Tharmabalan v. Blinken

Background

Rajapoopathy Tharmabalan and her daughter, Tharmika Tharmabalan, brought claims under the Immigration and Nationality Act, the Administrative Procedure Act, the Mandamus Act, and the Fifth Amendment. They sought an immigrant visa for Tharmika based on her relationship with Rajapoopathy. The plaintiffs asked the court either to reverse the State Department’s visa decision or to require the Department to reconsider the application.

Rajapoopathy is a Sri Lankan citizen who has lived in New York as a lawful permanent resident since October 13, 2015. Tharmika is also a Sri Lankan citizen and lives in Sri Lanka. The visa process began in March 2016. United States Citizenship and Immigration Services approved Tharmika’s family petition on July 7, 2016, after which the petition was sent to the National Visa Center for further processing.

Tharmika was interviewed at the United States Embassy in Colombo, Sri Lanka, on July 26, 2018, but was not issued a visa. The consulate requested proof of Rajapoopathy’s residence in the United States. The plaintiffs submitted documents including identification, immigration records, financial records, a lease, and medical records. After additional communications and submissions, including hospital invoices, the consulate eventually issued a visa refusal citing the statutory provision barring visas for people likely to become a public charge.

The plaintiffs filed this action on April 27, 2023. The consulate issued the purported denial on August 24, 2023, according to the background section of the opinion. The amended complaint was filed on October 11, 2023. The Government moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), for lack of subject-matter jurisdiction, and Rule 12(b)(6), for failure to state a claim.

Consular nonreviewability

The court explained that the doctrine of consular nonreviewability generally prevents judicial review of a consular officer’s decision to deny a visa. Although the parties and case law differed over whether the doctrine is technically jurisdictional or instead concerns justiciability, the court concluded that the doctrine barred review of the claims here and analyzed dismissal under Rule 12(b)(6).

The plaintiffs argued that a narrow constitutional exception applied. That exception permits limited review when a visa denial allegedly burdens the constitutional rights of a United States citizen. The court held that the exception did not apply because neither plaintiff is a United States citizen. The court therefore rejected the plaintiffs’ argument based on the Fifth Amendment.

Delay and reconsideration claims

The plaintiffs also argued that they were challenging the consulate’s delay in deciding the application, rather than the visa denial itself. The court stated that courts in the Second Circuit apply consular nonreviewability to claims seeking to compel an official to decide a visa application. In addition, the court held that any claim based on delay was moot—meaning that the requested relief could no longer affect the parties—because the consular officer had issued a final decision.

The plaintiffs separately argued that the consulate failed to reconsider the application under 22 C.F.R. § 42.81(e). That regulation requires reconsideration when an applicant, within one year after a refusal, submits further evidence tending to overcome the reason for ineligibility. The court accepted the plaintiffs’ position that the relevant refusal was the later written refusal, which the opinion discusses as occurring on August 23, 2023, because the Government had not identified another written notice specifying the statutory ground for denial. The court also assumed, for purposes of analysis, that failure to comply with the regulation could support a request for a court order.

Even under those assumptions, the court found that the complaint did not state a claim. The plaintiffs did not allege that they submitted further evidence after August 23, 2023, or that the Government required an additional fee before considering such evidence. The hospital records were submitted in 2020, before the refusal, so they did not satisfy the regulation’s requirement for further evidence submitted after the refusal.

Disposition

Judge Gabriel W. Gorenstein held that the complaint failed to state a claim for relief. The court granted the Government’s motion to dismiss under Rule 12(b)(6), directed the Clerk to enter judgment, and rejected the request for limited discovery because discovery could not overcome the legal doctrines that barred the claims. The opinion does not state that the dismissal was with or without prejudice.