UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JUSTIN ASHLEY ROHRBAUGH OLGA LETICIA GARCIA MARROQUIN DE ROHRBAUGH, Case No. 19-cv-505 (CRC) Plaintiffs, v. MICHAEL R. POMPEO, et al., Defendants. MEMORANDUM OPINION Plaintiffs Justin and Olga Rohrbaugh brought this action seeking relief from the denial of Mrs. Rohrbaugh’s immigrant visa application by a U.S. consular officer in Guatemala. They claim that the denial violates the Administrative Procedure Act as well as their Fifth Amendment rights to due process. Defendants moved to dismiss principally for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), arguing that the doctrine of consular non-reviewability precludes this Court’s review. Because the Court finds that the Rohrbaughs have failed to assert a constitutionally protected interest that would permit judicial review of a consular visa decision, the Court will grant the motion and dismiss the case. I. Background Plaintiffs Justin and Olga Rohrbaugh met in 2014 and wed the following year. Am. Compl. ¶ 42. Mr. Rohrbaugh is a U.S. citizen, Am. Compl. ¶ 20; Mrs. Rohrbaugh, a native of Guatemala, entered the country in 2008 outside of the proper channels. Am. Compl. ¶ 21; Exh. B ¶ 3. Once married, the couple followed the procedures for Mrs. Rohrbaugh to become a lawful permanent resident based on marriage to a U.S. citizen. Am. Compl. ¶ 42–47. First, Mr. Rohrbaugh successfully petitioned U.S. Citizenship and Immigration Services (“USCIS”) to establish the validity of the marriage. Am. Compl. ¶ 43; Exh. D. Because of her prior illegal entry, Mrs. Rohrbaugh was deemed “inadmissible” and required a waiver from USCIS before she could be considered for permanent residence. Am. Compl. ¶ 36, 44; Exh. E. She applied for the necessary waiver, which USCIS granted in June 2016. Am. Compl. ¶ 44–45; Exh. E, F. Waiver in hand, Mrs. Rohrbaugh left the United States and returned to Guatemala to apply for her immigrant visa at the U.S. Embassy there. Am. Compl. ¶ 46. Mrs. Rohrbaugh appeared at the Embassy for her immigrant visa interview, during which a U.S. consular officer determined that she was inadmissible to the U.S. and denied her visa application. Am. Compl. ¶ 47. In particular, the consular officer determined that Mrs. Rohrbaugh is inadmissible because she fit the statutory definition of a “human smuggler,” see 8 U.S.C. § 1182(a)(6)(E), and because she had been unlawfully present in the U.S. for more than a year and sought admission within ten years of her departure, see 8 U.S.C. § 1182(a)(9)(B)(i)(II). See Am. Compl. ¶ 5; Def.’s Mot. to Dismiss 7; Derentz Decl. ¶¶ 4–6. Although they had no right of administrative appeal, Mr. Rohrbaugh emailed the Immigrant Visa Chief of the U.S. Embassy in Guatemala to request a review of the consular officer’s decision. Am. Compl. ¶ 48. The Immigrant Visa Chief reviewed the decision in consultation with the Department of State in Washington, D.C. and upheld the denial. Am. Compl. ¶ 48; Exh. H. Plaintiffs then filed suit in federal court on February 27, 2019, ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals