Hettiarachchige v. Bitter

Background

Anupama Deupathy Hettiarachchige and Keshani Rozaine Malmi De Silva Liyanaralalage brought the action against Attorney General Merrick Garland, Secretary of State Antony Blinken, and other State Department officials. The plaintiffs alleged violations of the Administrative Procedure Act and sought an order requiring the defendants to adjudicate Liyanaralalage’s visa application.

Hettiarachchige filed a Form I-130 petition for a relative on behalf of Liyanaralalage. After the petition was approved, it and the required documents and fees were sent to the Department of State’s National Visa Center, which received the application on July 18, 2019. Liyanaralalage attended an immigrant-visa interview at the U.S. Consulate in Colombo, Sri Lanka, on February 18, 2020. The visa application was refused. She later provided documents requested by the consulate.

The plaintiffs and their counsel made multiple inquiries to the consulate, Senator Kirsten Gillibrand’s office, and LegalNet. The responses indicated that the application remained under review. On January 31, 2022, LegalNet informed counsel that the application was undergoing administrative processing. Hettiarachchige last emailed the consulate on March 27, 2022, and had not received a response when the action was filed on May 5, 2022.

Defendants’ Motion

The defendants moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Rule 12(b)(1) concerns the court’s subject-matter jurisdiction—the court’s power to hear the case. Rule 12(b)(6) concerns whether the complaint states enough facts to support a legally valid claim.

The defendants argued that the action was not one a court could decide under the doctrine of consular nonreviewability. That doctrine generally prevents courts from reviewing a consular officer’s decision to deny a visa. The opinion notes that the Court of Appeals for the Second Circuit has not clearly stated whether the doctrine is a jurisdictional rule or a prudential limitation, but has stated that courts will not interfere with the visa-issuing process.

The plaintiffs argued that the doctrine should not apply because they sought to compel the State Department to adjudicate the application, rather than challenge a decision denying the visa.

Ruling

The court granted the defendants’ July 13, 2022 motion to dismiss. It held that consular nonreviewability applies when plaintiffs ask a court to compel adjudication of a visa application. The court therefore ruled that it lacked jurisdiction to provide the requested relief and that the action was not legally justiciable, meaning the court could not decide it.

The court rejected the plaintiffs’ distinction between seeking adjudication and challenging a visa denial, calling the distinction ineffective under Second Circuit law. The court did not address the defendants’ additional arguments that the complaint alleged no claims against Garland and that the plaintiffs lacked standing, because it found the claims not legally justiciable.

The Clerk of Court was directed to enter judgment for the defendants and close the case.