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Zigzag, LLC v. Kerry

United States District Court, D. Massachusetts

March 10, 2015

ZIGZAG, LLC and MARINA KOSTOCHKA, Plaintiffs,
v.
JOHN KERRY, U.S. Secretary of State, and JULIE KAVANAGH, Consul General of the United States, Moscow, Russia, Defendants.

MEMORANDUM AND ORDER

DENISE J. CASPER, District Judge.

I. Introduction

Plaintiffs ZigZag, LLC ("ZigZag"), a Massachusetts company, and Marina Kostochka ("Kostochka"), an employee of a Russian-based affiliate of ZigZag (collectively, "Plaintiffs"), instituted this action seeking a writ of mandamus against Defendants John Kerry and Julie Kavanagh (collectively, "Defendants") pursuant to 28 U.S.C. § 1361 and the Administrative Procedure Act ("APA"), 5 U.S.C. § 706 (2)(A). D. 1. Plaintiffs seek to compel Defendants to conduct a visa interview for Kostochka at the U.S. Embassy in Moscow "in accordance with all legal requirements." Id. at 9. Plaintiffs have also moved for a preliminary injunction to enjoin Defendants from returning Kostochka's visa application to U.S. Citizenship and Immigration Services ("USCIS") pending the resolution of this action. D. 2. Defendants have moved to dismiss the complaint, arguing that under the doctrine of consular nonreviewability, the Court lacks the jurisdiction to review the decision of the consular officer in Moscow denying Kostochka's visa. D. 10. For the reasons stated below, the Court DENIES Plaintiffs' motion for a preliminary injunction, D. 2, and ALLOWS Defendants' motion to dismiss, D. 10.

II. Standard of Review

A. Preliminary Injunction

To obtain a preliminary injunction, the party seeking the injunction must demonstrate: "1) a substantial likelihood of success on the merits, 2) a significant risk of irreparable harm if the injunction is withheld, 3) a favorable balance of hardships, and 4) a fit (or lack of friction) between the injunction and the public interest." Nieves-Márquez v. Puerto Rico, 353 F.3d 108, 120 (1st Cir. 2003) (citing McGuire v. Reilly, 260 F.3d 36, 42 (1st Cir. 2001)). A preliminary injunction is an "extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)); see also Voice of the Arab World Inc. v. MDTV Med. News Now, Inc., 645 F.3d 26, 32 (1st Cir. 2011) (labeling a preliminary injunction as an "extraordinary and drastic remedy") (quoting Munaf v. Geren, 553 U.S. 674, 689-90 (2008)).

B. Motion to Dismiss

In considering a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6), the Court will dismiss a complaint or a claim that fails to plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). To state a plausible claim, a complaint need not contain detailed factual allegations, but it must recite facts sufficient to at least "raise a right to relief above the speculative level... on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 555. "In determining whether a complaint crosses the plausibility threshold, the reviewing court [must] draw on its judicial experience and common sense.'" García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (alteration in original). "This context-specific inquiry does not demand a high degree of factual specificity.' Even so, the complaint must contain more than a rote recital of the elements of a cause of action.'" García-Catalán, 734 F.3d at 103 (internal citations omitted).

III. Background

A. Factual Background

Unless otherwise noted, the Court summarizes the following facts as alleged in the complaint, D 1.

On May 8, 2014, ZigZag filed a non-immigrant worker visa petition (Form I-129) with USCIS to allow Kostochka to transfer from the Russian-based affiliate of ZigZag to a U.S. office. Id . ¶ 7. On October 2, 2014, USCIS approved Kostochka's L-1A visa petition classifying Plaintiff Kostochka as an intracompany transferee. Id . ¶¶ 1, 7. The approved petition entitled Kostochka to apply for an L visa under section 101(a)(15)(L) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101(a)(15)(L). D. 9 at 1. Kostochka subsequently filed an application for an L-1A visa with the U.S. Embassy's Consular Section in Moscow, Russia. D. 1 ¶ 8.

On October 29, 2014, Kostochka appeared for her visa interview with a copy of the approved I-129 petition, including the receipt number as per the instructions posted on the Consular Section's website. Id . ¶ 9. According to the Foreign Affairs Manual instructions to consular officers in adjudicating L visa applications, applicants are not required to provide their approved I-129 petition and "[a]ll petition approvals must be verified either through the Petition Information Management Service (PIMS) or through the Person Centric Query Service (PCQS), in the CCD under the Cross Applications tab." Id . ¶ 11 (quoting 9 F.A.M. 41.54 N3.2). Once the petition approval has been verified, consular officers are instructed to "consider this as prima facie evidence that the requirements for L classification, which are examined in the petition process, have been met." Id . The consular officers "may not question the approval of L petitions without specific evidence, unavailable to DHS at the time of petition approval, that the beneficiary may not be entitled to status." Id.

During the interview, however, the consular officer allegedly stated that he did not have access to copies of Kostochka's L-1A petition and repeatedly asked her for copies of the documents that she had submitted to USCIS in support of her L-1A visa petition. Id . ¶ 10. The consular officer allegedly then "went on an extensive fishing expedition concerning Kostochka's prior immigration history and the birth of her child in the United States." Id . ¶ 22. The consular officer also challenged the USCIS approval of Kostochka's change of status while in the United States from B-2 (visitor) to F-1 (student). Id . ¶ 13. The consular officer informed Kostochka that "he ...


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