Bautista-Rosario v. S.A.B.R., a Minor ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FELIX RAMON BAUTISTA-ROSARIO, et
al.,
Plaintiffs,
v. Civil Action No. 1:20-cv-2782 (CJN)
STEVEN T. MNUCHIN
Secretary of the Treasury, et al.,
Defendants.
MEMORANDUM OPINION
Felix Ramon Bautista-Rosario is a Senator of the Dominican Republic. He and several
members of his family challenge their public designations under Section 7031(c) of the
Department of State Foreign Operations, and Related Programs Appropriations Act, and Bautista-
Rosario challenges his designation by the Department of the Treasury’s Office of Foreign Assets
Control pursuant to Executive Order 13818. See generally Compl., ECF No. 1; Section 7031(c)
of the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2018
(Pub. L. 115-141, Div. K., 132 Stat. 348 (Mar. 23, 2018)) (“Section 7031(c)”). Defendants move
to dismiss Counts I–IV—the claims directed exclusively at State Department actions—arguing
that the Court lacks subject-matter jurisdiction and Plaintiffs fail to state claims upon which relief
may be granted. See Defs.’ Partial Mot. to Dismiss, ECF No. 11. The Court agrees and thus grants
Defendants’ Partial Motion to Dismiss in full.
I. Background
Section 7031(c) provides that the Secretary of State, upon “credible information” of
involvement in “significant corruption” or “a gross violation of human rights,” must publicly or
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privately designate officials of foreign governments and their immediate families as ineligible for
entry into the United States. See Section 7031(c)(1)(A)–(B). An individual designated under
Section 7031(c)(1)(B) is generally ineligible for a visa or entry into the United States. See Section
7031(c)(1)–(2). Since Section 7031(c)’s 2008 enactment, the Secretary has publicly designated
more than 200 officials and their family members as ineligible for entry into the United States
under the provision.1
Prior to 2017, Bautista-Rosario regularly visited the United States for personal and
professional reasons, including to “campaign among the Dominican diaspora” and to “pursue
business interests and charitable efforts.” See Compl. ¶ 13. Likewise, his family members also
regularly visited the United States. See id. ¶¶ 14–21. For example, his wife alleges that she has
visited the United States on occasion to manage her Florida property, and others have attended
school or visited family in the States. See id. But on or about June 2, 2017, Bautista-Rosario and
some of his family had their U.S. visas revoked. See id. ¶ 1.
In June 2018, the Department of State publicly designated Bautista-Rosario and several of
his family members (none of whom allege American citizenship) as ineligible for entry into the
United States under Section 7031(c). Id. ¶ 3. In its public statement, the State Department noted
that the designation was justified “due to [Bautista-Rosario’s] involvement in significant
corruption,” but did not elaborate.2 On the same day, the Treasury Department’s Office of Foreign
1
See U.S. Department of State, Corruption-Related Designations – Bureau of International
Narcotics and Law Enforcement Affairs, available at https://state.gov/corruption-related-
designations-bureau-of-international-narcotics-and-law-enforcement-affairs/.
2
Department of State, Media Note, June 12, 2018, available at https://2017-2021.state.gov/public-
designation-of-dominican-republic-senator-felix-bautista-under-the-fy-2018-department-of-state-
foreign-operations-and-related-programs-appropriations-act-div-k-p-l-115-141/index.html.
2
Assets Control sanctioned Bautista-Rosario pursuant to Executive Order 13818 for “profiting off
of humanitarian efforts related to rebuilding Haiti.” 3 See id. ¶ 4.
In September 2020, Senator Bautista and several of his family members 4 filed this suit,
advancing four claims exclusively against actions taken by the State Department and six against
actions of the Treasury Department or both Departments. Plaintiffs assert they “are without any
information concerning the substance of the allegations against them” see Compl. ¶ 7, vigorously
dispute the allegations of corruption, and allege the Defendants have become “unwitting
participa[nts]” in a “malicious campaign” orchestrated by Bautista-Rosario’s political enemies in
the Dominican Republic “to damage” his reputation. Compl. ¶ 1.
Defendants move to dismiss the four claims directed exclusively toward the actions of the
State Department.
II. Legal Standard
The Court must dismiss any claim over which it lacks subject matter jurisdiction. Sinochem
Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 430–31 (2007) (“[A] federal court
generally may not rule on the merits of a case without first determining that it has [subject-matter]
jurisdiction[.]”) (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93–102 (1998)).
Plaintiffs bears the burden of demonstrating that such jurisdiction exists. See Arpaio v. Obama, 797
F.3d 11, 19 (D.C. Cir. 2015). In considering a motion to dismiss, the Court must accept the facts
alleged in the Complaint as true and draw all reasonable inferences from those facts in Plaintiffs’
3
Treasury Department, Press Release, June 12, 2018, available at
https://home.treasury.gov/news/press-releases/sm0411.
4
The complaint implies, but does not directly allege, that all of Bautista-Rosario’s family members
listed as Plaintiffs are the same family members the State Department designated as ineligible for
entry under Section 7031(c).
3
favor. Humane Soc’y of the U.S. v. Vilsack, 797 F.3d 4, 8 (D.C. Cir. 2015). But the Court “do[es]
not assume the truth of legal conclusions, nor do[es it] accept inferences that are unsupported by
the facts set out in the complaint.” Arpaio, 797 F.3d at 19 (internal quotation marks and citation
omitted).
A motion to dismiss for failure to state a claim will be granted unless the Complaint
contains, inter alia, “a short and plain statement of the claim showing that the pleader is entitled
to relief.” See Fed. R. Civ. P. 8(a)(2). In other words, the Complaint must be sufficient “to give
the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted). Again, at the
motion to dismiss stage, the Court must accept all facts alleged in the Complaint as true and draw
all reasonable inferences from those facts in Plaintiffs’ favor. W. Org. of Res. Councils v. Zinke,
892 F.3d 1234, 1240–41 (D.C. Cir. 2018). But Plaintiffs’ obligation to state the grounds of their
claims “requires more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Twombly, 550 U.S. at 555; see Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (explaining a district court need not need accept legal conclusions set forth in the
Complaint).
III. Analysis
A. Count I
Bautista-Rosario claims in Count One that the Secretary’s decision to designate him and
his family members as ineligible for entry into the United States under Section 7031(c) was
arbitrary and capricious, violating the APA, 5 U.S.C. § 706. See Compl. ¶¶ 38–42. The
government argues that this claim is nonjusticiable because, in the immigration context, Congress
must affirmatively authorize judicial review and it has not done so—whether through Section
7031(c) or the APA. The Court agrees.
4
The Supreme Court has long held that Congress and the Executive control “the admission
and exclusion of foreign nationals.” Trump v. Hawaii, 138 S. Ct. 2392, 2418 (2018). And that
control is largely—even presumptively—immune from judicial oversight. See Fiallo v. Bell, 430
U.S. 787, 792 (1977); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950). The
Supreme Court has reasoned that immigration policy and decisions to admit or exclude aliens are
inherently political, implicating “the conduct of foreign relations, the war power, and the
maintenance of a republican form of government.” Harisiades v. Shaughnessy, 342 U.S. 580,
588–89 (1952). Courts are neither well-structured nor authorized to make such policies, and thus
it is well-established that “it 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 a given
alien.” Knauff, 338 U.S. at 543; see also Kerry v. Din, 576 U.S 86, 86–87 (2015). Absent such
affirmative congressional authorization, judicial review of an alien’s exclusion is ordinarily
unavailable.
As a general matter, Congress has not authorized judicial review of visa denials, see, e.g.,
6 U.S.C. § 236(f) (“Nothing in this section shall be construed to create or authorize a private right
of action to challenge a decision of a consular officer or other United States official or employee
to grant or deny a visa.”), nor visa revocations for aliens abroad, see 8 U.S.C. § 1201(i) (“[T]he
consular officer or the Secretary of State may at any time, in his discretion, revoke” a visa and
“[t]here shall be no means of judicial review . . . of a revocation under this subsection.”). 5 And
while Section 7031(c) designations are not merely visa denials or revocations, Plaintiffs have
pointed to no other statute specifically authorizing judicial review of the designations.
5
8 U.S.C. § 1201(i) does not prohibit judicial review for some aliens physically present in the
United States. But that narrow exception is inapplicable here.
5
Plaintiffs nonetheless argue that the Court may review their Section 7031(c) designations
under the APA. See Compl. ¶¶ 38–42. Under the APA, judicial review of agency action is the
norm. See, e.g., 5 U.S.C. §702; Lincoln v. Vigil, 508 U.S. 182, 190 (1993). But by its own terms
the APA does not apply “to the extent that . . . [other] statutes preclude judicial review.” 5 U.S.C.
§ 701(a)(1). The Supreme Court has interpreted this preclusion broadly, concluding that a statute
may preclude APA review “not only from its express language, but also from the structure of the
statutory scheme, its objectives, its legislative history, and the nature of the administrative action
involved.” Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345 (1984); see also Sackett v. EPA, 566
U.S. 120, 128 (2012).
Here, APA review is precluded because of the statutory scheme and the nature of the
administrative action. No statutory presumption specifically identifies Section 7031(c)
designations and expressly exempts them from the APA. But Congress has expressly prohibited
judicial review of visa denials and revocations—actions with much the same effect as Section
7031(c) designations. And the presumption of non-reviewability of alien exclusion determinations
is well-established. Just as the Court of Appeals has “infer[red] that the immigration laws preclude
judicial review of consular visa decisions” under the APA, Saavedra Bruno v. Albright, 197 F.3d
1153, 1162 (D.C. Cir. 1999), so too this Court concludes the immigration laws preclude judicial
review of Section 7031(c) designations. 6
6
There are also good reasons to think the APA does not displace pre-existing non-statutory
limitations on or presumptions against judicial review like the doctrine of consular non-
reviewability. As the Court of Appeals has noted, Section 702—from which the APA’s
presumption of reviewability springs—contains a limitation that “Nothing herein [] affects other
limitations on judicial review,” and courts have suggested that limitation would include matters
relating to foreign affairs. Saavedra Bruno v. Albright, 197 F.3d 1153, 1158 (D.C. Cir. 1999).
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B. Count II
Plaintiffs allege in Count Two that the State Department failed to provide sufficient notice
of the Secretary’s Section 7031(c) designations, violating Plaintiffs’ due process rights under the
Fifth Amendment. Compl. ¶¶ 43–51. Defendants contend that Plaintiffs, being nonresident aliens,
have no such constitutional rights.
“[N]on-resident aliens who have insufficient contacts with the United States are not entitled
to Fifth Amendment protections.” Jifry v. FAA, 370 F.3d 1174, 1182 (D.C. Cir. 2004); see also
Johnson v. Eisentrager, 339 U.S. 763, 770–71 (1950). Fifth Amendment protections do attach
when aliens “have come within the territory of the United States and developed substantial connections
with this country.” United States v. Verdugo-Urquidez, 494 U.S. 259, 271–73 (1990). Precisely what
duration of presence and extent of contacts is sufficient is hardly clear, but the question turns, at least
in part, on whether the contacts have led to the acceptance of societal obligations from presence in
the United States. Id. at 273. The Court of Appeals has set out some goalposts: current physical
presence and owning property can be enough, National Council of Resistance of Iran v.
Department of State, 251 F.3d 192, 201–02 (D.C. Cir. 2001), but having “neither a property
interest nor a presence in this country” is insufficient. 32 County Sovereignty Committee v.
Department of State, 292 F.3d 797, 799 (D.C. Cir. 2002); see also People’s Mojahedin Org. of
Iran v. U.S. Dep’t of State, 182 F.3d 17, 22 (D.C. Cir. 1999).
Plaintiffs have not alleged sufficient connections such that Fifth Amendment rights attach.
Neither Bautista-Rosario nor any other plaintiff alleges U.S. citizenship or current physical
presence in the United States. Indeed, all Plaintiffs refer to their lack of valid U.S. visas, suggesting
that they are all currently abroad. See Compl. ¶¶ 14, 16–17, 20–21. Plaintiffs’ presence-related
allegations all appear to have been in the past, such as Bautista-Rosario’s political campaigns,
charitable activities, or several Plaintiffs’ educations.
7
The Complaint does briefly note that one Plaintiff, “Ms. Rojas[,] owns real estate in Miami,
Florida.”7 Id. ¶ 14. Rojas does not allege she is physically present here. Whether or not Rojas has
some constitutional rights relating to her property, it is clear “foreign nationals seeking admission
have no constitutional right to entry[.]” Trump v. Hawaii, 138 S. Ct. 2392, 2419 (2018); see also
Kleindienst v. Mandel, 408 U.S. 753, 762 (1972). Because Section 7031(c) designations directly
affect one’s ability to get a visa, it is just a brief step further to conclude, as the Court now does,
that Rojas does not have a constitutional right with respect to her Section 7031(c) designation.
Plaintiff Felix Ramon Bautista-Abreu alleges that he is married to a U.S. citizen. But the
Complaint states that his petition for permanent residency has not yet been fully adjudicated. 8 So,
as the Complaint stands, Felix Ramon Bautista-Abreu does not have any constitutional protections
that would be afforded to permanent residents. See Compl. ¶ 15.
Even if Plaintiffs had applicable constitutional rights, they fail to allege a deprivation of a
cognizable interest. The Fifth Amendment’s Due Process Clause provides that individuals may
not have their “life, liberty, or property” deprived without due process of law. Therefore, “[t]he
first inquiry in every due process challenge is whether the plaintiff has been deprived of a protected
interest in ‘property’ or ‘liberty.’” Ralls Corp. v. Comm. on Foreign Inv. in the U.S., 758 F.3d
296, 315 (D.C. Cir. 2014) (citation omitted). Plaintiffs have not alleged such a deprivation. The
7
Plaintiffs’ opposition to the motion to dismiss asserts that Rojas is the owner of a rental property
in Miami, Florida, pays taxes on it, and her presence from time to time is necessary for repairing
and renting the property. See Plaintiff’s Response to Defendant’s Partial Motion to Dismiss
(“Resp.”), at 5, ECF 16-1.
8
Felix Ramon Bautista-Abreu’s spouse, a United States citizen, may have a constitutionally-
protected interest related to his ability to get a visa. And Plaintiffs do have other family members
that reside in the United States who might have a constitutionally-protected interest at stake. Resp.
at 5; see Hawaii, 138 S. Ct. at 2419 (noting the existence of a judicial inquiry, albeit
“circumscribed,” “when the denial of a visa allegedly burdens the constitutional rights of a U.S.
citizen.”). But Plaintiffs do not allege such burdens.
8
Court of Appeals has explained that initial entrants, such as non-permanent residents, have “no
liberty (or other) interest in entering the United States, and thus has no constitutional right to any
process in that context[.]” Rafeedie v. I.N.S., 880 F.2d 506, 512 (D.C. Cir. 1989); see also Doe v.
Pompeo, 451 F. Supp. 3d 100, 110 (D.D.C. 2020) (“[T]he Government can afford whatever
process it wants to an initial entrant, including no process at all.”).
In short, Plaintiffs lack sufficient ties to the United States to assert constitutional rights,
and even if they had sufficient ties, they fail to show that they have been deprived of a cognizable
interest.
C. Count III
Plaintiffs allege that no mechanism by which they could challenge their Section 7031(c)
designation was publicly indicated to them. See Compl. ¶¶ 52–58. This, they argue, is in violation
of 5 U.S.C. § 552(a)(1), which requires agencies to identify places, people, and methods by which
members of the public can obtain information, “including the nature and requirements of all formal
and informal procedures available.” 5 U.S.C. §§ 552(a)(1)(A)–(B). Defendants contend that this
statute only requires the public disclosure of available procedures. Here, Defendants argue, there
are no available—or required—procedures to contest Section 7031(c) designations, so there is no
violation of 5 U.S.C. § 552. The Court agrees; in any event, the Plaintiffs have conceded the
argument.
Plaintiffs are correct that agencies, including the State Department, must publicize
information on their procedures, both formal and informal. This means that if the State Department
had either a formal or informal policy regarding the reconsideration of Section 7031(c)
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designations, the Department would generally be required to provide guidance to the public on
that procedure.
The problem is that no such procedure exists. Section 7031(c) neither requires nor
contemplates a process by which designees could challenge their status. Nor have Plaintiffs
identified another statute or regulation that creates or even implies the existence of a formal or
informal reconsideration process for Section 7031(c) designations. Given no such procedure
exists, the State Department cannot have violated 5 U.S.C. § 552 as alleged.
Moreover, Plaintiffs never addressed the arguments presented by Defendants. “[W]hen a
plaintiff files a response to a motion to dismiss but fails to address certain arguments made by the
defendant, the court may treat those arguments as conceded, even when the result is dismissal of
the entire case.” See, e.g., Lockhart v. Coastal Int’l Sec., Inc., 905 F. Supp. 2d 105, 118 (D.D.C.
2012) (quotation omitted); see also Twelve John Does v. District of Columbia, 117 F.3d 571, 577
(D.C. Cir.1997) (“Where the district court relies on the absence of a response as a basis for treating
the motion as conceded, we honor its enforcement of the rule.”). This Court considers the
arguments conceded.
D. Count IV
Plaintiffs also allege that the State Department failed to comply with its obligations under
Section 7031(c)(4)–(6) because it did not file a mandatory report. See Compl. ¶¶ 59–61. Section
7031(c) requires the Secretary of State to submit a report to Congress describing the information
related to corruption or human rights violations of each individual found ineligible in the previous
12 months. Any unclassified portion of the report must be posted on the State Department’s
website. Defendants contend that the State Department did issue the report, 9 and, regardless,
9
See U.S. Dep’t of State, Report to Congress on Anti-Kleptocracy and Human Rights Visa
Restrictions (Dec. 10, 2018), formerly available at https://state.gov/report-to-congress-on-anti-
10
Plaintiffs have not alleged a cause of action nor a cognizable injury. The Court largely agrees with
Defendants, and, again, Plaintiffs have conceded the arguments.
In ruling on a motion to dismiss, courts primarily consider the allegations in the complaint.
A motion to dismiss bolstered by extrinsic evidence generally must be converted into a motion for
summary judgment. But courts may take judicial notice of matters not subject to reasonable
dispute. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322–23, (2007); see also
Fed. R. Evid. 201. The report proffered by Defendants appears to be a proper subject of judicial
notice for the limited purpose of demonstrating that the State Department did publish the report.
Indeed, its authenticity may be so beyond dispute that Plaintiffs deliberately conceded the
argument by failing to respond.
Plaintiffs also conceded Defendants’ arguments that, even if the State Department had not
published or submitted the report, relief cannot be granted because Plaintiffs did not specify a
cause of action or cognizable injury.
IV. Conclusion
Because Plaintiffs have not adequately alleged subject-matter jurisdiction as to Count I,
nor a claim upon which relief can be granted as to Counts II, III, and IV, Defendants’ Partial
Motion to Dismiss is GRANTED, and Counts I–IV of the Complaint are dismissed without
prejudice. An Order will be entered contemporaneously with this Memorandum Opinion.
DATE: September 22, 2021
CARL J. NICHOLS
United States District Judge
kleptocracy-and-human-rights-visa-restrictions-2/; see also U.S. Dep’t of State, Report to
Congress on Anti-Kleptocracy and Human Rights Visa Restrictions: Public Listing, Fiscal Year
2018, available at https://www.state.gov/reports/report-to-congress-on-anti-kleptocracy-and-
human-rights-visa-restrictions-public-listing/public-listing-fiscal-year-2018/.
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