Sychev v. Cuccinelli

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

KIRILL SYCHEV,

Plaintiff,

v. Civil Action No. 20-3484 (CKK) ANTONY BLINKEN, in his official capacity as Secretary of State, et al.,

Defendants.

MEMORANDUM OPINION (January 30, 2023)

This visa action is before the Court on the parties’ [33] and [34] supplemental

memoranda addressing the applicability of the “consular nonreviewability doctrine” to this case.

On March 30, 2022, the Court held in abeyance Defendants’ [15] Motion to Dismiss as to all

defendants related to the United States Department of State, granting the rest of the Motion.

Sychev v. Jaddou, Civ. A. No. 20-3484 (CKK), 2022 WL 951378, at *6 (D.D.C.). The Court

refers the reader for background on that case, and the Court incorporates that background and

analysis herein. At the time, a State Department consular officer had sent Plaintiff’s visa

application back to the Department of Homeland Security for further processing. Id. at *2.

Because it appeared that a consular officer had not made a final decision, the Court directed the

parties to submit supplemental briefing on whether that decision was a “consular decision” not

subject to judicial review. Id. at *4.

Since then, a State Department consular officer has made a final decision on Plaintiff’s

visa application, denying it by finding Plaintiff ineligible pursuant to 8 U.S.C. § 1201(g).

Declaration of Rachel Ann Peterson, ECF No. 33-1 ¶ 3. “[A] consular officer’s decision to issue

or withhold a visa [is shielded] from judicial review, at least until Congress says otherwise.” Baan Rao Thai Rest. v. Pompeo, 985 F.3d 1020, 1024 (D.C. Cir. 2021). The denial here is, in

fact, a final decision on a visa application, and Congress has not otherwise said it is subject to

judicial review. See Polyzopoulos v. Garland, Civ. A. No. 20-0804 (CKK), 2021 WL 1405883,

at *5-6 (D.D.C. Apr. 14, 2021). This decision, therefore, is “a power to be exercised exclusively

by the political branches of government.” Kleindienst v. Mandel, 408 U.S. 753, 765 (1972).

In an effort to find an exception, Plaintiff relies on Kerry v. Din, 576 U.S. 86 (2015)

(plurality op.), to summarily allege some bad faith on the part of the consular officer. ECF No.

34 at 5-6. True, in that case, the Supreme Court repeated the narrow exception to the doctrine of

consular nonreviewability where a plaintiff can demonstrate some constitutional violation in the

review and denial of their application. See 576 U.S. at 101. Yet, even assuming such an

allegation were in Plaintiff’s operative complaint, he pleads no facts rendering such a broad,

unsubstantiated legal conclusion facially plausible. See Baan Rao, 985 F.3d at 1029. As such,

Plaintiff’s complaint has been mooted by subsequent events, the nonreviewable denial of his

application.

* * *

Plaintiff’s visa application having been finally decided, the Court is powerless to vacate

that decision. Therefore, the remainder of Defendants’ [15] Motion to Dismiss is GRANTED

and Plaintiff’s [1] Complaint is DISMISSED. An appropriate order accompanies this

Memorandum Opinion.

Dated: January 30, 2023 /s/ COLLEEN KOLLAR-KOTELLY United States District Judge