Miller v. Napolitano et al

Filing 11

ORDER (see attached) - GRANTING 6 Respondents' Motion to Dismiss for Lack of Jurisdiction. The Court DISMISSES WITHOUT PREJUDICE Petitioner's Complaint for Mandamus for lack of jurisdiction to adjudicate it. The Clerk is directed to close the case. Signed by Judge Charles S. Haight, Jr. on 8/5/13. (Hornstein, A)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
JAMES MILLER,
PETITIONER,
v.

3:13-CV-00443 (CSH)

JANET NAPOLITANO, Secretary of
Department of Homeland Security; ERIC H.
HOLDER, Jr., United States Attorney
General; and JOHN KERRY, Secretary of
Department of State,
RESPONDENTS.

ORDER
I.

INTRODUCTION
On April 4, 2013, Petitioner James Miller (hereinafter "Petitioner") filed a Complaint for

Mandamus [Doc. 1], naming as Respondents Janet Napolitano, Secretary of the Department of
Homeland Security, Eric H. Holder, Jr., United States Attorney General, and John Kerry, Secretary
of Department of State (collectively hereinafter "Respondents"), seeking that this Court "compel
[Respondents] and those acting under their authority to approve and issue, within thirty days, the
immigrant visa which application was filed by [Petitioner] on behalf of his spouse Merline Wright."
Id. at ¶1.
About two years before bringing this action in federal court, Petitioner filed an I-130 Petition
for Alien Relative with the United States Department of Homeland Security on behalf of his spouse,
Merline Wright (hereinafter "Wright"), "in order for her to become a Lawful Permanent Resident of
the United States." Id. at ¶8. This petition was approved by the Department of Homeland Security
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on June 17, 2011, and Petitioner subsequently received an I-797 Notice of Action Form from the
Department of Homeland Security. This I-797 Notice of Action Form informed Petitioner that
Wright's initial visa petition had been approved and sent to the Department of State, which processes
all approved immigrant visa petitions that require consular action and forwards approved petitions
to appropriate consulates. The I-797 Form also made clear that United States immigration status had
not yet been confirmed upon Wright, not did it guarantee that she would necessarily "subsequently
be found to be eligible for a visa, for admission to the United States, or for an extension, change, or
adjustment of status." Id. at ¶9-10, Exhibit 1.
After Wright's file was sent to the Department of State by the Department of Homeland
Security in accordance with general processing requirements, an interview with Wright concerning
her visa application was conducted on January 19, 2012 at the United States Embassy in Kingston,
Jamaica. Id. at ¶10-12. Following the interview, Petitioner was informed in a letter from the United
States Embassy that the information Wright had provided during her "immigrant visa interview was
not sufficient to overcome the belief" that Wright and Petitioner's "relationship was entered into for
immigration purposes only," and that consequently Wright's petition would be returned to the
Department of Homeland Security's United States Citizenship and Immigration Services (hereinafter
"USCIS"), which would be in contact with Petitioner so that Petitioner could "be afforded the
opportunity to provide additional documentary evidence to substantiate the relationship." Id. at
Exhibit 4. "If the evidence submitted to USCIS [were found to be] compelling, the petition [would]
be reaffirmed and returned" to the United States Embassy for processing. Id.
In his Complaint for Mandamus, Petitioner makes many allegations concerning Repondents'
failure to issue Wright an Immigrant Visa, and asks that this Court "[i]ssue an order directing ...
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[R]espondents and those acting under them to issue the Immigrant Visa within thirty days." Id. at
¶1. Petitioner's other demands for relief include prayers that this Court hear Petitioner's case and
render a declaratory judgment that the Immigrant Visa should be approved and issued, and that the
Court grant attorney's fees and costs. Id. at 5.
Respondents note in their Motion to Dismiss that on June 10, 2013 – roughly two months
after Petitioner filed his Complaint for Mandamus with this Court – USCIS sent Petitioner a letter
notifying him of the agency's position that Wright and Petitioner had married "for the sole purpose
of obtaining U.S. immigration benefits" for Wright and that, given this position and belief, USCIS
intended to revoke Wright's I-130 approval. [Doc. 6-1] at 2-3, [Doc. 6-2] at 1-2. The letter further
stated that a final decision would be made on July 13, 2013, and that in the interim Petitioner could
"either submit a written request to withdraw [his] petition" for Wright's visa, or he could "submit any
additional documentation [he felt] established [he] did not enter into marriage for the sole purpose
of obtaining immigration benefits and for the purpose of circumventing immigration law." [Doc.
6-2] at 2.
Respondents now inform the Court in their August 1, 2013 Status Report [Doc. 10] – which
was filed in response to Court Order [Doc. 7] – that "[o]n or about July 2, 2013 ... [P]etitioner
provided USCIS [with] a substantial body of documentary evidence in response" to the June 10,
2013 USCIS letter. [Doc. 10] at 1. Repondents further inform the Court that USCIS, presumably
after receiving and reviewing Petitioner's submissions of supplementary evidence, has "decided not
to revoke [Wright's] I-130 approval," and instead on July 25, 2013 notified Petitioner that it had
"reaffirmed [its] previous decision on [Wright's] application or petition which the Department of
State had previously returned for review, and had already "forwarded the case back to the
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Department of State for Action." [Doc. 10-1]. Respondents advise the Court that the Department
of State will in turn transfer this case to the United States Embassy in order "to schedule a Consular
Officer's interview of [Wright] and to take other necessary steps for processing a visa." [Doc. 10]
at 1-2.
Two days before Respondents filed their Status Report, Petitioner, also in compliance with
a Court Order, filed a Reply to Respondents' Motion to Dismiss [Doc. 9]. In this Reply, Petitioner
stated that he "desires a judicial determination of the approval and issuance of the Immigrant Visa
and a declaration that the Immigrant Visa should be issued to Merline Wright." Id. at 1.
Echoing arguments raised in their Motion to Dismiss, Respondents contend in their Status
Report that "this Court lacks jurisdiction to supervise the continuation of this process by the
Department of State," as "there is no clear right that supports mandamus jurisdiction in this matter"
and, "[f]urthermore, 'the doctrine of consular nonreviewability provides that courts do not have
jurisdiction to review decisions made by consular officers regarding the grant or denial of visas.'"
[Doc. 10] at 2 (quoting Harinarine v. National Visa Center, No. 13-CV-03141, 2013 WL 3766528
at *2 (E.D.N.Y. July 15, 2013)). The Court agrees.
II.

SUBJECT MATTER JURISDICTION
A motion to dismiss for lack of subject matter jurisdiction is governed by Fed. R. Civ. P.

12(b)(1), under which a case is properly dismissed "when the court lacks the statutory or
constitutional power to adjudicate the case." Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d
1182, 1187 (2d Cir. 1996). Both the moving and non-moving parties "may use affidavits and other
materials beyond the pleadings themselves in support or in opposition to a challenge to subject
matter jurisdiction" and the "district court also may inquire, by affidavits or otherwise, into the facts
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as they exist." Tuccio Development, Inc. v. Town of Ridgefield, No. 3:06-CV-01821, 2008 WL
749855 at *1 (D. Conn. March 19, 2008) (quoting Matos v. United States Dept. of Housing & Urban
Development, 995 F. Supp. 48, 49 (D. Conn. 1997) and Land v. Dollar, 330 U.S. 731, 735 (1947)
(internal quotation marks omitted)). The party asserting that subject matter jurisdiction exists – here,
Petitioner – bears the burden of proving it by a preponderance of the evidence, and all ambiguities
and inferences will be drawn in those parties' favor. Aurecchione v. Schoolman Transp. System, Inc.,
Aurecchione v. Schoolman Transp. System, Inc., 426 F.3d 635, 638 (2d Cir. 2005).
The Second Circuit has previously noted its "policy of liberal construction of complaints"
with respect to 12(b)(1) motions to dismiss, in which "a colorable pleading of subject matter
jurisdiction upon which the district court could ... rel[y] to adjudicate the complaint" is sufficient to
allow a complaint to survive a 12(b)(1) motion. Id. The issue, therefore, "is not whether a
[claimant] will ultimately prevail but whether the claimant is entitled to offer evidence to support
the claim[]. Indeed it may appear on the face of the pleadings that a recovery is very remote and
unlikely[,] but that is not the test." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
If, despite this policy of liberal construction of complaints, subject matter jurisdiction is
found to be lacking, dismissal of an action from federal court is mandatory. Fed. R. Civ. P. 12(h)(3)
(“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss
the action.”). See, e.g., Manway Constr. Co. v. Housing Authority of Hartford, 711 F.2d 501, 503
(2d Cir. 1983).
III.

LEGAL DISCUSSION
As an initial and general matter, a court's "jurisdiction under the mandamus statute is limited

to actions seeking to compel the performance of a nondiscretionary duty." Duamutef v. I.N.S., 386
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F.3d 172, 180 (2d Cir. 2004). As the United States Supreme Court has stated, "[t]he common-law
writ of mandamus, as codified in 28 U.S.C. § 1361, is intended to provide a remedy for a plaintiff
only if he has exhausted all other avenues of relief and only if the defendant owes him a clear
nondiscretionary duty." Heckler v. Ringer, 466 U.S. 602, 616 (1984) (quoted in Duamutef v. I.N.S.,
386 F.3d at 180). Simply put, it has long been the law that mandamus may not be employed by
courts in order "to direct the exercise of judgment or discretion in a particular way." Wilbur v.
United States ex rel. Kadrie, 281 U.S. 206, 218 (1930) (emphasis added).
Petitioner asks in both his initial Complaint for Mandamus and his Reply to Respondents'
Motion to Dismiss that this Court "declare that the Immigrant Visa should be issued to Merline
Wright," that it make a "judicial determination of the approval and issuance of the Immigrant Visa."
[Doc. 9] at ¶2 (emphasis added); see also [Doc. 1] at 5 ("Petitioner demands that the Court ... [i]ssue
an order directing ... [R]espondents and those acting under them ... issue the Immigrant Visa within
thirty days to Merline Wright; ... [or] alternatively, hear [P]etitioner's case and render a declaratory
judgment that the Immigrant Visa should be approved and issued.") Petitioner's demands do not
concern the Court enforcing a non-discretionary duty of Respondents; rather, Petitioner demands that
the Court direct the exercise of judgment or discretion of other governmental bodies in a particular
way. These requests exceed the general scope of the Court's mandamus jurisdiction.
Further, as the Second Circuit stated over three decades ago: "It is settled that" as a general
matter "the judiciary will not interfere with the visa-issuing process," a precedent and policy which
springs from "the basic principle" articulated by the United States Supreme Court: that it is solely
"Congress's power to exclude aliens altogether from the United States, or to prescribe the terms and
conditions upon which they may come to this country," and it is also Congress's power "to have its
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declared policy in that regard enforced exclusively through executive officers, without judicial
intervention." Wan Shih Hsieh v. Kiley, 569 F.2d 1179, 1181 (2d Cir. 1978) (quoting Kleindienst
v. Mandel, 408 U.S. 753, 766 (1972)).1 As a very recent case out of the Eastern District of New
York noted, "Congress has vested United States consulate officers with the exclusive power to issue
or deny visas," and, moreover, federal courts simply do not possess "the authority to grant a
permanent resident visa." Harinarine v. National Visa Center, 13-CV-03141, 2013 WL 3766528
(E.D.N.Y. July 15, 2013) (citations omitted).
The Court recognizes that the Second Circuit has in very limited and specific circumstances
recognized that judicial review of an individual's I-130 petition is not unequivocally precluded, and
accordingly that "a district court may properly exercise jurisdiction" over cases involving such
extreme and rare circumstances. See, e.g., Ruiz v. Mukasey, 552 F.ed 269, 276 (2d Cir. 2009).

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In his Reply to Respondents' Motion to Dismiss, Petitioner cites two cases in order to
demonstrate that "[t]his Court possesses jurisdiction over this case." [Doc. 9] at 2. Neither case,
however, adequately supports Petitioner's proposition. In Firstland International Inc. v.
U.S.U.N.S., 377 F.3d 127 (2d Cir. 2004), the Second Circuit merely held that because the agency
then known as the Immigration and Naturalization Service did not comply with the notice
requirements of a particular statute, it was therefore not authorized to revoke an individual's visa
petition, and consequently this decision was not in the Attorney General's discretion, or was the
federal district court divested of jurisdiction to hear plaintiffs' challenge to revocation. Id. at 132.
This decision turned upon a statute's notice requirement, which the Court of Appeals held was a
prerequisite to effective visa revocation, and has no bearing upon whether any individual must be
awarded a Visa, or, more broadly, upon how an agency must find concerning specific matters
within its discretion. Accordingly, Firstland International Inc. is inapposite with respect to the
question of whether this court may, in response to a Mandamus Complaint, direct a government
agency to make a particular decision within that agency's purview or to act in certain manifestly
discretionary ways. Petitioner also cites Sabhani v. Reno, 197 F.3d 938 (8th Cir. 1999), which is
concerned with whether a district court has jurisdiction to review a decision by the Board of
Immigration Appeals concerning two individuals' visa petitions which had already been ruled
upon, and to decide the merits of these individuals' petitions. Assuming without deciding that the
facts in that case are apposite to those at bar, this case is not controlling, as it was decided by the
Eighth Circuit.
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However, the Court need not here delve into the specifics of when and for what reasons – or, for that
matter, under which statutes – it might possess such limited and discreet jurisdiction. This is
because in the case at bar, USCIS has now "decided not to revoke the I-130 approval" previously
granted to Wright, and because the National Visa Center will be transmitting Wright's case to the
United States Embassy in order "to schedule a Consular Officer's interview and to take other
necessary steps for processing a visa." [Doc. 10] 1-2 (emphasis added).
There is no final decision with respect to Wright's visa, and currently no undue delay of any
such final decision; therefore even if it were within the Court's jurisdiction and discretion, the Court
finds exactly zero reason at this juncture to consider reviewing or granting Wright's visa application.
Put another way, even if such a matter were in theory under this Court's limited jurisdiction (and it
is not), this Court would not grant Petitioner's Mandamus Complaint because it would be premature
and inappropriate to do so given present circumstances. The second Consular Officer interview of
Wright ought to proceed under ordinary agency procedures and timelines, and all subsequent
ordinary visa-granting processes ought to continue to unfold without the extraordinary remedy of
judicial interference.
The Court notes Petitioner's evocation of several federal statutes in order to demonstrate that
this Court does indeed have jurisdiction over this case: 8 U.S.C. 1421 and 1447; 28 U.S.C. § 2201,
1331, and 1361; and 5 U.S.C. § 704. However, for the reasons discussed supra, the Court does not
feel it is appropriate to, and will not, intervene. While the Court is sympathetic to Petitioner's
claims, under the facts of this case it cannot and will not order USCIS to grant a Visa to Wright.
III.

CONCLUSION
The Court DISMISSES WITHOUT PREJUDICE Petitioner's Complaint for Mandamus for
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lack of jurisdiction to adjudicate it. The Court further notes that even were it to possess such
jurisdiction, it would dismiss such Complaint as premature and, under present facts and
circumstances, without merit. The Clerk is directed to close the case.
The foregoing is SO ORDERED.

Dated: New Haven, Connecticut
August 5, 2013

/s/Charles S. Haight, Jr.
Charles S. Haight, Jr.
Senior United States District Judge

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