Saeed v. Blinken

Background

Gamilah Saeed and her adult son, Mohammed Sanad Saleh, challenged the denial of Saleh’s immigrant-visa application. Saeed is a lawful permanent resident who obtained that status as the widow of a United States citizen. The complaint alleged that the citizen had filed a family petition for Saleh, and that Saeed later included Saleh in a petition for widow-related immigration benefits.

The complaint alleged that a consular officer refused to consider Saleh at an interview in 2012. Saleh later sought derivative benefits and was interviewed at the United States Embassy in Djibouti in February 2021. The officer first refused the application under 8 U.S.C. § 1201(g) and recommended DNA testing. At a later interview, Saleh was given paperwork alleging that he was inadmissible for fraud or misrepresentation because he had supposedly claimed to be unmarried even though he was married. The complaint alleged that Saleh had never been married and that the government had not provided a factual basis for the finding. The Department of State later confirmed the denial under 8 U.S.C. § 1182(a)(6)(C)(i), based on material misrepresentation.

The plaintiffs asserted five claims: substantive due process, procedural due process, violation of the Immigration and Nationality Act, equal protection, and declaratory judgment.

Motion and governing rule

The government moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint states a legally sufficient claim. It argued that the doctrine of consular nonreviewability barred judicial review of the consular officer’s visa decision. That doctrine generally prevents courts from reviewing a consular officer’s decision to deny a visa. Under a narrow exception, a court may consider certain constitutional claims involving an American citizen if the government gives a facially legitimate and bona fide reason for the denial—that is, a reason that appears legitimate and was given honestly.

Court’s reasoning

The court first held that the doctrine barred the plaintiffs’ claim under the Administrative Procedure Act. Citing Ninth Circuit authority, the court stated that the Administrative Procedure Act does not provide a way to review a consular officer’s decision on the merits of a visa application.

The court then addressed the constitutional claims. It held that Saleh, as a foreign national, had no constitutional right to enter the United States and therefore could not challenge the visa denial on that basis. As to Saeed, the court held that she did not have a constitutionally protected liberty interest in the government’s decision whether to admit her noncitizen adult son. The court relied on Ninth Circuit precedent concerning family relationships and concluded that a parent does not have such an interest in the denial of an adult child’s visa.

Because the court concluded that neither plaintiff had the required constitutional interest and that the consular-review doctrine barred the Administrative Procedure Act claim, it determined that the plaintiffs’ claims had to be dismissed. The court did not decide whether Saleh actually misrepresented his marital status.

Disposition

Judge Thomas S. Hixson granted the motion to dismiss without leave to amend. The court stated that it would enter a separate judgment.