UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ZAHRA ABOUTALEBI,

Plaintiff,

v. Civil Action No. 19-2605 (TJK)

DEPARTMENT OF STATE et al.,

Defendants.

MEMORANDUM OPINION

Zahra Aboutalebi, an Iranian citizen, brought this action to challenge Defendants’ failure

to adjudicate her visa application; she also alleged that any later denial would be unlawful. She

subsequently moved for a preliminary injunction to compel Defendants to adjudicate her

application. Defendants have since denied her application. For that reason, they argue that the

Court lacks subject-matter jurisdiction because Aboutalebi’s claims are either moot or

unreviewable under the doctrine of consular nonreviewability. As explained below, the Court

agrees and will dismiss the case for lack of subject-matter jurisdiction.

Background

A. The Complaint

Aboutalebi is an Iranian citizen pursuing a Doctor of Juridical Science at Harvard Law

School. ECF No. 1 (“Compl.”) ¶ 2. She began her studies in 2013 and was scheduled to resume

them in fall 2018. Id. ¶ 6. To do so, she needed a J-1 Visa, which she applied for at the U.S.

Embassy in London in May 2018. Id. ¶¶ 13, 24. By August of the following year, her

application was allegedly still “in administrative processing pending final adjudication.” Id.

¶ 25. And with the start of the next school year approaching, she sued the Department of State, Michael Pompeo in his official capacity as Secretary of State, the U.S. Embassy and Consulate in

London, and Karen Ogle in her official capacity as Consular General at the U.S. Embassy in

London. Id. ¶¶ 7–10, 19. She alleges that Defendants were unreasonable in delaying her visa

because they inappropriately applied “President Trump’s extreme vetting policy” to her. Id.

¶¶ 42–44. She claims this delay jeopardizes her ability to complete her studies and will cause

her to lose scholarships and grants. Id. ¶¶ 54–60.

Aboutalebi asserts five causes of action. Counts I and II allege that the government acted

unlawfully in various ways by delaying the adjudication of her application. Id. ¶¶ 72–92. Count

III asks the Court to declare that she is eligible for a visa and to “order the Defendants to

adjudicate and promptly issue the J-1 Visa to the Plaintiff.” Id. ¶¶ 93–95. Count IV

preemptively alleges that any subsequent adverse final decision on her application would be “a

retaliatory act designed to moot this lawsuit and avoid judicial review” in violation of the

Administrative Procedure Act (APA). Id. ¶¶ 96–102. And Count V alleges that Defendants

violated the APA by not allowing counsel to appear with her during various stages of the

application process. Id. ¶¶ 103–116.

B. Aboutalebi’s Motion for a Preliminary Injunction

About two weeks after filing suit, Aboutalebi moved for a preliminary injunction, or, in

the alternative, for a temporary restraining order. ECF No. 4. 1 In her motion, she reiterated that

“[s]he [would] lose her position as an S.J.D. Candidate as well as her grants and scholarships, if

Defendants do not promptly issue her J-1 visa.” ECF No. 4-1 at 2. And she specifically asked

1 The Court denied her motion to the extent that it sought a temporary restraining order, finding that she had failed to show why she was “likely to suffer irreparable harm absent judicial intervention before the Court resolves the motion for preliminary injunction.” Minute Order of September 11, 2019.

2 this Court “to direct the Defendants to immediately complete the processing of her J-1 visa . . .

so that she can travel to the U.S. and continue her S.J.D. program without further harm or

interruption.” Id. Defendants opposed the motion, arguing in part that the doctrine of consular

nonreviewability barred judicial review of these matters. ECF No. 7 (“Opp’n”) at 10–13 (citing

in part Saavedra Bruno v. Albright,

, 1158–60 (D.C. Cir. 1999)). And in response,

Aboutalebi argued that that doctrine—even assuming it existed—did not apply in her case

because Defendants had not finally adjudicated her visa. ECF No. 8 (“Reply”) at 5 (citing in part

Nine Iraqi Allies Under Serious Threat Because of Their Faithful Serv. to the United States v.

Kerry,

(D.D.C. 2016)).

C. Defendants’ Denial of Aboutalebi’s Visa Application

In responding to Aboutalebi’s motion, Defendants were unclear about the precise status

of her application. On the one hand, in addition to arguing that her claims were barred by the

doctrine of consular nonreviewability, Defendants argued that they were moot because a decision

on her application had already been rendered. See Opp’n at 13–14. On the other hand,

Defendants represented that the State Department “expect[ed] that a consular officer in the U.S.

Embassy in London [would] further adjudicate Plaintiff’s visa application in the next month.”

Id. at 3 (noting also that Aboutalebi’s “application remains refused”). In any event, in response

to an Order from the Court, they subsequently reported that the U.S. Embassy in London had

notified Aboutalebi that she had been found “ineligible for a visa under Section 212(f) of the

Immigration and Nationality Act, pursuant to Presidential Proclamation 9932.” ECF No. 9 at 1.

That proclamation suspended entry into the United States for senior Iranian government officials

and their immediate family members. Suspension of Entry as Immigrants and Nonimmigrants of

Senior Officials of the Government of Iran, Proclamation 9932,

(Sept. 25,

3 2019). The notification letter sent to Aboutalebi explicitly referenced the proclamation and made

clear that the decision was “final” and could not be appealed. ECF No. 9-1.

The Court then ordered both parties to file supplemental briefing addressing whether

these developments affected the Court’s jurisdiction or otherwise precluded judicial review.

Minute Order of November 6, 2019. Aboutalebi filed a supplemental brief in support of her

motion for a preliminary injunction, ECF No. 10 (“Supp. Br.”); Defendants’ filed a supplemental

opposition, ECF No. 11 (“Supp. Opp’n”); and Aboutalebi replied, ECF No. 12 (“Supp. Reply”).

Legal Standard

“Federal courts are courts of limited jurisdiction,” and they must assume that they lack

subject-matter jurisdiction over a claim. Kokkonen v. Guardian Life Ins. Co. of Am.,

(1994). The party asserting subject-matter jurisdiction bears the burden of

demonstrating it by a preponderance of the evidence. Stephens v. United States,

(D.D.C. 2007). And under Federal Rule of Civil Procedure 12(h)(3), “[i]f the court

determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the

action.” See also Arbaugh v. Y&H Corp.,

(2006).

Analysis

The Court’s analysis starts and ends with subject-matter jurisdiction. Because the Court

lacks jurisdiction over each of Aboutalebi’s claims in the complaint, it must dismiss this case in

its entirety.

A. Counts I–III and V

Federal courts lack subject-matter jurisdiction to hear claims that are moot. Conservation

Force, Inc. v. Jewell,

(D.C. Cir. 2013). A case is moot if “a party has

already ‘obtained all the relief that [it has] sought.’” Conservation Force,

(alteration in original) (quoting Monzillo v. Biller,

(D.C. Cir. 1984)). In

4 addition, a “case is moot if events have so transpired that the decision will neither presently

affect the parties’ rights nor have a more-than-speculative chance of affecting them in the

future.” Transwestern Pipeline Co. v. F.E.R.C.,

, 575 (D.C. Cir. 1990).

Defendants argue that the first, second, third (in part) and fifth counts in Aboutalebi’s

complaint, see Compl. ¶¶ 72–92, 95, 103–116, are moot because the U.S. Embassy in London

recently issued a final decision denying her visa application. See Supp. Opp’n at 3–5. The Court

agrees. Aboutalebi’s first two counts—and part of her third—complain that Defendants have not

adjudicated her visa. Defendants have now done that. See ECF No. 9-1. Thus, she has received

the precise relief she sought, and these claims must be dismissed as moot. In her fifth count, she

asserts that Defendants violated the APA by not allowing counsel to appear with her during

various stages of the application process. That claim is also moot, because the application

process has concluded, nothing in the record suggests that additional interviews—or proceedings

of any kind—are likely, and, as discussed below, the Court may not disturb the result of the now-

concluded process. As a result, a decision on that claim would “neither presently affect the

parties’ rights nor have a more-than-speculative chance of affecting them in the future,”

Transwestern Pipeline Co., 897 F.2d at 575. 2

2 The Court notes that Aboutalebi has not argued that any exception to the mootness doctrine applies. As the party defending against a mootness challenge, Aboutalebi “bears the burden of showing an exception applies.” Honeywell Int’l, Inc. v. Nuclear Regulatory Comm’n,

(D.C. Cir. 2010). She has not alleged, for example, that this claim is subject to the “capable of repetition yet evading review” exception to the mootness doctrine. See Del Monte Fresh Produce Co. v. United States,

(D.C. Cir. 2009). Neither has she pleaded facts to suggest that she will experience a continuing or future injury such that she could continue to seek declaratory relief. See City of Houston v. Dep’t of Hous. & Urban Dev.,

, 1428–30 (D.C. Cir. 1994). For example, she did not allege in the complaint that she planned to apply for another visa if her application were denied, nor has she indicated, in any later filing, any plans to do so.

5 B. Counts III and IV

Under the doctrine of consular nonreviewability, federal courts lack subject matter

jurisdiction over a consular official’s decision to issue or withhold a visa. As the D.C. Circuit

has explained, “a consular official’s decision to issue or withhold a visa is not subject to judicial

review, at least unless Congress says otherwise.” Saavedra Bruno,

. The

doctrine operates out of respect for “the political nature of visa determinations,”

and

acknowledges that “[c]onsular officers have complete discretion over issuance and revocation of

visas,”

at 1158 n.2. It “predates passage of the APA,” and therefore “represents one of the

‘limitations on judicial review’ unaffected by [5 U.S.C.] § 702’s opening clause granting a right

of review to persons suffering ‘legal wrong’ from agency action.” Id. at 1160. The doctrine

sweeps wide and deep. It precludes judicial review “even where it is alleged that the consular

officer failed to follow regulations, where the applicant challenges the validity of the regulations

on which the decision was based, or where the decision is alleged to have been based on a factual

error.” Van Ravenswaay v. Napolitano,

(D.D.C. 2009) (quoting Chun v.

Powell,

(D.D.C. 2002)). And if Aboutalebi’s “claims are barred by the

doctrine of consular non-reviewability,” then “the Court has no subject-matter jurisdiction to

hear the case.” Jathoul v. Clinton,

(D.D.C. 2012); see also Singh v.

Tillerson,

(D.D.C. 2017).

Aboutalebi preemptively alleges in her complaint that any later denial of her visa

application would violate the APA. Compl. ¶¶ 97–100. In part of count three and count four,

she asks the Court to declare that she is, in fact, entitled to a visa. Id. ¶¶ 94, 102. 3 But under the

3 Aboutalebi also asks that Defendants be ordered to “allow her to attend Harvard Law School without further delay or arbitrary and capricious interruptions” if they should deny her application. Id. ¶ 101. But to the extent that she asks the Court to order Defendants to issue her

6 doctrine of consular nonreviewability, the Court lacks subject-matter jurisdiction to review

Defendants’ decision to deny her application, and these claims must be dismissed. 4

Aboutalebi makes several attempts to sidestep this doctrine. 5 First, she appears to

question its force by arguing that the Supreme Court has neither endorsed the doctrine nor

applied it to dismiss a case for lack of jurisdiction. See Supp. Br. at 2. She also points to Trump

v. Hawaii, id., in which the Supreme Court “assume[d] without deciding that plaintiffs’ statutory

claims are reviewable, notwithstanding consular nonreviewability or any other statutory

nonreviewability issue,”

(2018). But the Court may not so gingerly

leapfrog controlling precedent. “[D]istrict judges, like panels of [the D.C. Circuit], are obligated

to follow controlling circuit precedent until either [the Circuit], sitting en banc, or the Supreme

Court, overrule it.” United States v. Torres,

(D.C. Cir. 1997). And an

intervening Supreme Court decision “effectively overrules” controlling precedent only if it

“eviscerates” the prior precedent such that the two cases are “incompatible.” Perry v. Merit Sys.

Prot. Bd.,

(D.C. Cir. 2016) (quoting United States v. Williams,

,

a visa, it has no power to do so. City of New York v. Baker,

(D.C. Cir. 1989) (“This circuit has recognized, as has every other circuit to consider the issue, that the courts are without authority to displace the consular function in the issuance of visas.”). 4 Even if the Court could somehow review the decision to deny her visa application, it would still have to dismiss the case for lack of standing. Van Ravenswaay,

(noting the “long line of cases explaining that non-resident aliens lack standing to challenge the determinations associated with their visa applications, which belong to the political and not judicial branches of government”). 5 Aboutalebi has not argued that any of the very narrow exceptions to the doctrine apply in her case. See Baan Rao Thai Rest. v. Pompeo, No. CV 19-0058 (ESH),

, at *3 (D.D.C. July 29, 2019) (discussing exceptions); see also Udugampola v. Jacobs,

(D.D.C. 2011) (noting that “this Circuit has been very clear that the doctrine of consular nonreviewability is the rule not the exception”).

7 105 (D.C. Cir. 1999)), rev’d on other grounds,

(2017). Whatever may be said of

the above language in Trump v. Hawaii, it does not “eviscerate” Saavedra Bruno, which

continues to be applied by other courts in this District. See, e.g., Rohrbaugh v. Pompeo,

, 131 (D.D.C. 2019).

Aboutalebi’s other arguments fare no better. She spends considerable time explaining

why Defendants’ denial is unlawful. For example, she argues that Proclamation 9932 is not a

valid basis to deny her visa application because it concerns “suspension of entry,” which she

argues is separate from a finding of ineligibility for a visa. See Supp. Br. at 3–5; Supp. Reply at

2–4. The proclamation, she argues, “temporarily pauses the physical entry of a class of aliens,”

but it does not render them “ineligible for a visa.” See Supp. Br.at 4. But that distinction, even if

accurate, makes no difference here, because Aboutalebi’s claims challenge the reason for the

denial of her specific visa application, which is prohibited by the doctrine. Saavedra Bruno,

.

Aboutalebi also argues that a consular officer did not make the decision in her case, and

as a result, it is not covered by the doctrine. See Supp. Br. at 10. But Defendants represent that

her “visa application was finally adjudicated by a consular officer in the Nonimmigrant Visa

Unit of the U.S. Embassy in London,” Supp. Opp’n at 7, and there appears no reason to question

their representation. Indeed, by law consular officers are the only persons empowered to issue or

deny J-1 visas. See

(a)(9), 1103(a)(1), 1104(a), 1201(a)(1);

;

see also Garcia v. Baker,

(N.D. Ill. 1990) (“Neither the Attorney General

nor the Secretary of State can require consular officers to grant or deny visa applications, and

they are without power to issue visas.”); Shen v. U.S. Consulate Gen. at Shanghai,

(S.D.N.Y. 1994). Aboutalebi pivots in her Supplemental Reply to argue that a

8 consular officer could not have adjudicated her application because the proclamation instructs

that “the Secretary of State, or the Secretary’s designee” must identify persons covered by the

proclamation. Supp. Reply at 5. But there is no reason why the Secretary could not have

designated a consular officer to do so. And even if the Secretary or some other official identified

persons covered by the proclamation, there remains no reason to doubt, as Defendants represent,

that a consular officer made the subsequent decision regarding Aboutalebi’s specific visa

application. Thus, the Court lacks the power to review it. Saavedra Bruno,

.

Aboutalebi also argues that her case is distinguishable from Saavedra Bruno because,

unlike in that case, “the alleged basis of ineligibility is not a statutory basis for ineligibility at

all.” Supp. Br. at 10. But, as Defendants point out, the reasoning supporting the doctrine is not

so cabined. See Supp. Opp’n at 7–8. The doctrine is grounded in deference to the political

branches’ power to determine who may enter the country. Saavedra Bruno, 197 F.3d at 1158–

59. As the Saavedra Bruno court instructed, 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)). Aboutalebi has not pointed to any law

that would permit this Court to review her visa denial.

Finally, Aboutalebi argues that her father is not a “senior official of the Government or

Iran” under Iranian law and that she is not his “immediate family member” as properly

understood under U.S. law. See Supp. Br. at 5–8, 10–11. For that reason, she argues, the

proclamation does not apply to her. Id. at 11. But again, Aboutalebi asks the Court to do what it

cannot: review a consular officer’s adjudication, whatever its underlying merits. Chun,

.

9 Conclusion

Since Aboutalebi filed her complaint, Defendants have denied her visa application,

mooting several of her claims. And under controlling precedent, the Court cannot review that

final decision under the doctrine of consular nonreviewability. For these reasons, the Court thus

lacks subject-matter jurisdiction over her case and must dismiss it. A separate order will issue.

SO ORDERED.

/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge

Date: December 18, 2019

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