Sayad v. United States Department of Homeland Security

• Court: District Court, District of Columbia
• Decided: September 12, 2022
• Docket: Civil Action No. 2020-2333
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) SONYA SAYAD, ) ) Plaintiff, ) ) v. ) Civil Action No. 20-cv-2333 (TSC) ) UNITED STATES DEPARTMENT OF ) HOMELAND SECURITY, et al, ) ) Defendants. ) )

MEMORANDUM OPINION

Plaintiff Sonya Sayad is a United States citizen whose husband, an Algerian citizen,

resides in Algeria. At the time Plaintiff filed suit, she alleged that Defendants—the Department

of Homeland Security (“DHS”), the United States Citizenship and Immigration Services

(“USCIS”), the Department of State, the United States Embassy in El Mouradia, Algeria, and

several government officials—were unlawfully withholding and delaying adjudication of a

spousal visa application for her husband. After Plaintiff filed her lawsuit, Defendants denied the

pending visa application on the basis that her husband was implicated in terrorist-related

activities. Defendants argue that because they issued a final decision on the application, a

decision they argue is not subject to judicial review, this lawsuit is moot and they move to

dismiss it. ECF No. 6, Def. Mot. For the reasons explained below, the court will GRANT

Defendants’ motion to dismiss.

I. BACKGROUND

On May 27, 2018, Plaintiff, who is a U.S. citizen, filed an I-130 petition for a spousal

visa for her husband, Nabil Sayad. ECF No. 1, Compl. ¶¶ 14, 17. Plaintiff alleges that on June 6, 2018, USCIS approved the petition and sent it to the U.S. consulate in El Mouradia, Algeria,

to schedule an interview with Plaintiff’s husband. Id. ¶¶ 19–20. State Department officials

interviewed Mr. Sayad on October 2, 2019, but according to Plaintiff, the agency delayed final

decision on the visa application due to security concerns under USCIS’ “Controlled Application

Review and Resolution Program” (“CARRP”). Id. ¶¶ 21, 28. In August 2020, Plaintiff, still

awaiting a final decision on the visa application, filed this lawsuit.

Plaintiff alleges that Defendants violated the Administrative Procedure Act (“APA”) by

unlawfully withholding and unlawfully delaying agency action, id. ¶¶ 23–37, and violated her

Fifth Amendment due process rights by failing to act on the pending application, id. ¶¶ 38–41.

On December 1, 2020, approximately three months after Plaintiff filed her lawsuit, a

consular officer denied Mr. Sayad’s visa application pursuant to the Immigration and Nationality

Act § 212(a)(3)(B), 8 U.S.C. § 1182(a)(3)(B), which authorizes the government to exclude those

implicated in terrorist-related activity. See ECF No. 6–1, Def. Mot., Ex. A.

Defendants moved to dismiss Plaintiff’s lawsuit, arguing that this court lacks subject

matter jurisdiction. Def. Mot. Specifically, Defendants contend that because they have issued a

final decision on Plaintiff’s spousal visa application, Plaintiff’s claims are now moot, that the

consular officer’s decision is precluded from review by the consular nonreviewability doctrine,

and that Plaintiff has otherwise failed to state a valid APA or Fifth Amendment claim.

II. LEGAL STANDARD

A. Lack of Subject Matter Jurisdiction

In evaluating a motion to dismiss for lack of jurisdiction under Federal Rule of Civil

Procedure Rule 12(b)(1), a court must “assume the truth of all material factual allegations in the

complaint and ‘construe the complaint liberally, granting plaintiff the benefit of all inferences

Page 2 of 7 that can be derived from the facts alleged.”’ Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139

(D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)). And “a court

may consider such materials outside the pleadings as it deems appropriate to resolve the question

[of] whether it has jurisdiction to hear the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104

F. Supp. 2d 18, 22 (D.D.C. 2000) (citing Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C.

Cir. 1992)). The court must “grant dismissal if it lacks subject matter jurisdiction” because it is

both an Article III and statutory requirement. Xia v. Pompeo, No. 1:14-cv-57-RCL, 2019 WL

6311912, *9 (D.D.C. Nov. 5, 2019) (citing Akinseye v. District of Columbia, 339 F.3d 970, 971

(D.C. Cir. 2003)).

Finally, a “court may appropriately dispose of a case under 12(b)(1) on mootness

grounds.” Mykonos v. United States, 59 F. Supp. 3d 100, 103–04 (D.D.C. 2014) (citing Comm.

in Solidarity with the People of El Sal. v. Sessions, 929 F.2d 742, 744 (D.C. Cir. 1991)). Article

III of the Constitution confers jurisdiction to federal courts to adjudicate “Cases” or

“Controversies.” U.S. Const. art. III, § 2. This case or controversy requirement extends only to

“actual, ongoing controversies,” Honig v. Doe, 484 U.S. 305, 317 (1988), and precludes courts

from deciding moot cases, Larsen v. U.S. Navy, 525 F.3d 1, 3 (D.C. Cir. 2008). A case is “moot

when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in

the outcome.” Munsell v. Dep’t of Agriculture, 509 F.3d 572, 581 (D.C. Cir. 2007) (quoting

County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). In a case where “events outrun the

controversy such that the court can grant no meaningful relief, the case must be dismissed as

moot.” McBryde v. Comm. to Review, 264 F.3d 52, 55 (D.C. Cir. 2001) (citing Church of

Scientology of California v. United States, 506 U.S. 9, 12 (1992)). “[J]urisdiction, properly

acquired, may abate if the case becomes moot because (1) there is no reasonable expectation that

Page 3 of 7 the alleged violation will recur, and (2) interim events have completely and irrevocably

eradicated the effects of the alleged violation.” Cnty. of Los Angeles, 440 U.S. 625, 631 (internal

citations omitted). “When both conditions are satisfied it may be said that the case is moot

because neither party has a legally cognizable interest in the final determination of the

underlying questions of fact and law.” Id.

B. Failure to State a Claim

A motion to dismiss under Rule 12(b)(6) for failure to state a claim “tests the legal

sufficiency of a complaint.” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A

complaint should provide a “short plain statement of the claim showing that the pleader is

entitled to relief.” Fed. R. Civ. P. 8(a)(2). The complaint must contain enough facts to state a

claim that is plausible on its face by alleging facts that, if assumed to be true, would allow the

court to draw “reasonable inference[s] that the defendant is liable for the misconduct alleged.”

Bell Atl. Co. v. Twombly, 550 US 544, 555–56 (2007); Arpaio v. Obama, 797 F.3d 11, 19 (D.C.

Cir. 2015); Ashcroft v. Iqbal, 556 US 662, 677–78 (2009). The court presumes the truth of a

plaintiff’s factual allegations, see Iqbal, 556 U.S. at 679, and construes the complaint “in favor of

the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts

alleged,” Hettinga v. United States, 677 F.3d 471 (D.C. Cir. 2012) (internal quotation marks

omitted).

III. ANALYSIS

The APA requires that “within a reasonable time, each agency shall proceed to conclude

a matter presented to it” and permits a reviewing court to “compel agency action unlawfully

withheld or unreasonably delayed.” 5 U.S.C. §§ 555(b), 706(1). Plaintiff claims that Defendants

“have refused to adjudicate Plaintiff’s application and to issue the requested visa application,”

Page 4 of 7 Compl. ¶ 26, and “are intentionally delaying” adjudication of her and her husband’s application

pursuant to CARRP, in violation of the APA, id. ¶ 29. Plaintiff also alleges that Defendants’

“delay and failure to act . . . violated the due process rights of Plaintiff.” Id. ¶ 40.

As previously stated, approximately three months after Plaintiff filed her lawsuit, a

consular officer issued a final decision on Plaintiff’s spousal visa application, denying it pursuant

to the Immigration and Nationality Act. See Def. Mot., Ex. A. Consequently, Defendants are no

longer withholding or delaying adjudication of Plaintiff’s application, so there is no “live”

dispute as to those allegations, Munsell, 509 F.3d at 581, and there is “no meaningful relief” the

court can grant, McBryde, 264 F.3d at 55. Therefore, Plaintiff’s APA and due process claims,

both of which challenged a withholding and delay that Defendants have since remedied, are

moot. See Penn v. Blinken, No. CV 21-1055 (TJK), 2022 WL 910525, at *3 (D.D.C. Mar. 29,

2022) (dismissing unreasonable delay claims as moot because plaintiffs’ applications were

adjudicated); Dvorak v. DHS, No. 18-cv-1941 (DLF), 2019 WL 1491743 (D.D.C. Apr. 3, 2019)

(same); Abbas v. DHS, No. 1:20-cv-03192 (CJN), 2021 WL 3856625 (D.D.C. Aug. 29, 2021)

(“Federal district courts routinely dismiss as moot mandamus actions requesting adjudication of

an I-130 petition once it has been adjudicated.”).

In her opposition to Defendants’ motion, Plaintiff does not dispute that a consular officer

issued a final decision on her spousal visa application, nor that that the doctrine of consular

nonreviewability precludes further review of that consular officer’s decision. 1 See generally

ECF No. 7, Pl. Opp’n. Instead, Plaintiff argues that her claims are not moot because (1) she

1 “Consular nonreviewability shields a consular official’s decision to issue or withhold a visa from judicial review, at least unless Congress says otherwise.” Baan Rao Thai Rest. v. Pompeo, 985 F.3d 1020, 1024 (D.C. Cir. 2021). Page 5 of 7 seeks damages for the past delay and an order declaring CARRP unconstitutional, and (2) an

exception to the mootness doctrine applies. Both arguments fall short.

First, Plaintiff argues that “this case involves a live claim for damages,” Pl. Opp’n at 10,

and a live challenge to the constitutionality of CARRP. In fact, Plaintiff’s Complaint does not

present a claim for damages at all, and instead seeks only administrative and equitable relief. See

Compl., Request for Relief ¶¶ 1–8. Moreover, damages are not available for APA or

Constitutional claims. Al Seraji v. Wolf, No. 19-2839 (RBW), 2020 WL 7629797, at *5 (D.D.C.

Dec. 22, 2020) (“Congress has not waived the federal government’s immunity from suit for

claims seeking monetary damages under either the APA or the Constitution[.]”). And while

Plaintiff’s Complaint includes allegations that Defendants were “intentionally delaying”

adjudication of her spousal visa application pursuant to CARRP, see id. at 28–35, a claim that is

now moot, she did not allege that Defendants relied on CARRP in adjudicating her visa or

challenge whether doing so was improper. 2 It is a “well-established principle of law in this

Circuit that a plaintiff may not amend her complaint by making new allegations in her opposition

brief.” Budik v. Ashley, 36 F. Supp. 3d 132, 144 (D.D.C. 2014), aff’d sub nom. Budik v. United

States, No. 14-5102, 2014 WL 6725743 (D.C. Cir. Nov. 12, 2014) (citing Larson, 21 F.3d 1164

at 1173-74). Consequently, to the extent Plaintiff seeks to pivot her lawsuit from one

challenging an unlawful delay (and the policy allegedly responsible) to one challenging an

2 Indeed, at least one court has held that “CARRP is a USCIS policy that does not extend to the Department of State or I-130 visa applications.” Ghadami v. U.S. Dep’t of Homeland Sec., No. 19-0397 (ABJ), 2020 WL 1308376, at *6 (D.D.C. Mar. 19, 2020) (dismissing plaintiffs’ challenge to CARRP); see also Dastagir v. Blinken, No. 20-cv-02286, 2021 WL 2894645, at *6 n.7 (D.D.C. July 9, 2021) (dismissing CARRP claim for failing to “set forth any factual allegations to support it.”). Page 6 of 7 unlawful adjudication (and the policy allegedly responsible), she must file an amended

complaint.

Second, Plaintiff contends that an exception to the mootness doctrine applies. Not so.

Generally, “voluntary cessation of allegedly illegal conduct does not deprive the tribunal of

power to hear and determine the case, i.e., does not make the case moot.” United States v. W. T.

Grant Co., 345 U.S. 629, 632 (1953). Voluntary cessation will only moot a claim if “(1) it can

be said with assurance that there is no reasonable expectation . . . that the alleged violation will

recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of

the alleged violation.” Cnty. of Los Angeles, 440 U.S. at 631. As for the first prong, courts in

this district and other Circuits have “consistently recognized that where the defendant is a

government actor—and not a private litigant—there is less concern about the recurrence of

objectionable behavior.” Citizens for Resp. and Ethics in Wash. v. SEC, 858 F. Supp. 2d 51, 61–

62 (D.D.C. 2012). And regarding the second prong, Defendants’ adjudication of the pending

visa application has “completely and irrevocably eradicated the effects of the alleged” delay.

Cnty. of Los Angeles, 440 U.S. at 625. Accordingly, the voluntary cessation exception to the

mootness doctrine does not apply.

IV. CONCLUSION

For the reasons explained above, the court will GRANT Defendants’ Motion to Dismiss,

ECF No. 6.

Date: September 12, 2022

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

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