TIMOTHY J. KELLY, District Judge.
Zahra Aboutalebi, an Iranian citizen, brought this action to challenge Defendants' failure to adjudicate her visa application; she also alleged that any later denial would be unlawful. She subsequently moved for a preliminary injunction to compel Defendants to adjudicate her application. Defendants have since denied her application. For that reason, they argue that the Court lacks subject-matter jurisdiction because Aboutalebi's claims are either moot or unreviewable under the doctrine of consular nonreviewability. As explained below, the Court agrees and will dismiss the case for lack of subject-matter jurisdiction.
Aboutalebi is an Iranian citizen pursuing a Doctor of Juridical Science at Harvard Law School. ECF No. 1 ("Compl.") ¶ 2. She began her studies in 2013 and was scheduled to resume them in fall 2018. Id. ¶ 6. To do so, she needed a J-1 Visa, which she applied for at the U.S. Embassy in London in May 2018. Id. ¶¶ 13, 24. By August of the following year, her application was allegedly still "in administrative processing pending final adjudication." Id. ¶ 25. And with the start of the next school year approaching, she sued the Department of State, Michael Pompeo in his official capacity as Secretary of State, the U.S. Embassy and Consulate in London, and Karen Ogle in her official capacity as Consular General at the U.S. Embassy in London. Id. ¶¶ 7-10, 19. She alleges that Defendants were unreasonable in delaying her visa because they inappropriately applied "President Trump's extreme vetting policy" to her. Id. ¶¶ 42-44. She claims this delay jeopardizes her ability to complete her studies and will cause her to lose scholarships and grants. Id. ¶¶ 54-60.
Aboutalebi asserts five causes of action. Counts I and II allege that the government acted unlawfully in various ways by delaying the adjudication of her application. Id. ¶¶ 72-92. Count III asks the Court to declare that she is eligible for a visa and to "order the Defendants to adjudicate and promptly issue the J-1 Visa to the Plaintiff." Id. ¶¶ 93-95. Count IV preemptively alleges that any subsequent adverse final decision on her application would be "a retaliatory act designed to moot this lawsuit and avoid judicial review" in violation of the Administrative Procedure Act (APA). Id. ¶¶ 96-102. And Count V alleges that Defendants violated the APA by not allowing counsel to appear with her during various stages of the application process. Id. ¶¶ 103-116.
About two weeks after filing suit, Aboutalebi moved for a preliminary injunction, or, in the alternative, for a temporary restraining order. ECF No. 4.
In responding to Aboutalebi's motion, Defendants were unclear about the precise status of her application. On the one hand, in addition to arguing that her claims were barred by the doctrine of consular nonreviewability, Defendants argued that they were moot because a decision on her application had already been rendered. See Opp'n at 13-14. On the other hand, Defendants represented that the State Department "expect[ed] that a consular officer in the U.S. Embassy in London [would] further adjudicate Plaintiff's visa application in the next month." Id. at 3 (noting also that Aboutalebi's "application remains refused"). In any event, in response to an Order from the Court, they subsequently reported that the U.S. Embassy in London had notified Aboutalebi that she had been found "ineligible for a visa under Section 212(f) of the Immigration and Nationality Act, pursuant to Presidential Proclamation 9932." ECF No. 9 at 1. That proclamation suspended entry into the United States for senior Iranian government officials and their immediate family members. Suspension of Entry as Immigrants and Nonimmigrants of Senior Officials of the Government of Iran, Proclamation 9932, 84 Fed. Reg. 51,935 (Sept. 25, 2019). The notification letter sent to Aboutalebi explicitly referenced the proclamation and made clear that the decision was "final" and could not be appealed. ECF No. 9-1.
The Court then ordered both parties to file supplemental briefing addressing whether these developments affected the Court's jurisdiction or otherwise precluded judicial review. Minute Order of November 6, 2019. Aboutalebi filed a supplemental brief in support of her motion for a preliminary injunction, ECF No. 10 ("Supp. Br."); Defendants' filed a supplemental opposition, ECF No. 11 ("Supp. Opp'n"); and Aboutalebi replied, ECF No. 12 ("Supp. Reply").
"Federal courts are courts of limited jurisdiction," and they must assume that they lack subject-matter jurisdiction over a claim. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). The party asserting subject-matter jurisdiction bears the burden of demonstrating it by a preponderance of the evidence. Stephens v. United States, 514 F.Supp.2d 70, 72 (D.D.C. 2007). And under Federal Rule of Civil Procedure 12(h)(3), "[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." See also Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006).
The Court's analysis starts and ends with subject-matter jurisdiction. Because the Court lacks jurisdiction over each of Aboutalebi's claims in the complaint, it must dismiss this case in its entirety.
Federal courts lack subject-matter jurisdiction to hear claims that are moot. Conservation Force, Inc. v. Jewell, 733 F.3d 1200, 1204 (D.C. Cir. 2013). A case is moot if "a party has already `obtained all the relief that [it has] sought.'" Conservation Force, 733 F.3d at 1204 (alteration in original) (quoting Monzillo v. Biller, 735 F.2d 1456, 1459 (D.C. Cir. 1984)). In addition, a "case is moot if events have so transpired that the decision will neither presently affect the parties' rights nor have a more-than-speculative chance of affecting them in the future." Transwestern Pipeline Co. v. F.E.R.C., 897 F.2d 570, 575 (D.C. Cir. 1990).
Defendants argue that the first, second, third (in part) and fifth counts in Aboutalebi's complaint, see Compl. ¶¶ 72-92, 95, 103-116, are moot because the U.S. Embassy in London recently issued a final decision denying her visa application. See Supp. Opp'n at 3-5. The Court agrees. Aboutalebi's first two counts—and part of her third—complain that Defendants have not adjudicated her visa. Defendants have now done that. See ECF No. 9-1. Thus, she has received the precise relief she sought, and these claims must be dismissed as moot. In her fifth count, she asserts that Defendants violated the APA by not allowing counsel to appear with her during various stages of the application process. That claim is also moot, because the application process has concluded, nothing in the record suggests that additional interviews—or proceedings of any kind—are likely, and, as discussed below, the Court may not disturb the result of the now-concluded process. As a result, a decision on that claim would "neither presently affect the parties' rights nor have a more-than-speculative chance of affecting them in the future," Transwestern Pipeline Co., 897 F.2d at 575.
Under the doctrine of consular nonreviewability, federal courts lack subject matter jurisdiction over a consular official's decision to issue or withhold a visa. As the D.C. Circuit has explained, "a consular official's decision to issue or withhold a visa is not subject to judicial review, at least unless Congress says otherwise." Saavedra Bruno, 197 F.3d at 1159. The doctrine operates out of respect for "the political nature of visa determinations," id., and acknowledges that "[c]onsular officers have complete discretion over issuance and revocation of visas," id. at 1158 n.2. It "predates passage of the APA," and therefore "represents one of the `limitations on judicial review' unaffected by [5 U.S.C.] § 702's opening clause granting a right of review to persons suffering `legal wrong' from agency action." Id. at 1160. The doctrine sweeps wide and deep. It precludes judicial review "even where it is alleged that the consular officer failed to follow regulations, where the applicant challenges the validity of the regulations on which the decision was based, or where the decision is alleged to have been based on a factual error." Van Ravenswaay v. Napolitano, 613 F.Supp.2d 1, 4 (D.D.C. 2009) (quoting Chun v. Powell, 223 F.Supp.2d 204, 206 (D.D.C. 2002)). And if Aboutalebi's "claims are barred by the doctrine of consular non-reviewability," then "the Court has no subject-matter jurisdiction to hear the case." Jathoul v. Clinton, 880 F.Supp.2d 168, 172 (D.D.C. 2012); see also Singh v. Tillerson, 271 F.Supp.3d 64, 72 (D.D.C. 2017).
Aboutalebi preemptively alleges in her complaint that any later denial of her visa application would violate the APA. Compl. ¶¶ 97-100. In part of count three and count four, she asks the Court to declare that she is, in fact, entitled to a visa. Id. ¶¶ 94, 102.
Aboutalebi makes several attempts to sidestep this doctrine.
Aboutalebi's other arguments fare no better. She spends considerable time explaining why Defendants' denial is unlawful. For example, she argues that Proclamation 9932 is not a valid basis to deny her visa application because it concerns "suspension of entry," which she argues is separate from a finding of ineligibility for a visa. See Supp. Br. at 3-5; Supp. Reply at 2-4. The proclamation, she argues, "temporarily pauses the physical entry of a class of aliens," but it does not render them "ineligible for a visa." See Supp. Br.at 4. But that distinction, even if accurate, makes no difference here, because Aboutalebi's claims challenge the reason for the denial of her specific visa application, which is prohibited by the doctrine. Saavedra Bruno, 197 F.3d at 1160.
Aboutalebi also argues that a consular officer did not make the decision in her case, and as a result, it is not covered by the doctrine. See Supp. Br. at 10. But Defendants represent that her "visa application was finally adjudicated by a consular officer in the Nonimmigrant Visa Unit of the U.S. Embassy in London," Supp. Opp'n at 7, and there appears no reason to question their representation. Indeed, by law consular officers are the only persons empowered to issue or deny J-1 visas. See 8 U.S.C. §§ 1101(a)(9), 1103(a)(1), 1104(a), 1201(a)(1); 22 C.F.R. § 41.111; see also Garcia v. Baker, 765 F.Supp. 426, 428 (N.D. Ill. 1990) ("Neither the Attorney General nor the Secretary of State can require consular officers to grant or deny visa applications, and they are without power to issue visas."); Shen v. U.S. Consulate Gen. at Shanghai, 866 F.Supp. 779, 780 (S.D.N.Y. 1994). Aboutalebi pivots in her Supplemental Reply to argue that a consular officer could not have adjudicated her application because the proclamation instructs that "the Secretary of State, or the Secretary's designee" must identify persons covered by the proclamation. Supp. Reply at 5. But there is no reason why the Secretary could not have designated a consular officer to do so. And even if the Secretary or some other official identified persons covered by the proclamation, there remains no reason to doubt, as Defendants represent, that a consular officer made the subsequent decision regarding Aboutalebi's specific visa application. Thus, the Court lacks the power to review it. Saavedra Bruno, 197 F.3d at 1160.
Aboutalebi also argues that her case is distinguishable from Saavedra Bruno because, unlike in that case, "the alleged basis of ineligibility is not a statutory basis for ineligibility at all." Supp. Br. at 10. But, as Defendants point out, the reasoning supporting the doctrine is not so cabined. See Supp. Opp'n at 7-8. The doctrine is grounded in deference to the political branches' power to determine who may enter the country. Saavedra Bruno, 197 F.3d at 1158-59. As the Saavedra Bruno court instructed, it is "not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien." Saavedra Bruno, 197 F.3d at 1159 (quoting United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950)). Aboutalebi has not pointed to any law that would permit this Court to review her visa denial.
Finally, Aboutalebi argues that her father is not a "senior official of the Government or Iran" under Iranian law and that she is not his "immediate family member" as properly understood under U.S. law. See Supp. Br. at 5-8, 10-11. For that reason, she argues, the proclamation does not apply to her. Id. at 11. But again, Aboutalebi asks the Court to do what it cannot: review a consular officer's adjudication, whatever its underlying merits. Chun, 223 F. Supp. 2d at 206.
Since Aboutalebi filed her complaint, Defendants have denied her visa application, mooting several of her claims. And under controlling precedent, the Court cannot review that final decision under the doctrine of consular nonreviewability. For these reasons, the Court thus lacks subject-matter jurisdiction over her case and must dismiss it. A separate order will issue.
