Han v. Tarango

Background

Tao Han alleged that the government improperly determined him inadmissible for an H-1B visa under 8 U.S.C. § 1182(a)(6)(C). According to the complaint, Han had worked for Cadence Design Systems in San Jose, California, on an H-1B visa. The United States Citizenship and Immigration Services (USCIS) allegedly made a fraud finding against him sometime between 2020 and 2021. After Han returned to China, he applied for another H-1B visa, which the Department of State’s China consular office denied based on the USCIS finding.

Han sued USCIS and the United States Department of Homeland Security. His first and third claims sought judicial review under the Administrative Procedure Act of the USCIS fraud finding. His second claim alleged a violation of his Fifth Amendment due-process rights. The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which asks whether the complaint alleges enough facts to state a legally plausible claim.

Discussion

The court held that the doctrine of consular nonreviewability barred Han’s Administrative Procedure Act claims. That doctrine generally prevents courts from reviewing a consular official’s decision to deny a visa to a foreign applicant. The court explained that Han was an unadmitted, nonresident alien whose visa application had been denied by a consular office. Because he was neither a United States citizen nor alleging that the visa denial burdened a United States citizen’s constitutional rights, the court held that the exception allowing review for constitutional errors did not apply.

The court further held that suing USCIS rather than the Department of State did not avoid consular nonreviewability. The doctrine also applied because Han’s challenge to the USCIS fraud finding could not be separated from his challenge to the consular officer’s visa denial. The court therefore dismissed Han’s first and third claims, which sought review under the Administrative Procedure Act, as barred by consular nonreviewability, without leave to amend.

As to the due-process claim, the court held that an unadmitted, nonresident alien seeking a nonimmigrant visa has no constitutional right to enter the United States. Because Han did not allege deprivation of a constitutionally protected liberty or property interest, the court dismissed his second claim without leave to amend.

Disposition

Judge Jacquelyn Corley granted the defendants’ motion to dismiss Han’s complaint in its entirety without leave to amend. The order disposed of Docket Nos. 24 and 28, and the court stated that a separate judgment would be entered.