Kaur et al vs. Lynch et al.

Filing 16

DECISION AND ORDER granting 6 Motion to Dismiss for Lack of Jurisdiction. Signed by Hon. Frank P. Geraci, Jr. on 02/06/2017. (ZS)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
SWARN KAUR and BHUPINDER SINGH,
Plaintiffs,
Case # 16-CV-6252-FPG
v.
DECISION & ORDER
DANA J. BOENTE, 1 Attorney General of the
United States; UNITED STATES DEPARTMENT
OF JUSTICE; DEPARTMENT OF STATE, BUREAU
OF CONSULAR AFFAIRS; and CONSULAR GENERAL
U.S. EMBASSY, NEW DELHI, INDIA,
Defendants.

INTRODUCTION
Plaintiffs Swarn Kaur and Bhupinder Singh allege that the U.S. Embassy in New Delhi,
India improperly denied Mr. Singh’s visa application and changed his family-based preference
category from F-1 (unmarried son or daughter of a U.S. citizen) to F-3 (married son or daughter
of a U.S. citizen) without sufficient evidence of his marital status. Through this action, Plaintiffs
seek a judicial declaration to that effect and a writ of mandamus compelling the Defendants to
adjudicate Mr. Singh’s visa application in light of certain evidence that he is, in fact, unmarried.
ECF No. 1.
Defendants, on the other hand, argue that this Court lacks subject matter jurisdiction over
Plaintiffs’ claims and have moved to dismiss the complaint under Rule 12(b)(1) of the Federal
Rules of Civil Procedure. ECF No. 6. For the reasons stated below, Defendants’ motion is
granted.

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Dana J. Boente is substituted for Loretta E. Lynch pursuant to Fed. R. Civ. P. 25(d).

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DISCUSSION
I.

Legal Standard
“Federal courts are courts of limited jurisdiction whose power is limited strictly by
Article III of the Constitution and congressional statute.” United Food & Commercial Workers
Union, Local 919, AFL-CIO v. CenterMark Props. Meriden Square, Inc., 30 F.3d 298, 303 (2d
Cir. 1994) (citing Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)). When a
party moves to dismiss pursuant to Rule 12(b)(1), it is the court’s duty to resolve disputed
jurisdictional facts. Cargill Int’l S.A. v. M/T Pavel Dyenko, 991 F.2d 1012, 1019 (2d Cir. 1993).
A court may fulfill its duty by reference to evidence outside the pleadings. Zappia Middle E.
Const. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000). Furthermore, in
resolving a challenge to subject matter jurisdiction, a court does not draw inferences in favor of
the plaintiff. Newsom-Lang v. Warren Int’l, 129 F. Supp. 2d 662, 663 (S.D.N.Y. 2001). Rather,
the party asserting jurisdiction has the burden of proving by a preponderance of the evidence that
jurisdiction exists. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).

II.

Background
Swarn Kaur is a U.S. citizen who lives in Rochester, New York. Bhupinder Singh, her
son, is a non-U.S. citizen who lives in India.
Ms. Kaur filed a Petition for Alien Relative on behalf of Mr. Singh. On July 11, 2008,
the U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services

(“USCIS”) approved that petition and placed Mr. Singh in the family-based preference category
F-3 (married son or daughter of a U.S. citizen). On November 24, 2010, upon notice of Mr.
Singh’s divorce from his wife, the Department of State’s National Visa Center (“NVC”) changed
Mr. Singh’s preference category to F-1 (unmarried son or daughter of a U.S. citizen). The case
was subsequently transmitted to the U.S. Embassy in New Delhi, India (“New Delhi Embassy”).
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On February 12, 2016, Mr. Singh appeared for an interview with a consular officer at the
New Delhi Embassy. Plaintiffs allege that during the interview, the consular officer said that he
had information that Mr. Singh was married and therefore ineligible for an immigrant visa in the
F-1 category. However, the consular officer did not provide any evidence on the record or
explain how he came to that conclusion. Plaintiffs allege that the consular officer refused Mr.
Singh’s request for legal counsel and then coerced Mr. Singh into providing a written statement
admitting that he was married. Plaintiffs assert that the consular officer “acted in violation of
Due Process guaranteed by [the] U.S. Constitution.” On March 14, 2016, Mr. Singh’s petition
was returned to the NVC with his preference category changed to F-3. Plaintiffs attempted to
submit evidence that Mr. Singh is unmarried to no avail.
On May 10, 2016, a consular officer at the New Delhi Embassy issued Mr. Singh a
refusal letter stating that his visa application had been refused under 8 U.S.C. § 1182(a)(6)(C)(i)
for Fraud and Misrepresentation. In another refusal letter dated May 16, 2016, the consular
officer cited section 221(g) of the Immigration and Nationality Act.
On November 15, 2016, USCIS reaffirmed its prior approval of Ms. Kaur’s Petition for
Alien Relative on behalf of Mr. Singh. On November 21, 2016, the NVC informed Plaintiffs
that it had completed processing the petition and would forward the file to the New Delhi
Embassy with Mr. Singh in the F-1 preference category. To date, Mr. Singh’s visa application
has not been granted and Plaintiffs allege that “Defendants are still not willing” to classify Mr.
Singh as unmarried.
III.

Subject Matter Jurisdiction
Plaintiffs contend that this Court has subject matter jurisdiction under the Mandamus Act,

28 U.S.C. § 1361, the Administrative Procedures Act, 5 U.S.C. §§ 551 et. seq., and the statute
providing for district court jurisdiction over actions arising under federal law, 28 U.S.C. § 1331.
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Defendants, on the other hand, invoke the “doctrine of consular nonreviewability” and contend
that this Court does not have the authority to review the U.S. Embassy’s decision to deny Mr.
Singh’s visa application.
Under the doctrine of consular nonreviewability, a consular officer’s decision to deny a
visa application is generally immune from judicial review. Am. Acad. of Religion v. Napolitano,
573 F.3d 115, 123 (2d Cir. 2009). Whether it is best understood as a partial withdrawal of
federal question jurisdiction or simply a decision to abstain from certain cases due to separation
of powers concerns, see id., the doctrine of consular nonreviewability “reflects the plenary power
of Congress to prescribe the terms and conditions upon which [non-U.S. citizens] may come to
this country, and to have its declared policy in that regard enforced exclusively through
executive officers, without judicial intervention.” Khanom v. Kerry, 37 F. Supp. 3d 567, 574
(E.D.N.Y. 2014) (quoting Wan Shih Hsieh v. Kiley, 569 F.2d 1179, 1181 (2d Cir. 1978))
(internal quotations omitted). Thus, courts throughout the Second Circuit have consistently
refused to review a consular officer’s decision to suspend or deny immigration visas. See, e.g.,
Lleshi v. Kerry, 127 F. Supp. 3d 196, 201 (S.D.N.Y. 2015) (collecting cases). This is true “even
if that decision’s foundation was erroneous, arbitrary, or contrary to agency regulations.” Id. at
200 (quoting Ngassam v. Chertoff, 590 F. Supp. 2d 461, 467 (S.D.N.Y. 2008)).
Although the doctrine of consular nonreviewability is broad in scope, courts have
recognized one limited exception: where a U.S. citizen claims that his or her constitutional rights
have been violated, federal courts maintain the authority to review such a claim even if it arises
from a consular officer’s decision regarding a particular immigrant visa. Lleshi, 127 F. Supp. 3d
at 200. Even where this strictly limited exception applies, however, the Government need only
provide a “facially legitimate and bona fide reason” for its decision. Am. Acad. of Religion, 573
F.3d at 125 (quoting Kleindienst v. Mandel, 408 U.S. 753, 770 (1972). If the Government has
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provided such a reason, “the courts will neither look behind the exercise of that discretion, nor
test it by balancing its justification against the constitutional interests of those who seek review.”
Lleshi, 127 F. Supp. 3d at 200 (quoting Mandel, 408 U.S. at 770) (internal quotations and
alterations omitted).
This case presents a straightforward application of the consular nonreviewability
doctrine. Mr. Singh’s visa application has been denied by the New Delhi Embassy and Plaintiffs
are essentially asking this Court to look behind and reverse that decision. Although Plaintiffs
invoke the Constitution in their complaint by citing the Due Process Clause, they do so only in
conclusory fashion and fail to allege a plausible constitutional claim. Lleshi, 127 F. Supp. 3d at
201 (noting that “visas do not constitute a life, liberty, or property interest sufficient to invoke
the protections of due process”). 2 Further, even if the limited constitutional question exception
did apply in this case, the record clearly establishes that the Government provided a “facially
legitimate and bona fide reason” for its decision. Plaintiffs’ reference to the Mandamus Act, the
Administrative Procedures Act, and federal question jurisdiction is unavailing. Khanom, 37 F.
Supp. 3d at 574-78. Although Plaintiffs assert that the doctrine of consular nonreviewability
“does not apply to consular actions relating to [USCIS] approved petitions” and “[t]he [c]ourts
have jurisdiction where the consular officer made a procedural error,” ECF No. 14, at 4-5, they
cite no authority for those propositions and the Court finds them unpersuasive.
In sum, Plaintiffs seek “the very sort of ‘look behind’ review that the consular
nonreviewability doctrine is meant to preclude.” Lleshi, 127 F. Supp. 3d at 201 (citing Mandel,
408 U.S. at 770).

Because the Court lacks subject matter jurisdiction and cannot grant Plaintiffs

the relief they request, Defendants’ motion to dismiss must be granted.

2

Mr. Singh’s constitutional claim fails for the additional reason that he is not a U.S. citizen. Id.

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CONCLUSION
For the reasons stated above, the Court determines that it lacks subject matter jurisdiction
over this case.

Accordingly, Defendants’ motion to dismiss (ECF No. 6) is GRANTED.

Plaintiffs’ complaint (ECF No. 1) is DISMISSED WITH PREJUDICE. The Clerk of Court is
directed to enter judgment and close this case.
IT IS SO ORDERED.
Dated: February 6, 2017
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

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