UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BAAN RAO THAI RESTAURANT, et al.,

Plaintiffs,

v. Civil Action No. 19-0058 (ESH)

MICHAEL R. POMPEO, Sec’y, Dep’t of State, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiffs are Baan Rao Thai Restaurant (“Baan Rao”), located in Minot, North Dakota,

and two Thai nationals, Somporn Phomson and Napaket Suksai, who worked as Thai cooks for

several years at Baan Rao on E-2 “essential employee” non-immigrant visas. (See Compl. ¶¶ 4-

6, 9-17, ECF No. 1.) Both Mr. Phomson and Ms. Suksai applied on two occasions in 2018 to

renew their visas. Their applications were rejected by the U.S. Embassy in Bangkok, Thailand.

Plaintiffs now seek review of the visa denials as arbitrary and capricious and contrary to law

under the Administrative Procedure Act (“APA”) and provisions of a treaty between the United

States and Thailand. Because the doctrine of consular nonreviewability precludes judicial

review of plaintiffs’ claims, the Court will grant defendants’ motion to dismiss.

BACKGROUND

Baan Rao has operated in Minot, North Dakota, since 2008. (See id. ¶ 4.) Ms. Suksai

received an E-2 visa and was admitted to the United States in E-2 status from 2010 to 2012,

during which time she worked at Baan Rao. (See id. ¶¶ 6, 10.) Mr. Phomson worked as a cook

at the restaurant for approximately six years, from 2012 until 2018. (See id. ¶¶ 5, 10-11.) Mr. Phomson was first granted an E-2 visa and admitted to the United States in 2012. (See id. ¶ 10.)

He successfully applied to the United States Citizenship and Immigration Services (“USCIS”) to

extend his E-2 visa status in 2014 and 2016. (See id.) In 2017, the USCIS California Service

Center denied Mr. Phomson’s application for an extension on the basis that he was not an

“essential” employee of Baan Rao. (See id. ¶ 11.) After Baan Rao challenged the decision in

federal court, USCIS reopened the application and approved the extension, which was valid until

October 1, 2018. (See id.)

In June 2018 Mr. Phomson and Ms. Suksai applied at the U.S. Embassy in Bangkok for

new E-2 visas as employees of Baan Rao, arguing that they are “employed . . . in a responsible

capacity” within the meaning of a treaty between the United States and Thailand, which is the

underlying authority for a Thai national to receive an E-2 visa. See Treaty of Amity and

Economic Relations, U.S.-Thail., art. I, ¶ 1, 19 U.S.T. 5843 (1968) (“U.S.-Thail. Treaty”). (See

also Compl. ¶¶ 12-13.) E-2 visas must be authorized by such a treaty. See

(a)(15)(E)(ii) (providing that an individual may seek entry into the United States under “a

treaty of commerce and navigation between the United States and the foreign state of which he is

a national . . . solely to develop and direct the operations of an enterprise. . . .”).

The Embassy denied both applications because they “did not meet all of the requirements

of an E-2 essential employee as specified in 9 FAM 402.9-7.” (Compl. ¶ 14 (citing U.S. Dep’t of

State Foreign Affairs Manual).) Mr. Phomson and Ms. Suksai reapplied in September 2018, and

included in their applications a statement from the owner of Baan Rao “explaining the shortage

of qualified Thai chefs in Minot, North Dakota.” (See

.) The applications again

were denied. (See

.)

2 Plaintiffs initiated this action on January 10, 2019. They bring two causes of action: (1)

a claim that defendants “erred as a matter of law and acted arbitrarily and capriciously in

denying” Mr. Phomson and Ms. Suksai’s E-2 visa applications, in violation of the APA (Count

I); and (2) an ultra vires claim that a treaty between the United States and Thailand bars

defendants’ requirement that those seeking E-2 employee visas must be “essential” to the

business (Count II). (See

.) Defendants have moved to dismiss, or in the alternative,

for a transfer of venue to federal court in North Dakota. (See Mem. of Points & Auth. in Support

of Defs.’ Mot. to Transfer or to Dismiss, ECF No. 7-1 (“Mot. to Dismiss”).) Plaintiffs opposed

(Pls.’ Mem. in Opp’n to Mot. to Dismiss or to Transfer Case, ECF No. 8 (“Opp’n”)), and

defendants filed a reply. (Defs.’ Reply to Opp’n to Mot. to Dismiss or to Transfer, ECF No. 10

(“Reply”).)

ANALYSIS

I. MOTION TO DISMISS

A. Count I – Administrative Procedure Act

In Count I, plaintiffs challenge the denials of their visa applications as contrary to law

and arbitrary and capricious in violation of the APA,

(2). Defendants argue that

the doctrine of consular nonreviewability bars judicial review of any claim for relief, and

therefore, the Court should dismiss for lack of subject-matter jurisdiction pursuant to Federal

Rule of Civil Procedure 12(b)(1). Plaintiffs bear the burden “to establish that the Court has

subject matter jurisdiction over the action.” Logan v. Dep’t of Veterans Affairs,

(D.D.C. 2004) (citing McNutt v. Gen. Motors Acceptance Corp. of Ind.,

(1936)).

3 Judicial review of visa denials by consular officials at United States Embassies, such as

the denials at issue here, is generally precluded under the broad and established doctrine of

consular nonreviewability. See Saavedra Bruno v. Albright,

(D.C. Cir.

1999) (“For the greater part of this century, our court has therefore refused to review visa

decisions of consular officials.”); see also Castaneda-Gonzalez v. INS,

, 428 n.25

(D.C. Cir. 1977) (explaining that a consular official may refuse to issue a visa to an alien

“without fear of reversal since visa decisions are nonreviewable”). This doctrine is rooted in the

separation of powers and the principle that it is “not within the province of any court, unless

expressly authorized by law, to review the determination of the political branch of the

Government to exclude a given alien.” Saavedra Bruno,

(quoting United States

ex rel. Knauff v. Shaughnessy,

(1950)). The doctrine precludes review even

where it is alleged that the consular officer failed to follow regulations, Burrafato v. Dep’t of

State,

(2d Cir. 1975); the applicant challenges the validity of the

regulations on which the decision was based, Ventura-Escamilla v. INS,

(9th Cir.

1981); or the decision is alleged to have been based on a factual or legal error. Loza-Bedoya v.

INS,

(9th Cir. 1969). 1

An APA challenge based on a consular official’s visa denial falls well within the scope of

the consular nonreviewability doctrine, as interpreted by the D.C. Circuit. See Saavedra Bruno,

; see also Van Ravenswaay v. Napolitano,

(D.D.C. 2009)

(holding that the APA “provides no basis for challenging consular visa decisions”). In Saavedra

1 Indeed, consular officers or the Secretary of State may in their discretion revoke visas at any time, and by federal statute such a revocation is completely exempt from judicial review “except in the context of a removal proceeding if such revocation provides the sole ground for removal[.]”

(i). 4 Bruno, the D.C. Circuit concluded that a visa denial or revocation by a consular officer was not

reviewable for factual errors on which the decision allegedly relied, because “the immigration

laws preclude judicial review of consular visa decisions.” Saavedra Bruno,

. In

rejecting the argument that an APA challenge constitutes an exception to the doctrine, the Court

stated:

There was no reason for Congress to say as much expressly. Given the historical background against which it has legislated over the years, . . . Congress could safely assume that aliens residing abroad were barred from challenging consular visa decisions in federal court unless legislation specifically permitted such actions. The presumption, in other words, is the opposite of what the APA normally supposes.

. Thus, in terms of a plaintiff’s right of review under the APA, “the doctrine of

consular nonreviewability—the origin of which predates passage of the APA”—constitutes a

limitation on judicial review.

; see also Allen v. Milas,

(9th Cir.

2018) (agreeing with the D.C. Circuit’s analysis, because to treat statutory claims as reviewable

under the APA would “convert[] consular nonreviewability into consular reviewability”).

Courts have, however, recognized narrow exceptions to this doctrine. One exists if a

constitutional violation is alleged. See Kleindienst v. Mandel,

(1972) (holding

that a narrow exception to consular nonreviewability exists for review of constitutional claims

where there is no “facially legitimate and bona fide” reason supporting deference to the consular

decision); see also, e.g., American Sociological Ass’n v. Chertoff,

(D. Mass.

2008) (finding a visa denial claim reviewable under Mandel for alleged constitutional violation,

but rejecting other claims under the APA and federal question statute as unreviewable because of

the doctrine of consular nonreviewability).

Here, plaintiffs point to case law carving out a second narrow exception to the doctrine of

consular nonreviewability wherever “Congress says otherwise”—i.e., clarifying that the doctrine

5 applies only in the absence “of any statute expressly authorizing judicial review of consular

officers’ actions.” Saavedra Bruno,

; see also Knauff,

(“[I]t is

“not within the province of any court, unless expressly authorized by law, to review the

determination of the political branch of the Government to exclude a given alien.”) (emphasis

added).

Plaintiffs argue that this exception applies here because a treaty between the United

States and Thailand contains the following language about access to courts:

Nationals . . . of either Party shall have free access to courts of justice and administrative agencies within the territories of the other Party, in all degrees of jurisdiction, both in the defense and in the pursuit of their rights. Such access shall be allowed on terms no less favorable than those applicable to nationals . . . of such other Party. . . .

U.S.-Thail. Treaty, art. II ¶ 2. Plaintiffs argue that this provision expressly entitles them to

judicial review to defend their rights under the Treaty, including the right to seek an employment

visa. Neither party has provided any authority to assist the Court in interpreting the language of

the Treaty to determine whether it permits judicial review of consular visa decisions involving

Thai nationals. 2 And, as best as can be determined, this is a case of first impression.

But an examination of the Treaty’s language reveals that it is not as expansive as

plaintiffs suggest. The Treaty provides for reciprocal “free access to courts of justice . . . on

terms no less favorable than those applicable to nationals” of either party. U.S.-Thail. Treaty,

art. II ¶ 2. This is known as a “national access” provision. See Pollux Holding Ltd. v. Chase

Manhattan Bank,

(2d Cir. 2003). In cases considering claims of forum non

2 Defendants’ sole argument on this point is that the Court previously dismissed another visa denial case pursuant to the doctrine of consular nonreviewability, even though a similar treaty existed with Iran. See Mostofi v. Napolitano,

(D.D.C. 2012). The question now before the Court, however, was not at issue in Mostofi, because no party raised an argument based on a treaty between the United States and Iran. 6 conveniens, national access provisions have been held to confer, on nationals of countries with

such treaties with the United States, a right to deference to plaintiffs’ choice of forum that is

comparable to the deference owed to a U.S. plaintiff. See

Such language cannot be read to create a right to judicial review where it would normally

be precluded. See, e.g., Pfizer, Inc. v. Lord,

, 619 n.9 (8th Cir. 1975) (in the context

of a dispute unrelated to visa denials, noting that national access language in a treaty with Iran

“merely guarantees access to United States courts on the same terms available to United States

nationals, not more favorable terms or additional remedies”). The U.S.-Thail. Treaty provides

for access to United States courts for Thai nationals on terms “no less favorable” than those

afforded U.S. nationals. But district courts routinely dismiss U.S. nationals’ lawsuits challenging

family members’ visa denials as unreviewable under the doctrine of consular nonreviewability.

See, e.g., Mostofi v. Napolitano,

(D.D.C. 2012) (consular nonreviewability

precluded the district court’s exercise of jurisdiction over United States citizen’s lawsuit

challenging denial of immigrant visa for her Iranian husband); Chun v. Powell,

(D.D.C. 2002) (dismissing as unreviewable claim that consular officer had failed to

follow procedure in refusing visitor’s visa to plaintiff’s sibling, a Korean national).

Article I of the U.S.-Thail. Treaty provides the conditions under which a Thai national

employed “in a responsible capacity” in an eligible business may seek an E-2 visa; it does not

establish an absolute right to receive such a visa, much less explicitly state that the established

doctrine of consular nonreviewability should not apply to these visa-seekers. U.S.-Thail Treaty,

art. I ¶ 1. And, although national access provisions exist in several treaties with other countries

(see Reply at 2 n.1 (citing treaties)), many courts have dismissed similar actions because of the

doctrine, including in cases in which a treaty has been raised as a source of authority, without

7 even addressing the applicability of such a provision to the doctrine of consular

nonreviewability. See, e.g,. Malyutin v. Rice, 677 F. Supp. 2d. 43 (D.D.C. 2009) (dismissing for

lack of subject-matter jurisdiction due to doctrine of consular nonreviewability, even though

complaint had alleged, inter alia, violation of “an international treaty”), summarily aff’d No. 10-

5015,

(D.C. Cir. July 6, 2010); Dargahifadaei v. Kerry, No. 3-12-CV-01942,

, at *1, *3 (N.D. Tex. Apr. 15, 2013) (denying APA challenge to denial of E-2

investor treaty visa based on the Treaty of Friendship and Commerce between the United States

and Iran at the Consulate General of the United States in Dubai, United Arab Emirates).

Given the strength of the doctrine of consular nonreviewability, the Court concludes that

the right to national access under the U.S.-Thail. Treaty is not the “express” exception that would

be necessary to overcome the presumption against reviewability. Knauff,

.

Plaintiffs also argue that the Court has jurisdiction pursuant to the federal question

statute,

, and the Declaratory Judgment Act,

. (See Opp’n at

4.) These arguments also fail. “The general federal-question statute does not itself give rise to a

right for relief.” Van Ravenswaay,

-6 (citing Mead Corp. v. United States,

(D.D.C. 1980) (“[S]ection 1331 does not itself create substantive rights or

causes of action . . . but only confers jurisdiction on the district courts to hear certain cases that

are supported by an independently created substantive cause of action[.]”), aff’d,

(D.C. Cir. 1980) (“We agree with the district court that [§ 1331 does not] provide [] an

independent basis of federal jurisdiction.”)). The Declaratory Judgment Act likewise is “not

cognizable where, as here, Plaintiff has no clear right to relief.” Van Ravenswaay,

(citing Schilling v. Rogers,

(1960) (holding that the Declaratory

Judgment Act “presupposes the existence of a judicially remediable right”)). Because plaintiffs

8 have not shown that the U.S.-Thail. Treaty provides rights sufficient to overcome the doctrine of

consular nonreviewability, these other arguments, like plaintiffs’ APA argument, fail to establish

that the Court has jurisdiction over the present dispute.

Given the breadth of the doctrine of consular nonreviewability, plaintiffs have not met

their burden to show that the Court has subject-matter jurisdiction over this claim.

B. Count II – Ultra Vires Requirement in Violation of U.S.-Thail. Treaty

Plaintiffs also argue that consular nonreviewability does not bar this action “because it

does not challenge any particular visa decision but rather whether the Department of State’s

regulations properly interpret the treaty and use the proper legal standard.” (Opp’n at 4.) This

argument is based on plaintiffs’ complaint that the State Department is improperly imposing as

an E-2 visa requirement that an employee must be “essential.” 9 Foreign Affairs Manual

§ 402.9-7(C)(a), available at https://fam.state.gov/Fam/FAM (employees who qualify for E-2

visas under State Department regulations include those who “have special qualifications that

make the service to be rendered essential to the efficient operation of the enterprise”). (See also

Compl. ¶ 22 (quoting this provision).)

So-called “E visas,” including those for employees, must be provided for by treaty. The

statute providing for E-2 visas explains that a foreign national may enter the United States

temporarily as a non-immigrant visitor if he or she is

entitled to enter the United States under and in pursuance of a treaty of commerce and navigation between the United States and the foreign state of which he is a national . . . solely to develop and direct the operations of an enterprise in which he has invested, or is actively in the process of investing, a substantial amount of capital.

(a)(15)(E)(ii). For Thai nationals, this includes “developing and directing the

operations of an enterprise” in which “the applicant is employed by such national or company in

9 a responsible capacity.” U.S.-Thail. Treaty, art. 1 ¶ 1. Based on these provisions, plaintiffs

argue that the U.S.-Thail. Treaty requires only that an employee be employed “in a responsible

capacity,” and that the State Department has imposed the “essential” requirement without legal

authority to do so. (Compl. ¶ 28.)

Contrary to plaintiffs’ contentions, their action squarely challenges the denial of

plaintiffs’ visa applications. The Complaint alleges that the State Department “acted arbitrarily

and capriciously in denying the E-2 essential employee visa applications,” and that Mr. Phomson

and Ms. Suksai “meet the requirements for this visa” and it should have been granted to them.

(Id. ¶¶ 24-25.) Plaintiffs explicitly ask the Court to order defendants to reverse the decision to

deny the visas. (See

, Prayer for Relief ¶ 2.) As explained supra, the law is clear that the

doctrine of consular nonreviewability “applies where a plaintiff attempts to circumvent the

doctrine by claiming that he is not seeking a review of the consular officer’s decision, but is

challenging some other, related aspect of the decision.” Malyutin, 677 F. Supp. 2d at 46; see

also Ventura-Escamilla,

(finding a consular official’s visa determination not subject

to review even though the applicant challenged the validity of the regulations on which the

decision was based). Plaintiffs’ ultra vires argument therefore fails.

II. MOTION TO TRANSFER

Because the Court grants defendants’ motion to dismiss based on the doctrine of consular

nonreviewability, the Court need not reach defendants’ alternative argument that this matter

should be transferred to another venue. See, e.g., Sinochem Int’l Co. Ltd. v. Malaysia Int’l

Shipping Corp.,

(2007) (“If . . . a court can readily determine that it lacks

jurisdiction over the cause or the defendant, the proper course would be to dismiss on that

ground [before turning to forum non conveniens considerations].”).

10 CONCLUSION

For the foregoing reasons, the Court grants defendants’ motion to dismiss, denies as moot

defendants’ motion to transfer, and dismisses without prejudice plaintiffs’ complaint. A

memorializing order accompanies this Memorandum Opinion.

ELLEN SEGAL HUVELLE United States District Judge Date: July 29, 2019

11