Bibi v. Bitter

• Docket Number: 1:23-CV-07214 (LDH)
• Decision Date: 30 September 2024
• Citation: Bibi v. Bitter, 1:23-CV-07214 (LDH) (E.D. N.Y. Sep 30, 2024)
• Parties: BASHIRAN BIBI, Plaintiff, v. ASSISTANT SECRETARY OF U.S. DEPARTMENT OF STATE BUREAU OF CONSULAR AFFAIRS RENA BITTER; DEPUTY ASSISTANT SECRETARY OF STATE BUREAU OF CONSULAR AFFAIRS VISA SERVICES JULIE M. STUFFT; and DEPUTY CHIEF OF MISSION OF THE U.S. EMBASSY IN ISLAMABAD, PAKISTAN ANDREW SCHOFER, Defendants.
• Court: U.S. District Court — Eastern District of New York

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BASHIRAN BIBI, Plaintiff, v. ASSISTANT SECRETARY OF U.S. DEPARTMENT OF STATE BUREAU OF CONSULAR AFFAIRS RENA BITTER; DEPUTY ASSISTANT SECRETARY OF STATE BUREAU OF CONSULAR AFFAIRS VISA SERVICES JULIE M. STUFFT; and DEPUTY CHIEF OF MISSION OF THE U.S. EMBASSY IN ISLAMABAD, PAKISTAN ANDREW SCHOFER, Defendants.

No. 1:23-CV-07214 (LDH)

United States District Court, E.D. New York

September 30, 2024

MEMORANDUM AND ORDER

LASHANN DEARCY HALL, United States District Judge:

Plaintiff Bashiran Bibi (“Plaintiff”) brings the instant action against Assistant Secretary for Consular Affairs at the United States Department of StateRena Bitters, Deputy Assistant Secretary for Visa Services in the Bureau of Consular Affairs at the United States Department of State(“State Department”)Julie Stuffet, and Deputy Chief of Mission to Pakistan (“DCM”)Andrew Schofer(collectively, “Defendants”).Plaintiff seeks a writ of mandamus to compel Defendants to adjudicate her visa application, adjust the visa category, and issue a visa, pursuant to the Mandamus Act, 28 U.S.C. § 1361,Administrative Procedure Act(“APA”), 5 U.S.C § 7016andChild Status Protection Act (“CSPA”), 8 U.S.C. § 1153.Defendants move pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) to dismiss all of Plaintiff's claims.

BACKGROUND^[1]

I.Regulatory Framework for Visa Application

Under the Immigration and Nationality Act, a foreign national may seek an immigrant visa based on, inter alia, his or her family relationship to a United States citizen or legal permanent resident (“LPR”).8 U.S.C. §§ 1153(a),1154(a)(1)(A)(i), (a)(1)(B)(i)(I),8C.F.R. § 204.1(a)(1).To do so, the U.S. citizen or legal permanent resident must first file a petition with U.S. Citizenship and Immigration Services (“USCIS”) to establish the qualifying relationship with the foreign national beneficiary.See8 C.F.R. § 204.1(a).An approved petition is given a “priority date,” which is the date that the approved petition was filed with USCIS (seeId.§ 204.1(b)) and classified in the appropriate category depending on the immigration status of the petitioning relative and their relationship with the foreign national.

Once USCIS approves the petition, the case is forwarded to the State Department's National Visa Center (“NVC”) for processing.See 9 Foreign Affairs Manual (“FAM”) 504.1-2.Once processed, the case is deemed documentarily qualified, which means that the visa applicant has submitted the necessary documentation to be scheduled for an interview.Id.An interview is usually scheduled with a consular officer abroad at the U.S. embassy or consulate with jurisdiction over the applicant's place of residence.22 C.F.R. §§ 42.61-.62.At the interview, a consular officer reviews and adjudicates the visa application, determining whether to issue or refuse the visa.See8 U.S.C. § 1201(a)(1);9 FAM 504.1-3(g).A consular officer refuses a visa application when the applicant fails to establish his or her eligibility to receive the visa.See8 U.S.C. § 1201(g).

An applicant's eligibility to receive a visa may be affected by the availability of visa numbers in the applicant's family-preference category.^[2]Indeed, Congress imposes strict annual limits on the number of available visas.8 U.S.C. § 1151(c)(1).Thus, USCIS's approval of a petition for an applicant in a preference category does not necessarily result in an applicant's ability to immediately apply for a visa.Scialabba v. Cuellar de Osorio, 573 U.S. 41, 47(2014).Instead, the petition approval provides the applicant “a place in line” to apply for a visa.Id.The system is “first-come, first-served” within each preference category, such that an immigrant visa number becomes available to a beneficiary based on the priority date of his or her approved petition.^[3]Scialabba, 573 U.S. at 48;8 U.S.C. § 1153(e)(1).

In 2002, Congress passed the Child Status Protection Act to protect beneficiaries who were considered children when their petitions were filed but aged out of child status due to processing delays.Under the Child Status Protection Act, to determine whether a beneficiary who is a son or daughter of an LPR is a “child” under age 21, the beneficiary's age is calculated by reducing “the age of the [beneficiary] on the date on which an immigrant visa number becomes available” by “the number of days in the period during which the applicable [immigrant] petition was pending [adjudication with USCIS].”8 U.S.C. § 1153(h)(1).Thus, section 1153(h)(1) provides the “statutory age” for certain purposes for certain sons and daughters of LPRs that may differ from their actual, biological age.If the visa applicant's actual age and statutory age are both determined to be 21 years or older, 8 U.S.C. § 1153(h)(3) mandates automatic conversion of the applicant's visa category.

II.Plaintiff's Visa Application

Plaintiff is an LPR.(Compl. ¶ 9, ECF No. 1).On May 16, 2016, Plaintiff filed an I-130 Petition for Alien Relative (the “Petition”) for her daughter, Aaiza Shahtaj, who was born on August 16, 1995.(Id.¶¶ 2, 13-4.)On or around February 25, 2017, United States Citizenship and Immigration Services (“USCIS”) issued a notice approving the Petition and noting that it had been transferred to NVC for consular processing.(Id.¶ 15; Compl.Ex. E, ECF No 1-2.)On March 26, 2017, Aaiza received an email from NVC confirming receipt of the Petition and listing Aaiza's visa category as F2A, which designates LPRs' spouses and unmarried children under age 21.(Id.¶¶ 15-16, 69.)

Aaiza turned 21 years old on August 16, 2016.(Id.¶ 13.)On September 20, 2017, Plaintiff's attorney received an email from NVC, stating that the I-130 Petition was not “eligible for further processing” because of “numerical limitations on immigrant visa issuance prescribed by law.”(Id.¶ 19.)NVC's email listed Aaiza's visa category as F2B, which designates LPRs' spouses and unmarried children over age 21.(Id.¶¶ 19, 69.)On February 24, 2019, Plaintiff's attorney requested that NVC redesignate Aaiza to visa category F2A, consistent with Aaiza's age under the Child Status Protection Act.(Id.¶ 20.)On April 20, 2019, Plaintiff's attorney told her that Aaiza was redesignated to visa category F2A. (Id.¶ 21.)^[4] On August 5, 2019, Plaintiff's attorney received a notice that Aaiza's visa interview was scheduled for September 3, 2019.^[5](Id.¶ 23.)On the day of Aaiza's interview, she was informed that a visa would be issued once she provided the requested additional documentation, which included photographs of herself and Plaintiff.(Id.¶¶ 24, 25.)Plaintiff's attorney submitted the requested additional documentation on or around October 31, 2019.(Id.¶ 24.)

On or around December 19, 2019, Aaiza received a phone call from the United States Embassy in Islamabad (“U.S. Embassy”) informing her that she would have to wait an additional year for her visa to be issued and that her visa category had been converted from F2A to F2B because she was not covered by Child Status Protection Act.(Id.¶ 26.)On February 8, 2021, after Plaintiff emailed the U.S. Embassy requesting a status update, NVC responded that Aaiza's visa application was refused in accordance with Presidential Proclamation 10014, “Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following theCOVID-19 Outbreak.”(Id.¶¶ 27-28.)On February 24, 2021, President Biden revoked Presidential Proclamation 10014.(Id.¶ 29.)Subsequently, Plaintiff requested the issuance of the visa in light of the Proclamation 10014 revocation on April 6, 2021.(Id.¶ 30.)The U.S. Embassy responded it was in the process of re-opening previously frozen and temporarily refused cases.^[6](Id.¶ 31.)Neither Plaintiff nor Aaiza has received further updates regarding Aaiza's Immigrant Visa application.(Id.¶ 32.)

STANDARD OF REVIEW

“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.”Makarova v. United States, 201 F.3d 110 113(2d Cir.2000).The Petitioner bears the burden of establishing beyond a preponderance of the evidence that subject-matter jurisdiction exists.Id.“In reviewing a Rule 12(b)(1) motion to dismiss, the court‘must accept as true all material factual allegations in the complaint, but [the court is] not to draw inferences from the complaint favorable to Petitioner[].'”Tiraco v. New York State Bd. of Elections, 963 F.Supp.2d 184, 190(E.D.N.Y.2013)(quotingJ.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110(2d Cir.2004)).Further, “[i]n resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a district court . . . may refer to evidence outside the pleadings.”Makarova, 201 F.3d at 113.

To survive a motion to dismiss brought pursuant to Rule 12(b)(6), a complaint must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”Ashcroft v. Iqbal, 556 U.S. 662, 678(2009).A court deciding whether to grant a motion to dismiss must “draw all reasonable inferences in [the plaintiff's] favor, assume all ‘well-pleaded factual allegations' to be true, and ‘determine whether they plausibly give rise to an entitlement to relief.'”Faber v. Metro. Life Ins. Co.648 F.3d 98, 104(2d Cir.2011)(quotingSelevan v. N.Y. Thruway Auth., 584 F.3d 82, 88(2d Cir.2009))(citation omitted).“[T]he tenet that a court must accept a complaint's allegations as true is inapplicable to threadbare recitals of a cause of action's elements, supported by mere conclusory statements.”Iqbal, 556 U.S. at 678.Further, a court is not...