Tikhonova v. U.S. Department of State

Opinion

OLGA TIKHONOVA, Case No. 22-cv-06034-HSG

Plaintiff, ORDER GRANTING MOTION TO DISMISS v. Re: Dkt. No. 12 U.S. DEPARTMENT OF STATE, et al., Defendants.

Pending before the Court is Defendants’ motion to dismiss. Dkt. No. 12. The Court finds this matter appropriate for disposition without oral argument and the matter is deemed submitted. See Civil L.R. 7-1(b). For the reasons detailed below, the Court GRANTS the motion to dismiss. Pro se Plaintiff Olga Tikhonova is a U.S. citizen. See Dkt. No. 1 (“Compl.”) at ¶ 3. Her mother, Liubov Tikhonova, is the beneficiary in this case and is a citizen and resident of Russia. See id. at ¶¶ 3, 6. Plaintiff filed a Form I-130 Petition for Alien Relative on behalf of her mother in July 2021. See id. at ¶ 7. According to the complaint, the U.S. Citizenship and Immigration Service approved the application, and sent the petition to the National Visa Center (“NVC”), a part of the U.S. Department of State. Id. at ¶ 8. Plaintiff and her mother then submitted the required Form DS-260 in November 2021. See id. at ¶ 9. In May 2022, NVC stated that it had received all necessary “fees, forms, and documents” and would work with the U.S. Embassy in Warsaw to schedule the interview. Id. at ¶ 11. At the time (and as of the date of this order), the Department of State suspended immigrant visa services at the U.S. Embassy in Moscow “due to the Russian government’s April 23 notification of its intention to prohibit U.S. Mission Russia from employing foreign nationals in any capacity.”1 See DEP’T OF STATE, U.S. Embassy & Consulates in Russia, Message to U.S. Citizens: U.S. Mission Russia - Reduction of Consular Servs.2 The State Department accordingly “designated the U.S. Embassy in Warsaw to process immigrant visas for residents of Russia.” See DEP’T OF STATE, U.S. Embassy & Consulates in Russia, Visas.3 However, on September 9, 2022, Poland also announced that it would no longer issue visas to Russian citizens or allow Russian citizens into the country. Compl. at ¶ 12. Despite this announcement, Plaintiff alleges that NVC notified Plaintiff and her mother that an immigrant visa interview had been scheduled in Warsaw for November 23, 2022. Id. at ¶ 13. Plaintiff alleges that she reached out several times to NVC to change the location of the interview and “has exhausted any and all administrative remedies that may exist.” Id. at ¶¶ 17–18. Plaintiff filed this case against the U.S. Department of State and Antony Blinken in his official capacity as U.S. Secretary of State. See id. at ¶¶ 4–5. By refusing to relocate the visa interview to Russia, Plaintiff contends that “Defendants have failed to fulfill their duty to adjudicate [the] immigration visa application . . . .” Id. at ¶¶ 21–23. She seeks “an order directing Defendants to schedule the immigration interview in the country where [her mother] resides in and approve [her mother’s] immigration visa application . . . .” See Compl. at 1. Plaintiff has alleged causes of action under the Mandamus Act, 28 U.S.C. § 1361, and the Administrative Procedure Act, 5 U.S.C. § 555(b) and 5 U.S.C. § 706(1). Defendants now move to dismiss the complaint in its entirety under both Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). See Dkt. No. 12. The Court notes that the parties have not provided any update on whether the Warsaw interview was rescheduled or relocated in the

1 The government requests the Court take judicial notice of the State Department’s public announcement and information from its website. See Dkt. No. 12-1 at 1, & n.1. The Court finds it may take judicial notice of these documents, which are: (1) statements of government officials or entities that are not subject to reasonable dispute; or (2) other public records and government documents available on reliable internet sources, such as government websites. See DeHoog v. Anheuser-Busch InBev SA/NV, 899 F.3d 758, 763 n.5 (9th Cir. 2018) (taking “judicial notice of government documents, court filings, press releases, and undisputed matters of public record”); see also Fed. R. Evid. 201(b). 2 Available at https://ru.usembassy.gov/message-to-u-s-citizens-u-s-mission-russia-reduction-of- intervening months since this case was filed.4 A. Rule 12(b)(1) Federal Rule of Civil Procedure Rule 12(b)(1) allows a party to move to dismiss for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). A Rule 12(b)(1) motion may be either facial, where the inquiry is confined to the allegations in the complaint, or factual, where the court is permitted to look beyond the complaint to extrinsic evidence. See Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004); Savage v. Glendale Union High School Dist. No. 205, 343 F.3d 1036, 1040, n.2 (9th Cir. 2003). A facial challenge “asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Where the plaintiff cannot cure a jurisdictional defect by amendment, the court may dismiss the complaint without leave to amend. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). B. Rule 12(b)(6) Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A defendant may move to dismiss a complaint for failing to state a claim upon which relief can be granted under Rule 12(b)(6). “Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To survive a Rule 12(b)(6) motion, a plaintiff need only plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when a plaintiff pleads “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In reviewing the plausibility of a complaint, courts “accept factual allegations in the 4 According to the complaint, Liubov Tikhonova’s interview was scheduled for November 23, 2022. Compl. at ¶ 13. The Court assumes, based on Plaintiff filing this case and the absence of complaint as true and construe the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Nevertheless, courts do not “accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (quoting Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). Plaintiff brings claims under both the Mandamus Act and the APA. Plaintiff offers little explanation in her complaint or opposition to the motion to dismiss as to why she is entitled to relief under these statutory provisions. But regardless of the statutory basis, Plaintiff ultimately is seeking an order changing the location of her mother’s visa interview and compelling the adjudication of her visa application. Plaintiff specifically requests an order compelling Defendants to schedule her mother’s visa interview at the U.S. Embassy in Moscow, Russia rather than in Warsaw, Poland. See Compl. at ¶¶ 19–26; see generally Dkt. No. 17. By failing to change the location of the interview to Moscow, Plaintiff urges that Defendants have indefinitely delayed the adjudication of the visa application. Compl. at ¶¶ 13–17, 27–32. Defendants contend that the Court lacks subject matter jurisdiction because Plaintiff is challenging Defendants’ discretionary authority. See Dkt. No. 12-1 at 7–11. The Mandamus Act vests district courts with “original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. Similarly, under § 706(1) of the APA, a court may “compel agency action unlawfully withheld or unreasonably delayed.” See 5 U.S.C. § 706(1). The Supreme Court has interpreted this language to mean that “the only agency action that can be compelled under the APA is action legally required.” Norton v. S. Utah Wilderness All. (“SUWA”), 542 U.S. 55, 63, n.1 (2004) (emphasis in original)). An action is only legally required “if there is ‘a specific, unequivocal command’ placed on the agency to take a ‘discrete agency action.’” Vietnam Veterans of Am. v. Cent. Intel. Agency, 811 F.3d 1068, 1075 (9th Cir. 2016) (quoting SUWA, 542 U.S. at 63); see also SUWA, 542 at 63 (finding that a case under action that it is required to take”) (emphasis in original). In short, in order to compel an agency to act under either the Mandamus Act or the APA, Plaintiff must establish that the agency has a duty to act. Defendants argue that they do not have a legal duty to hold a visa interview in the location of an applicant’s choosing. Dkt. No. 12 at 7, 9–10. Rather, in their view, this is a discretionary act over which the Court has no subject matter jurisdiction. Id. Defendants first point to 8 U.S.C. § 1202(a), which states that an individual shall apply for an immigrant visa “in such form and manner at such place as shall be by regulations prescribed.” 8 U.S.C. § 1202(a). The “form,” “manner” and “place” are thus all determined by the agency’s own regulations. The statute itself therefore does not contain any “‘specific, unequivocal command’” about the location of a visa application or interview. See Vietnam Veterans, 811 F.3d at 1075 (quoting SUWA, 542 at 63). Although few cases have analyzed what legal duties are imposed by § 1202(a), those that have considered the statute have concluded that it vests the State Department with wide discretion. In Legal Assistance for Vietnamese Asylum Seekers v. Department of State, Bureau of Consular Affairs, the D.C. Circuit considered § 1202(a) and concluded that visa applicants have “no substantive right” to have their applications processed in “any particular venue.” 104 F.3d 1349, 1354 (D.C. Cir. 1997). Such decisions were “entrusted to the discretion of the State Department” and were thus unreviewable by the Court. See id. at 1353–54. The plaintiffs challenged the Department of State’s consular venue policy, which required Vietnamese and Laotian migrants— who were fleeing to nearby countries in the 1980s seeking refuge—to submit their visa applications in their home country. Id. at 1350–51. In looking at § 1202(a), the court reasoned that the statute “grants to the Secretary discretion to prescribe the place at which aliens apply for immigrant visas without providing substantive standards against which the Secretary’s determination could be measured.” Id. at 1353. The form, manner, and place “are left entirely to the discretion of the Secretary of State.” Id. The court further noted that such discretion is sensible where “the agency is entrusted by a broadly worded statute with balancing complex concerns involving security and diplomacy.” Id. discretion, although they place some limitations on the applicant. For example, 22 C.F.R. § 42.61 provides that a foreign national “shall make an immigrant visa application in person at the consular office having jurisdiction over [his or her] place of residence,” “unless otherwise directed by the Department.” 22 C.F.R. §§ 42.61(a) (emphasis added). Similarly, “a consular office may, as a matter of discretion, or shall, at the direction of the Department, accept an immigrant visa application from [a foreign national] who is neither a resident of, nor physically present in, the area designated for that office for such purpose.” Id. (emphasis added). The State Department therefore may determine where it will accept visa applications. The visa interview itself is prescribed by 22 C.F.R. § 42.62. Under this regulation, “[e]very applicant applying for an immigrant visa . . . shall be required to appear personally before a consular officer for the execution of the application” and “must be interviewed by a consular officer . . . .” 22 C.F.R. § 42.62(a)–(b). The regulation does not, however, place any limitations on where Defendants schedule that interview. In response, Plaintiff does not cite—and the Court is not aware—of any statute or regulation dictating the location of a visa interview. To the contrary, courts have broadly found that “Congress has given [the State Department and other agencies] wide discretion in the area of immigration processing.” See Poursohi v. Blinken, No. 21-cv- 01960-TSH, 2021 WL 5331446 at *5 (N.D. Cal. Nov. 16, 2021) (quotation omitted). Likewise, the limitations on judicial review under the APA and the Mandamus Act are intended to “protect agencies from undue judicial interference with their lawful discretion” and “avoid entanglement in abstract policy disagreements which courts lack both expertise and information to resolve.” SUWA, 542 U.S. at 66–67. The location of a visa interview falls squarely within this kind of complex and nuanced policy determination. Accordingly, to the extent Plaintiff seeks an order changing the location of Liubov Tikhonova’s visa interview to Moscow, she has not established that Defendants have a nondiscretionary duty to schedule her interview there. The Court therefore GRANTS the motion to dismiss on this basis. // The Court GRANTS the motion to dismiss. This order also TERMINATES AS MOOT Dkt. No. 20. To the extent Plaintiff’s claims are based on the belief that her mother’s visa interview should be scheduled in Russia (or any specific location of her choosing), the Court dismisses these claims WITHOUT LEAVE TO AMEND. Nevertheless, the Court cannot say at this stage that amending the complaint would be futile. See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (“[A] pro se litigant is entitled to notice of the complaint’s deficiencies and an opportunity to amend prior to dismissal of the action.”); Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (“[A] district court should not dismiss a pro se complaint without leave to amend unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.”) (quotations omitted). To the extent Plaintiff seeks relief other than choosing the location of the visa interview, she may amend her complaint to clarify these claims. Plaintiff shall file any amended complaint by no later than September 8, 2023. The Court notes that in February 2023, the State Department added the U.S. Embassy in Tashkent, Uzbekistan and the U.S. Consulate General Almaty in Kazakhstan “as processing posts for Russian IR-5 (parent of a U.S. citizen) immigrant visa applicants.” See DEP’T OF STATE, U.S. Embassy & Consulates in Russia, Visas, available at https://ru.usembassy.gov/visas/ (last visited August 8, 2023). In their reply brief, Defendants also suggest that the visa application was in fact transferred to the U.S. Consulate General Almaty in Kazakhstan and that they provided Liubov Tikhonova with instructions for how to schedule an interview there. See Dkt. No. 18-1 at ¶¶ 7–9. Any amended complaint should therefore address the current status of the visa application; whether an interview in Kazakhstan—or another location—was offered, scheduled, or has taken place; and why Plaintiff believes that she still has a live claim. Failure to file an amended complaint by this deadline or to address these issues may result in the dismissal of the action in its entirety without further leave to amend. The Court further SETS a telephonic case management conference on October 17, 2023, at 1 to submit individual case management statements by October 10, 2023. The parties shall use the 2 following dial-in information to access the call: 3 Dial-In: 888-808-6929; 4 Passcode: 6064255 5 All attorneys and pro se litigants appearing for a telephonic case management conference are 6 required to dial in at least 15 minutes before the hearing to check in with the courtroom deputy. 7 For call clarity, parties shall NOT use speaker phone or earpieces for these calls, and where at all 8 possible, parties shall use landlines. 9 Given the complexity of this case, the Court encourages Plaintiff to seek assistance at the 10 Legal Help Center, which provides free information and limited-scope legal assistance to pro se 11 litigants, if she is unable to retain counsel. More information about the Legal Help Center is 12 provided at http://www.cand.uscourts.gov/legal-help. Telephone appointments may be scheduled 13 either over the phone at (415) 782-8982 or by email at federalprobonoproject @ sfbar.org. IT IS SO ORDERED. 15 || Dated: 8/9/2023 Aaepurred 3s Ad}. HAYWOOD S, GILLIAM, IR. nited States District Judge 18 19 20 21 22 23 24 25 26 27 28