United States District Court, D. Connecticut
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been revoked.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)
...