MELHA BATTOU, U.S. Citizen v. Secretary United States Department of State

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 19-2772
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MELHA BATTOU, U.S. Citizen*; LOUIZA BATTOU, Sisters;
NANCY A. SELZER; FREDI LOPEZ, Husband; CHRISTIAN TENA QUINTERO;
ALBERTO TENA GARCIA, U.S. Citizen Son and Father; ESMERALDA LUCERO;
PETRA ROSALES MORAN, U.S. Citizen Daughter and Mother;
LEODAN GOBEA OTERO; HIGENIA OTERO FLORES;
SIPRIANO GOBEA, U.S. Citizen Son, Mother and Father,
Appellants
v.
SECRETARY UNITED STATES DEPARTMENT OF STATE;
JOHN DOES 1-200, in their official capacity as the consular officials
responsible for issuing immigrant visas;
DEPARTMENT OF STATE
*Amended pursuant to the Clerk Order dated September 17, 2019
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2:18-cv-03370)
District Judge: Honorable Esther Salas
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Submitted Under Third Circuit L.A.R. 34.1(a)
on January 30, 2020
Before: CHAGRES, RESTREPO, and BIBAS, Circuit Judges
(Filed: April 29, 2020)

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OPINION*
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BIBAS, Circuit Judge.
In a system that forbids advisory opinions, federal courts are not in the business of
predicting the future. A group of U.S. citizens and their noncitizen relatives ask us to de-
clare that a federal immigration law making certain aliens inadmissible does not apply to
the relatives. But whether they will ever be subject to the law depends on the outcome of
contingent events. Because their claims are not yet ripe, the District Court properly dis-
missed their complaint for lack of subject-matter jurisdiction. We will affirm.
I. BACKGROUND
A. The visa-application process for relatives of U.S. citizens
This case is about the process that relatives of U.S. citizens must go through if they
want a U.S. visa. Imagine that a U.S. citizen wants to sponsor a visa for her father, a native
of Italy. The daughter must first file a Petition for Alien Relative on behalf of her father.
See U.S. Citizenship & Immigration Servs., DHS, Instructions for Form I-130, Petition for
Alien Relative, and Form I-130A, Supplemental Information for Spouse Beneficiary 1
(Feb. 13, 2019), https://www.uscis.gov/sites/default/files/files/form/i-130instr.pdf. If the
Government approves the petition, her father can then apply for a U.S. visa. Id. at 6.
* This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding
precedent.

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The process for the father depends on his status and location. If he lives abroad (say in
Italy), he must schedule an in-person interview at a U.S. embassy or consulate there to
complete his application. If the father already lives in the United States on some temporary
legal basis, he can apply to adjust his status to lawful permanent resident without leaving
the United States for an interview. See 8 U.S.C. § 1255(a). But if he lives here illegally, he
typically does not have that option. See id. § 1255(a), (c). Instead, he must return to Italy
for an in-person interview.
Doing so would not be as easy as buying a round-trip flight. Under the statutory unlaw-
ful-presence provision, aliens who leave the country after living here unlawfully for one
year or more become inadmissible for the next ten years. 8 U.S.C. § 1182(a)(9)(B)(i)(II). If
they were here for less than one year but more than 180 days, they become inadmissible
for the next three years. Id. § 1182(a)(9)(B)(i)(I). Once labeled inadmissible, an alien be-
comes ineligible for a visa. Id. § 1182(a).
So aliens who are here illegally for more than 180 days and want a visa find themselves
in a bind: They need an in-person interview, which must take place in their home country.
But if they leave the United States, they become inadmissible and thus ineligible for a visa
for three or ten years.
Nor can aliens bypass the three- or ten-year ban by leaving voluntarily before they are
ordered removed. The three-year ban expressly applies to aliens who leave “voluntarily.”
8 U.S.C. § 1182(a)(9)(B)(i)(I). And though the ten-year-ban does not specify the type of
departure it covers, the State Department’s Foreign Affairs Manual says that the ban ap-
plies “whether the alien departed on his or her own initiative or under removal order.”

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9 U.S. Dep’t of State, Foreign Affairs Manual § 302.11-3(B)(2)(c) (hereinafter Foreign Af-
fairs Manual).
B. Facts
Appellants are a group of U.S. citizens and their noncitizen relatives who have lived
here illegally for more than one year. The U.S. citizens filed petitions to get visas for their
relatives. All their petitions were approved, meaning that the relatives have the green light
to apply for visas.
But none of the relatives has done so. They expect that if they leave the country for a
visa interview, they will be banned from reentering for ten years. So instead, they pursued
other options. Five asked for (or plan to ask for) relief from removal in their pending (or
upcoming) removal proceedings, including asylum, cancellation of removal, or relief under
the Convention Against Torture. The sixth relative, Fredi Lopez Romero, “will be in re-
moval hearings shortly” to pursue cancellation of removal or relief under the Convention.
App. 22. (The seventh relative, Artemisa Yasmin Lozano Romero, is no longer a party to
this appeal.)
C. Procedural history
While the removal proceedings were pending or about to begin, appellants filed a pu-
tative class action, claiming that the ten-year ban should not apply to illegal aliens who
leave because of a removal order. They framed their claim as an Administrative Procedure
Act challenge to the Foreign Affairs Manual. Specifically, they alleged that the Manual
misinterprets the unlawful-presence provision, 8 U.S.C. § 1182(a)(9)(B)(i)(II), by applying
the ten-year ban to aliens who are ordered removed. They asked the District Court to enjoin

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the Government from denying their hypothetical visa applications under the ten-year ban.
They also asked the court to declare 9 Foreign Affairs Manual § 302.11-3(B)(2)(c) void.
The Government moved to dismiss for lack of subject-matter jurisdiction and failure to
state a claim. On jurisdiction, it argued that there was no final agency action to review and
that the claims were not yet ripe. The District Court agreed that there was no final agency
action to review, as appellants had not alleged that the Government had applied or even
considered applying the Manual to them. So it dismissed for lack of subject-matter juris-
diction. In doing so, it also suggested that the claims could be unripe.
We review a dismissal for lack of subject-matter jurisdiction de novo. Davis v. Wells
Fargo, 824 F.3d 333, 346 (3d Cir. 2016). And we can affirm on any ground supported by
the record. Hughes v. Long, 242 F.3d 121, 122 n.1 (3d Cir. 2001). Because the Government
makes a factual (not just legal) attack on subject-matter jurisdiction, we may look beyond
the complaint and consider the Government’s supporting affidavits. Davis, 824 F.3d at 346.
II. APPELLANTS’ CLAIMS ARE NOT RIPE
We need not decide whether the Manual itself is a final agency action, as we find a
more glaring jurisdictional flaw. As the Government correctly notes, it is possible that none
of the relatives will ever be subject to the ten-year ban. So appellants’ claims are not ripe.
Federal courts lack jurisdiction to hear unripe claims. Armstrong World Indus., Inc. ex
rel. Wolfson v. Adams, 961 F.2d 405, 410–11 (3d Cir. 1992). A claim is not ripe unless
deciding it “would amount to more than an advisory opinion based upon a hypothetical set
of facts.” Presbytery of N.J. of the Orthodox Presbyterian Church v. Florio, 40 F.3d 1454,
1468 (3d Cir. 1994) (citing Step-Saver Data Sys., Inc. v. Wyse Tech., 912 F.2d 643, 649

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(3d Cir. 1990)). When a plaintiff’s alleged injury depends on a contingency, the parties’
interests are typically not adverse enough to amount to an Article III case or controversy.
Armstrong World Indus., 961 F.2d at 411–12.
Appellants ask us to declare that the ten-year ban does not apply to illegal aliens who
leave the country under a removal order. But it is possible that none of the relatives will
ever be subject to the ban. All of the relatives are pursuing (or are about to pursue) relief
from removal. If that relief is granted, the relatives could abandon their visa applications
and avoid the interviews in their home countries, thus sidestepping the ten-year ban.
To be sure, even a “threat of future action[ ]” can sometimes create a ripe controversy.
Armstrong World Indus., 961 F.2d at 412. In those cases, the plaintiff must show that the
chance that the future event will occur is “substantial” and immediate enough to justify
declaratory relief. Id. (quoting Salvation Army v. Dep’t of Cmty. Affairs, 919 F.2d 183, 192
(3d Cir. 1990)). Appellants have not met this burden. They do not allege that the relatives
are likely to be removed. Without those allegations, all we have is a possibility that the
Government could deny their visa applications based on the ten-year ban. That is not
enough.
* * * * *
The ripeness doctrine bars courts from opining on theoretical disputes. Appellants seek
either an injunction against denying the relatives’ hypothetical visa applications under the
ten-year ban or a declaration that the ban does not apply to aliens who are ordered removed.
But depending on the outcome of their removal proceedings, the relatives may never be

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subject to the ban. So their claims are not yet ripe and we will affirm the District Court’s
dismissal.

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