Laureen Onuchukwu v. Secretary State ( 2010 )

ELD-047-E NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-3819
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LAUREEN O. ONUCHUKWU (nee EBIDO);
CHUKWUSOM A. ONUCHUKWU,
Appellants
v.
HILLARY CLINTON, SECRETARY OF STATE;
ERIC H. HOLDER, ATTORNEY GENERAL OF THE UNITED STATES;
ALEJANDRO MAYORKAS, DIRECTOR U.S. CITIZENSHIP &
IMMIGRATION SERVICES; JANET NAPOLITANO,
SECRETARY OF DEPARTMENT OF HOMELAND SECURITY;
DONA M. BLAIR, CONSULATE GENERAL UNITED STATES LAGOS NIGERIA;
JOHN E. THOMPSON, DIRECTOR OF THE U.S. CITIZENSHIP AND
IMMIGRATION SERVICES, NEWARK DISTRICT,
individually in their official capacity
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 10-cv-01490)
District Judge: Honorable Jose L. Linares
____________________________________
Submitted on Appellants’ Motion to Expedite
September 28, 2010
Before: FISHER, HARDIMAN and NYGAARD, Circuit Judges.
(Filed: September 28, 2010)
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OPINION
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PER CURIAM
Laureen O. Onuchukwu and her husband, Chukwusom A. Onuchukwu, citizens of
Nigeria, filed a complaint for mandamus relief in the District Court, seeking an order to
compel the Secretary of State to readjudicate Ms. Onuchukwu’s diversity visa application.
She applied after being selected in a computerized lottery drawing for a diversity visa for
the 2010 fiscal year. A consular officer denied her application on December 2, 2009,
concluding that she did not possess the requisite academic qualification to qualify for a
diversity visa under 8 U.S.C. § 1153(c).1 On July 29, 2010, a consular officer denied her
husband’s application because he could not benefit derivatively from his wife’s denied
visa application. The District Court, granting the defendants’ motion to dismiss for lack
of subject matter jurisdiction and citing the doctrine of consular nonreviewability, denied
the Onuchukwus’ complaint. The District Court also denied the Onuchukwus’ motion for
summary judgment as moot.
The Onuchukwus filed a notice of appeal, which they submit, in the alternative, as
a petition for writ of mandamus to compel the Secretary of State or the United States
consul in Nigeria to issue visas to them on or before September 30, 2010, the end of the
2010 fiscal year. The Onuchukwus submit a motion to expedite their appeal. They ask
for a ruling before September 30, 2010, because under the regulations governing the
1
The complaint provides only this basis for the denial. The Government certified,
however, that the application also was denied because Ms. Onuchukwu willfully
misrepresented a material fact.
2
issuance of diversity visas, “under no circumstances may a consular officer issue a visa or
other documentation to an alien after the end of the fiscal year during which an alien
possesses diversity visa eligibility.” 22 C.F.R. § 42.33. In light of this regulation, they
fear their case will become moot after this Thursday, the end of the fiscal year. The
Government, in response, asks us to deny the motion to expedite, dismiss the appeal, and
affirm the District Court’s decision.
We grant the Onuchukwus’ motion to expedite and turn to the merits of their
appeal, over which we have jurisdiction pursuant to 28 U.S.C. § 1291.2 We exercise
plenary review over questions of subject matter jurisdiction. See Gould Elecs., Inc. v.
United States, 220 F.3d 169, 176 (3d Cir. 2000). Upon review, we will summarily affirm
the District Court’s order because no substantial issue is presented on appeal. See L.A.R.
27.4; I.O.P. 10.6.
The District Court properly held that it could not entertain the challenge to the
consul’s decision to deny a visa to Ms. Onuchukwu (and the subsequent decision to deny
a visa to her husband). 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. See Saavedra Bruno v. Albright, 197 F.3d 1153, 1158-64 (D.C. Cir.
1999) (stating the rule, detailing its history, and collecting cases); see also, e.g., Centeno
2
Despite asking us to dismiss the appeal on the basis that the doctrine of consular
nonreviewability precludes our review of the consular official’s decision, the Government
concurs that we have jurisdiction under § 1291 to review the District Court’s decision.
3
v. Shultz, 817 F.2d 1212, 1214 (5th Cir. 1987) (“[T]he denial of visas to aliens is not
subject to review by the federal courts.”). Although Congress could provide an avenue
through which courts could review consular decisions on visas, see Saavedra Bruno, 197
F.3d at 1160, jurisdiction is not available through the statutes, such as the Declaratory
Judgment Act or the Administrative Procedures Act, that the Onuchukwus cited in the
District Court, see Wan Shih Hsieh v. Kiley, 569 F.2d 1179, 1181-82 (2d Cir. 1978).
Although the Onuchukwus argued the Secretary of State (through the consul)
failed to perform a ministerial duty, they did not dispute that the visa petitions were
adjudicated. Their actual challenge was and is to the consular official’s determination
about visa eligibility. See 8 U.S.C. § 1153(c)(2) (“An alien is not eligible for a visa under
this subsection unless the alien – (A) has at least a high school education or its
equivalent.”) (emphasis added). Ms. Onuchukwu presented evidence of a high school
education; the consular official rejected that evidence and denied the visa (and the denial
of Mr. Onuchukwu’s visa followed). We cannot and do not resolve the dispute about Ms.
Onuchukwu’s level of education. Instead, we note that as long as the consular official has
made a determination, see Patel v. Reno, 134 F.3d 929, 931-32 (9th Cir. 1998)
(distinguishing suits challenging the authority of consul to take or fail to take an action),
even an erroneous decision escapes review, see Loza-Bedoya v. Immigration &
Naturalization Service, 410 F.2d 343, 347 (9th Cir. 1969).
4
For these reasons, we will affirm the District Court’s decision.3 To the extent that
the Onuchukwus seek mandamus relief from us, we deny their request. We note first that
a district court, not a court of appeals, has original jurisdiction over a mandamus action to
compel an officer or employee of the United States to perform a duty. See 28 U.S.C.
§ 1361. Second, for the reasons given above, we have concluded that the duty to
adjudicate the visa petitions in this case has been performed (albeit with a result different
from the one that the Onuchukwus desired).
3
To the extent that the Government’s response includes a motion to dismiss, we
deny the motion.
5