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Singh v. Tillerson

United States District Court, District of Columbia

September 21, 2017

NIRMAL SINGH, Plaintiff,
v.
REX W. TILLERSON, et al., Defendants.

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY United States District Judge

         Plaintiff 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.[1]

         After 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.[2] Accordingly, the Court shall GRANT Defendants' [19] Motion to Dismiss Plaintiff's Amended Complaint for the reasons discussed herein. A separate Order accompanies this Memorandum Opinion.

         I. BACKGROUND

         Plaintiff 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.

         Plaintiff 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.

         On 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).[3] On May 16, 2016, Plaintiff filed his Complaint challenging the consular's denials, and on July 17, 2017, he filed his Amended Complaint. .

         II. LEGAL STANDARD

         On a 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).

         Pursuant 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).

         III. ANALYSIS

         Defendants 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.

         Mootness

          In his 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 ...


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