Zandieh v. Pompeo ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SHADI ZANDIEH, et al.,
Plaintiffs,
v. Civil Action No. 20-919 (JEB)
MIKE POMPEO, SECRETARY,
DEPARTMENT OF STATE, et al.,
Defendants.
MEMORANDUM OPINION
Wishing to bring her parents to the United States, Shadi Zandieh (Shadi), a U.S. citizen
and attending physician at Robert Wood University Hospital in New Jersey, filed I-130
Immigration Petitions for Alien Relatives on behalf of her Iranian-national father,
Mohammadhossein Zandieh (Zandieh), and mother, Fakhrossadat Mardiha (Mardiha), in April
2016. Although the U.S. Government awarded Mardiha a visa in 2017, Zandieh has had no such
luck. His efforts to obtain a waiver of visa restrictions remain in limbo. To compel the
Government to act, Plaintiffs have filed the present action against the Department of State, the
Department of Homeland Security, the Federal Bureau of Investigation, and the U.S. Embassy in
Ankara, Turkey. The current delay in waiver adjudication, Plaintiffs argue, amounts to a
violation of the Administrative Procedure Act, 5 U.S.C. § 701 et seq., and the Constitution’s Due
Process Clause. Defendants now move to dismiss for lack of subject-matter jurisdiction under
Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim under Rule 12(b)(6).
Although the Court finds that it does have jurisdiction to review Plaintiffs’ claims, it also
concludes that they are entitled to no relief here.
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I. Background
A. Legal Background
For U.S. citizens seeking to bring their foreign relatives to this country, the Immigration
and Nationality Act requires that the process begins with the filing of a Form I-130 petition with
the United States Customs and Immigration Service. See 8 U.S.C. § 1154; 8 C.F.R.
§ 204.1(a)(1), (b). If the petition is approved, the foreign national must then go to his local U.S.
consulate to complete visa processing, which includes submitting an online Immigrant Visa and
Alien Registration Application and appearing for an interview with a consular officer. See 22
C.F.R. § 42.67(a)(3).
After the interview, this officer must either issue the visa or refuse it. See id. § 42.81(a).
If the latter, “he or she must inform the applicant of the provisions of law on which the refusal is
based, and of any statutory provision under which administrative relief is available.” 9 Foreign
Affairs Manual § 504.1-3(g). Throughout the process, the foreign national bears the burden of
establishing that he “is not inadmissible” and “that he is entitled to the . . . status claimed.” 8
U.S.C. § 1361.
Presidential Proclamation 9645, issued on September 24, 2017, established additional
immigration restrictions that affect Zandieh’s application. See 82 Fed. Reg. 45,161 (Sept. 24,
2017). With limited exceptions, the Proclamation bars foreign nationals from seven countries,
including Iran, from entering the United States. Id. at 45,163; see also Ghadami v. U.S. Dep’t of
Homeland Sec., No. 19-397, 2020 WL 1308376, at *2 (D.D.C. Mar. 19, 2020). Notably, one
provision specifies that “consular officer[s] . . . may, in their discretion, grant waivers on a case-
by-case basis to permit the entry” of otherwise-ineligible foreign nationals who satisfy a three-
prong test: “(A) denying entry would cause the foreign national undue hardship; (B) entry would
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not pose a threat to the national security or public safety . . . ; and (C) entry would be in the
national interest.” 82 Fed. Reg. at 45,168. This “waiver process,” moreover, “played an
important role in the [Supreme] Court’s decision” to uphold the Proclamation in June 2018. See
Ghadami, 2020 WL 1308376, at *2 (citing Trump v. Hawaii, 138 S. Ct. 2392, 2422–23 (2018)).
B. Factual Background
Shadi filed the I-130 petitions on April 18, 2016, and her parents cleared the preliminary
hurdles without issue: the petitions were approved, and they completed their visa interviews on
March 9, 2017, at the U.S. Embassy in Ankara. See ECF No. 1 (Complaint), ¶¶ 1, 2. After
receiving her immigrant visa that same day, Mardiha was admitted to the United States as a
permanent resident on September 2, 2017; she has resided with her daughter ever since. Id., ¶ 1.
Zandieh’s application met a different fate. His visa was not issued after his March 9
interview, but was instead placed in “administrative processing.” ECF No. 5-2 (Declaration of
Chloe Dybdahl), ¶ 4. While it sat pending, President Trump issued Proclamation 9645, see
Compl., ¶ 3; as a result, “the consular officer . . . refused the immigrant visa application of Mr.
Zandieh,” but automatically “considered [him] for a waiver of the proclamation’s entry
restrictions” on February 21, 2018. See Dybdahl Decl., ¶ 5.
On March 3, 2018, Zandieh submitted paperwork requested by the U.S. embassy “so that
additional background checks could be completed.” Compl., ¶ 4. One month later, “the consular
officer made a preliminary determination” that Zandieh met “the personal hardship and national
interest prongs,” and then “consult[ed] with the Visa Office for interagency review regarding
whether Mr. Zandieh’s entry could pose a threat to national security or public safety.” Dybdahl
Decl., ¶ 6. As of now, Zandieh remains under “consideration for a waiver,” and, “[i]n the
meantime, the visa application remains refused in accordance with the Proclamation.” Id., ¶ 7.
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 On April 7, 2020, about three years after Zandieh’s interview at the U.S. Embassy and
more than two years since the Government began considering him for a waiver, Plaintiffs filed
this suit claiming that the delay in adjudicating his waiver eligibility violates both the
Administrative Procedure Act, 5 U.S.C. § 701 et seq., and the Constitution’s guarantee of due
process under the Fifth Amendment. See Compl. at 23–24. They request relief in the form of a
writ of mandamus and a preliminary injunction “directing Defendants to . . . make a decision on
[Zandieh’s] waiver,” as well as a declaratory judgment that Defendants have violated the law and
that Zandieh is entitled to “prompt adjudication of his waiver and immigrant visa application.”
Id. at 24. The Government has now moved to dismiss.
II. Legal Standard
Defendants’ Motion invokes the legal standards for dismissal under Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6). When a defendant brings a Rule 12(b)(1) motion to
dismiss for lack of subject-matter jurisdiction, “[t]he plaintiff bears the burden of establishing
jurisdiction by a preponderance of the evidence.” Bagherian v. Pompeo, No. 19-1049, 2020 WL
674778, at *2 (D.D.C. Feb. 11, 2020) (quoting Didban v. Pompeo, 435 F. Supp. 3d 168, 174
(D.D.C. 2020)). The Court “assume[s] the truth of all material factual allegations in the
complaint and ‘construe[s] 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)).
To survive a motion to dismiss under Rule 12(b)(6), a complaint must “state a claim upon
which relief can be granted.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 552 (2007). Although
“detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion, id. at 555,
“a complaint must contain sufficient factual matter, [if] accepted as true, to ‘state a claim to relief
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that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,
550 U.S. at 570). Though a plaintiff may survive a Rule 12(b)(6) motion even if “‘recovery is
very remote and unlikely,’” the facts alleged in the complaint “must be enough to raise a right to
relief above the speculative level.” Twombly, 550 U.S. at 555–56 (quoting Scheuer v. Rhodes,
416 U.S. 232, 236 (1974)).
III. Analysis
As just mentioned, Defendants maintain both that the Court lacks jurisdiction and that the
Complaint does not articulate a legal claim. The Court considers each position separately.
A. Jurisdiction
In arguing against subject-matter jurisdiction here, the Government contends both that
consular nonreviewability applies and that Zandieh’s case is moot. Neither argument is
persuasive.
1. Consular Nonreviewability
“Under the doctrine of consular nonreviewability, courts do not have jurisdiction to
review visa denials because consular officers ‘have complete discretion over issuance and
revocation of visas.’” Ghadami, 2020 WL 1308376, at *4 (quoting Saavedra Bruno v. Albright,
197 F.3d 1153, 1158 n.2 (D.C. Cir. 1999)). This jurisdictional bar, however, “does not apply
where the government has not made a final visa decision.” P.K. v. Tillerson, 302 F. Supp. 3d 1,
11 (D.D.C. 2017); see also Ghadami, 2020 WL 1308376, at *5.
Defendants argue that, because “a consular officer has found Mr. Zandieh ineligible for a
visa,” this Court is precluded from reviewing that officer’s decision. See ECF No. 5 (Mot. to
Dismiss) at 7–8. In other words, the Government insists that a final decision has been made:
Zandieh’s visa application was refused.
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But Plaintiffs are “not challenging the decision of consular officers to deny [Zandieh’s]
waiver or visa.” ECF No. 6 (Pl. Opposition) at 7. They instead seek review of Defendants’
failure to adjudicate Zandieh’s waiver eligibility within a reasonable time and ask this Court to
direct the Government to “make a decision on his waiver.” Compl. at 24. While Defendants
may well have declined Zandieh’s initial visa application, Plaintiffs explain that they now await
“a final decision.” Id.
Several courts in this district recently have found that where a plaintiff’s visa application
has been refused, but he remains under consideration for a waiver from the same Presidential
Proclamation, “the decision is not final” and consular nonreviewability is thus inapplicable.
Ghadami, 2020 WL 1308376, at *5; see also Bagherian, 2020 WL 674778, at *3 (holding
“doctrine of consular non-reviewability . . . inapplicable to” case in which waiver consideration
is ongoing); Moghaddam v. Pompeo, 424 F. Supp. 3d 104, 114 (D.D.C. 2020) (rejecting
applicability of doctrine where “[p]laintiffs d[id] not challenge the initial denial of [a plaintiff’s]
visa application,” but instead sought adjudication of plaintiff’s “waiver, which clearly remains
pending and has not been denied”); Didban, 435 F. Supp. 3d at 174 (same); Sarlak v. Pompeo,
No. 20-35, 2020 WL 3082018, at *3 (D.D.C. June 10, 2020) (same).
Finding this panoply of decisions convincing, the Court holds that the Government’s
reliance on consular nonreviewability is misplaced and that the doctrine does not bar judicial
review here. Although Defendants rely on much of the aforementioned caselaw to defend the
reasonableness of their waiver-adjudication timeline, see infra at 9–10, they acknowledge these
cases’ clear holdings regarding consular nonreviewability only in a footnote. See MTD at 8 n.1
(“Courts in this jurisdiction have held that the doctrine does not bar a claim for delay in
adjudicating waiver eligibility.”). The Court believes a little more transparency is preferable in
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situations like this. In any event, Defendants’ position regarding nonreviewability does not
prevail.
2. Mootness
The Government also contends that “this action is moot” because “Zandieh’s visa
application was denied prior to Plaintiffs’ filing their Complaint, and remains refused at this
time.” Id. at 10. As noted above, however, Plaintiffs seek an order for Defendants to adjudicate
Zandieh’s waiver eligibility, not the initial visa application, which in their view has been
unreasonably delayed. See Compl. at 24. Such an order would plainly affect Plaintiffs’ legal
rights.
The Government, at any rate, argues the wrong doctrine. “As explained by the Supreme
Court, ‘[T]he doctrine of mootness can be described as the doctrine of standing set in a time
frame: The requisite personal interest that must exist at the commencement of the litigation
(standing) must continue throughout its existence (mootness).’” R.I.L-R v. Johnson, 80 F. Supp.
3d 164, 178 (D.D.C. 2015) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167, 189 (2000)). The fact that Defendants denied Zandieh’s application “prior to
Plaintiffs’ filing their Complaint,” therefore, would go to whether Plaintiffs had standing to file
that complaint, not whether the case has since become moot. See MTD at 10. And, since
requiring Defendants to act on Zandieh’s waiver would redress his injury, he does have standing.
B. Merits
Satisfied with its jurisdiction, the Court will separately address Plaintiffs’ causes of
action.
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1. APA Claim
Plaintiffs principally claim that the Government’s delay in adjudicating Zandieh’s waiver
violates the APA, which requires agencies to “conclude” matters presented to them “within a
reasonable time.” 5 U.S.C. § 555(b); see also Compl., ¶ 14. The APA, moreover, authorizes
courts to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. §
706(1); see Bagherian, 2020 WL 674778, at *4.
In seeking dismissal, the Government first contends that the waiver program is
“committed entirely to the discretion of the executive branch” and is thus unreviewable. See
MTD at 11–13; 5 U.S.C. § 701(a)(2). Relatedly, Defendants urge that, as a “presidential action”
“governed exclusively by the Proclamation,” the waiver program is “not subject to the APA.”
MTD at 11–12. This position raises a “complex legal question for which there is not clear D.C.
Circuit precedent.” Bagherian, 2020 WL 674778, at *4. The Court can fortunately sidestep this
morass. Following the lead of other courts, “because it finds that the delay asserted” here is “not
unreasonable,” it “need not decide whether plaintiffs’ claims are reviewable under the APA.”
Ghadami, 2020 WL 1308376, at *7 (collecting cases that have similarly declined to decide
issue).
In moving to the reasonableness of the delay, the Court must first calculate the relevant
timeframe. Once again following the analysis of other judges in this district, it starts the clock
on February 21, 2018, when the Government began to consider Zandieh for a waiver after
refusing his visa application pursuant to the Proclamation. See Sarlak, 2020 WL 3082018, at *1,
5 (starting clock on date waiver-eligibility review began); Bagherian, 2020 WL 674778, at *2, 5
(same); Ghadami, 2020 WL 1308376, at *2, 8 & n.7 (same). The delay at issue, accordingly, is
the 29 months from February 2018 to July 2020.
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In determining whether that amount of time is reasonable, the Court turns, as it must, to
the six-factor inquiry set out in Telecommunications Research & Action Center v. FCC (TRAC),
750 F.2d 70, 80 (D.C. Cir. 1984):
(1) the time agencies take to make decisions must be governed by a rule of
reason;
(2) where Congress has provided a timetable or other indication of the speed
with which it expects the agency to proceed in the enabling statute, that
statutory scheme may supply content for this rule of reason;
(3) delays that might be reasonable in the sphere of economic regulation are
less tolerable when human health and welfare are at stake;
(4) the court should consider the effect of expediting delayed action on
agency activities of a higher or competing priority;
(5) the court should also take into account the nature and extent of the
interests prejudiced by delay; and
(6) the court need not find any impropriety lurking behind agency lassitude
in order to hold that agency action is “unreasonably delayed.”
Ghadami, 2020 WL 1308376, at *7 (quoting In re People’s Mojahedin Org. of Iran, 680 F.3d
832, 836–37 (D.C. Cir. 2012) (quoting TRAC, 750 F.2d at 79)); see also Sarlak, 2020 WL
3082018, at *5 (applying TRAC factors at motion-to-dismiss stage and collecting cases).
Central to this analysis is consideration of “the complexity of the task at hand, the significance
(and permanence) of the outcome, and the resources available to the agency.” Bagherian, 2020
WL 674778, at *5 (quoting Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094,
1102 (D.C. Cir. 2003)).
The first two TRAC factors favor the Government. “Congress has supplied no timeline
for processing waiver applications,” and Plaintiffs concede as much. Didban, 435 F. Supp. 3d at
176; Pl. Opp. at 22 (“[T]here is no statute or regulation that establishes any particular time frame
for adjudication of a waiver . . . .”). Zandieh’s contention that “it can reasonably be inferred that
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it is the intent of the President to create an adjudication framework that mandates quick
adjudication of waiver[s],” Pl. Opp. at 24, does not change the fact that “Congress has given the
agencies wide discretion in the area of immigration processing.” Bagherian, 2020 WL 674778,
at *5 (quoting Skalka v. Kelly, 246 F. Supp. 3d 147, 153–54 (D.D.C. 2017)); Sarlak, 2020 WL
3082018, at *5 (same); Ghadami, 2020 WL 1308376, at *8 (same). As discussed in detail
below, courts in this district have found that, in the absence of a statutory timeline, it is not
unreasonable under the APA when the Government takes between two and three years to
adjudicate waivers to Proclamation 9645. See Sarlak, 2020 WL 3082018, at *6 (“Absent a
congressionally supplied yardstick, courts typically turn to case law as a guide.”) (citing Skalka,
246 F. Supp. 3d at 154).
The third and fifth factors, however, weigh in Zandieh’s favor. The Government
concedes this, see MTD at 15, but the Court will elaborate on the “plaintiffs’ interest, health, and
welfare” that are prejudiced by delay. Ghadami, 2020 WL 1308376, at *9. Shadi has not seen
her father in three years, and her admirable work as a physician on the frontlines of this country’s
response to COVID-19 renders it highly unlikely that she will be able to visit him in the near
future. See Pl. Opp. at 25. To support Shadi, Mardiha remains in the United States and cares for
her granddaughter; as such, she has not been able to return to Iran and has now been separated
from her husband of 51 years since September 2017. See id. at 26. The burdens on this family
are plainly heavy ones. This Court thus “reminds the government that it must treat [Zandieh’s]
case with ‘the sense of urgency one would expect when familial interests are at stake.’”
Bagherian, 2020 WL 674778, at *6 (quoting Skalka, 246 F. Supp. 3d at 154).
The fourth factor, conversely, which requires accounting for the effects of expedited
action on “agency activities of equal or greater priority,” favors the Government. Ghadami,
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2020 WL 1308376, at *9. Plaintiffs do not contest that “at least 13,000 visa applicants” are
“undergoing wavier-eligibility review.” MTD at 16; see Pl. Opp. at 23. As other courts have
consistently noted when conducting TRAC analyses, delays stemming from resource-allocation
decisions do not lend themselves to “judicial ‘reordering[s] [of] agency priorities.’” Bagherian,
2020 WL 674778, at *6 (alterations in original) (quoting In re Barr Labs., Inc., 930 F.2d 72, 76
(D.C. Cir. 1991)); see also Sarlak, 2020 WL 3082018, at *6 (collecting cases). In doing so, those
courts have abided by this Circuit’s warning against providing judicial relief that would place the
plaintiff “at the head of the queue” and “simply move[] all others back one space.” In re Barr
Labs., 930 F.2d at 75; see also Ghadami, 2020 WL 1308376, at *8 (quoting In re Barr Labs. for
same proposition); Bagherian, 2020 WL 674778, at *6 (same).
The final factor is a wash. While Plaintiffs make only weak allegations of government
impropriety, see Pl. Opp. at 27–28; Compl., ¶ 51, the TRAC analysis does not require the
existence of such misconduct to deem a delay unreasonable. Its absence thus “does not count
against [them] here.” Ghadami, 2020 WL 1308376, at *9.
With these factors in mind, the Court ultimately concludes that Plaintiffs have not stated
an unreasonable-delay claim under the APA. See Sarlak, 2020 WL 3082018, at *6 (collecting
cases). While refraining from drawing bright lines, courts in this district have found waiver-
adjudication delays of similar length reasonable. Id. at *6–7 (granting motion to dismiss
unreasonable-delay claim based on 2-year delay); Ghadami, 2020 WL 1308376, at *8, 11 (same
for 25-month delay); Bagherian, 2020 WL 674778, at *5–6 (same for 25-month delay); Didban,
435 F. Supp. 3d at 176–77 (same for 2-year delay). The Court recognizes that the delays in these
cases were a few months shy of that currently endured by Zandieh, and it also recognizes that
courts, facing growing delays, may well eventually need to set a point at which reasonableness
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ends. But not here. In fact, several of this district’s courts have noted that delays between three
to five years are “often not unreasonable.” Sarlak, 2020 WL 3082018, at *6 (quoting Yavari v.
Pompeo, No. 19-2524, 2019 WL 6720995, at *8 (C.D. Cal. Oct. 10, 2019)); see also, e.g.,
Ghadami, 2020 WL 1308376, at *8 (citing same); Bagherian, 2020 WL 674778, at *5 (citing
same); Didban, 435 F. Supp. 3d at 176 (quoting same).
The weight of these decisions, moreover, is not overcome by Plaintiffs’ assertion that the
Government’s newfound capacity to adjudicate waiver claims more quickly — via its “enhanced
automated screening and vetting process” — should inform what constitutes an “unreasonable
delay.” See Pl. Opp. at 21; ECF No. 6-3 (September 24, 2019, Congressional Testimony of
Edward Ramotowski, Deputy Assistant Secretary, Bureau of Consular Affairs) at ECF p. 4.
First, the testimony discussing this new system predates the district-court decisions on which the
Court has relied here. See, e.g., Sarlak, 2020 WL 3082018, at *5 (noting this evidence “suggests
that [plaintiff’s] two-year wait may be unusual,” but not that it is “unreasonable”). Second, the
Court must be mindful of the “national security interests implicated and the volume of
applications being processed.” Bagherian, 2020 WL 674778, at *5 (citation omitted); see also
MTD at 4–5 (“[M]ore than 13,000 visa applicants have been found by a consular officer
preliminarily to meet the first two conditions for a waiver and are now under review to determine
whether they meet the national security and public safety criterion.”). Although this Court
sympathizes with the substantial difficulties that Zandieh and his family have endured, “the
government’s interests in balancing its own priorities” and in ensuring careful national-security
vetting outweigh Plaintiffs’ interests in an immediate adjudication of the waiver at this time. See
Bagherian, 2020 WL 674778, at *6; see also Ghadami, 2020 WL 1308376, at *9 (reaching same
outcome but noting concerns “by the amount of time the waiver process is taking” and
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encouraging Government to “devote the resources . . . needed to evaluate the many claims for
waiver expeditiously”).
2. Mandamus Claim
Plaintiffs’ mandamus claim fares no better than their APA claim. The standard for
reviewing agency delay is “the same under both § 706(1) of the APA and the Mandamus Act.”
Bagherian, 2020 WL 674778, at *6 (quoting Skalka, 246 F. Supp. 3d at 152). As a result, the
Court’s finding that the 29-month delay is not unreasonable under the APA “applies with equal
force to [Zandieh’s] mandamus claim.” Id.; see also Didban, 435 F. Supp. 3d at 177 (“Because
Plaintiffs have failed to establish an undue delay, their claim for mandamus relief . . . necessarily
fails as well.”). In other words, if there is no clear duty to act, this Court cannot mandate that an
agency take any particular steps.
3. Constitutional Claim
Plaintiffs last assert that the Government’s delay in adjudicating Zandieh’s waiver
violates Mardiha’s due-process rights under the Fifth Amendment. See Compl., ¶¶ 66–68; Pl.
Opp. 30–32. A necessary component of such a claim is a “liberty or property interest of which
plaintiff has been deprived,” Ghadami, 2020 WL 1308376, at *10 (quoting Swarthout v. Cooke,
562 U.S. 216, 219 (2011)), and here Plaintiffs contend that Mardiha’s protected interest in her
marriage satisfies this requirement. See Pl. Opp. at 31. Defendants respond that the waiver-
adjudication process implicates no such interest; in doing so, they distinguish an individual’s
cognizable constitutional interest in marriage from her interest in living in the United States with
her spouse. See MTD at 19–20; ECF No. 7 (Def. Reply) at 7–8. They are correct.
Courts in this Circuit have held that while the “individual’s right to marry and the marital
relationship” are constitutionally protected, these “rights are not implicated when one spouse is
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removed or denied entry into the United States.” Jathoul v. Clinton, 880 F. Supp. 2d 168, 171
(D.D.C. 2012) (quoting Udugampola v. Jacobs, 795 F. Supp. 2d 96, 105 (D.D.C. 2011)); see also
Swartz v. Rogers, 254 F.2d 338, 339 (D.C. Cir. 1958). Although “‘the choice of living abroad
with [one’s] spouse or living in this country without’ them” imposes significant “burdens upon
the marriage,” it does “not in any way destroy the legal union” of the marriage itself. Rohrbaugh
v. Pompeo, 394 F. Supp. 3d 128, 133 (D.D.C. 2019) (quoting Swartz, 254 F.2d at 339). That is,
even if the waiver-adjudication delay amounts to a refusal of entry, the Government has “not
violated any constitutionally protected right” because it has said only that “the residence of
[Mardiha’s spouse] . . . may not be in the United States.” Singh v. Tillerson, 271 F. Supp. 3d 64,
72 (D.D.C. 2017) (quoting Mostofi v. Napolitano, 841 F. Supp. 2d 208, 213 (D.D.C. 2012)); see
also Mostofi, 841 F. Supp. 2d at 212–213 (rejecting distinction between spouse’s deportation and
spouse’s denial of entry for purposes of liberty-interest analysis).
Zandieh’s citation to Bustamante v. Mukasey, 531 F.3d 1059 (9th Cir. 2008), moreover,
does not move the needle. First, the Ninth Circuit there “did not consider ‘whether the visa
denial actually implicated the plaintiff’s constitutional rights’”; it instead “accepted [the
plaintiff’s] allegation at face value.” Jathoul, 880 F. Supp. 2d at 172 (alteration in original)
(quoting Mostofi, 841 F. Supp. 2d at 212). Second, courts in our Circuit are bound by Swartz,
which found no violation of the plaintiff’s constitutional rights by her husband’s deportation
because it affected only the “physical conditions of the marriage,” rather than “destroy[ing] the
legal union which the marriage created.” 254 F.2d at 339; see also Rohrbaugh, 394 F. Supp. 3d
at 134 n.4 (noting plaintiff’s reliance on Ninth Circuit precedent was “misplaced . . . [g]iven
Swartz”); Jathoul, 880 F. Supp. 2d at 172 (“[T]his Court is bound by Swartz[,] . . . which found
no violation of a wife’s constitutionally protected liberty interest in her marriage when her
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husband was deported because ‘deportation would not in any way destroy the legal union . . . .’”)
(internal citation omitted); Mostofi, 841 F. Supp. 2d at 212 (“[T]his Circuit, unlike the Ninth
Circuit, does not recognize consular decisions affecting only the ‘physical conditions’ of a
marriage as implicating any constitutionally protected interests.”).
The holding and reasoning of Swartz, moreover, cover denials of entry as well. See
Udugampola, 795 F. Supp. 2d at 105 (“Courts have repeatedly held that these constitutional
rights are not implicated when one spouse is removed or denied entry into the United States,
however.”) (emphasis added). This Court once again “declines the invitation” to follow
Bustamante, and it finds that Plaintiffs have not stated a claim under the Fifth Amendment.
Jathoul, 880 F. Supp. 2d at 172.
IV. Conclusion
For the foregoing reasons, the Court will grant Defendants’ Motion to Dismiss. A
separate Order so stating will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: July 29, 2020
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