Ibrahim v. U.S. Department of State ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MANAL M. IBRAHIM, et al.,
Plaintiffs, Civil Action No. 19-610 (BAH)
v. Chief Judge Beryl A. Howell
U.S. DEPARTMENT OF STATE, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiffs Manal M. Ibrahim, who is a U.S. citizen, and her parents, Mohammad A.A.
Zaben and Khitam S.M. Zaben (“Mr. and Ms. Zaben” or “the Zabens”), who are residents of the
Israeli territories, initiated this case, on March 5, 2019, seeking to compel the defendants—the
U.S. Department of State, the U.S. Consulate General in Jerusalem (“Consulate”), and various
federal officials in their official capacities—“to immediately and forthwith take all appropriate
action to issue a decision on the Immigrant Visa applications of the [Zabens].” Compl. for
Issuance of Writ of Mandamus (“Compl.”) ¶ 1, ECF No. 1.1 During the year-long pendency of
this lawsuit, the defendants have, with the plaintiffs’ consent, requested and received extensions
of time for the defendants to respond to the plaintiffs’ claims, as the defendants anticipated that
the Zabens’ visa applications would soon be adjudicated, rendering this case moot. See, e.g.,
Defs.’ Consent Mot. for Extension of Time to File Defs.’ Resp. to Pls.’ Compl. (“Defs.’ May
Extension Request”) ¶¶ 3–4, ECF No. 8. Now, pending before the Court is the defendants’
1
Some federal officials named in the complaint have been succeeded in office since the complaint was filed
and are automatically replaced by their successor officials. See FED. R. CIV. P. 25(d). In addition, the day before the
plaintiffs filed suit, “[o]n March 4, 2019, U.S. Consulate General Jerusalem . . . merge[d] into U.S. Embassy
Jerusalem to form a single diplomatic mission,” Statement, Robert Palladino, Deputy Spokesperson, U.S. Embassy
in Isr., Merger of U.S. Embassy Jerusalem and U.S. Consulate General Jerusalem (Mar. 3, 2019),
https://il.usembassy.gov/merger-of-u-s-embassy-jerusalem-and-u-s-consulate-general-jerusalem/, which merger has
no effect on the parties’ dispute.
1
motion to dismiss the complaint for lack of subject matter jurisdiction, under Federal Rule of
Civil Procedure 12(b)(1), because, in defendants’ view, decisions on the Zabens’ visa
applications have been made. See Defs.’ Mot. Dismiss (“Defs.’ Mot.”) at 1, ECF No. 15.
Specifically, after the complaint was filed, “a consular officer of the United States refused
plaintiff Mohammed A. A. Zaben’s immigrant visa application on May 3, 2019 and . . . plaintiff
Khitam S. M. Zaben’s immigrant visa application remains refused as of February 3, 2020.”
Defs.’ Mem. Supp. Defs.’ Mot. (“Defs.’ Mem.”) at 1 (citation omitted), ECF No. 15.2
Although Mr. Zaben’s immigrant visa application has been denied, the defendants
mischaracterize the legal significance of the so-called “refusal” of Ms. Zaben’s application. For
the reasons set forth below, the defendants’ motion to dismiss is granted in part and denied in
part.
I. BACKGROUND
As noted, Ibrahim is a United States citizen and the daughter of Mr. and Ms. Zaben, who
are residents of the Israeli territories. Compl. ¶¶ 1–2. In July 2012, Ibrahim submitted Form I-
130 petitions to the United States Citizenship and Immigration Services (“USCIS”), seeking
immigrant visas on behalf of Mr. and Ms. Zaben. Id. ¶ 2. USCIS approved the I-130 petitions in
2013, and then forwarded the petitions to the Consulate for further processing. Id. ¶ 18.
On June 12, 2014, Mr. and Ms. Zaben were interviewed at the Consulate. Id. After the
interviews, “[a] consular officer refused the [Zabens’] immigrant visa application[s] under
[Immigration and Nationality Act (“INA”)] §221(g).” Decl. of Chloe Dybdahl, Attorney
Adviser, Advisory Opinions Division of the U.S. Department of State’s Bureau of Consular
2
Alternatively, the defendants move for summary judgment, see Defs.’ Mem. at 3 (“[A]lthough the Court
may consider materials outside the pleadings to resolve a Rule 12(b)(1) motion, in an abundance of caution
defendants move in the alternative for summary judgment because this motion relies on materials outside the
pleadings.”), but the pending motion may be resolved under Rule 12(b)(1).
2
Affairs (“Dybdahl Decl.”) ¶¶ 4, 7, ECF No. 15-2. The consular officer requested, however, that
the Zabens “provide additional information” necessary to evaluate their applications, id., and
indicated that their applications were placed in “administrative processing,” Compl. ¶ 2.
For the next five years, the Zabens remained stuck in this state of limbo. Over a year
after their interview at the Consulate, on September 17, 2015, the Zabens were told that their
“pending” applications continued to require “administrative processing,” and that when the
processing was complete, “a consular officer [would] review the case again to determine if the
case is documentarily complete and to verify that none of the documents are expired.” Pls.’ Ex.
B at 1, ECF No. 16-3. Approximately four and a half months later, on February 1, 2016, the
Consulate sent an email to the Zabens’ attorney stating that “[a]s soon as all administrative work
is completed for Mr. and Mrs. Zaben’s cases, we will notify you so that your clients can renew
the necessary documents and prepare their cases for issuance.” Pls.’ Ex. C at 1, ECF No. 16-4.
Two subsequent communications from the Consulate reiterated this information to the Zabens.
See Pls.’ Ex. D at 1, ECF No. 16-5 (April 5, 2016 email); Pls.’ Ex. E at 1, ECF No. 16-6 (June
15, 2016 email).
Over nine months after sending the February 1, 2016 email, on November 17, 2016, the
Consulate sent another email, again stating that the Zabens’ applications were being processed,
and this time further explaining that “[a]dministrative processing refers to various additional
steps that must be taken before a visa can be issued.” Pls.’ Ex. F at 1, ECF No. 16-7. Then, after
more than a year and a half had passed, on September 20, 2018, the United States Embassy
Jerusalem (“Embassy”) sent an email promising to “do all we can to see that the visa is
adjudicated as soon as the processing of [the] application is complete,” Pls.’ Ex. G at 1, ECF
No. 16-8, a promise reiterated approximately two months later in a November 30, 2018 letter
3
from the Embassy, Pls.’ Ex. H at 1, ECF No. 16-9. Two additional communications from the
Embassy over the following three months further confirmed that the Zabens’ applications
remained in “administrative processing.” See Pls.’ Ex. I at 1, ECF No. 16-10 (December 6, 2018
email); Pls.’ Ex. J at 2, ECF No. 16-11 (February 15, 2019 letter).
In May 2019, after the plaintiffs filed their complaint, the defendants, for the very first
time, treated Mr. and Ms. Zaben’s separate visa applications differently from one another. On
May 3, 2019, Mr. Zaben’s visa application was denied, pursuant to § 212(a)(3)(B) of the INA.
Dybdahl Decl. ¶ 7. Ms. Zaben, however, was asked “to provide additional documents and
information for her visa application.” Defs.’ May Extension Request ¶ 3. On July 25, 2019, Ms.
Zaben appeared for a second visa-application interview, at the end of which “a consular officer
again refused her application because [Ms. Zaben] did not bring certain documents with her.”
Defs.’ Consent Mot. for Extension of Time to File Defs.’ Resp. to Pls.’ Compl. ¶ 2, ECF No. 10.
Yet, rather than close Ms. Zaben’s case, the defendants continued to request and receive
documents from Ms. Zaben over the following months. See, e.g., Pls.’ Ex. Q at 1, ECF No. 16-
18 (noting that, on January 17, 2020, “the consulate called Ms. Zaben . . . to request additional
documents”).
In a letter sent via email on January 31, 2020, the Embassy told Ms. Zaben that her “visa
application [was] refused” pursuant to § 221(g) of the INA, Pls.’ Ex. R at 3, ECF No. 16-19, a
different statutory basis than that given for the May 3, 2019 denial of Mr. Zaben’s visa
application, but the same statutory basis as that cited for the June 12, 2014 “refusals” of both
Zabens’ applications. Again, Ms. Zaben’s case was not closed. Instead, later the same day, the
Embassy sent a follow-up email stating that “[a]t the moment, [Ms. Zaben’s] case is still
undergoing administrative processing to verify the applicant’s qualifications for the visa.” Id. at
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1. On February 18, 2020, Ibrahim checked the status of Ms. Zaben’s application using the
Department of State Consular Electronic Application Center (“DSCEAC”) website. Decl. of
Manal M. Ibrahim (“Ibrahim Decl.”) ¶ 14, ECF No. 16-2. The website reported that Ms. Zaben’s
“visa case is currently undergoing necessary processing.” Pls.’ Ex. S at 1, ECF No. 16-20.
Over the past eight years, as Ms. Zaben has waited to find out whether her visa
application will be approved, the life she seeks to lead near her daughter and other children in the
United States has passed her by. The plaintiffs claim that this delay “has had a devastating effect
on [Ms. Zaben].” Ibrahim Decl. ¶ 16. Most notably, Ms. Zaben has missed the births of her five
grandchildren. Id.; see also, e.g., Pls.’ Ex. B at 1 (“[M]e [and] my wife have been patiently
waiting we are expecting a grandchild this month that we would love to visit . . . .”); Pls.’ Ex. U
at 1, ECF No. 16-22 (“Khitam Zaben Asker is expecting the arrival of her grand-daughter within
the next few weeks, and will need entry into the United States.”).
The plaintiffs claim that the defendants’ failure to issue decisions on the Zabens’ visa
applications in the nearly eight years since the applications were first filed and nearly six years
since the Zabens were initially interviewed at the Consulate violates the INA, the Administrative
Procedure Act, and applicable federal regulations. Compl. ¶¶ 25, 31–32. They therefore seek “a
writ of mandamus directing the Consulate to render a decision either granting or denying Mr. and
Ms. Zaben’s Immigrant Visa applications pursuant to 22 C.F.R. § 42.81(a).” Id. ¶ 30.
As noted, the defendants initially obtained, with the plaintiffs’ consent, a series of
extensions of time to respond to the complaint. See, e.g., Defs.’ May Extension Request. On
February 7, 2020, before the expiration of the most recently granted extension, the defendants
moved to dismiss this action, which motion is now ripe for resolution, with consideration of the
5
supplemental authority submitted by the plaintiffs on March 20, 2020. See Pls.’ Notice Suppl.
Auth., ECF No. 18.
II. LEGAL STANDARD
“Federal courts are courts of limited jurisdiction,” Gunn v. Minton, 568 U.S. 251, 256
(2013) (internal quotation marks omitted) (quoting Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 377 (1994)), and “have only the power that is authorized by Article III of the
Constitution and the statutes enacted by Congress pursuant thereto,” Johnson v. Comm’n on
Presidential Debates, 869 F.3d 976, 980 (D.C. Cir. 2017) (internal quotation mark omitted)
(quoting Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)). To survive a
motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), the plaintiff thus “bears the
burden of invoking the court’s subject matter jurisdiction.” Arpaio v. Obama, 797 F.3d 11, 19
(D.C. Cir. 2015).
When a jurisdictional skirmish “present[s] a dispute over the factual basis of the court’s
subject matter jurisdiction,” “the court must go beyond the pleadings and resolve” any dispute
necessary to the disposition of the motion to dismiss. Feldman v. FDIC, 879 F.3d 347, 351
(D.C. Cir. 2018) (alteration in original) (internal quotation mark omitted) (quoting Phoenix
Consulting v. Republic of Angl., 216 F.3d 36, 40 (D.C. Cir. 2000)). The court must accept as
true “factual allegations in the complaint and ‘construe the complaint liberally, granting plaintiff
the benefit of all inferences that can be derived from the facts alleged.’” Am. Nat’l Ins. Co. v.
FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972
(D.C. Cir. 2005)). In addition, however, the “court may properly consider . . . evidentiary
material in the record,” again affording the plaintiff “the benefit of all reasonable inferences.”
Feldman, 879 F.3d at 351; see also Am. Freedom Law Ctr. v. Obama, 821 F.3d 44, 49 (D.C. Cir.
6
2016) (“[W]e ‘may consider materials outside the pleadings in deciding whether to grant a
motion to dismiss for lack of jurisdiction.’” (quoting Jerome Stevens Pharm., Inc. v. FDA, 402
F.3d 1249, 1253 (D.C. Cir. 2005))).
III. DISCUSSION
The defendants argue that the Zabens’ visa applications have been adjudicated and thus
the doctrine of consular nonreviewability deprives the Court of subject matter jurisdiction to
resolve the plaintiffs’ claims. Defs.’ Mem. at 1. Indeed, the law is well settled that the INA
grants “consular officers exclusive authority to review applications for visas,” Saavedra Bruno v.
Albright, 197 F.3d 1153, 1156 (D.C. Cir. 1999) (citing 8 U.S.C. §§ 1104(a), 1201(a)), and “[i]n
view of the political nature of visa determinations and of the lack of any statute expressly
authorizing judicial review of consular officers’ actions, courts have applied what has become
known as the doctrine of consular nonreviewability” to visa-application decisions, id. at 1159.
“The 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.” Id.; see also Castaneda-Gonzalez v.
Immigration & Naturalization Serv., 564 F.2d 417, 428 n.25 (D.C. Cir. 1977) (observing that “a
consular officer [can] make . . . a decision [to deny a visa] without fear of reversal since visa
decisions are nonreviewable”).
This doctrine applies differently to each of the Zabens. The defendants report that Mr.
Zaben’s application was refused on May 3, 2019, Dybdahl Decl. ¶ 7, and the plaintiffs never
attempt to dispute this claim, see generally Pls.’ Mem. Opp’n Defs.’ Mot. (“Pls.’ Opp’n”), ECF
No. 16. The defendants are therefore entitled to dismissal of the plaintiffs’ claims as they pertain
to Mr. Zaben’s application. As to Ms. Zaben’s application, however, the defendants’ argument
falls short. Despite the defendants’ claims to the contrary, no final decision regarding Ms.
7
Zaben’s application has been rendered. Further, the defendants argue that the plaintiffs have
improperly attempted to amend their complaint through their memorandum in opposition, see
Defs.’ Reply Supp. Defs.’ Mot. (“Defs.’ Reply”) at 1, ECF No. 17, but in fact the plaintiffs’
opposition memorandum and the complaint present the same theory: that Ms. Zaben’s
application has not been adjudicated because it remains in “administrative processing.” These
arguments for dismissal of the plaintiffs’ claims as they pertain to Ms. Zaben’s application are
addressed seriatim.
A. The Doctrine Of Consular Nonreviewability Does Not Apply With Respect
To Ms. Zaben’s Application
The defendants’ primary argument is that the doctrine of consular nonreviewability
applies to bar judicial review of Ms. Zaben’s claims. See Defs.’ Mem. at 3–4; Defs. Reply at 3–
5. Yet, the doctrine of consular nonreviewability does not bar all possible suits pertaining to a
consular officer’s consideration of a visa application. “When the Government simply declines to
provide a decision in the manner provided by Congress, it is not exercising its prerogative to
grant or deny applications but failing to act at all.” Nine Iraqi Allies Under Serious Threat
Because of their Faithful Serv. to the U.S. v. Kerry, 168 F. Supp. 3d 268, 290–91 (D.D.C. 2016).
Accordingly, “while the doctrine of consular nonreviewability precludes review of final visa
application decisions, it does not insulate a delay in reaching those decisions from judicial
review.” Vulupala v. Barr, No. 19-cv-378 (ABJ), 2020 WL 601887, at *6 (D.D.C. Feb. 7, 2020)
(emphasis in original); see also, e.g., Patel v. Reno, 134 F.3d 929, 931–32 (9th Cir. 1998)
(“Normally a consular official’s discretionary decision to grant or deny a visa petition is not
subject to judicial review. However, when the suit challenges the authority of the consul to take
or fail to take an action as opposed to a decision taken within the consul’s discretion, jurisdiction
exists.” (citations omitted)); Nine Iraqi Allies, 168 F. Supp. 3d at 290 (“[T]he doctrine of
8
consular nonreviewability is not triggered until a consular officer has made a decision with
respect to a particular visa application.” (emphasis in original)); P.K. v. Tillerson, 302 F. Supp.
3d 1, 11 (D.D.C. 2017) (same).
The defendants maintain that they have issued a decision with respect to Ms. Zaben’s
application. As support, the defendants assert that “on June 12, 2014” after Ms. Zaben’s first
interview at the Consulate, “the consular officer refused the immigrant visa application under
INA §221(g),” and, as of February 3, 2020, “the immigrant visa application of Ms. Zaben
remains refused under INA §221(g).” Dybdahl Decl. ¶¶ 4–5. As such, the defendants argue that
the doctrine of consular nonreviewability applies here. Defs.’ Mem. at 3–4. The plaintiffs,
however, contend that on June 12, 2014, Ms. Zaben’s application was “not . . . refused with
finality,” and, “[t]o the contrary, it remains pending, subject to ‘administrative processing.’”
Pls.’ Opp’n at 1 (emphases in original). Thus, “the question to be determined is whether the
agency has already rendered a final decision that would trigger the doctrine.” Vulupala, 2020
WL 601887, at *3. The plaintiffs have the better argument here.
Decisions of both this Court and other courts have consistently recognized that “where
the application is still undergoing administrative processing, even where a refusal has been
relayed, the decision is not final,” and thus “claims alleging unreasonable delay while a case
remains suspended in ‘administrative processing’ are not barred by the doctrine of consular
nonreviewability.” Ghadami v. U.S. Dep’t of Homeland Sec., No. 19-cv-00397 (ABJ), 2020 WL
1308376, at *5 (D.D.C. Mar. 19, 2020); see Vulupala, 2020 WL 601887, at *3–6 (concluding
that doctrine of consular nonreviewability did not apply to review of application in
“administrative processing”); Afghan & Iraqi Allies Under Serious Threat Because of Their
Faithful Serv. to the U.S. v. Pompeo, 18-cv-01388 (TSC), 2019 WL 367841, at *10 (D.D.C. Jan.
9
30, 2019) (“[A]dministrative processing is not a final adjudication but a mandatory intermediate
step.”); Nine Iraqi Allies, 168 F. Supp. 3d at 287 (“[A]ny Plaintiff with an application in
‘administrative processing’ has not yet received a final decision.”); Mohamed v. Pompeo, No.
1:19-cv-01345-LJO-SKO, 2019 WL 4734927, at *4 (E.D. Cal. Sept. 27, 2019) (“This Court . . .
finds persuasive the reasoning of other Courts that have found the ‘administrative processing’
designation insufficient to constitute a refusal.”); Alwan v. Risch, No. 2:18-CV-0073, 2019 WL
1427909, at *4 (S.D. Ohio Mar. 29, 2019) (concluding that no final decision had been made
when “applications [were] still entrenched in ‘administrative processing’”); Saleh v. Tillerson,
293 F. Supp. 3d 419, 431 (S.D.N.Y. 2018) (“[A] visa that is in ‘administrative processing’
cannot be said to have received final approval.”); see also, e.g., P.K., 302 F. Supp. 3d at 11
(citing communication indicating that applications were in “administrative processing” as among
evidence that “strongly suggest[ed] that Plaintiffs’ visa applications ha[d] not been finally
refused”); Assad v. Holder, 2:13-00117 (WJM), 2013 WL 5935631, at *4 (D.N.J. Nov. 1, 2013)
(determining that “administrative review” language in letter “clearly indicate[d] that the decision
on [plaintiff’s] visa [was] still pending and not final”); Schutz v. Secretary, Dep’t of State, No.
6:11-cv-1296-Orl-31DAB, 2012 WL 275521, at *2–3 (M.D. Fla. Jan. 31, 2012) (finding
document that reported an application was in “administrative processing,” id. at *2, as “most
reasonably interpreted as a notice that the ultimate decision ha[d] not yet been made,” id. at *3).
The reasoning in these cases is persuasive. “By consigning applicants to ‘administrative
processing,’ the Government endeavor[s] to enjoy the benefits of consular nonreviewability”
without actually issuing final decisions. Nine Iraqi Allies, 168 F. Supp. 3d at 289. “The
Government cannot have it both ways.” Id.
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The allegations in the complaint (taken, at this stage, as true), bolstered and supplemented
by the undisputed evidence presented by both parties, establish that no final decision has been
made regarding Ms. Zaben’s visa application. Although, on June 12, 2014, a consular officer
interviewed Ms. Zaben and claimed to “refuse[] [Ms. Zaben’s] immigrant visa application under
INA §221(g),” Dybdahl Decl. ¶ 4, Ms. Zaben was also told, immediately after her interview, that
her case “remained pending based on ongoing ‘administrative processing,’” Compl. ¶ 2,
contradicting the proposition that her application had been denied, see, e.g., Nine Iraqi Allies,
168 F. Supp. 3d at 285 (“Documents that the Government gives to . . . applicants following their
consular interviews . . . belie the Government’s contention that such ‘denials’ are final or even
any kind of decision at all.”). Then, on at least ten occasions over the next six years, Ms. Zaben
was told that “administrative processing” of, or “administrative work” on, her application was
ongoing, and that she had to continue to wait. See Pls.’ Ex. B at 1; Pls.’ Ex. C at 1; Pls.’ Ex. D at
1; Pls.’ Ex. E at 1; Pls.’ Ex. F at 1; Pls.’ Ex. G at 1; Pls.’ Ex. H at 1; Pls.’ Ex. I at 1; Pls.’ Ex. J at
2; Pls.’ Ex. R at 1. These facts alone fatally undermine the defendants’ claim that final
adjudication of Ms. Zaben’s application has occurred.
Additional evidence confirms that the June 12, 2014 “refusal” was not a final decision.
Ms. Zaben has been asked on multiple occasions to submit additional documents and information
so that her application can be processed, see, e.g., Dybdahl Decl. ¶ 4; Defs.’ May Extension
Request ¶ 3; Pls.’ Ex. Q at 1, a sure sign that consideration of her application continues, see
Vulupala, 2020 WL 601887, at *5 (determining that visa-application decision was not final when
State Department continued to request additional information from the applicant); P.K., 302 F.
Supp. 3d at 11 (same). Additionally, the DSCEAC website indicates that Ms. Zaben’s “visa case
is currently undergoing necessary processing,” Ex. S at 1, a circumstance found in other cases
11
that concluded visa applications remained pending, see Nine Iraqi Allies, 168 F. Supp. 3d at
283–84 (“[T]he Government’s own Case Status Tracker states that Plaintiffs’ applications
remain[] in ‘administrative processing’ . . . .”); Alwan, 2019 WL 1427909, at *3 (“While they
have waited, Plaintiffs have consistently inquired online about the status of their applications,
with the status of their applications showing ‘administrative processing’ . . . .”).
Finally, the defendants have conceded, on more than one occasion, that the current
administrative processing of Ms. Zaben’s application precedes the still-to-come final decision.
The Consulate stated, in a November 17, 2016 email, that “[a]dministrative processing refers to
various additional steps that must be taken before a visa can be issued,” Pls.’ Ex. F at 1, and
further, the Embassy said, in both a September 20, 2018 email and a November 30, 2018 letter,
that it would “do all we can to see that the visa is adjudicated as soon as the processing of [the]
application is complete,” Pls.’ Ex. G at 1; see Pls.’ Ex. H at 1. Cf. Nine Iraqi Allies, 168 F. Supp.
3d at 287 (relying on a similar email to determine that application had not been denied); see also,
e.g., Mohamed, 2019 WL 4734927, at *4 (“The U.S. Embassy in Djibouti’s own
communications to the Djibouti Plaintiffs suggest that the United States is continuing to process
the Djibouti Plainitff[s’] visa applications.”). As was the case when those communications were
sent, Ms. Zaben’s application currently remains in administrative processing, and thus a final
adjudication has not occurred.
The defendants rejoin that “the Department of State’s regulations allow for
reconsideration after a refusal, if the applicant is able to provide additional evidence,” and further
maintain that “administrative processing” in this instance refers to reconsideration. Defs.’ Reply
at 2–3. Courts, however, have roundly rejected this argument. See, e.g., Nine Iraqi Allies, 168
F. Supp. 3d at 284 (“‘Administrative processing’ is not an opportunity for reconsideration of a
12
decision but is a pre-requisite to reaching the decision itself—a crucial distinction.”). Even the
defendants acknowledge that under the applicable regulation, “reconsideration” lasts for only a
year, see Defs.’ Reply at 3 (quoting 22 C.F.R. § 42.81(e)), yet Ms. Zaben’s application has been
in administrative processing for roughly six years. Moreover, the treatment of Mr. Zaben’s
application—which until May 2019, was handled in exactly the same way as Ms. Zaben’s—
belies the defendants’ assertion that Ms. Zaben’s application is being “reconsidered” pursuant to
22 C.F.R. § 42.81(e). If, on June 12, 2014, the defendants had truly issued a final denial of Mr.
Zaben’s application pursuant to § 221(g) of the INA, an additional denial on May 3, 2019 under
§ 212(a)(3)(B) would have been unnecessary, if not gratuitous.
The defendants further assert that the above-cited cases concerning “administrative
processing” are distinguishable because those cases were about either “special immigrant visa
applications pursuant to” the Refugee Crisis in Iraq Act of 2007 and the Afghan Allies Protection
Act of 2009, Defs.’ Reply at 3 (citing Nine Iraqi Allies, 168 F. Supp. 3d 268, and Afghan & Iraqi
Allies, 2019 WL 367841), or “a challenge to the Department of State’s application of Executive
Order No. 13,780,” id. at 4 (citing P.K., 302 F. Supp. 3d 1). To the contrary, many of the cases
addressing “administrative processing” concerned Form I-130 petitions and “denials” under
§ 221(g) of the INA following interviews with consular officers, same as here. See, e.g.,
Vulupala, 2020 WL 601887, at *5 n.4 (“[A] section 221(g) refusal is an interim decision.”);
Schutz, 2012 WL 275521, at *3 (“[T]he language accompanying the citation to Section 221(g) in
the [notice purporting to deny the application] explicitly informed [the applicant] that processing
ha[d] not yet been completed, contradicting any suggestion that the final decision had been
made.”). Additionally, these cases turned not on formal distinctions of the immigration law
invoked by the prospective immigrant but “on what is actually happening,” Vulupala, 2020 WL
13
601887, at *4, and in that respect, no difference of consequence exists between this case and
those the defendants urge the Court to ignore.
Accordingly, review of Ms. Zaben’s claims is not barred by the doctrine of consular
nonreviewability.3
B. The Plaintiffs Need Not Amend The Complaint
The defendants also argue that the plaintiffs have attempted to “amend their complaint
through their opposition papers,” Defs.’ Reply at 1, and that while the complaint asserts “no
decision” has been made on Ms. Zaben’s application, the plaintiffs now instead allege “no final
decision” has been made, a critical distinction, id. at 4 (emphasis added) (internal quotation
marks omitted). The defendants maintain that without this new allegation in the complaint itself,
the plaintiffs’ argument against application of consular nonreviewability fails. See id. at 1, 4.
The defendants are wrong to believe that the plaintiffs were required to use the magic
words “final decision” in the complaint. Under Federal Rule of Civil Procedure 8(a), a
complaint need only “give the defendants fair notice of what the claim is and the grounds upon
which it rests.” Jones v. Kirchner, 835 F.3d 74, 79 (D.C. Cir. 2016) (internal quotation marks
omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Here, the complaint
makes clear that the plaintiffs believe that Ms. Zaben’s case is “not resolved because of ongoing
‘administrative processing,’” Compl. ¶ 19, which is the same contention that the plaintiffs
advance in their opposition memorandum. In fact, the plaintiffs appear to have anticipated the
defendants’ consular-nonreviewability argument, as the complaint further explains: “The
3
The defendants also maintain that Ms. Zaben’s claims are moot, Defs.’ Mem. at 3, but their mootness
argument and their consular-nonreviewability argument are one and the same, see id. at 3–4. Thus, “for the same
reason that the doctrine of consular nonreviewability does not apply, the case is not moot.” Schutz, 2012 WL
275521, at *4; see also, e.g., Afghan & Iraqi Allies, 2019 WL 367841, at *8 (“While a final decision, favorable or
unfavorable, would render [the plaintiff’s] claims moot, her progression through the process while this case has been
pending does not.” (citation omitted)).
14
Plaintiffs are not asking the Court to review the Consulate’s decision to approve or deny a visa
request.” Id. ¶ 23. In short, no meaningful daylight exists between the plaintiffs’ complaint and
their opposition memorandum. Thus, the latter document was not an impermissible attempt to
amend the former, and the complaint needs no amendment to survive the motion to dismiss.
IV. CONCLUSION
For the foregoing reasons, the defendants’ Motion to Dismiss, ECF No. 15, is granted in
part and denied in part. The plaintiffs’ claims are dismissed as they pertain to Mr. Zaben’s visa
application, but not as they pertain to Ms. Zaben’s.
An Order consistent with this Memorandum Opinion will be filed contemporaneously.
Date: April 8, 2020
__________________________
BERYL A. HOWELL
Chief Judge
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