angulo’s visa. B. Facially Legitimate Reason 17 18 For the reasons stated below, the Court concludes Plaintiffs have sufficiently 19 alleged the government has not provided a facially legitimate reason for the visa 20 denial. 21 In the complaint, Plaintiffs allege the consular officer denied Angulo’s visa, 22 finding he was inadmissible under 8 U.S.C. § 1182(a)(2)(c). (Id. at ¶ 7.) An alien 23 under this statute is inadmissible when: 24 25 2 The Ninth Circuit also recently affirmed Bustamante’s holding and rejected similar arguments 26 from the government. Din, 2013 WL 2249289 at *3, n. 1 (Noting the government's contention that 27 Bustamante is not good law is meritless). 3 The Court notes that Plaintiff Angulo, a Mexican citizen, has no right to judicial review of 28 his visa denial. As Defendants do not contest Angulo’s standing as a plaintiff, the Court declines to address the issue at this time. -5- 13cv0201-GPC-JMA 1 7 [T]he consular officer or the Attorney General knows or has reason to believe [any alien]– (i) is or has been an illicit trafficker in any controlled substance or in any listed chemical (as defined in section 802 of Title 21), or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance or chemical, or endeavored to do so; or (ii) is the spouse, son, or daughter of an alien inadmissible under clause (i), has, within the previous 5 years, obtained any financial or other benefit from the illicit activity of that alien, and knew or reasonably should have known that the financial or other benefit was the product of such illicit activity [sic]. 8 8 U.S.C.A. § 1182(a)(2)(C)(West) 2 3 4 5 6 9 The consular officer did not offer any reason or explanation for his reason to believe 10 Angulo was an illicit trafficker. (Complaint at ¶ 10.) 11 Although neither party cites Din v. Kerry, the recent Ninth Circuit decision is 12 particularly instructive in determining whether the government has offered a facially 13 legitimate reason. In Din, the Ninth Circuit reversed the district court’s order 14 granting the government’s motion to dismiss on the grounds that the doctrine of 15 nonreviewability barred adjudication of Plaintiff’s claims. Din, 2013 WL 2249289 16 at *2. The facts of this case are worth disclosing in part. In 2006, Plaintiff Din filed 17 a visa petition on behalf of her husband, Berashk, an Afghan citizen. Id. at *1. 18 19 20 21 22 23 24 25 26 27 28 Following approval, Berashk had an interview with a U.S. consular officer and nine months later his visa was denied under Section 212(a) of the INA, 8 U.S.C. § 1182(a). Id. Upon further inquiry, the Embassy provided that the visa had been denied under INA § 212(a)(3)(B), 8 U.S.C. § 1182(a)(3)(B), a section of the INA that lists a wide variety of conduct that renders an alien inadmissible due to terrorist activities. Id. The Embassy refrained from offering a detailed explanation of the reasons for denying Berashk’s visa, citing additional INA provisions. Id. Upon review, the Ninth Circuit conducted the limited inquiry as to whether “the Government’s citation to a broad section of the INA that contains numerous categories of proscribed conduct, without any assurance as to what the consular -6- 13cv0201-GPC-JMA 1 2 3 4 5 6 7 8 9 10 11 12 13 officer believes the alien has done, is [sic] a facially legitimate reason.” Id. at *4. After careful consideration of the factual allegations and relevant case law, the Appellate Court concluded that citation to a statute alone does not constitute a facially legitimate reason. Id. Because the government had not offered a facially legitimate reason, the Court found Plaintiff’s claims for writ of mandamus and declaratory judgment under the Administrative Procedure Act survived dismissal. Id. at 11. Defendants argue they have provided Plaintiffs with a facially legitimate justification by providing the statutory basis for the visa denial, and therefore Plaintiffs have failed to state a claim. (Def. Mtn. at 21.) Plaintiffs respond that they have sufficiently stated their claim. (Pl. Response at 3.) In the complaint, Plaintiffs specifically allege “[t]he consular officer and the Department of State did not 14 provide any reason or evidence for his ‘reason to believe’ [Angulo] is or has been a 15 drug trafficker.” (Complaint at ¶ 10.) As held in Din, failure to offer a reason 16 beyond mere citation of the statute does not constitute a facially legitimate reason. While the facts of this case are distinguishable from Din, the differences do 17 18 not affect the Court’s final conclusion. In Din, the plaintiff contested the 19 government’s bare recitation to a broad section of the INA regarding inadmissibility 20 for terrorist-related activity. Here, Plaintiffs contest inadmissibility on the much 21 narrower statute related to drug trafficking activity. Arguably, citation to a narrow 22 statute could constitute a facially legitimate reason. The Court rejects this argument 23 for three primary reasons. First, the Appellate Court in Din reaffirmed the holding 24 in Bustamante. As in this case, Bustamante addressed the denial of a visa pursuant 25 Section 1182(a)(2)(c) and the Ninth Circuit relied upon facts, beyond the citation to 26 the statute, which the government offered to the applicant when denying the visa. 27 Bustamante, 531 F.3d 1059, 1061. Second, the Court is supported by the rationale 28 articulated in Din. In concluding citation to the INA statute without assertion of any -7- 13cv0201-GPC-JMA 1 2 3 4 5 6 7 8 9 10 11 12 13 facts was insufficient, the Appellate Court observed “[l]imited as our review may be, it cannot be that Din’s constitutional right to review is a right only to a rubberstamp on the Government’s vague and conclusory assertion of inadmissibility.” Din, 2013 WL 2249289 at *6 (citing Cf. United States v. Degeorge, 380 F.3d, 1203, 1215 (9th Cir. 2004). Similarly, the Court refrains from merely rubber-stamping the government’s citation to a provision of the INA. Moreover, upon review of Section 1182(a)(2)(c), the Court concludes that although not as vast or complex as other INA provisions, this statute cites several potential reasons related to illicit trafficking that the consular officer knew or had reason to know to deny the visa. As such, the same rationale as in Din applies in the case. For these reasons, and taking the factual allegations of the complaint as true, the Court concludes Plaintiffs have sufficiently alleged the government did not have a facially legitimate reason to 14 refuse Angulo’s visa. C. Bona Fide Reason 15 16 The Court next considers whether Plaintiffs have sufficiently stated that the 17 government has offered a bona fide reason for the visa denial. To prevail on this 18 prong, the government must “allege that the consular official did not in good faith 19 believe the information he had.” Bustamante, 531 F.3d at 1062-1063. Although the 20 bona fide inquiry was not directly addressed in Din, the Appellate Court noted that 21 “it is unlikely that the ‘facially legitimate’ requirement should be interpreted to 22 allow the Government to withhold information and make an inquiry into the ‘bona 23 fide’ requirement ‘impossible.’” Din, 2013 WL 2249289 at * 9. 24 Defendants argue Plaintiffs’ allegation of bad faith is insufficient, and must 25 be more than a bald allegation to withstand dismissal. (Def. Mtn. at 21.) Plaintiffs 26 respond the government has not offered a bona fide reason for the visa denial as 27 shown by their failure to deny Angulo has not been arrested or convicted for drug 28 trafficking. (Pl. Response at 3.) -8- 13cv0201-GPC-JMA 1 2 3 4 5 6 7 8 9 10 11 12 13 The Court concludes Plaintiffs have sufficiently alleged the government has not provided a bona fide reason for the visa denial. Plaintiffs allege “the consular officer acted in bad faith because he did not have a bona fide reason to deny [Angulo’s] immigrant visa application.” (Complaint at ¶ 11.) Plaintiffs also allege Angulo “has no previous conviction and/or arrests for drug trafficking,” and the denial of his E-2 visa and border crossing card did not pertain to any “allegations that he was involved with drug trafficking.” (Id. at ¶¶ 8-9.) Although the government need not respond to all allegations prior to filing its responsive pleading, Plaintiffs have no other information to show the government acted in bad faith. Unlike the plaintiff in Bustamante, there are no factual allegations that the government relied upon evidence from other government sources to make the determination or consulted with the applicant about becoming a government 14 informant to counter drug trafficking. Bustamante, 531 F.3d 1059, 1061. Under the 15 facts of this case, the Court is not prepared to make the bona fide inquiry an 16 impossible hurdle for the plaintiffs to state a claim. Although the burden is on the 17 plaintiff to make a well-supported allegation of bad faith, without any “facially 18 legitimate” reason it is nearly impossible for Macias to plead facts that would meet 19 the pleading requirement under Iqbal. Following the Ninth Circuit’s guidance that 20 this standard should not be “impossible,” the Court concludes that Plaintiffs have 21 sufficiently stated that the government has not provided a bona fide reason for 22 denying Angulo’s visa. 23 For the above stated reasons, Plaintiffs have sufficiently stated a claim that 24 Defendants have not provided a facially legitimate and bona fide reason for denying 25 Angulo’s visa. As such, the doctrine of consular nonreviewability does not prevent 26 27 28 -9- 13cv0201-GPC-JMA 1 2 3 4 5 6 7 8 9 10 11 12 13 judicial review of Plaintiffs’ claim, and Plaintiffs’ claim withstands the motion to dismiss.4 2. Request to Substitute Defendant Hillary Rodham Clinton Defendants request to substitute Secretary of State John F. Kerry with former Secretary of State Hillary Rodham Clinton with pursuant to Fed. R. Civ. P. 25(d). Having reviewed the request, and finding good cause therefor, the Court hereby GRANTS the Defendants’ request. The Clerk of Court is hereby ORDERED to SUBSTITUTE Secretary of State John F. Kerry as a Defendant for the former Secretary of State Hillary Rodham Clinton. 3. Request to Dismiss Defendants Clinton, Jacobs, and Donahue Defendants argue the following defendants have been improperly named and therefore should be dismissed: Defendants Hillary Rodham Clinton, former U.S. 14 Secretary of State; Janice Jacobs, Assistant Secretary of State for Consular Affairs; 15 and David Donahue, Deputy Assistant Secretary of State for Visa Services. (Def. 16 Mtn. At 22.) Plaintiffs oppose dismissal of the Secretary of State as this Court may 17 at a later time require the Secretary to issue declaratory relief. (Pl. Mtn. At 3.) 18 The Court at this time declines to dismiss any of the defendants. Defendants 19 cite to Patel v. Reno, 134 F. 3d 929, 933 (9th Cir. 1997), for the proposition that 20 summary judgment was properly granted against the Secretary of State and other 21 officials without power to issue a visa. In Patel, however, this district court made 22 its determination at the summary judgment stage, and only as to whether a writ of 23 mandamus was a proper remedy that the Defendants had the authority to provide. 24 The Court declines to dismiss the Defendants at this stage of the litigation. 25 26 27 4 In so finding, the Court declines to address Defendants’ arguments regarding jurisdiction 28 under the Administrative Procedure Act or whether mandamus relief also provides jurisdictional authority. - 10 - 13cv0201-GPC-JMA 1 2 3 4 5 6 7 CONCLUSION For the aforementioned reasons, the Court hereby DENIES the Defendants’ motion to dismiss and VACATES the hearing set for Friday, July 19, 2013. IT IS SO ORDERED. DATED: July 18, 2013 8 9 10 HON. GONZALO P. CURIEL 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 11 - 13cv0201-GPC-JMA
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