Udugampola v. Jacobs

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

BIANCA UDUGAMPOLA, et al.,

Plaintiffs,
Civil Action No. 13-cv-0460 (BAH)
v.
Judge Beryl A. Howell
JANICE JACOBS,
Assistant Secretary for Consulate Affairs
U.S. Department of State, et al.,

Defendants.

MEMORANDUM OPINION

For almost twenty years, the family of the plaintiff Premadasa Udugampola (“Mr.

Udugampola” or “the applicant”),1 a Sri Lankan citizen, has been trying unsuccessfully to obtain

a visa enabling him to immigrate to the United States. For the second time, the family has filed

suit in this Court to obtain the relief denied to them administratively by the United States

Department of State. Although the basis for the visa denial at issue in this second suit differs

from the first suit, the claims and relevant legal doctrines remain unchanged, necessitating the

same outcome of dismissal.

The applicant’s daughter, plaintiff Bianca Uduguampola, and the applicant’s wife,

Plaintiff Somie Udugampola (“Mrs. Udugampola”), allege in this suit against Janice Jacobs,

Assistant Secretary for Consular Affairs at the U.S. Department of State, Edward Ramotowski,

Deputy Assistant Secretary for Visa Service, and Christopher R. Green, Consul General at the

U.S. Embassy in Colombo, Sri Lanka, that the defendants violated the plaintiffs’ Fifth

1
Although Mr. Udugampola is named as a plaintiff, “[i]t is beyond dispute that Mr. Udugampola has no
constitutional right to enter the United States, and also does not have standing to seek review of his visa denial.”
Udugampola v. Jacobs (“Udugampola I”), 795 F. Supp. 2d 96, 98 n.1 (D.D.C. 2011). The plaintiffs concede this
point, noting that Mr. Udugampola “is the symbolic plaintiff in this lawsuit.” Am. Compl., ¶ 11, ECF No. 9.

1

Amendment procedural Due Process rights by failing to provide a facially legitimate and bona

fide reason for denying Mr. Udugampola’s visa application for a third time. The defendants

have moved to dismiss the plaintiffs’ Amended Complaint and, for the reasons discussed below,

this motion is granted. See generally Def.’s Mot. to Dismiss Am. Compl. (“Def.’s Mot.”), ECF

No. 11.

I. BACKGROUND

This Court dismissed the plaintiffs’ first suit for lack of subject matter jurisdiction,

pursuant to the doctrine of consular non-reviewability, and for failure to state a claim under

12(b)(6). See Udugampola v. Jacobs, 795 F. Supp. 2d 96, 108 (D.D.C. 2011) (“Udugampola I”).

At issue in that suit was the State Department’s denial of the applicant’s visa application, under

Section 212(a)(3)(B) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(a)(3)(B),

due to the applicant’s alleged participation in terrorism. Id. at 98. A review of the plaintiffs’

immigration histories is set forth in that prior opinion, id. at 98-100, and only briefly summarized

here.

The applicant worked as a Sri Lankan police officer from 1957 to 1992, rising to the

position of Deputy Inspector General of Police before his retirement. Am. Compl. ¶ 11, ECF

No. 9. Mr. Udugampola’s wife was granted asylum in the United States on February 23, 1995,

and became a naturalized U.S. citizen on August 24, 2012. Id. ¶¶ 15, 23. Mr. and Mrs.

Udugampola have four children, all of whom are U.S. citizens or lawful permanent residents. Id.

¶ 15.

Shortly after arriving in this country, Mrs. Udugampola filed, on March 22, 1995, a Form

I-730 Refugee/Aslyee relative petition on behalf of her husband, Mr. Udugampola. Id. ¶ 16.

Four years later, on September 15, 1999, the Immigration and Naturalization Service (“INS”)

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issued a Notice of Decision denying the I-730 petition, under 8 C.F.R. § 208.19, on the grounds

that the applicant was ineligible for derivative asylum for allegedly having “ordered, incited,

assisted, or otherwise participated in the persecution of any persons on account of race,

nationality, membership, in a particular social group, or political opinion,” when he served as

Deputy Inspector General of Police for the Southern Province of Sri Lanka. Id. ¶ 17.2

The applicant’s daughter, plaintiff Bianca Udugampola, subsequently filed, on September

5, 2003, a Form I-130 Petition for Alien Relative on behalf of her father, Mr. Udugampola.3

Am. Compl. ¶ 18; see also I-130 Petition for Alien Relative, Complaint Ex. 1, ECF No. 1-7.

This Petition was approved by U.S. Citizenship and Immigration Services (“USCIS”) on April

23, 2004, but no action was taken on Mr. Udugampola’s immigrant visa application for over five

years until September 24, 2009, when the U.S. Embassy in Colombo, Sri Lanka, denied the

request based on INA Section 212(a)(3)(B), 8 U.S.C. §1182(a)(3)(B), for the applicant’s alleged

participation in terrorism. Am. Compl. ¶¶ 18-20.

This 2009 visa application denial was the subject of the plaintiffs’ first suit, which

asserted, as in the instant suit, that the defendants, who were U.S. State Department officials, had

violated the applicant’s wife and daughter’s Fifth Amendment Due Process rights for failing to

supply a legitimate and bona fide reason for the visa denial. See Udugampola I, 795 F. Supp. 2d

at 100. Following dismissal of that suit, plaintiff Bianca Udugampola, on behalf of her father,

entered into an agreement with the U.S. Department of Justice, permitting Mr. Udugampola to

submit a new visa application, along with new supporting documentation and a new interview,

which State Department officials would adjudicate “without undue delay,” based on the

2
A form I–730 may be used by an alien admitted to the United States as a refugee or granted asylum status to obtain
admission for a minor child or spouse pursuant to 8 C.F.R. § 208.21(c).
3
A form I–130 Petition for Alien Relative is a family-based avenue for obtaining an immigration visa. A family
member, who is either a United States citizen or lawful permanent resident, may file a Form I–130 as the petitioner
on behalf of an alien relative seeking to gain entry into the United States. See 8 U.S.C. § 1151(b)(2)(A)(i).

3

previously approved Form I-130 petition submitted by the applicant’s daughter. Am. Compl. ¶

22; see also Compl., Ex. 2 (Letter, dated November 8, 2011, to plaintiffs’ counsel from Michelle

Lo, Assistant U.S. Attorney, U.S. Attorney’s Office for the District of Columbia (“USAO

Letter”), ¶ 3), ECF No. 1-8. The agreement expressly stated that “the State Department does not

make any representation as to the outcome of its adjudication of the new visa application.” See

USAO Letter ¶ 5.

On March 14, 2012, Mr. Udugampola appeared for his interview at the U.S. Embassy in

Colombo, Sri Lanka, and submitted his third visa application, along with new supporting

documentation. Am. Compl. ¶ 22. When no decision was forthcoming within a year, the

plaintiffs filed suit in this Court, on April 9, 2013, seeking mandamus and declaratory relief to

compel the State Department to issue a decision on Mr. Udugampola’s visa. Am. Compl. ¶¶ 23-

24. Less than two months later, on July 8, 2013, the Consulate issued a decision on Mr.

Udugampola’s new application, again denying the applicant’s visa application, but based on a

different statutory provision, namely, Section 212(a)(3)(E)(iii)(II) of the INA, 8 U.S.C.

§1182(a)(3)(E)(iii)(II), which authorizes exclusion of any alien who has been involved in

“extrajudicial killing[s].” Am. Compl. ¶¶ 24, 36. This consular action prompted the plaintiffs to

amend their Complaint in this case and modify the relief sought.

In sum, over the last fifteen years, the applicant’s three visa applications have been

consistently denied but on different grounds: in 1999, the applicant’s visa application was

denied, pursuant to 8 C.F.R. § 208.13(c)(2)(i)(E), due to his alleged participation in the

“persecution of any persons on account of race, nationality, membership, in a particular social

group, or political opinion,” id. ¶ 17; in 2009, the applicant’s visa application was denied, under

8 U.S.C. §1182(a)(3)(B), due to his alleged participation in terrorism, id. ¶ 20; and, finally, in

4

2013, the applicant’s visa application was denied, under 8 U.S.C. §1182(a)(3)(E)(iii)(II), due to

his alleged involvement in “extrajudicial killing[s],” id. ¶ 24. The plaintiffs allege that the

varying bases for denial are internally inconsistent, noting that “one line of reasoning precludes

the application of another,” because allegations of “past persecution or extrajudicial killings . . .

requires that Mr. Udugampola be categorized as a state actor,” while accusing him of being

“engaged in terrorist activity,” amounts to calling the Government of Sri Lanka a “terrorist

organization” under 8 U.S.C. §1182(a)(3)(B)(iv), when, as a “foreign sovereign[] . . . recognized

by the U.S. Government,” it “cannot be [so] characterized.” Am. Compl., ¶ 43,n. 1.

The plaintiffs’ Amended Complaint asserts that the defendants violated the plaintiffs’

Fifth Amendment Due Process Rights by failing to provide a facially legitimate or bona fide

reason for denial of Mr. Udugampola’s visa application, under 8 U.S.C. § 1182(a)(3)(E)(iii)(II),

Am. Compl. ¶¶ 37-40, and for either not considering or denying a waiver, under 8 U.S.C.

§1182(d)(3), which would permit Mr. Udugampola to enter the country even if deemed

otherwise inadmissible. Am. Compl. ¶ 41. The plaintiffs seek a declaratory order that the most

recent visa denial in 2013 violates both the Fifth Amendment Due Process Clause and the

Administrative Procedure Act, and an injunction barring the defendants from relying on 8 U.S.C.

§ 1182(a)(3)(E)(iii)(II) as a basis for excluding the applicant from the United States. See Am.

Compl., Prayer of Relief. The defendants have moved to dismiss the Amended Complaint and

that motion is ripe for decision.

II. LEGAL STANDARDS

A. Motion to Dismiss for Lack of Subject Matter Jurisdiction

“‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power

authorized by Constitution and statute.’” Gunn v. Minton, –––U.S. ––––, 133 S. Ct. 1059, 1064

5

(2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Indeed,

federal courts are “forbidden . . . from acting beyond our authority,” NetworkIP, LLC v. FCC,

548 F.3d 116, 120 (D.C. Cir. 2008), and, therefore, have “an affirmative obligation ‘to consider

whether the constitutional and statutory authority exist for us to hear each dispute.’” James

Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996) (quoting Herbert v. Nat’l

Acad. of Sci.’s, 974 F.2d 192, 196 (D.C. Cir. 1992)). Absent subject matter jurisdiction over a

case, the court must dismiss it. Arbaugh v. Y&H Corp., 546 U.S. 500, 506-07 (2006); FED. R.

CIV. P. 12(h)(3).

When considering a motion to dismiss under Rule 12(b)(1), the court must accept as true

all uncontroverted material factual allegations contained in the complaint and “construe the

complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the

facts alleged and upon such facts determine jurisdictional questions.” Am. Nat’l Ins. Co. v.

FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (internal citations and quotation marks omitted).

The court need not accept inferences drawn by the plaintiff, however, if those inferences are

unsupported by facts alleged in the complaint or amount merely to legal conclusions. See

Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). In evaluating subject matter

jurisdiction, the court, when necessary, may look beyond the complaint to “undisputed facts

evidenced in the record, or the complaint supplemented by undisputed facts plus the court’s

resolution of disputed facts.” Herbert, 974 F.2d at 197; see also Alliance for Democracy v. FEC,

362 F. Supp. 2d 138, 142 (D.D.C. 2005).  The burden of establishing any jurisdictional facts to

support the exercise of the subject matter jurisdiction rests on the plaintiff. See Hertz Corp. v.

Friend, 559 U.S. 77, 96-97 (2010); Thomson v. Gaskill, 315 U.S. 442, 446 (1942); Moms Against

Mercury v. FDA, 483 F.3d 824, 828 (D.C. Cir. 2007).

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 B. Failure to State a Claim Under Rule 12(b)(6)

Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain “a short and

plain statement of the claim showing that the pleader is entitled to relief,” to encourage brevity

and, at the same time, “give the defendant fair notice of what the . . . claim is and the grounds

upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (ellipses in

original; internal quotations and citations omitted); Tellabs, Inc. v. Makor Issues & Rights, Ltd.,

551 U.S. 308, 319 (2007). The Supreme Court has cautioned that although “Rule 8 marks a

notable and generous departure from the hyper-technical, code-pleading regime of a prior era, []

it does not unlock the doors of discovery for a plaintiff armed with nothing more than

conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). To survive a motion to dismiss

under Federal Rule of Civil Procedure 12(b)(6), the “complaint must contain sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its face.” Wood v. Moss,

134 S. Ct. 2056, 2067 (2014) (quoting Iqbal, 556 U.S. at 678). A claim is facially plausible

when the plaintiff pleads factual content that is more than “merely consistent with a defendant’s

liability,” but allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 557); see also Rudder

v. Williams, 666 F.3d 790, 794 (D.C. Cir. 2012). Although “detailed factual allegations” are not

required to withstand a Rule 12(b)(6) motion, a complaint must offer “more than labels and

conclusions” or “formulaic recitation of the elements of a cause of action” to provide “grounds”

of “entitle[ment] to relief,” Twombly, 550 U.S. at 555 (alteration in original), and “nudge[ ] [the]

claims across the line from conceivable to plausible,” id. at 570. Thus, “a complaint [does not]

suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556

U.S. at 678 (quoting Twombly, 550 U.S. at 557). In considering a motion to dismiss for failure to

7

plead a claim on which relief can be granted, the court must consider the complaint in its

entirety, accepting all factual allegations in the complaint as true, even if doubtful in fact.

Twombly, 550 U.S. at 555-56; Sissel v. United States Dep’t of Health and Human Servs., No. 13-

5202, 2014 U.S. App. LEXIS 14397, at *7 (D.C. Cir. June 29, 2014) (in considering Rule

12(b)(6) motion, the “court assumes the truth of all well-pleaded factual allegations in the

complaint and construes reasonable inferences from those allegations in the plaintiff's favor, but

is not required to accept the plaintiff’s legal conclusions as correct”) (internal quotations and

citations omitted). In addition, courts may “ordinarily examine” other sources “when ruling on

Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by

reference, and matters of which a court may take judicial notice.” Tellabs, 551 U.S. 322 (citing

Leatherman v. Tarrant Cnty. Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164

(1993)); see also English v. D.C., 717 F.3d 968, 971 (D.C. Cir. 2013).

III. DISCUSSION

The defendants move to dismiss the plaintiffs’ Amended Complaint on the same two

grounds that they successfully moved to dismiss the same plaintiffs’ claims in Udugampola I:

that the court lacks subject matter jurisdiction, pursuant to Federal Rule 12(b)(1), due to the

doctrine of consular nonreviewability, Defs.’ Mem. Supp. of Mot. to Dismiss (“Defs.’ Mem.”) at

6-9; and, second, assuming subject matter jurisdiction exists, that the plaintiffs fail to state a

claim for relief, pursuant to Federal Rule 12(b)(6), because defendants have a legitimate and

bona fide reason for denying Mr. Udugampola’s visa application and the “[p]laintiffs do not

8

allege any plausible claim of bad faith,” id. at 11. The Court addresses each basis for dismissing

the suit seriatim below. 4

A. The Court Lacks Subject Matter Jurisdiction to Review Plaintiffs’ Claims

The parties do not dispute that under the doctrine known as consular non-reviewability,

“a consular official’s decision to grant or deny a visa is not subject to judicial review.” Am.

Compl. ¶ 27 (citing Saavedra Bruno v. Albright, 197 F.3d 1153, 1159 (D.C. Cir. 1999)); Defs.’

Mem. 7-8; see also United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950) (“[I]t

is not within the province of any court, unless expressly authorized by law, to review the

determination of the political branch of the Government to exclude an alien.”); Udugampola I,

795 F. Supp. 2d at 102. Nonetheless, the plaintiffs contend that they fall within the limited

exception to this doctrine allowing judicial review of a consular decision denying a visa

application when the plaintiff is a U.S. citizen or legal resident, who claims that the decision

violated a constitutionally protected liberty interest. Pls.’ Opp’n to Def.’s Mot. to Dismiss

(“Pls.’ Opp’n”) at 6 (noting that the circumstance for application of the exception “is precisely

the case plaintiffs have brought before this Court”); Am. Compl. ¶ 5 (citing Kleindienst v.

Mandel, 408 U.S. 753, 770 (1972) (exercising jurisdiction where U.S. citizen challenged visa

waiver denial as a violation of the First Amendment); Saavedra Bruno v. Albright, 197 F.3d

1153, 1163 (D.C. Cir. 1999); Abourezk v. Reagan, 785 F.2d 1043, 1050 (D.C. Cir. 1986) (finding

that “presumably, had the [Supreme] Court harbored doubts concerning federal court subject

matter jurisdiction in Mandel, it would have raised the issue on its own motion”); Am. Acad. of

Religion v. Napolitano, 573 F.3d 115, 126 (2d Cir. 2009); Bustamante v. Mukasey, 531 F.3d

4
The defendants also contend that since “this is the same action as the earlier one,” the “Plaintiffs’ Claim Fails on
Res Judicata Grounds.” Id. at 12 (capitalization in original). Since the defendants’ motion is resolved on other
grounds, this ground for dismissal need not be addressed.

9

1059, 1062 (9th Cir. 2008); Adams v. Baker, 909 F.2d 643, 647–48 (1st Cir. 1990)). The

defendants argue that the limited exception to the doctrine of consular nonreviewability is

inapplicable to the plaintiffs because “the visa refusal at issue in this action has not implicated

any constitutionally protected interest” of the plaintiffs. Defs.’ Mem. at 9. The Court agrees

with the defendants. 5

To establish entitlement to this limited exception to the consular nonreviewability

doctrine, the plaintiffs bear the burden of demonstrating that the visa decision violated a

constitutionally protected interest. See Saavedra Bruno, 197 F.3d at 1163-64; Jathoul v. Clinton,

880 F. Supp. 2d 168, 171 (D.D.C. 2012) (“Plaintiff bears the burden of establishing that the

consular action falls within this exception . . . and even where the exception applies, judicial

review should be extremely limited”) (citations and internal quotations omitted). In this case, the

plaintiffs argue that they meet this burden because the applicant’s wife has a “constitutionally

protected liberty interest in her marriage and her family life” that entitles her to constitutionally

adequate procedures before her husband’s visa application can be denied. Pls.’ Opp’n at 6; see

also Am. Compl. ¶ 27 (“As applicable here, U.S. citizen spouses of visa applicants have a

‘protected liberty interest in marriage’ that entitles them to ‘constitutionally adequate

procedures’ in a consulate’s decision whether to grant or deny a family-based visa, and review of

the denial of a spouse’s visa.”). The defendants counter that “Courts in this District have

expressly rejected the claim that marriage to a U.S. citizen is a constitutionally protected right to

entitle judicial review of a spouse’s visa application denial.” Defs.’ Mem. at 8.

5
The defendant raises the same threshold issue here noted in Udugampola I whether the applicant’s wife “has
standing as the current visa denial is based on a petition filed on the applicant’s behalf by his daughter.” Defs.’
Mem. at 12; Defs.’ Reply at 4 n. 2; Udugampola I, 795 F. Supp. 2d at 106 n.9. The Court need not address this
standing issue because, even assuming, arguendo, that the applicant’s wife has standing to assert a Fifth Amendment
due process claim, the Court nonetheless lacks subject matter jurisdiction.

10

 The defendants are correct that, contrary to the holdings of certain cases decided in the

Ninth Circuit, in this Circuit the exception to the consular nonreviewability doctrine has been

found generally inapplicable to spousal visa denials. Indeed, while noting that the Constitution

protects an individual’s right to marry and the marital relationship, this Court concluded in

Udugampola I that “these constitutional rights are not implicated when one spouse is removed or

denied entry into the United States.” 795 F. Supp. 2d at 105 (citing Swartz v. Rogers, 254 F.2d

338, 339 (D.C. Cir. 1958); Bangura v. Hansen, 434 F.3d 487, 496 (6th Cir. 2006); Almario v.

Attorney Gen., 872 F.2d 147, 151 (6th Cir. 1989); Burrafato v. U.S. Dep’t of State, 523 F.2d 554,

556 (2d Cir. 1975); Noel v. Chapman, 508 F.2d 1023, 1027–28 (2d Cir. 1975); Movimiento

Democracia, Inc. v. Chertoff, 417 F. Supp. 2d 1350, 1353 (S.D. Fla. 2006)). The plaintiffs have

presented no persuasive or binding caselaw that warrants revision of the legal conclusion reached

by this Court in Udugampola I “that the plaintiffs’ claim therefore does not fall into the narrow

exception to the consular nonreviewability doctrine.” 795 F. Supp. 2d at 106.6 On the contrary,

subsequent cases have reached the same conclusion on similar facts. See, e.g., Jathoul, 880 F.

Supp. 2d at 172 (concluding that court lacked subject matter jurisdiction since plaintiff’s

constitutional rights are not implicated when her spouse’s visa application is denied); Mostofi v.

Napolitano, 841 F. Supp. 2d 208, 212-13 (D.D.C. 2012) (same); Gogilashvili v. Holder, 2012

U.S. Dist. LEXIS 87832, 17-19 (E.D.N.Y. June 25, 2012) (doctrine of nonreviewability applies

to remove subject matter jurisdiction to hear citizen plaintiffs’ challenge to visa denial for their

foreign national husband and father).

6
The fact that the applicant’s wife has become a U.S. citizen in the interim since Udugampola I was decided, see
Am. Compl. ¶ 35, is immaterial. The Court made clear in Udugampola I that the exception to the consular
nonreviewability doctrine, if applicable, would be available to both U.S. citizens and legal resident aliens. See
Udugampola I, 795 F. Supp. 2d at 103.

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 The Court is cognizant that denial of Mr. Udugampola’s visa application to immigrate to

this country will assuredly place “burdens upon the marriage.” Swartz, 254 F.2d at 339. These

burdens have clearly motivated the plaintiffs to persist in their twenty year effort to find a way

for Mr. Udugampola to gain entry to the United States. The applicant’s wife, however, has a

“choice of living abroad with her husband or living in this country without him.” Id. This may

seem like a Hobson’s choice but denial of Mr. Uduguampola’s visa application does “not in any

way destroy the legal union which the marriage created.” Id.; see Silverman v. Rogers, 437 F.2d

102, 107 (1st Cir. 1970) (stating that there was “no merit” in contention that government was

“destroying” plaintiff’s marriage by refusing to allow spouse the right to live in the United

States); Mostofi, 841 F. Supp. 2d at 212-13 (“Defendants’ denial of [the plaintiff’s] visa affected

the physical conditions of the marriage . . . but not the marriage itself.”).

Accordingly, since no constitutional liberty interest of the plaintiffs is implicated by the

applicant’s visa denial, this Court does not have subject matter jurisdiction, under the doctrine of

consular nonreviewability, to review the defendants’ denial of the visa application.7

B. The Amended Complaint Must be Dismissed for Failure to State a Claim

Even assuming arguendo, that the applicant’s wife was entitled to Mandel review, the

plaintiffs would still fail to state a claim for relief. The limited judicial review granted when

constitutional rights are implicated by a visa application decision only tests whether the consular

office provided a facially legitimate and bona fide reason to deny the alien entry into the United

States. Mandel, 408 U.S. at 770 (where “the Executive exercises this power [ ] on the basis of a

7
The Amended Complaint requests relief under both the Fifth Amendment and “the Administrative Procedure[]
Act,” (“APA”), Am. Compl., Prayer of Relief, but the APA cannot provide a statutory basis for relief. As the
defendants correctly point out, the APA does not provide the plaintiffs with a cause of action to assert a claim
otherwise barred by the doctrine of consular non-reviewability. Defs.’ Mem. at 7; see Van Ravenswaay v.
Napolitano, 613 F. Supp. 2d 1, 6 (D.D.C. 2009) (“D.C. Circuit has specifically held that the Administrative
Procedure Act provides no basis for challenging consular visa decisions,” citing Saavedra Bruno, 197 F.3d at 1158).

12

facially legitimate and bona fide reason, the courts will neither look behind the exercise of that

discretion, nor test it by balancing its justification” against constitutional interests); Bustamante,

531 F.3d at 1062. In conducting this review, “a reviewing court need only satisfy itself that the

conduct alleged fits within the statutory provisions relied upon as the reason for the visa denial,

or may determine if there is evidence that either supports the reason or at least supports the

consular officer’s reasonable belief that the reason exists.” Am. Acad. of Religion, 573 F.3d at

134 (citing 8 U.S.C. § 1201(g)).

The plaintiffs argue that the defendants’ decision “lacks the minimum specificity required

to qualify as a facially legitimate and bona fide reason for the visa denial” because “the

Consulate not only has failed to point to its specific legal basis for denying Mr. Udugampola’s

visa, it also has not explained its reason for invoking 8 U.S.C. § 1182 (a)(3)(E)(iii)(II) to exclude

him from the United States.” Pls.’ Opp’n at 7 (citations omitted). The Court disagrees. For the

same reasons that there was a facially legitimate and bona fide reason to deny Mr. Udugampola’s

second visa application under 8 U.S.C. § 1182(a)(3)(B) in Udugampola I, a facially legitimate

and bona fide reason was provided to deny his third visa application under 8 U.S.C. § 1182

(a)(3)(E)(iii)(ii).

First, the defendants’ decision is facially legitimate, since a reason for the visa denial is

given in the form of a citation to Section 212(a)(3)(E)(iii)(II) of the INA, 8 U.S.C. § 1182

(a)(3)(E)(iii)(ii). The INA clearly states that the defendants need not provide a specific statutory

basis for a visa denial when the reason for exclusion falls, as here, within Section 212(a)(2) or

(a)(3). 8 U.S.C. § 1182 (b)(3); see Udugampola I, 795 F. Supp. 2d at 107 (“INA states clearly

that the defendants need not provide an applicant even the statutory basis for denial if the reason

for denial is based under Sections 212(a)(2) or (a)(3).”); Jathoul, 880 F. Supp. 2d at 173 (“8

13

U.S.C. § 1182(b)(3) expressly provides that the government need not identify the specific

provision or provisions of law under which the alien is inadmissible where it finds him

inadmissible under §§ 1182(a)(2) or (a)(3) . . . [a]s a result, the more general reference to 8

U.S.C. § 1182(a)(3) is adequate”) (internal quotations and citations omitted). Thus, the citation

to Section 212(a)(3)(E)(iii)(II) of the INA, in the applicant’s visa denial provided a more specific

reason than minimally required and confers facial legitimacy on the defendants’ decision.8

The plaintiffs’ pursuit of a more detailed explanation for the applicant’s most recent visa

denial is unavailing. They complain that INA’s Section 212(a)(3)(E)(iii)(II), under which the

applicant’s most recent visa application was denied, is “broad and vague,” Pl.’s Opp’n at 6, and

does not make clear “whether the Consulate is accusing Mr. Udugampola of extrajudicial killing

in and of itself, of ordering extrajudicial killing, of inciting extrajudicial killing, of assisting in

extrajudicial killing, or ‘otherwise participat[ing] in the commission of extrajudicial killing,’”

Pl.’s Opp’n at 7 (quoting 8 U.S.C. § 1182 (a)(3)(E)(iii)(II)).9 While the precise nature of the

alleged conduct underlying the visa denial may help the plaintiffs come to terms with the

defendants’ decision to exclude Mr. Udugampola from the United States, such precision is not

necessary to find the Consulate’s decision facially legitimate. Indeed, whether the applicant

“committed, ordered, incited, assisted, or otherwise participated in the commission of . . . any

extraditional killing,” the outcome would be the same—he is inadmissible.

8
The plaintiff points to a recent Ninth Circuit case holding that citation to a statutory basis under Section 212(a)(2),
standing alone, is insufficient to provide a facially legitimate and bona fide reason for denying a visa application.
See Din v. Kerry, 718 F.3d 856, 862 (9th Cir. 2013). This decision is not binding on this Court. In any event, Din is
distinguishable since in that case the plaintiffs had no idea “what [the applicant] could have done to be found
inadmissible on terrorism grounds,” under 8 U.S.C. § 1182(a)(3)(B). Din, 718 F.3d at 861. By contrast, here the
plaintiffs are clearly on notice that Mr. Udugampola’s alleged conduct while serving as Deputy Inspector General of
Police in Sri Lanka during a civil war is the factual underpinning for all three of his visa application denials.
9
8 U.S.C. § 1182 (a)(3)(E)(iii)(II) provides that: “Any alien who, outside the United States, has committed, ordered,
incited, assisted, or otherwise participated in the commission of-- . . . (II) under color of law of any foreign nation,
any extrajudicial killing, as defined in section 3 (a) of the Torture Victim Protection Act of 1991 (28 U.S.C. 1350
note), is inadmissible.”

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 Second, the plaintiffs contend that even if providing a statutory citation as the basis for

the visa denial is sufficient to deem the Consulate’s decision “facially legitimate,” the decision is

not “bona fide” because the “consulate acted in bad faith.” See Pl.’s Opp’n at 7-8. In support of

this bad faith claim, the plaintiffs aver that the applicant’s visa has been denied over the years for

various reasons, including “past persecutor,” “terrorism,” and now “extrajudicial killing,” “as

though the Consulate keeps trying in hopes that one will ‘stick.’” Am. Compl. ¶ 43. According

to the plaintiffs, “[t]he Consulate’s series of visa denials on different grounds thus appears to be

in bad faith, which likewise renders its decision not bona fide.” Id. To the contrary, all three

denials of the applicant’s visa applications have been based on his “actions as Deputy Inspector

General of the Sri Lankan Police and alleged participation in the persecution of others.” Defs.’

Reply at 7. Thus, no matter the specific INA provision cited as the basis for the denial, the

genesis for the denials has remained consistent.10

Moreover, the defendants are correct that the plaintiffs’ “claim for bad faith is not well

supported where this [C]ourt has previously found that information in the public record

supported the Consulate’s” prior decision to deny Mr. Udugampola’s visa. Defs.’ Reply at 7.

Indeed, news articles reporting on the Sri Lankan civil war that were previously submitted by the

defendants during the proceedings in Udugampola I, lend credence to the conclusion that the

visa denial decision is bona fide rather than predicated on bad faith. See Udugampola I, 795 F.

Supp. 2d at 107 (citing articles reporting, inter alia, that “[the applicant] has led an elite squad of

similarly motivated men on a singular mission—to wipe out the insurgency at whatever human

10
The plaintiffs argue that this case is like Abourezk II where the D.C. Circuit found that the State Department had
“so obscured its position” for denying the visa that its reason could not be facially legitimate or bona fide.
Abourezk, 785 F.2d at 1059. That case, however, is easily distinguishable from the instant matter. In Abourezk, the
defendants “never squarely advanced a rationale” but took an “either/or” approach that left it entirely unclear
whether the applicant was being excluded based on government ties or organizational memberships. Id. at 1060. By
contrast, the defendants’ position has never been obscure with regards to Mr. Udugampola’s inadmissibility. The
applicant is inadmissible because of alleged actions that he took as a Deputy Inspector General of Police in Sri
Lanka.

15

cost,” and was perhaps involved in “government death squads [which] killed nearly 40,000

people in a crackdown on left-wing rebels”).

Finally, the plaintiffs miss the mark when they argue that the Consulate’s bad faith may

somehow be reflected by the adjudication of “the new visa application based on documents and

evidence that were submitted in 2004,” because “[s]uch an unsatisfactory review would be in

clear violation of the government’s Agreement that the Consulate would adjudicate a new

application de novo, in light of new supporting evidence and a new interview of the applicant.”

Pl.’s Opp’n at 8. The plain terms of the USAO Letter make clear that “[a]ll standard procedures

will be followed for the [new visa] application.” USAO Letter at ¶ 1. Such “standard

procedures” presumably allow, if not require, review of information available and relevant to the

adjudication of the application, including any information considered in prior consular decisions

to deny the applicant’s visa. Although the defendants were willing to take yet another look at

Mr. Udugampola’s visa application, including new information he could provide to obtain a visa,

“[t]he consular officer has no authority or discretion to disregard information relevant to an

applicant’s eligibility for a visa in their adjudication.” Defs.’ Reply at 8. Moreover, the USAO

Letter makes clear that no promises were made by the State Department that the outcome of the

adjudication of the visa application would differ in any way from the prior adjudications. Thus,

the fact that the outcome of the 2013 visa application adjudication was the same as the prior two

visa application denials cannot be viewed as violative of the agreement nor any indication of bad

faith.

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 IV. CONCLUSION

For the foregoing reasons, the defendants’ motion to dismiss for lack of subject matter

jurisdiction and for failure to state a claim is GRANTED. The plaintiffs’ Amended Complaint is

dismissed.

An order consistent with this Memorandum Opinion will be entered.

Digitally signed by Hon. Beryl A. Howell
DN: cn=Hon. Beryl A. Howell, o=U.S.
Date: September 29, 2014 District Court for the District of Columbia,
ou=United States District Court Judge,
email=Howell_Chambers@dcd.uscourts.g
ov, c=US
Date: 2014.09.29 18:21:39 -04'00'

__________________________
BERYL A. HOWELL
United States District Judge

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