United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY United States District Judge
Nirmal Singh, a lawful permanent resident of the United
States, has brought this action seeking relief in connection
with the decision by the United States Consulate in New
Delhi, India to deny immigrant visas for Mr. Singh's
wife, Surjeet Kaur, and his four children: daughter Gurwinder
Kaur, daughter Jasveer Kaur; son Sukhwant Singh; and son
Kulwant Singh. Defendants - who include Rex W. Tillerson,
Secretary of the United States Department of State, Richard
R. Verma, in his official capacity as United States
Ambassador to India, the Consulate General and two consular
officers employed by the United States Embassy in New Delhi,
India - have moved to dismiss Plaintiff's Amended
Complaint pursuant to Federal Rules of Civil Procedure
12(b)(1), for lack of subject matter jurisdiction, and
12(b)(6), for failure to state a claim.
reviewing the parties' submissions, relevant case law and
applicable statutory authority, the Court finds that the
doctrine of consular nonreviewability precludes the district
court's exercise of jurisdiction and Plaintiff fails to
state a claim. Accordingly, the Court shall GRANT
Defendants'  Motion to Dismiss Plaintiff's
Amended Complaint for the reasons discussed herein. A
separate Order accompanies this Memorandum Opinion.
Nirmal Singh (“Plaintiff”) entered the United
States in 1993; his employer petitioned for an immigrant visa
on behalf of Plaintiff, his wife and children, and the
petition was approved on August 20, 2004. Am. Compl.
¶¶ 9, 11. Plaintiff claims that as of that date,
his four children were all unmarried and under the age of 21,
and pursuant to the Child Status Protection Act
(“CSPA”), 8 U.S.C. § 1153(h)(1), immigrant
visas should have been available to his family members. Am.
Compl. ¶ 11.
obtained his immigration visa and consequent Lawful Permanent
Resident (“LPR”) status on January 22, 2008. Am.
Compl. ¶ 15. Shortly thereafter, Plaintiff filed a Form
I-824, seeking “follow-to-join” eligibility for
his family members, which was approved on June 2, 2009. Am.
Compl. ¶¶ 16, 32. In August 2010, Plaintiff's
family members appeared for immigrant visa interviews at the
United States Embassy in New Delhi, India, but they were
subsequently denied visas, in 2011, on grounds of material
misrepresentation and alien smuggling. Am. Compl.
¶¶ 36-37. In June 2013, Plaintiff's family
members appeared for a second interview, which resulted in a
denial for the same reasons - misrepresentation and alien
smuggling. Am. Compl. ¶¶ 54-56.
January 17, 2017, Plaintiff's wife and four children
appeared at the Embassy in New Delhi for another interview
before a consular officer for purposes of demonstrating their
eligibility for immigrant visas. Defs.' Mot., Ex. 1
(Declaration of Bryan Giblin, U.S. Department of State
Attorney Advisor in the Legal Affairs, Advisory Opinions
Division of the Visa Office, Bureau of Consular Affairs)
¶ 4. In letters provided to Plaintiff's children,
the consular officer stated that each was “found
ineligible to receive an immigrant visa” under 8 U.S.C.
§ 1182(a)(6)(C)(i), which prohibits a visa to anyone who
has tried to obtain one by fraudulent means or
misrepresentation. Defs.' Mot., Exs. 2-3 (January 17,
2017 letters from the consular officer to the Plaintiff's
four children). Plaintiff's wife was also found
ineligible for an immigrant visa, pursuant to 8 U.S.C. §
1182(a)(6)(E), on grounds that she made material
misrepresentations for the purpose of aiding and abetting
aliens who were trying to enter the United States. Defs.'
Mot., Ex. 4 (January 17, 2017 letter from consular officer to
Plaintiff's wife). On May 16, 2016, Plaintiff filed his
Complaint challenging the consular's denials, and on July
17, 2017, he filed his Amended Complaint. .
Rule 12(b)(1) motion to dismiss for lack of subject matter
jurisdiction, the plaintiff bears the burden of establishing
that the court has jurisdiction. See Lujan v. Defenders
of Wildlife, 504 U.S. 555, 561 (1992);
Hollingsworth v. Duff, 444 F.Supp.2d 61, 63 (D.D.C.
2006) (citation omitted). In reviewing a motion to dismiss
pursuant to Rule 12(b)(1), courts must accept as true all
factual allegations in the complaint and construe the
complaint liberally, granting plaintiff the benefit of all
inferences that can be drawn from the facts alleged. See
Leatherman v Tarrant Cty. Narcotics Intelligence &
Coordination Unit, 507 U.S. 163, 164 (1993); Koutny
v. Martin, 530 F.Supp.2d 84, PIN CITE (D.D.C. 2007)
(“[A] court accepts as true all of the factual
allegations contained in the complaint and may also consider
‘undisputed facts evidenced in the record'”)
(internal citations omitted). A court need not accept as true
“a legal conclusion couched as a factual
allegation” nor an inference “unsupported by the
facts set out in the complaint.” Trudeau v. Fed.
Trade Comm'n, 456 F.3d 178, 193 (D.C. Cir. 2006)
(quoting Papasam v. Allain, 478 U.S. 265, 286
(1986)). In deciding a motion to dismiss pursuant to Rule
12(b)(1), a court is not limited to the allegations of the
complaint but may also consider materials outside of the
pleadings. Herbert v. Nat'l Acad. of
Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992).
to Rule 12(b)(6), a party may move to dismiss a complaint on
grounds that it “fail[s] to state a claim upon which
relief can be granted.” Fed.R.Civ.P. 12(b)(6). A
complaint is not sufficient if it “tenders ‘naked
assertion[s]' devoid of ‘further factual
enhancement.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 557 (2007)). In order to survive a motion to
dismiss under Rule 12(b)(6), a complaint must contain
sufficient factual allegations that, if accepted as true,
“state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570. When
considering a Rule 12(b)(6) motion, courts may consider
“the facts alleged in the complaint, documents attached
as exhibits or incorporated by reference in the
complaint” or “documents upon which the
plaintiff's compliant necessarily relies even if the
document is produced not by the plaintiff in the complaint
but by the defendant in a motion to dismiss.” Ward
v. District of Columbia Dep't of Youth Rehab.
Servs., 768 F.Supp.2d 117, 119 (D.D.C. 2011) (internal
quotation marks omitted). The court may also consider
documents in the public record of which the court may take
judicial notice. Abhe & Svoboda, Inc. v. Chao,
508 F.3d 1052, 1059 (D.C. Cir. 2007).
assert the following grounds for dismissing Plaintiff's
Amended Complaint: 1) Plaintiff's claims are moot because
he received the relief he requested in the form of written
determinations of denial of visas; 2) Plaintiff is not
entitled to judicial review because he lacks a constitutional
interest in the visa denials; and 3) the consular
officer's visa denials satisfy the applicable standard as
they are facially legitimate and bona fide. Each of these
arguments by Defendants and the Plaintiff's responses
thereto will be considered in turn.
Amended Complaint, Plaintiff “seeks remand and asks
this court to compel agency action unlawfully withheld, in
particular, the immediate issuance of immigrant visas to his
family members, or proper factual determination of their
eligibility.” Am. Compl. ¶ 114 (emphasis
added). Subsequent to Plaintiff filing an Amended Complaint,
on January 17, 2017, Plaintiffs' wife and children were
again interviewed by a consular officer to determine their
eligibility for ...