Qadar v. Dept. of Homeland Security

Background

Manzoor Qadar, a citizen of the United Kingdom who was incarcerated at the Federal Correctional Institution in Otisville, New York, alleged that consular officials had denied visa requests made by his wife and children, who are also citizens of the United Kingdom, to visit him. He also alleged that the Department of Justice’s International Prisoner Transfer Unit had repeatedly denied his requests to transfer him to the custody of the United Kingdom so that he could serve the rest of his sentence closer to his family.

Qadar alleged that his family members’ visa applications were denied after a 2013 interview at the United States Embassy in London. He alleged that John Doe #1, the consular officer who conducted the interview, demanded that Qadar’s wife remove her headscarf. The applications were initially refused subject to additional processing and were later denied under a provision of the Immigration and Nationality Act concerning terrorist activities. The opinion noted that it was unclear whether John Doe #1 was the official who issued the later denials.

The International Prisoner Transfer Unit’s most recent denial letters stated that the transfer was refused because of the seriousness of Qadar’s offense and law-enforcement concerns. The letters also stated that he could reapply every two years, but that a different decision was unlikely without a substantial change in the reasons supporting the denial.

Claims and motion

Qadar’s Second Amended Complaint asserted First Amendment religious-exercise and Fifth Amendment due-process claims concerning the visa denials. It also asserted claims under the Administrative Procedure Act and the Religious Freedom Restoration Act. Qadar brought a damages claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics against the Secretary of State, the Department of State, and John Doe #1. Concerning the transfer denials, he asserted due-process and Administrative Procedure Act claims and sought an order requiring the government to transfer him.

The defendants moved to dismiss. They argued that the doctrine of consular non-reviewability barred the visa challenges, that the Bivens claims against the Secretary of State and the Department of State were not legally viable, that John Doe #1 had not been properly served, and that Qadar lacked standing to challenge the transfer decisions.

Visa claims

The court explained that consular non-reviewability generally prevents courts from reviewing a consular officer’s visa decision. A narrow exception may permit review of constitutional claims, but the court did not decide whether that exception was available to Qadar as a noncitizen because his claims failed for other reasons.

The court dismissed the First Amendment claim under Federal Rule of Civil Procedure 12(b)(6), which allows dismissal for failure to state a legally sufficient claim. Qadar alleged that the visa denials interfered with his religious exercise, but the court found that the alleged demand concerning the headscarf implicated his family members’ religious exercise rather than Qadar’s own rights. The court also dismissed the due-process claim. It found that Qadar had not established a protected liberty interest in having his noncitizen wife and adult children receive visas so they could visit him while he was incarcerated.

The court held that Qadar’s Administrative Procedure Act and Religious Freedom Restoration Act challenges to the visa denials fell outside the constitutional exception to consular non-reviewability and were not legally cognizable. The opinion also noted that Qadar did not address the defendants’ argument that those claims had been abandoned.

Bivens claims against the Secretary of State and Department of State

The court dismissed these claims for lack of subject-matter jurisdiction. A Bivens claim is an implied constitutional damages claim against a federal officer for the officer’s own actions. The court explained that such a claim must be brought against an official in an individual capacity, not against a federal agency or an official in an official capacity, and that officials cannot be held liable merely because of their supervisory position over others.

Qadar named former Secretary of State Mike Pompeo only in his official capacity and alleged that Pompeo and the Department of State were liable under a supervisory-liability theory. The court held that sovereign immunity barred those claims. It did not decide at that point whether a Bivens remedy could otherwise be extended to the circumstances alleged against John Doe #1.

Transfer claims

The court dismissed Qadar’s due-process and Administrative Procedure Act claims concerning transfer to the United Kingdom. It held that the Transfer Act and the Convention on the Transfer of Sentenced Persons gave the Attorney General broad discretion and provided no particular standards or criteria governing transfer decisions. Because of that lack of standards, Qadar had not shown a legally protected interest in being transferred and therefore lacked constitutional standing.

The court also held that Qadar lacked prudential standing because neither the Convention nor the Transfer Act created a private right allowing an individual to compel a transfer. The Convention required the agreement of the prisoner and both countries; it did not require either country to approve a transfer.

The court further held that the transfer decision was committed to agency discretion under the Administrative Procedure Act because there was no meaningful legal standard by which a court could review it. Mandamus relief was also unavailable. Mandamus is an extraordinary court order requiring an official to perform a clear, nondiscretionary duty, and the Transfer Act imposed no duty requiring the Attorney General to approve Qadar’s request.

Claims against John Doe #1 and disposition

John Doe #1 was sued in both official and individual capacities, but the docket showed that he had not been served. The court ordered Qadar to show cause in writing by April 23, 2021, why the claims against John Doe #1 should not be dismissed for failure to serve. The court did not decide at that time whether those claims should be dismissed, and it also did not decide whether a statute of limitations problem barred Qadar’s Bivens claim against John Doe #1.

Judge Katherine Polk Failla granted the defendants’ motion to dismiss in full as to the claims against the Secretary of State, the Department of State, the Attorney General, and the Department of Justice International Prisoner Transfer Unit. Those claims were dismissed with prejudice. The court closed the case only as to those defendants and left the claims against John Doe #1 unresolved pending Qadar’s response to the order to show cause.