UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BAAN RAO THAI RESTAURANT, et al., Plaintiffs, v. Civil Action No. 19-0058 (ESH) MICHAEL R. POMPEO, Sec’y, Dep’t of State, et al., Defendants. MEMORANDUM OPINION Plaintiffs are Baan Rao Thai Restaurant (“Baan Rao”), located in Minot, North Dakota, and two Thai nationals, Somporn Phomson and Napaket Suksai, who worked as Thai cooks for several years at Baan Rao on E-2 “essential employee” non-immigrant visas. (See Compl. ¶¶ 4- 6, 9-17, ECF No. 1.) Both Mr. Phomson and Ms. Suksai applied on two occasions in 2018 to renew their visas. Their applications were rejected by the U.S. Embassy in Bangkok, Thailand. Plaintiffs now seek review of the visa denials as arbitrary and capricious and contrary to law under the Administrative Procedure Act (“APA”) and provisions of a treaty between the United States and Thailand. Because the doctrine of consular nonreviewability precludes judicial review of plaintiffs’ claims, the Court will grant defendants’ motion to dismiss. BACKGROUND Baan Rao has operated in Minot, North Dakota, since 2008. (See id. ¶ 4.) Ms. Suksai received an E-2 visa and was admitted to the United States in E-2 status from 2010 to 2012, during which time she worked at Baan Rao. (See id. ¶¶ 6, 10.) Mr. Phomson worked as a cook at the restaurant for approximately six years, from 2012 until 2018. (See id. ¶¶ 5, 10-11.) Mr. Phomson was first granted an E-2 visa and admitted to the United States in 2012. (See id. ¶ 10.) He successfully applied to the United States Citizenship and Immigration Services (“USCIS”) to extend his E-2 visa status in 2014 and 2016. (See id.) In 2017, the USCIS California Service Center denied Mr. Phomson’s application for an extension on the basis that he was not an “essential” employee of Baan Rao. (See id. ¶ 11.) After Baan Rao challenged the decision in federal court, USCIS reopened the application and approved the extension, which was valid until October 1, 2018. (See id.) In June 2018 Mr. Phomson and Ms. Suksai applied at the U.S. Embassy in Bangkok for new E-2 visas as employees of Baan Rao, arguing that they are “employed . . . in a responsible capacity” within the meaning of a treaty between the United States and Thailand, which is the underlying authority for a Thai national to receive an E-2 visa. See Treaty of Amity and Economic Relations, U.S.-Thail., art. I, ¶ 1, 19 U.S.T. 5843 (1968) (“U.S.-Thail. Treaty”). (See also Compl. ¶¶ 12-13.) E-2 visas must be authorized by such a treaty. See 8 U.S.C. § 1101(a)(15)(E)(ii) (providing that an individual may seek entry into the United States under “a treaty of commerce and navigation between the United States and the foreign state of which he is a national . . . solely to develop and direct the operations of an enterprise. . . .”). The Embassy denied both applications because they “did not meet all of the requirements of an E-2 essential employee as ...
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