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finding no basis to "overcome the jurisdictional bar to review of consular decisions denying visas by relying on the Declaratory Judgment Act, the Administrative Procedure Act, or by seeking mandamus to require the consulate to decide his . . . visa petitions"
Summary of this case from Foad v. HolderOpinion
05 Civ. 4086 (RJH) (AJP).
November 8, 2005
REPORT AND RECOMMENDATION
To the Honorable Richard J. Holwell, United States District Judge:
On April 25, 2005, pro se plaintiff De Yu Zhang filed a complaint in this Court against the United States Citizenship and Immigration Service ("CIS"). (Dkt. No. 1: Compl.) The complaint stems from Zhang's disagreement with the initial refusal of the United States Consulate in China to issue visas to Zhang's wife Xi Ying Chen and his two step-children Ru Lan Chen and Qi Bin Chen. (Compl. ¶¶ 2-3, 11-12.) Zhang has refiled Form I-130 "Petitions for Alien Relatives" with CIS, and asks the Court to direct the government to promptly (and implicitly, positively) decide his new visa petitions. (Compl. ¶ 14 Wherefor Clause.)
"As of March 1, 2003, the INS ceased to exist as an independent agency within the United States Department of Justice, and its functions respecting the adjudication of applications for immigration benefits were assumed by the Bureau of Citizenship and Immigration Services . . . in the United States Department of Homeland Security." Dong v. Ridge, 02 Civ. 7178, 2005 WL 1994090 at *1 n. 2 (S.D.N.Y. Aug. 18, 2005);see also, e.g., Brown v. Ashcroft, 360 F.3d 346, 348 n. 1 (2d Cir. 2004); Espin v. Ganter, 381 F. Supp. 2d 261, 262 n. 1 (S.D.N.Y. July 19, 2005).
Presently before the Court is the government's motion to dismiss pursuant to Rules 12(b)(1), (6) (7), Fed.R.Civ.P. (Dkt. No. 10.) For the reasons set forth below, the government's motion to dismiss (Dkt. No. 10) should be GRANTED.
FACTS
Plaintiff De Yu Zhang ("Zhang") was born in China in 1949 and entered the United States in 1981. (Dkt. No. 1: Compl. ¶¶ 1, 4 Att. 9: Zhang Passport; accord, Dkt. No. 6: Loprest Aff. Ex. A at 36: Zhang Passport.) Zhang is a resident of New York County. (Compl. ¶ 1; see Loprest Aff. Ex. A at 5: 10/31/02 Form I-130 Petition.) Zhang was naturalized in the Eastern District of New York on June 6, 1995. (Compl. Att. 8: Cert. of Naturalization.)
The documents Zhang attached to his complaint also are exhibits to the Loprest Affidavit. The Court hereafter only will cite to the attachments to the Complaint.
In 1990, Zhang submitted a visa petition for his first wife, Rui Hua Zhang, and three children to the INS. (See Compl. ¶ 4 Att. 3-5: 4/18/05 Form I-130 Petitions ¶ D2.) In April 1992, Zhang was joined in the United States by his first wife and their three children. (Compl. ¶ 4.) In May 1995, Zhang divorced his first wife. (Compl. ¶ 4; Compl. Att. 11: 5/5/95 Divorce Judgment.)
In September 1995, four months after his divorce, Zhang married his second wife, Jin Xiu Chen, in China. (See Compl. ¶ 5 Att. 3-5: 4/18/05 Form I-130 Petitions.) As Zhang had become a citizen in June 1995, he immediately filed Form I-130 "Petition for Alien Relative" ("I-130 petition"), seeking to have his second wife and two step-children classified as immediate relatives of an American citizen. (See Compl. Att. 3-5: 4/18/05 Form I-130 Petitions ¶ D2.) In January 2001, Zhang divorced his second wife. (See Compl. ¶ 5 Att.10: 1/8/01 Divorce Judgment.)
In August 2002, Zhang met his third wife Xi Yin Chen ("Chen") in China. (Compl. ¶ 7 Att. 3-5: 4/18/05 Form I-130 Petitions.) They married in China one month later on September 30, 2002. (Compl. ¶ 7 Att. 12: Notarial Marriage Certificate.) On October 31, 2002, Zhang returned to the United States and immediately filed I-130 petitions with the INS for Chen and her two children. (Compl. ¶ 8; Loprest Aff. Exs. A-C: 10/3/03 "Approved" Form I-130 Petitions.) The INS approved these petitions on October 3, 2003 and sent them to the Immigrant Visa Unit at the United States Consulate General in Guangzhou, China, the nearest consulate to the Chens. (See Loprest Aff. Ex. A at 2-5.)
On December 13, 2004, a consular officer in China reviewed the petition and Chen's supporting documents, but required Chen to return with more documents for a second review. (Compl. ¶ 10.) On December 28, 2004, Chen returned with more documents, but the consular officer again denied the visas for lack of evidence supporting the marriage. (Compl. ¶ 11; see Loprest Aff. Ex. A at 2-4: 1/26/04 [sic] Consulate Memo to Dep't of Homeland Security.) On January 26, 2005, Chen again returned to the consulate with more documents. (Compl. ¶¶ 11-12.) Michael Yen, Chief of the Immigrant Visa Unit at the U.S. Consulate in Guangzhou, concluded that Zhang and Chen "have failed to establish that they have a bona fide relationship" but rather, the "facts compel the conclusion that the marriage is only for immigration purposes." (Loprest Aff. Ex. A at 2-4: 1/26/0[5] Consulate Memo to Dep't of Homeland Security, at 2.) The Consulate Memo explained:
The Consulate Memo is dated January 26, 2004, but that appears to be an error for January 26, 2005. (See also Compl. ¶ 12.)
The petitioner [Zhang] and primary beneficiary [Chen] claimed they called each other often before the marriage and the petitioner's first visit. Even though clients can call calling card companies to receive an itemized list of calls made on the card, the petitioner and primary beneficiary only submitted calling cards as evidence. Even if they couldn't acquire an itemized list, the physical card cannot prove any phone calls were made using the card. Besides a few photos of the petitioner's August trip to China, the beneficiary submitted no evidence of a premarital relationship.
The petitioner claims he has visited the primary beneficiary two additional times in the subsequent years. He provided evidence of an entry stamp for 2003 in his passport and copies of 2005 plane tickets. However, the photos from these trips are few in number and do not demonstrate significant time spent together.
Between visits, the primary beneficiary submitted little evidence of contact. Phone records show few phone calls, and most last less than five minutes. The primary beneficiary also submitted only three letters. Each letter is extremely general and primarily refers to nothing more than the visa application process.
In addition, during the interview, the primary beneficiary did not seem to know many details about her husband. She knew very little about his interests, jobs or even the identity of the co-sponsor.
. . . .
The lack of any significant evidence of a relationship, prior to or after the marriage cast serious doubt on the bona fides of the relationship between the primary beneficiary and the petitioner. The sworn statements made during the interview and evidence submitted by the beneficiaries after the petition was initially approved constitutes good and sufficient cause to conclude that the beneficiary and petitioner's "marriage" exists to circumvent U.S. immigration laws. We hereby return the petition and request your concurrence that the petition be revoked.
(Loprest Aff. Ex. A: 1/26/0[5] Consulate Memo at 3-4.) On March 28, 2005, the Department of State returned the petitions to the CIS "for reconsideration and, if appropriate, revocation," on the ground that the "[r]elationship is not bona fide." (Loprest Aff. Ex. A at 1: 3/28/05 Consular Return/Case Transfer Cover Sheet.)
On or about April 18, 2005, Zhang re-filed I-130 visa petitions with the CIS for Chen and her two children. (Compl. Att. 3-5: 4/18/05 Form I-130 Petitions; see Compl. ¶ 12.) As far as the record shows, they are pending.
Zhang's Complaint and the Government's Motion to Dismiss
On April 25, 2005, Zhang commenced this action, stating that he disagreed with the consulate's failure to grant visas to his wife and step-children. (Compl. ¶ 2). Zhang also asserts that he is "without other adequate remedy," and seeks a judgment directing the government to "process/adjudicate [his new] application promptly." (Compl. ¶ 14).
On July 27, 2005, the Government moved to dismiss Zhang's complaint under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction, 12(b)(6) for failure to state a claim, and 12(b)(7) for failure to join an indispensable party. (Dkt. No. 10: Gov't Motion; Dkt. No. 12: Gov't Br.) On August 26, 2005, Zhang responded to the motion by letter, simply asking "the government" to issue the visas, and including some documentation (photos, airline tickets and letters) previously submitted to the consultate. (Dkt. No. 16: 8/26/05 Zhang Letter to Court.)
ANALYSIS
I. THE STANDARD GOVERNING A MOTION TO DISMISSA district court should deny a Rule 12(b)(6) motion to dismiss "unless it appears to a certainty that a plaintiff can prove no set of facts entitling him to relief." IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1052 (2d Cir. 1993) (quoting Ryder Energy Distrib. Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 779 (2d Cir. 1984)), cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994). A court must accept as true the facts alleged in the complaint and draw all reasonable inferences in favor of the nonmoving party — here, the plaintiff. Cosmas v.Hassett, 886 F.2d 8, 11 (2d Cir. 1989).
Accord, e.g., Freedom Holdings, Inc. v. Spitzer, 357 F.3d 205, 216 (2d Cir. 2004); Weinstein v. Albright, 261 F.3d 127, 131 (2d Cir. 2001); In re Scholastic Corp. Sec. Litig., 252 F.3d 63, 69 (2d Cir.), cert. denied, 534 U.S. 1071, 122 S. Ct. 678 (2001); Grandon v. Merrill Lynch Co., 147 F.3d 184, 188 (2d Cir. 1998).
Accord, e.g., Freedom Holdings, Inc. v. Spitzer, 357 F.3d at 216; Weinstein v. Albright, 261 F.3d at 131; In re Scholastic Corp. Sec. Litig., 252 F.3d at 69.
The "standards for dismissal under [Rule] 12(b)(6) and 12(b)(1) are substantively identical." Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d Cir.), cert. denied, 540 U.S. 1012, 124 S. Ct. 532 (2003); see also, e.g., Moore v. PaineWebber, Inc., 189 F.3d 165, 169 n. 3 (2d Cir. 1999); Bishop v.Porter, 02 Civ. 9542, 2003 WL 21032011 at *3 (S.D.N.Y. May 8, 2003); Tennant v. United States Bureau of Prisons, 02 CV 00558, 2003 WL 1740605 at *1 (D. Conn. Mar. 29, 2003).
The only substantive difference is "that the party invoking the jurisdiction of the court has the burden of proof in a 12(b)(1) motion, in contrast to a 12(b)(6) motion, in which the defendant has the burden of proof." Lerner v. Fleet Bank, N.A., 318 F.3d at 128 (citing Thompson v. County of Franklin, 15 F.3d 245, 249 (2d Cir. 1994)); see also, e.g., Langella v. Bush, 306 F. Supp. 2d 459, 463 (S.D.N.Y. 2004) ("On a motion to dismiss pursuant to Rule 12(b)(1), plaintiff carries the burden of establishing that subject matter jurisdiction exists over his complaint."); Bishop v. Porter, 2003 WL 21032011 at *3.
The other difference is that on a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the Court "may refer to evidence outside the pleadings." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (citing Kamen v. American Tel. Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986)); see also, e.g., Land v. Dollar, 330 U.S. 731, 735 n. 4, 67 S. Ct. 1009, 1011 n. 4 (1947) ("[W]hen a question of the District Court's jurisdiction is raised, the court may inquire, by affidavits or otherwise, into the facts as they exist."); Exchange Nat'l Bank v. Touche Ross Co., 544 F.2d 1126, 1130-31 (2d Cir. 1976); Masters v. Wilhelmina Model Agency, Inc., 02 Civ. 4911, 2003 WL 145556 at *1 (S.D.N.Y. Jan. 17, 2003).
A Rule 12(b)(6) motion to dismiss challenges only the face of the pleading. Thus, in deciding such a motion to dismiss, "the Court must limit its analysis to the four corners of the complaint." Vassilatos v. Ceram Tech Int'l Ltd., 92 Civ. 4574, 1993 WL 177780 at *5 (S.D.N.Y. May 19, 1993) (citingKopec v. Coughlin, 922 F.2d 152, 154-55 (2d Cir. 1991)). The Court, however, may consider documents attached to the complaint as an exhibit or incorporated in the complaint by reference. E.g., Chambers v. Timer Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) ("Because this standard has been misinterpreted on occasion, we reiterate here that a plaintiff's reliance on the terms and effect of a document in drafting the complaint is a necessary prerequisite to the court's consideration of the document on a dismissal motion; mere notice or possession is not enough."); Yak v. Bank Brussels Lambert, BBL (USA) Holdings, Inc., 252 F.3d 127, 130 (2d Cir. 2001) (citing Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991),cert. denied, 503 U.S. 960, 1125 S. Ct. 1561 (1992)); Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000) ("For purposes of a motion to dismiss, we have deemed a complaint to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference. . . ."); see also, e.g., Paulemon v. Tobin, 30 F.3d 307, 308-09 (2d Cir. 1994); Brass v. American Film Tech., Inc., 987 F.2d 142, 150 (2d Cir. 1993).
Accord, e.g., Aniero Concrete Co. v. New York City Constr. Auth., 94 Civ. 3506, 2000 WL 863208 at *31 (S.D.N.Y. June 27, 2000); Six West Retail Acquisition, Inc. v. Sony Theatre Mgmt. Corp., 97 Civ. 5499, 2000 WL 264295 at *12 (S.D.N.Y. Mar. 9, 2000) ("When reviewing the pleadings on a motion to dismiss pursuant to Rule 12(b)(6), a court looks only to the four corners of the complaint and evaluates the legal viability of the allegations contained therein.").
When additional materials are submitted to the Court for consideration with a 12(b)(6) motion, the Court must either exclude the additional materials and decide the motion based solely upon the complaint, or convert the motion to one for summary judgment under Fed.R.Civ.P. 56. See Fed.R.Civ.P. 12(b); Friedl v. City of New York, 210 F.3d 79, 83 (2d Cir. 2000); Fonte v. Board of Managers of Cont'l Towers Condos, 848 F.2d 24, 25 (2d Cir. 1988).
In this case, the documents that Zhang has attached to the complaint may be considered on the motion to dismiss, whether under Rule 12(b)(1) or 12(b)(6). (See cases cited in the immediately prior paragraph.) Moreover, on the Rule 12(b)(1) subject matter jurisdiction motion, the Court also can consider the few additional government documents added as exhibits to the Loprest Affidavit. (See cases cited at page 7 n. 7 above.)
The Court's role in deciding a motion to dismiss "'is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.'" Saunders v. Coughlin, 92 Civ. 4289, 1994 WL 88108 at *2 (S.D.N.Y. Mar. 15, 1994) (quoting Geisler v.Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980)); accord, e.g., Watson v. McGinnis, 964 F. Supp. 127, 130-31 (S.D.N.Y. 1997) (Kaplan, D.J. Peck, M.J.). "'[T]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.'"Saunders v. Coughlin, 1994 WL 88108 at *2 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686 (1974)). A Rule 12(b)(6) motion will be granted "'only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Saunders v.Coughlin, 1994 WL 88108 at *2 (quoting Hishon v. King Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 2232 (1984)).
When reviewing a pro se complaint, the Court must use less stringent standards than if the complaint had been drafted by counsel. See, e.g., LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991); Watson v. McGinnis, 964 F. Supp. at 131;Saunders v. Coughlin, 1994 WL 88108 at *2 (citing Hughes v.Rowe, 449 U.S. 5, 101 S. Ct. 173 (1980)). However, "[d]ismissal under Rule 12(b)(6) is proper if the complaint lacks an allegation regarding an element necessary to obtain relief. . . ." 2 Moore's Federal Practice § 12.34[4][a], at 12-72.7 (2005). Thus, the "'duty to liberally construe a plaintiff's complaint [is not] the equivalent of a duty to re-write it.'" Id., § 12.34[1][b], at 12-61; see also, e.g., Joyner v. Greiner, 195 F. Supp. 2d 500, 503 (S.D.N.Y. 2002) (action dismissed because pro se plaintiff "failed to allege the facts tending to establish" that defendants violated his constitutional rights).
II. PLAINTIFF ZHANG HAS FAILED TO ESTABLISH SUBJECT MATTER JURISDICTION A. Background About The Visa-Issuing Process
Under the Immigration and Naturalization Act ("INA"), Congress has delegated immigration matters to the Department of Homeland Security, the State Department and the Attorney General.
"Functions of the Commissioner of Immigration and Naturalization relating to adjudications of immigrant visa petitions . . . were transferred to the Director of the Bureau of Citizenship and Immigration Services of the Department of Homeland Security." Historical Statutory Notes to 8 U.S.C. § 1551. 8 U.S.C. § 1103(a)(1) provides: "The Secretary of Homeland Security shall be charged with the administration and enforcement of . . . all . . . laws relating to the immigration and naturalization of aliens, except. . . . [for] . . . duties conferred upon the President, Attorney General, the Secretary of State, . . . or diplomatic or consular officers."
8 U.S.C. § 1104(a) provides: "The Secretary of State shall be charged with the administration and the enforcement of . . . immigration and nationality laws relating to (1) the powers, duties and functions of the diplomatic and consular officers of the United States, except those powers, duties and functions conferred upon the consular officers relating to the granting or refusal of visas."
8 U.S.C. § 1103(g)(1)-(2) provides: "The Attorney General shall have such authorities and functions under this chapter and all other law relating to the immigration and naturalization of aliens as were exercised by the Executive Office for Immigration Review . . . [and] shall establish such regulations, prescribe such forms of bond, reports, entries, and other papers, issue such instructions, review such administrative determinations in immigration proceedings, delegate such authority, and perform such other acts as the Attorney General determines to be necessary for carrying out this section."
In order for an alien relative to enter the country, a citizen or permanent resident must file an immediate relative petition with the Attorney General to prove the eligibility of their alien family member. 8 U.S.C. § 1154(a)(1)(A)(i) ("Any citizen of the United States claiming that an alien is entitled to classification by reason of . . . an immediate relative status under section 1151(b)(2)(A)(i) of this title may file a petition with the Attorney General for such classification."). "'Immediate relatives'" means the children, spouses, and parents of a citizen of the United States." 8 U.S.C. § 1151(b)(2)(A)(i). A "citizen . . . petitioning . . . for a qualifying relative's classification as an immediate relative . . . must file a Form I-130, Petition for Alien Relative." 8 C.F.R. 204.1(a)(1); see, e.g., Drax v. Reno, 338 F.3d 98, 114 (2d Cir. 2003); Kim v. Ashcroft, 340 F. Supp. 2d 384, 386 n. 3 (S.D.N.Y. 2004) ("Form I-130 . . . is necessary to petition for an immediate relative immigrant visa.").
A determination that an immediate relative is eligible for a visa is not alone sufficient for that relative to gain entry into the country. See, e.g., Malhotra v. Meyers, 552 F. Supp. 253, 255 (N.D. Ill. 1982) (Plaintiff "does not have a valid immigrant visa at the present time; the granting of his spouse's I-130 petition would not award [plaintiff] such a visa, but rather, would merely be evidence of his eligibility for an immigrant visa . . . [Plaintiff] would still be required to apply for and obtain an immigrant visa from a consular officer of the United States."); Drax v. Reno, 338 F.3d at 114-15. The family member alien also must obtain a visa. 8 U.S.C. § 1181(a) ("[N]o immigrant shall be admitted into the United States unless at the time of application for admission he (1) has a valid unexpired immigrant visa. . . ."). The citizen or beneficiary must apply for the visa directly from the State Department, specifically, the United States Embassy or Consulate in the geographic region in which the beneficiary resides. Al Makaseeb Gen. Trading Co. v. Christopher, 94 Civ. 1179, 1995 WL 110117 at *3-4 (S.D.N.Y. Mar. 13, 1995) ("[A]liens who wish to secure a non-immigrant visa for travel to the United States must apply to the American consulate in the country in which the alien is located . . . Congress has vested consular officials with the exclusive authority to issue or deny such visas.") (citing 8 U.S.C. § 1201).
The burden of proof is on the petitioner (here, Zhang) and beneficiary (here, Chen) to present evidence supporting the immediate relative status satisfactory to the consular officer. 8 U.S.C. § 1361; see, e.g., Egan v. Weiss, 119 F.3d 106, 107 (2d Cir. 1997) ('[T]he burden of proving the claimed [marital] relationship is on the petitioner."). United States consular officers review this evidence and decide whether to grant or refuse to issue a visa:
Under the conditions hereinafter prescribed . . ., a consular officer may issue (A) to an immigrant who has made proper application therefor, an immigrant visa. . . .
(g) No visa or other documentation shall be issued to an alien if (1) it appears to the consular officer, from statements in the application, or in the papers submitted therewith, that such alien is ineligible to receive a visa. . . .8 U.S.C. §§ 1201(a)(1), (g).
B. The Court Does Not Have Jurisdiction to Review the Determinations of U.S. Consular Officers
Zhang is asking this Court to intervene in the visa-issuing process on behalf of his family. (See pages 2, 5 above.) He requests either a reversal of the consulate's rejection of the prior visa applications, or an expedited and positive response to the April 18, 2005 visa petitions that are pending. (Id.) The Government contends that the Court lacks subject matter jurisdiction over visa decisions of United States consular officers. (Dkt. No. 12: Gov't Br. at 9-13.) The Court agrees.
The Supreme Court has clearly held that federal courts lack jurisdiction to overturn or otherwise review the decision of a consular officer not to issue a visa:
The power of congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications.Kleindienst v. Mandel, 408 U.S. 753, 766, 92 S. Ct. 2576, 2583 (1972) (quoting Lem Moon Sing v. United States, 158 U.S. 538, 547, 15 S. Ct. 967, 969 (1895)); accord, e.g., Hseih v. Kiley, 569 F.2d 1179, 1181 (2d Cir.) ("[N]o jurisdictional basis exi[s]ts for review of the action of the American Consul in Taiwan suspending or denying the issuance of immigration visas . . . It is settled that the judiciary will not interfere with the visa-issuing process."), cert. denied, 439 U.S. 828, 99 S. Ct. 102 (1978); Rivera De Gomez v. Kissinger, 534 F.2d 518, 519 (2d Cir.) (Judicial review of a consular decision not to issue a visa to plaintiff's husband is precluded; Supreme Court'sKleindienst v. Mandel decision and prior 2d Cir. decisions "preclude any judicial review of the consular decision not to issue a visa in this case."), cert. denied, 429 U.S. 897, 97 S. Ct. 262 (1976); Burrafato v. United States Dep't of State, 523 F.2d 554, 555 (2d Cir. 1975), cert. denied, 424 U.S. 910, 96 S. Ct. 1105 (1976); Dong v. Ridge, 02 Civ. 7178, 2005 WL 1994090 at *3, 5 (S.D.N.Y. Aug. 18, 2005) ("As a general rule, courts lack subject matter jurisdiction to review the visa-issuing process. . . . The Court's inability to review consular decisions is 'essentially without exception.'") (citing cases); Shen v. United States Consulate Gen. at Shanghai, China, 866 F. Supp. 779, 780 (S.D.N.Y. 1994) ("'[I]t has been consistently held that the consular official's decision to issue or withhold a visa is not subject either to administrative or judicial review.' Accordingly, since the consular decision to deny [plaintiff's] parents visas is not subject to review by this Court, this Court lacks subject matter jurisdiction over [plaintiff's] Complaint. Therefore the Complaint must be dismissed.") (citations omitted); Al Makaaseb Gen. Trading Co. v. Christopher, 94 Civ. 1179, 1995 WL 110117 at *1 (S.D.N.Y. Mar. 13, 1995) ("It is beyond dispute that courts have no jurisdiction to review the denial of visas by consular officials.") (citing cases); Pena v. Kissinger, 409 F. Supp. 1182, 1186-87 (S.D.N.Y. 1976) (Pollack, D.J.) ("Plaintiff is not entitled to judicial review of the Consul's decision" to deny immigrant visa to her husband because of Kleindienst.).
Courts lack jurisdiction to overturn a consular officer's visa decision even when the consulate's decision was contrary to law, otherwise erroneous, or arbitrary and capricious. Dong v.Ridge, 2005 WL 1994090 at *3-5 (Apparent "violation of law," "[w]hile reprehensible, . . . cannot be a basis for judicial review." "'Whether the consul has acted reasonably or unreasonably is not for us to determine. Unjustifiable refusal to vise a passport . . . is beyond the jurisdiction of the court.'") (quoting United States ex rel. London v. Phelps, 22 F.2d 288, 290 (2d Cir. 1927), cert. denied 276 U.S. 630, 28 S. Ct. 324 (1928)); Grullon v. Kissinger, 417 F. Supp. 337, 338-40 (E.D.N.Y. 1976), aff'd mem., 559 F.2d 1203 (2d Cir. 1977); Al Makaseeb Gen. Trading Co. v. Christopher, 1995 WL 110117 at *2 ("The reach of the doctrine of nonreviewability is broad. It precludes review of denials of visa applications even where, as here, the decision is alleged to have been contrary to law.");Pena v. Kissinger, 409 F. Supp. at 1185.
The case law further instructs that Zhang cannot overcome the jurisdictional bar to review of consular decisions denying visas by relying on the Declaratory Judgment Act, the Administrative Procedure Act, or by seeking mandamus to require the consulate to decide his April 18, 2005 visa petitions. See, e.g., Hsieh v. Kiley, 569 F.2d at 1181-82 ("The Declaratory Judgment Act, 28 U.S.C. §§ 2201, et seq., . . . is remedial, not jurisdictional, and the Administrative Procedure Act . . . does not provide subject matter jurisdiction.") (citations omitted);Dong v. Ridge, 2005 WL 1994090 at *3 ("To circumvent this precedent of 'consular nonreviewability,' plaintiffs argue that they do not seek a review of consular decisions but rather [review of] the basis for the determinations. . . . [In Grullon v. Kissinger] [t]he district court held that because the plaintiff's complaint alleged denial of a visa, his request for a declaration of status was effectively a demand for 'judgment directing issuance of the visa,' and therefore the court lacked jurisdiction to review the consular acts."); Espin v. Ganter, 381 F. Supp. 2d 261, 265 (S.D.N.Y. 2005) (declining to grant injunctive or mandamus relief) (citing cases); Dinsey v. Dep't of Homeland Sec. — U.S. Citizenship Immigration Servs., 03 Civ. 10081, 2004 WL 1698630 at *3 (S.D.N.Y. July 28, 2004) (Plaintiff "is one of many plaintiffs who have filed complaints in this Circuit seeking injunctive or mandamus relief ordering the Agency to adjudicate applications for adjustment of status; he states precisely the grounds for jurisdiction that the others have. In these cases, the Court has found no subject matter jurisdiction on any of the grounds presented in [plaintiff's] Amended Complaint. Undeterred by precedent, [plaintiff] filed this action seeking the same relief and reciting the same jurisdictional arguments as those who preceded him. . . . The DJA [declaratory judgment act] merely provides a type of remedy; it does not confer subject matter jurisdiction. 'The APA [Administrative Procedure Act] does not afford an implied grant of subject-matter jurisdiction permitting federal judicial review of agency action.' . . . [Plaintiff's] reliance upon mandamus jurisdiction is equally unavailing. . . . 'It is settled that the judiciary will not interfere with the visa-issuing process.'") (citations omitted); Zheng v. Reno, 166 F. Supp. 2d 875, 878-81 (S.D.N.Y. 2001) (Court finds no subject matter jurisdiction under APA, declaratory judgment act, or the mandamus statutes); Grullon v. Kissinger, 417 F. Supp. at 339 (Plaintiff cannot avoid consular nonreviewability doctrine by seeking declaration of immigrant status.).
CONCLUSION
For the reasons stated above, the government's motions to dismiss for lack of subject matter jurisdiction should beGRANTED and plaintiff Zhang's complaint dismissed in its entirety.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Richard J. Holwell, 500 Pearl Street, Room 1950, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Holwell. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v.Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994);Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v.Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v.Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v.Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).