UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ARISTEIDIS POLYZOPOULOS, et al., Plaintiffs v. Civil Action No. 20-0804 (CKK) MERRICK GARLAND, et al., Defendants

MEMORANDUM OPINION (April 14, 2021)

In 2019, Colonial Marble determined that it would like to hire Mr. Aristeidis Polyzopoulos,

a foreign national residing in Greece. To secure employment authorization for Mr. Polyzopoulos,

Colonial Marble filed an I-140 petition on his behalf with the United States Citizenship and

Immigration Services (“USCIS”). After USCIS initially approved the I-140 petition, Mr.

Polyzopoulos appeared for a consular interview at the United States Embassy in Athens, Greece.

A consular officer with the State Department, however, denied Mr. Polyzopoulos’s application for

an immigrant visa, and, shortly thereafter, USCIS revoked its original approval of Colonial

Marble’s I-140 petition on behalf of Mr. Polyzopoulos.

In response, Colonial Marble and Mr. Polyzopoulos (collectively, “Plaintiffs”) have now

filed a civil action against the United States Attorney General, the Secretary of the Department of

Homeland Security, the Acting Director of USCIS, the Secretary of State, and the U.S. Consul

General of the U.S. Embassy in Athens (collectively, “Defendants”), to challenge (1) USCIS’s I-

140 petition revocation and (2) the State Department’s denial of Mr. Polyzopoulos’s visa

application. Now pending before the Court, is Defendants’ [16] Motion to Dismiss Plaintiffs’

Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Upon

1 consideration of the briefing, the relevant authorities, and the record as a whole, 1 the Court will

GRANT Defendants’ Motion and DISMISS Plaintiffs’ Amended Complaint in its entirety.

I. BACKGROUND

A. Statutory Framework

This case involves Plaintiffs’ attempt to secure employment authorization for Mr.

Polyzopoulos, a foreign national from Greece. See Am. Compl. ¶¶ 10–34. Under the Immigration

and Nationality Act (“INA”),

et seq., companies attempting to permanently

employ alien workers must generally follow a three-step process. See Raval v. USCIS,

(D.D.C. 2019). First, the American employer must identify the alien worker as

eligible “for an open and advertised position,” and then “ask[] the Secretary of Labor to certify

that (1) the employer attempted to recruit U.S. workers in good faith; (2) no U.S. worker is

qualified, able, willing, or available for such employment; and (3) employing the alien worker will

not adversely affect U.S. wages or working conditions.” IQ Sys., Inc. v. Mayorkas,

(D.D.C. 2009) (citing

(a)(5) and

(a) & (c)).

Second, “[o]nce the [labor] certification is obtained, the employer must [then] submit the

certification along with an I-140 visa petition to [] USCIS on behalf of the non-citizen worker,

who is known as the ‘beneficiary’ to the petition.” Vemuri v. Napolitano,

(D.D.C. 2012) (quoting

(l)(1)). In support of its I-140 petition, the employer must

demonstrate that the beneficiary meets the requisite job requirements and that the employer can

1 The Court’s consideration has focused on the following briefing and material submitted by the parties: • Am. Compl., ECF No. 13; • Defs.’ Mem. of Law in Supp. of Mot. to Dismiss Am. Compl. (“Defs.’ Mot.”), ECF No 16-1; • Pls.’ Resp. to Defs.’ Mot. to Dismiss (“Pls.’ Opp’n), ECF No. 17; and, • Defs.’ Reply in Supp. of its Mot. to Dismiss, ECF No. 18. In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of assistance in rendering a decision. See LCvR 7(f).

2 pay the beneficiary the wages specified in its labor certification. See

(citing

(l)(3)(ii), 204.5(g)(2)). The petitioner ultimately bears the burden of establishing to USCIS

the beneficiary’s eligibility for the requested immigration benefit, by a preponderance of the

evidence. See

.

Third, if USCIS approves the I-140 petition, a non-citizen beneficiary residing outside of

the United States must then apply for a consular visa with the State Department, to provide for his

admission into the United States. See

(a), 1182(a)(7), 1201(a)(1). 2 “The INA

confers upon consular officers exclusive authority to review applications for visas.” Saavedra

Bruno v. Albright,

(D.C. Cir. 1999) (citing

(a), 1201(a)); see

also

. Under State Department regulations, a consular officer generally must either

grant or refuse a visa application, see

, and, by statute, a consular officer shall

not issue a visa to an alien “if . . . it appears to the consular officer, from statements in the

application, or in the papers submitted therewith, that such alien is ineligible to receive a visa or

such other documentation under section 1182 of this title, or any other provision of law,”

(g). A consular officer may also return a petition to USCIS “if the officer knows or has

reason to believe that approval of the petition was obtained by fraud, misrepresentation, or other

unlawful means.”

(a). In turn, USCIS “may, at any time, for what [it] deems

good and sufficient cause, revoke the approval of” an I-140 petition.

; see also

Raval,

.

2 Where USCIS approves an I-140 petition for a non-citizen worker currently residing within the United States, that individual may file an I-485 Application to Register Permanent Residence or Adjust Status. See Vermuri,

(citing

(a)).

3 B. Factual and Procedural Background

Plaintiff Aristeidis Polyzopoulos “is a native and citizen of Greece.” Am. Compl. ¶ 11. In

2019, Plaintiff Colonial Marble, an American company, sought to hire Mr. Polyzopoulos as an

alien worker and, therefore, pursued a specialized employment visa on his behalf. See

¶¶ 10–

11. Colonial Marble began the process by submitting an “Application for Permanent Employment

Certificate” to the Department of Labor,

, which the Department of Labor certified on

March 20, 2019,

. After receiving this labor certification, Colonial Marble then filed an I-

140 petition with USCIS, on behalf of Mr. Polyzopoulos, on April 9, 2019. See

. On April

16, 2019, USCIS approved Colonial Marble’s I-140 Petition for Mr. Polyzopoulos. See

.

Mr. Polyzopoulos subsequently appeared for a consular interview with a State Department

consular officer at the United States Embassy in Athens, Greece, on October 16, 2019. See

. “At the interview,” however, Mr. Polyzopoulos “was given a Visa Refusal Worksheet

indicating that his Application [for a visa] was being denied based on

(a)(5)(A).”

; see also Pls.’ Ex. D (Visa Refusal Worksheet), ECF No. 14-1, at 17. The State Department

further explained that “the consular officer determined that the labor certification in this case was

obtained by fraud or misrepresentation of a material fact based on [Mr.] Polyzopoulos’s responses

at the consular interview.” Am. Compl. ¶ 19. Additionally, the State Department informed Mr.

Polyzopoulos of its intention to return his I-140 petition to USCIS “with a recommendation that it

be revoked.”

.

Counsel for Mr. Polyzopoulos protested the consular officer’s visa denial, asserting that

the labor certification for Mr. Polyzopoulos was valid. See

. In response, the State

Department indicated on November 5, 2019 that they were “were willing to review [Mr.

Polyzopoulos’s] timeline of filing events and [would] consider this in light of any additional DOL

4 policy documents” presented.

. Counsel for Mr. Polyzopolous responded to the State

Department on November 7, 2019 “with the requested timeline of filing events, and further cited

the relevant regulations to showing that the labor certification process was fully complied with by

Plaintiffs.”

. In December 2019, the State Department subsequently notified Plaintiffs that

their request for reconsideration remained pending. See

. But after receiving no

response from the State Department by March 2020, Plaintiffs decided to file a civil action against

the government in this Court. Therein, Plaintiffs requested that the Court declare that Mr.

Polyzopoulos “properly established eligibility for an immigrant visa via consular process” and

issue an injunction compelling the State Department to “reconsider [Mr. Polyzopoulos’s]

application” for a visa. Compl., ECF No. 1, ¶¶ 30, 33.

In May 2020, after Plaintiffs filed their initial complaint in this case, USCIS expressed its

intention to revoke Plaintiffs’ previously-approved I-140 petition. Am. Compl. ¶ 30. In the

agency’s Notice of Intent to Revoke (“NOIR”), it explained that the State Department had returned

the I-140 petition to USCIS “because it appeared that the job offer [from Colonial Marble] was not

clearly open to U.S. workers, [that Colonial Marble] did not establish its ability to pay, and [that

Colonial Marble] willfully misrepresented that the job was clearly open to U.S. workers, a material

fact.” Pls.’ Ex. F (NOIR), ECF No. 14-2, at 1. Plaintiffs timely responded to USCIS’s stated

concerns, see Am. Compl. ¶ 31, but on June 30, 2020, USCIS formally revoked its approval of

Plaintiffs’ I-140 petition, see Pls.’ Ex. G (Not. of Revocation), ECF No. 14-3, at 1.

On October 3, 2020, Plaintiffs amended their pleadings to account for USCIS’s recent

revocation of their I-140 petition. In their Amended Complaint, Plaintiffs now ask this Court to

review (1) the State Department’s denial of Mr. Polyzopoulos’s visa application and (2) USCIS’s

revocation of Plaintiffs’ I-140 petition. See, e.g., Am. Compl. ¶¶ 35–37, 43. Specifically, Plaintiffs

5 request that the Court invalidate the State Department’s original visa denial and USCIS’s petition

revocation, then declare that Plaintiffs are eligible for a new I-140 petition and compel the State

Department to reconsider Mr. Polyzopoulos’s visa application. See

¶¶ 58–65. In turn,

Defendants have moved to dismiss Plaintiffs’ action in its entirety under both Federal Rule of Civil

Procedure 12(b)(1) and 12(b)(6). The parties have now fully briefed Defendants’ motion to

dismiss, which is currently pending before the Court and ripe for review.

II. LEGAL STANDARD

A. Rule 12(b)(1)

A court must dismiss a case pursuant to Federal Rule of Civil Procedure 12(b)(1) when it

lacks subject matter jurisdiction. In determining whether there is jurisdiction, the Court may

“consider the complaint supplemented by undisputed facts evidenced in the record, or the

complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.”

Coalition for Underground Expansion v. Mineta,

(D.C. Cir. 2003) (citations

omitted); see also Jerome Stevens Pharm., Inc. v. Food & Drug Admin.,

(D.C. Cir. 2005) (“[T]he district court may consider materials outside the pleadings in deciding

whether to grant a motion to dismiss for lack of jurisdiction.”). “At the motion to dismiss stage,

counseled complaints, as well as pro se complaints, are to be construed with sufficient liberality

to afford all possible inferences favorable to the pleader on allegations of fact.” Settles v. U.S.

Parole Comm’n,

(D.C. Cir. 2005).

In spite of the favorable inferences that a plaintiff receives on a motion to dismiss, it

remains the plaintiff’s burden to prove subject matter jurisdiction by a preponderance of the

evidence. Am. Farm Bureau v. Envtl. Prot. Agency,

(D.D.C. 2000).

“Although a court must accept as true all factual allegations contained in the complaint when

6 reviewing a motion to dismiss pursuant to Rule 12(b)(1), [a] plaintiff[’s] factual allegations in the

complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6)

motion for failure to state a claim.” Wright v. Foreign Serv. Grievance Bd.,

(D.D.C. 2007) (internal citations and quotation marks omitted).

B. Rule 12(b)(6)

Pursuant to Federal Rule 12(b)(6), a party may move to dismiss a complaint on the grounds

that it “fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “[A]

complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual

enhancement.’” Ashcroft v. Iqbal,

(2009) (quoting Bell Atl. Corp. v. Twombly,

(2007)). Rather, a complaint must contain sufficient factual allegations that, if

accepted as true, “state a claim to relief that is plausible on its face.” Twombly,

.

“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,

. “When ruling on a defendant’s motion to dismiss, a judge must accept as true all of

the factual allegations contained in the complaint.” Atherton v. D.C. Off. of Mayor,

(D.C. Cir. 2009) (quotations omitted).

III. DISCUSSION

For the reasons set forth herein, the Court concludes that it does not have jurisdiction to

review either (1) USCIS’s decision to revoke Colonial Marble’s I-140 petition on behalf of Mr.

Polyzopoulos, or (2) the State Department’s denial of Mr. Polyzopoulos’s visa application. As a

result, the Court will DISMISS the Amended Complaint in its entirety.

7 A. Prior Pending Motions

At the outset, the Court notes that on September 15, 2020, Plaintiffs filed a motion for

summary judgment requesting that the Court grant the relief sought in Plaintiffs’ original

complaint. See Mot. for Summ. J., ECF No. 8, at 2. Also on September 15, 2020, Defendants

filed a motion to dismiss Plaintiffs’ original complaint for lack of subject matter jurisdiction. See

Mot. to Dismiss, ECF No. 9, at 1. On October 3, 2020, however, Plaintiffs amended their

complaint as a matter of course. See Fed. R. Civ. P. 15(a)(1)(B). Plaintiffs’ Amended Complaint,

addressed in this Memorandum Opinion, is now the operative pleading in this case. As such, and

also in light of the Court’s jurisdictional holding herein, the Court DENIES Plaintiffs’ [8] Motion

for Summary Judgment and Defendants’ [9] Motion to Dismiss, which both pertain to Plaintiffs’

now-superseded complaint. See Easter v. District of Columbia,

(D.D.C.

2015).

B. Revocation of I-140 Petition

On June 30, 2020, USCIS revoked its approval of Colonial Marble’s I-140 petition on

behalf of Mr. Polyzopoulos. See Pls.’ Ex. G (Not. of Revocation), ECF No. 14-3, at 1. In its

revocation notice, USCIS explained that Colonial Marble had not met its burden of establishing

Mr. Polyzopoulos’s eligibility as an alien worker, specifically citing to insufficient evidence of a

bona fide job offer, a failure by Colonial Marble to establish its own ability to pay the proffered

wages, and an apparent misrepresentation of material facts. See

at 3–12. In their Amended

Complaint, Plaintiffs argue that USCIS’s revocation decision was erroneous, see Am. Compl. ¶¶

49–55, and request that this Court invalidate the revocation, see id. ¶ 65. Defendants argue in their

motion, however, that the Court lacks jurisdiction to review a decision by USCIS to revoke an I-

140 petition. See Defs.’ Mot. at 17–24. For the reasons below, the Court agrees with Defendants

8 and finds that it has no authority to review USCIS’s June 30, 2020 revocation of Plaintiffs’ I-140

petition.

Two interlocking sections of the INA preclude this Court’s review of USCIS’s I-140

revocation decisions. To begin, “8 U.S.C. § 1252(a)(2)(B)(ii) provides, with one inapplicable

exception, that ‘no court shall have jurisdiction to review . . . any . . . decision or action of . . . the

Secretary of Homeland Security the authority for which is specified under this subchapter to be in

the discretion of . . . the Secretary of Homeland Security.’” Raval v. USCIS,

(D.D.C. 2019) (emphasis added). In turn,

states that: “The Secretary of

Homeland Security may, at any time, for what he deems to be good and sufficient cause, revoke

the approval of any petition approved by him under section 1154 of this title.” Importantly, “I-

140 petitions are among the petitions that fall within the Secretary’s § 1155 revocation authority

and . . . the Secretary has delegated that authority to USCIS.” iTech US, Inc. v. Cuccinelli,

, 292 (D.D.C. 2020) (citing

(b)(1);

(a)).

The plain language of

makes clear that USCIS “may” revoke I-140

petitions “at any time” for what USCIS “deems to be” sufficient cause. The Court finds that this

statutory language provides “a grant of discretionary authority,” Raval,

,

which, in turn,

(a)(2)(B)(ii) places squarely outside of this Court’s jurisdiction.

The discretionary nature of USCIS’s petition-revocation authority is convincingly evidenced by

the fact that § 1155 “contains not one, not two, but three discretionary terms: ‘may,’ ‘at any time,’

and ‘for what [it] deems to be.’” Karakenyan v. USCIS,

, 56 (D.D.C. 2020)

(quoting

). Furthermore, the D.C. Circuit has interpreted similar statutory language

within the INA to denote agency discretion. See Zhu v. Gonzales,

(D.C. Cir.

2005) (use of “may” and “deem” in

(b)(2)(B)(i) committed decision to the Attorney

9 General’s discretion). And while the D.C. Circuit has not specifically addressed whether § 1155

divests courts of jurisdiction over USCIS petition-revocations, “ten circuits have concluded . . .

that a decision made pursuant to § 1155 qualifies as ‘discretionary’ under the INA and is therefore

not reviewable.” Karakenyan, 468 F. Supp. 3d at 56; see also iTech US, Inc., 474 F. Supp. 3d at

293 (collecting cases). Only the Ninth Circuit, over a vigorous dissent, has determined that

§ 1155’s reference to “good and sufficient cause” supplies a non-discretionary standard, allowing

for judicial review over petition-revocation decisions. See ANA Int’l, Inc. v. Way,

,

893–94 (9th Cir. 2004); but see Poursina v. USCIS,

, 875 (9th Cir. 2019) (recently

describing that Circuit’s position as “an outlier among the federal circuit courts” and declining to

“extend such decision beyond its narrow holding”).

“[T]he balance of [this] authority is so heavily weighted to one side as to almost tip over

the scale.” Karakenyan, 468 F. Supp. 3d at 55. And in accordance with this overwhelming

authority, the five district courts in this jurisdiction to address the question have each concluded

that § 1155 commits petition revocations exclusively to agency discretion and, therefore, places

them outside the jurisdiction of Article III courts. See iTech US, Inc., 474 F. Supp. 3d at 293;

Karakenyan, 468 F. Supp. 3d at 56; Raval v. USCIS,

(D.D.C. 2019);

Mohammad v. Napolitano,

(D.D.C. 2009); Systronics Corp. v. INS,

(D.D.C. 2001). The Court will yield to the decidedly strong tilt of this decisional

authority, which also rests on an interpretation of § 1155 that comports with this Court’s own

statutory analysis. As such, the Court concludes that it lacks jurisdiction to review USCIS’s June

30, 2020 decision to revoke Colonial Marble’s I-140 petition on behalf of Mr. Polyzopoulos. 3

3 Plaintiffs make an ancillary argument that USCIS’s finding of “willful misrepresentation” remains subject to judicial review, even if USCIS’s petition revocation is not reviewable in its entirety. See Pls.’ Opp’n at 14. The Court is unpersuaded that any review of USCIS’s finding of misrepresentations would permit the

10 C. Denial of Consular Visa

Next, Plaintiffs ask this Court to invalidate the State Department’s October 2019 decision

to deny Mr. Polyzopoulos a consular visa and to compel the State Department to reconsider Mr.

Polyzopoulos’s visa application. See Am. Compl. ¶¶ 62–63. As explained in detail below, the

Court finds that both the doctrine of consular non-reviewability and the standing doctrine prevent

this Court from exercising jurisdiction over the State Department’s visa determination.

1. Doctrine of Consular Non-Reviewability

To start, the doctrine of consular non-reviewability provides that “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 v. Albright,

(D.C. Cir. 1999). This doctrine

derives from “the political nature of visa determinations and . . . the lack of any statute expressly

authorizing judicial review of consular officers’ actions.”

The scope of the doctrine also aligns

with Congress’s decision to commit the adjudication of visa applications exclusively to consular

officers. See

(a) & (g); see also

. For nearly a century then,

courts in this jurisdiction have applied the doctrine of consular non-reviewability and “refused to

review visa decisions of consular officials.” Saavedra Bruno, 197 F.3d at 1159–60. The D.C.

Circuit has also just recently reaffirmed that the doctrine of “[c]onsular non-reviewability shields

a consular official’s decision to issue or withhold a visa from judicial review.” Baan Rao Thai

Rest. v. Pompeo,

(D.C. Cir. 2021).

Court to review USCIS’s discretionary revocation decision under

, for the reasons explained above. Moreover, USCIS did not predicate its revocation decision solely on a finding of willful misrepresentation, but also on Colonial Marble’s failure to demonstrate a bona fide job offer and its inability to pay Mr. Polyzopoulos the proffered wages. See Pls.’ Ex. G (Not. of Revocation), ECF No. 14-3, at 3– 12.

11 In this case, the doctrine of consular non-reviewability precludes the Court from reviewing

or invalidating the denial of Mr. Polyzopoulos’s visa application. In October 2019, a consular

officer from the State Department interviewed Mr. Polyzopoulos regarding his then-pending

application for a consular visa. Am. Compl. ¶¶ 16–20. During the interview, the consular officer

determined that Mr. Polyzopoulos had improperly obtained the labor certification supporting his

I-140 petition, and, therefore, was not eligible for a visa under

(a)(5)(A). See Am.

Compl. ¶¶ 16–20. On October 16, 2019, the consular officer sent Mr. Polyzopoulos a Visa Refusal

Worksheet, which explained that “his visa application [was] refused” based on a finding that he

was “ineligible to receive a visa” under “Section 212(a)(5A)” of the INA. Pls.’ Ex. D (Visa Refusal

Worksheet), ECF No. 14-1, at 17. Under the doctrine of consular non-reviewability, the Court

lacks the authority to review or invalidate this denial of Mr. Polyzopoulos’s visa application. See

Baan Rao Thai Rest.,

. The Court has identified no statutory provision wherein

Congress has otherwise provided for judicial intervention in a straightforward consular visa

refusal, such as the one presented by Plaintiffs here.

To counter the conclusive sweep of the consular non-reviewability doctrine, Plaintiffs offer

two arguments, neither of which is persuasive. First, Plaintiffs contend that the doctrine of

consular non-reviewability does not apply in this case because the consular officer’s October 16,

2019 visa refusal for Mr. Polyzopoulos “was not final,” in light of Mr. Polyzopoulos’s subsequent

request to the State Department for reconsideration of the visa denial. Pls.’ Opp’n at 7. As a

threshold matter, Plaintiffs are correct that the doctrine of consular non-reviewability “is not

triggered until a consular officer has made a decision with respect to a particular visa application.”

Nine Iraqi Allies v. Kerry,

(D.D.C. 2016). For example, courts have

refused to apply the consular non-reviewability doctrine where the “visa application [at issue]

12 remains in administrative processing” and the plaintiff complains of an “unreasonable delay.”

Vulupala v. Barr,

, 98–99 (D.D.C. 2020); see also Nine Iraqi Allies, 168 F. Supp.

3d at 290–96. Plaintiffs’ case, however, presents no such scenario. To the contrary, a consular

officer already rendered a decision on the merits of Mr. Polyzopoulos’s visa application, refusing

the application due to Mr. Polyzopoulos’s ineligibility under

(a)(5)(A). Pls.’ Ex.

D (Visa Refusal Worksheet), ECF No. 14-1, at 17. The fact that Mr. Polyzopoulos later requested

reconsideration of that decision, does not alter the fact that Plaintiffs are now challenging the

substantive result of the consular officer’s decision to refuse Mr. Polyzopoulos’s visa application.

See Am. Compl. ¶¶ 59–65. Such a challenge to the merits of a final consular visa decision remains

subject to the consular non-reviewability doctrine, which precludes judicial review. See Van

Ravenswaay v. Napolitano,

, 3–4 (D.D.C. 2009).

Next, Plaintiffs argue that the consular officer “acted in bad faith” when denying Mr.

Polyzopoulos’s visa, and “in accordance with Kerry v. Din,

(2015), where a

consular officer acts in bad faith and where the bad faith is plausibly and particularly alleged in

the complaint, courts may look behind the visa refusal.” Pls.’ Opp’n at 8. Plaintiffs’ reliance on

Din, however, obfuscates the narrow exception they seek to invoke. Plaintiffs’ “bad faith”

argument rests on a limited exception to the consular non-reviewability doctrine that permits “an

American citizen [to] challenge the exclusion of a noncitizen if it burdens the citizen’s

constitutional rights.” Baan Rao Thai Rest. v. Pompeo,

(D.C. Cir. 2021).

Where such a challenge exists, courts perform a “circumscribed” review to determine “whether

the [consular officer] gave a ‘facially legitimate and bona fide’ reason for [the visa denial],” but

“will neither look behind the exercise of that discretion, nor test it by balancing its justification.”

13 Trump v. Hawaii,

(2018) (quoting Kleindienst v. Mandel,

(1972)).

Plaintiffs have not demonstrated the applicability of this narrow exception. First, Plaintiffs

do not explain anywhere in their opposition brief how Mr. Polyzopoulos’s visa denial has

“burdened [a] citizen’s constitutional rights.” Baan Rao Thai Rest.,

; see also

Pls.’ Opp’n at 6–8. This alone is prohibitive. But even assuming that Mr. Polyzopolous’s denial

did implicate some valid constitutional interest of an American citizen, the consular officer

provided a “facially legitimate and bona fide” reason for his visa denial. Hawaii,

. Specifically, the officer denied Mr. Polyzopoulos’s visa application pursuant to

(a)(5)(A), citing to this statutory provision which requires a valid labor certification for alien

workers seeking admission into the United States. See Pls.’ Ex. D (Visa Refusal Worksheet), ECF

No. 14-1, at 17. The officer then further explained his determination that “the labor certification

in this case was obtained by fraud or misrepresentation of a material fact based on [Mr.]

Polyzopoulos’s responses at the consular interview.” Am. Compl. ¶ 19. This rationale for Mr.

Polyzopoulos’s visa denial, which rests on a specific provision of the INA, provides “a facially

legitimate reason for denial.” Singh v. Tillerson,

(D.D.C. 2017). At most,

Plaintiffs “bad faith” argument suggests that the consular officer misunderstood or misapplied this

statutory provision of the INA when adjudicating Mr. Polyzopoulos’s visa application. See Am.

Compl. ¶ 17. But the consular non-reviewability doctrine still “applies 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.” Thomas v. Pompeo,

, 41 (D.D.C. 2020) (quotation

omitted).

14 For the reasons set forth above, the Court concludes that Plaintiffs have not invoked any

valid exception to the doctrine of consular non-reviewability. The Court, therefore, must apply the

doctrine, which precludes review of Mr. Polyzopoulos’s consular visa denial. 4

2. Constitutional Standing

Beyond the doctrine of consular non-reviewability, Defendants also argue that Plaintiffs’

do not have standing to challenge Mr. Polyzopolous’s consular visa denial. See Defs.’ Mot. at 16.

The Court agrees. It is axiomatic that to establish Article III standing a plaintiff must demonstrate

a concrete injury-in-fact, that is traceable to the defendant’s conduct and redressable by the court.

See Uzuegbunam v. Preczewski,

(2021). And “[w]ith respect to standing, there

is a 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.” Van Ravenswaay v. Napolitano,

(D.D.C. 2009)

(citing Kleindienst v. Mandel,

(1972)). This line of jurisprudence reflects the

fact that “foreign nationals seeking admission have no constitutional right to entry.” Trump v.

Hawaii,

(2018). In line with this precedent, Mr. Polyzopoulos, a non-

resident alien, has no standing to challenge his visa denial in this case. See, e.g., Udugampola v.

Jacobs,

, 36 n.1 (D.D.C. 2014) (“It is beyond dispute that Mr. Udugampola has

no constitutional right to enter the United States, and also does not have standing to seek review

of his visa denial.”).

4 Courts in this circuit have commonly referred to the doctrine of consular non-reviewability as “jurisdictional.” The D.C. Circuit recently clarified, however, that the “jurisdictional” nature of the doctrine rests on the unwillingness of Article III courts to interfere with the consular prerogative of the Executive Branch. See Baan Rao Thai Rest.,

. Therefore, “[d]ismissal based on consular nonreviewability . . . is a merits disposition under Federal Rule of Civil Procedure 12(b)(6).”

.

15 This leaves only Mr. Polyzopoulos’s co-Plaintiff, Colonial Marble. Colonial Marble is

the American company that sponsored Mr. Polyzopoulos’s predicate I-140 petition before USCIS.

See Am. Compl. ¶¶ 10–11. “With respect to purely statutory claims,” however, “courts have made

no distinction between aliens seeking review of adverse consular decisions and the United States

citizens sponsoring their admission; neither is entitled to judicial review.” Saavedra Bruno v.

Albright,

(D.C. Cir. 1999). Instead, an American sponsor may present a

cognizable claim where they themselves sustain a constitutional injury connected to the denial of

the alien’s visa application. See, e.g., Rohrbaugh v. Pompeo,

, 131–32 (D.D.C.

2019), aff’d, No. 19-5263,

(D.C. Cir. May 15, 2020) (explaining that “federal

courts [may] review a consular officer’s decision when the decision implicates the constitutional

rights of a U.S. citizen”). But here, Colonial Marble has not presented any constitutional claims

derived from the denial of Mr. Polyzopolous’s consular visa. Without any such claim, Colonial

Marble does not have standing to challenge the consular officer’s denial of Mr. Polyzopolous’s

visa.

Finally, Plaintiffs’ challenge to Mr. Polyzopoulos’s visa denial must also confront the

standing requirement of redressability. To demonstrate Article III standing, Plaintiffs not only need

to show a concrete injury, but also must plausibly demonstrate how a judicial remedy would redress

the harm alleged. See Preczewski,

. For a remedy here, Plaintiffs ask the Court

to invalidate the denial of Mr. Polyzopoulos’s consular visa and compel the State Department to

reconsider its decision. See Am. Compl. ¶¶ 58–65. But even assuming the Court had such

authority, it is implausible that such a remedy would lead to Plaintiffs’ desired result: a consular

visa for Mr. Polyzopoulos. As described above, USCIS—in a nonreviewable exercise of agency

discretion—has revoked its approval of Colonial Marble’s I-140 petition on behalf of Mr.

16 Polyzopoulos. See Pls.’ Ex. G (Not. of Revocation), ECF No. 14-3, at 1. Absent an approved I-

140 petition, a consular officer “may not” issue a visa to an alien, like Mr. Polyzopoulos, seeking

admission as an employment-based preference immigrant.

; see also

(f). Accordingly, the invalidation of Mr. Polyzopoulos’s original consular visa denial or even

an order compelling reconsideration would not plausibly lead to a different result for Plaintiffs,

now that USCIS has revoked the I-140 petition supporting Mr. Polyzopoulos’s consular visa

application. See, e.g., Karakenyan v. USCIS,

, 58 (D.D.C. 2020) (“Because the

Court has dismissed his claims against USCIS, his I-526 petition will still be revoked, and Plaintiff

will still be ineligible for an EB-5 visa.”); Raval v. USCIS,

(D.D.C. 2019)

(D.D.C. 2019) (finding no standing where the failure to “obtain the prerequisite I-140 approval”

precluded judicial redress).

For the reasons set forth above, the Court concludes that neither Plaintiff has established

the Article III standing required to challenge Mr. Polyzopoulos’s consular visa denial. As such,

the Court further lacks jurisdiction over Plaintiffs’ related claims.

IV. CONCLUSION

In this case, Plaintiffs challenge (1) USCIS’s decision to revoke its approval for an I-140

petition, filed on behalf of Mr. Polyzopoulos, and (2) the State Department’s denial of his consular

visa application. As explained in this Memorandum Opinion, the Court has no authority to review

or overturn these decisions. First, USCIS’s decision to revoke approval for an I-140 petition is

discretionary and outside of this Court’s jurisdiction. Next, the State Department’s decision to

deny a consular visa is insulated from judicial review by the long-standing doctrine of consular

non-reviewability. Finally, Plaintiffs have not established their own standing to challenge the State

Department’s denial of Mr. Polyzopoulos’s visa application. For these reasons, the Court will

17 GRANT Defendants’ [16] Motion and DISMISS the Amended Complaint in its entirety. Finally,

and for the reasons set forth above, the Court also DENIES Plaintiffs’ [8] Motion for Summary

Judgment and Defendants’ [9] Motion to Dismiss.

An appropriate Order will accompany this Memorandum Opinion.

Date: April 14, 2021

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge

18