United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued October 19, 2020 Decided January 22, 2021 No. 19-5231 BAAN RAO THAI RESTAURANT, ET AL., APPELLANTS v. MICHAEL R. POMPEO, SECRETARY OF THE U.S. DEPARTMENT OF STATE AND UNITED STATES OF AMERICA, APPELLEES Appeal from the United States District Court for the District of Columbia (No. 1:19-cv-00058) Scott D. Pollock argued the cause for appellants. With him on the briefs were Christina J. Murdoch and Thomas K. Ragland. Matthew J. Glover, Counsel, U.S. Department of Justice, argued the cause for appellees. With him on the brief were R. Craig Lawrence and Peter C. Pfaffenroth, Assistant U.S. Attorneys. Before: SRINIVASAN, Chief Judge, and HENDERSON and PILLARD, Circuit Judges. Opinion for the Court filed by Circuit Judge HENDERSON. 2 KAREN LECRAFT HENDERSON, Circuit Judge: The doctrine of consular nonreviewability prevents a federal court from second-guessing a United States consular officer’s decision to issue or withhold a visa. Appellants Baan Rao Thai Restaurant (Baan Rao), Somporn Phomson and Napaket Suksai (Phomson and Suksai) seek review of a consular officer’s decision to deny visas for Phomson and Suksai, asserting their claims fall within one of the doctrine’s narrow exceptions. Specifically, they argue the Treaty of Amity and Economic Relations between the United States and Thailand— the underlying authority for the visas Phomson and Suksai seek—expressly provides that judicial review is available. Their argument fails, as it seeks to fashion a longstanding, common and well understood treaty provision into something it is not. Using the consular nonreviewability doctrine, the district court dismissed their claims for lack of subject matter jurisdiction. As recently clarified by the United States Supreme Court, however, a dismissal pursuant to the consular nonreviewability doctrine is a dismissal on the merits. Accordingly, we affirm the district court’s dismissal but do so on the merits. I. BACKGROUND Since 2008 Baan Rao has provided Minot, North Dakota with Thai cuisine. It often employs Thai nationals as chefs. In order to work for Baan Rao, Thai nationals utilize E-2 “essential employee” visas under the Treaty of Amity and Economic Relations between the United States and Thailand (U.S.-Thailand Treaty or Treaty). See Treaty of Amity and Economic Relations, Thai.-U.S., art. I, May 29, 1966, 19 U.S.T. 5843 [hereinafter U.S.-Thai. Treaty]. Phomson and Suksai are Thai nationals who previously worked as chefs at Baan Rao on E-2 “essential employee” visas. Phomson was 3 first granted an E-2 visa and admitted to the United States in 2012; he extended his visa in 2014, 2016 and 2017. He worked as a Baan Rao chef from 2012 to 2018. Suksai was granted an E-2 visa and admitted to the United States from 2010 to 2012 and she worked as a Baan Rao chef during that time. In June 2018, in order to return to the United States and continue their employment as Baan Rao chefs, Phomson and Suksai applied for new E-2 visas at the U.S. Embassy in Thailand, asserting they were “employed . . . in a ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals