Chiang v. Skeirik, et al

Filing 920090928

Opinion

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var WPFootnote1 = 'Of the Federal Circuit, sitting by designation.\
'

var WPFootnote2 = '                                                            8 U.S.C. § 1184(d)(1) provides:\
\
A visa shall not be issued under the\
provisions of section 1101(a)(15)(K)(i) of\
this title until the consular officer has\
received a petition filed in the United States\
by the fiancée [or] fiancé of the applying\
alien and approved by the Secretary of\
Homeland Security. . . . It shall be approved\
only after satisfactory evidence is submitted\
by the petitioner to establish that the\
parties have previously met in person within 2\
years before the date of filing the petition,\
have a bona fide intention to marry, and are\
legally able and actually willing to conclude\
a valid marriage in the United States within a\
period of ninety days after the alien’s\
arrival . . . .\
'

var WPFootnote3 = '                                                            See Bivens v. Six Unknown Named Agents of Fed.\
Bureau of Narcotics, 403 U.S. 388 (1971).\
'

var WPFootnote4 = '                                                            Chiang also challenges the denial of a preliminary\
injunction. The United States asserts that Chiang’s voluntary\
dismissal of his interlocutory appeal of the denial of the\
preliminary injunction bars a challenge to the injunctive order as\
part of the appeal from the final order. In view of our decision\
that the first amended complaint was properly dismissed, we need\
not decide whether this court has jurisdiction to review the\
preliminary injunction. See Myers Investigative & Sec. Servs.,\
Inc. v. United States, 275 F.3d 1366, 1370 (Fed. Cir. 2002) (court\
may decline to reach subject matter jurisdiction if claim is moot).\
'

var WPFootnote5 = '                                                            See Consulate General of the United States,\
Guangzhou, China, Getting Married in China,\
http://guangzhou.usembassy-china.org.cn/information_about_getting_married_in_china2.html.\
'

var WPFootnote6 = '                                                            As suggested by guidance in the U.S. Department of\
State Foreign Affairs Manual 40.1 N1.3, proxy marriages can\
sometimes be acceptable in immigration cases:\
\
9 FAM 40.1 N1.3-1 Consummated [proxy marriage]\
For the purpose of issuing an immigrant visa\
(IV) to a “spouse”, a proxy marriage that has\
been subsequently consummated is deemed to\
have been valid as of the date of the proxy\
ceremony. Proxy marriages consummated prior\
to the proxy ceremony cannot serves [sic] as a\
basis for the valid marriage for immigration\
purposes.\
 \
9 FAM 40.1 N1.3-2 Unconsummated [proxy\
marriage]\
A proxy marriage, that has not been\
subsequently consummated, does not create or\
confer the status of “spouse” for immigration\
purposes pursuant to INA 101(a)(35). A party\
to an unconsummated proxy marriage may be\
processed as a nonimmigrant fiancé(e). A\
proxy marriage celebrated in a jurisdiction\
recognizing such marriage is generally\
considered to be valid, thus, an actual\
marriage in the United States is not necessary\
if such alien is admitted to the United States\
under INA provisions other than as a spouse.\
 \
9 U.S. Dep’t of State Foreign Affairs Manual 40.1 N1.3 (2008)\
(available at http://www.state.gov/documents/\
organization/86920.pdf).\
'

var WPFootnote7 = '                                                            Adams v. Baker, 909 F.2d 643, 649 (1st Cir. 1990)\
(“[I]n the absence of statutory authorization or mandate from\
Congress, factual determinations made by consular officers in the\
visa issuance process are not subject to review by the Secretary of\
State, 8 U.S.C. § 1104(a)(1), and are similarly not reviewable by\
courts.”); see Saavedra Bruno v. Albright, 197 F.3d 1153, 1159-60,\
1162-63 (D.C. Cir. 1999) (“The doctrine [of consular\
nonreviewability] holds that a consular official’s decision to\
issue or withhold a visa is not subject to judicial review, at\
least unless Congress says otherwise.”).\
'

var WPFootnote8 = '                                                            Chiang alternatively argues that the decision by the\
consulate, that Chiang and Amy have no “bona fide relationship,”\
was unsupported by the facts. Under the doctrine of consular\
nonreviewability, the courts similarly have no jurisdiction to\
review this finding of fact. Chiang’s claim that his Seventh\
Amendment right to a jury trial was somehow violated because the\
consulate denied the visa application in retaliation for filing\
this lawsuit is frivolous.\
'

var WPFootnote9 = '                                                            In addition, the amendment would have been futile\
because Chiang never indicated any way in which the District Court\
of Massachusetts could acquire jurisdiction over the defendants\
whom he proposed to add.\
'

var WPFootnote10 = '                                                            On June 29, 2009, the USCIS in Vermont both granted\
Chiang’s motion to reopen and reconsider his petition for a fiancée\
visa and approved that petition. This approval does not affect the\
existence of a case or controversy because the defendants urge that\
the visa petition was granted in error and that the granted visa\
petition will soon be rescinded.\
'

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