ELD-047-E                                                    NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ___________

                                   No. 10-3819
                                   ___________

                   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)
                                     _________

                                     OPINION
                                     _________
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, 

, 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, 

, 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, 

, 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 

, 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, 

, 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, 

, 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, 

, 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