Sayad v. United States Department of Homeland Security

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 …

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