Tarlinsky v. Pompeo

          ORDER ON MOTION FOR TEMPORARY RESTRAINING ORDER AND ORDER DISMISSING CASE FOR LACK OF JURISDICTION

          HON. VANESSA L. BRYANT UNITED STATES DISTRICT JUDGE

         Before the Court is Plaintiff Peter Tarlinsky's and Ekaterina Tarlinskaya's Motion for a Temporary Restraining Order (TRO), requesting that the Court order the United States Secretary of State to reinstate Ms. Tarlinskaya's revoked visa, require the State Department to provide Ms. Tarlinskaya with further justification for the revocation, and review the revocation. [Dkt. 12]. For the following reasons, the Motion for TRO is DENIED and the case is DISMISSED for want of jurisdiction.

         Background

         The facts are taken from the Complaint. [Dkt. 1]. Plaintiff Peter Tarlinsky is a teenager who has been studying at a private preparatory school in the United States since the summer of 2016 at the Marvelwood school in Kent. [Id. at ¶ 9]. He has applied for and been granted several student visas (“F-1 visas”). [Id. at ¶ 1].^[1]Plaintiff Ekaterina Tarlinskaya is Peter Tarlinsky's mother. [Id.] Ekaterina Tarlinskaya has been accompanying Peter Tarlinsky in the United States and “assisting him with housing and other logistical matters.” [Id. at ¶ 10]. She entered the country through a visitor's visa (“B-2 visa”). [Id.] Her visa was set to expire on May 31, 2019. [Dkt. 12, at 8 n. 1].

         On March 19, 2019, without prior notice, Ms. Tarlinskaya received an email from a consular officer at the United States Embassy in Moscow informing her that her B-2 Visa had been revoked. [Dkt. 1, ¶ 12]. The embassy informed her: “Additional information became available after your visa's issuance calling into question your continued eligibility.” [Ibid.] The message did not specify the nature of the “additional information.” Plaintiffs' counsel sent emails to the Embassy on March 21, 2019, March 28, 2019, and April 19, 2019, requesting review of the revocation decision. [Dkt. 1, at ¶ 13-15]. Counsel included in these messages a copy of Peter Tarlinsky's student visa and a copy of a lease for a Connecticut home during the academic year signed by Ekaterina Tarlinskaya and Oleg Tarlinskiy. [Dkt. 1-1 (Student Visa); Dkt. 1-3 (Lease)]. On April 10, 2019, the Embassy responded, stating that Ms. Tarlinskaya's visa had been denied based on Section 214(b) of the Immigration and Nationality Act (“INA”). [Dkt. 1, ¶ 15]. The Embassy's message contained no further details about the finding. [Id.].

         On April 10, 2019, Plaintiff sent a fourth message to the Embassy requesting review of the visa revocation. [Dkt. 1, ¶ 16]. The Embassy did not respond to that message. [Id.]. To this date, the Embassy has not indicated that it will or will not review the visa revocation. [Id. at ¶ 16]. Plaintiff Ekaterina Tarlinskaya wishes to return to the United States to attend her son's graduation, which will take place on June 1, 2019. [Dkt. 1, ¶ 17].

         Legal Standard

         A TRO is an “extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Reidy, 477 F.Supp.2d 472, 474 (D. Conn. 2007) (quoting Moore v. Consol. Edison Co. of N.Y., Inc., 409 F.3d 506, 510 (2d Cir. 2005)). The Court has discretion whether to issue a TRO where specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition and the movant certifies in writing any efforts made to give notice and the reasons why it should not be required.” Holley v. Cournoyer, No. 17-cv-587 (VAB), 2018 WL 340025 at *2 (D. Conn. January 9, 2018) (quoting Oliphant v. Villano, No. 9-cv-862 (JBA), 2010 WL 537749 at *12 (D. Conn. Feb. 11, 2010)). “The purpose of a temporary restraining order is to preserve an existing situation in statu quo until the court has an opportunity to pass upon the merits of the demand for a preliminary injunction.” Garcia v. Yonkers School Dist., 561 F.3d 97, 107 (2d Cir. 2009).

         The factors considered in determining whether to issue a TRO are similar to those used in considering a motion for a preliminary injunction. See Control Sys, Inc. v. Realized Sols., Inc., No. 3:11-cv-1423 (PCD), 2011 WL 4433750 at *2 (D. Conn. Sept. 22, 2011)(citing Local 1814, Int'l Longshoreman's Ass'n, AFL-CIO v. New York Shipping Ass'n, Inc., 965 F.2d 1224, 1228 (2d Cir. 1992)). Therefore, to obtain a TRO, the moving party must establish “(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” Citigroup Glob. Markets, Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 (2d Cir. 2010) (internal quotation marks and citation omitted). The injunction must also be in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The value of this standard “lies in its flexibility in the face of varying factual scenarios and the greater uncertainties inherent at the outset of particularly complex litigation.” Citigroup Glob. Markets, Inc., 598 F.3d at 35.

         Broad and largely unreviewable power to issue or revoke a visa is statutorily vested in the Secretary of State. “After the issuance of a visa or other documentation to any alien, the consular officer or the Secretary of State may at any time, in his discretion, revoke such visa or other documentation. . . .There shall be no means of judicial review (including review pursuant to section 2241 of title 28 or any other habeas corpus provision, and sections 1361 and 1651 of such title) of a revocation under this subsection…” 8 U.S.C. § 1201(i). “[A] consular officer's decision to deny a visa is immune from judicial review.” 573 F.3d 115, 123 (2d Cir. 2009); see Lleshi v. Kerry, 127 F.Supp.3d 196, 199-200 (S.D.N.Y. 2015) (noting that the doctrine of consular nonreviewability is “long recognized within this Circuit” and collecting cases). Even though the underlying decision to grant or deny a visa is immune from judicial review, Courts still may review the procedure surrounding that decision to the extent that binding authority exists. Mantena v. Johnson, 809 F.3d 721 (2015).

         The procedure for issuing and revoking a visa are set forth in the Code of Federal Regulations and elaborated upon in the State Department's Foreign Affairs Manual. The applicable federal regulation is 22 C.F.R. § 41.122. Under the regulation, “[a] consular officer, the Secretary, or a Department official to whom the Secretary has delegated this authority” is authorized to “revoke a nonimmigrant visa at any time, in his or her discretion.” 22 C.F.R. § 41.122.^[2]“Unless otherwise instructed by the Department, a consular officer shall, if practicable, notify the alien to whom the visa was issued that the visa was revoked or provisionally revoked.” 22 C.F.R. § 41.122(c). In the State Department's Foreign Affairs Manual, the department identifies scenarios in which notification of intent to revoke a visa would not be practicable: “[If], for instance, the post did not know the whereabouts of the alien, or the alien's departure is not imminent.” 9 FAM 403.11-4(A)(1)(a)(2). The Manual notes that even if the post knows the location of an alien and the alien's departure is not imminent, notice is not required if “the consular officer has reason to believe that a notice of this type would prompt the alien to attempt immediate travel to the United States.” Id.

         At the outset, the Court notes that Plaintiffs repeatedly rely on the Foreign Affairs Manual (“FAM”) as authority supporting Ms. Tarlinskaya's right to notice of revocation and review. As an initial matter, that reliance is misplaced. In support of their contention that review of the visa revocation is required by law, Plaintiffs rely on a provision of the FAM which relates to 22 C.F.R. § 42.81(e), which governs visa refusals rather than visa revocations. The regulations for visa revocation are contained in the federal code at 22 C.F.R. § 42.122. The Court applies those regulations which relate to the procedural posture of Ms. Tarlinskaya's visa to determine whether the decision to revoke her visa is reviewable.

         Second, even if the regulation relied upon were applicable the corresponding FAM provision would not support the relief sought because “internal guidance documents are not binding agency authority.” Cruz-Miguel v. Holder, 650 F.3d 189, 200 (2d Cir. 2011). The FAM is an internal guidance document intended for State Department employees, and its text does not bind the agency. See Jaen v. Sessions,899 F.3d 182, 187 n. 4 (2d Cir. 2018) ...