Castillo v. Rice

• Decision Date: 28 July 2008
• Docket Number: No. 07 Civ. 2628(DAB).,07 Civ. 2628(DAB).
• Citation: 581 F.Supp.2d 468
• Parties: Enrique CASTILLO, Eridania Del Carmen Paez, Andres Gomez and Danny Pichardo, Petitioners, v. Condoleeza RICE, Secretary of State of the United States; Maura Harty, Assistant Secretary, Bureau of Consular Affairs; June Kunzman, Managing Director, Visa Office, U.S. Department of State; Jeffrey Gorsky, Chief of Legislation and Regulatory Assistance, U.S. Department of State; John Brennan, Director of Field Support and Liaison, U.S. Department of State; Hans Hertell, U.S. Ambassador, Dominican Republic; Mike R. Schimmel, Consul General and Chief of Visa Operation, U.S. Consulate; William Bent, Chief, Immigrant Visa Unit, U.S. Consulate, Santo Domingo, Dominican Republic; Michael Chertoff, Secretary, Department of Homeland Security; Emilio Gonzalez, Director, U.S. CIS; and Donald Neufeld, Chief, Field Operations, Domestic Operations, U.S. CIS, Respondents.
• Court: U.S. District Court — Southern District of New York

581 F.Supp.2d 468

Enrique CASTILLO, Eridania Del Carmen Paez, Andres Gomez and Danny Pichardo, Petitioners, v. Condoleeza RICE, Secretary of State of the United States; Maura Harty, Assistant Secretary, Bureau of Consular Affairs; June Kunzman, Managing Director, Visa Office, U.S. Department of State; Jeffrey Gorsky, Chief of Legislation and Regulatory Assistance, U.S. Department of State; John Brennan, Director of Field Support and Liaison, U.S. Department of State; Hans Hertell, U.S. Ambassador, Dominican Republic; Mike R. Schimmel, Consul General and Chief of Visa Operation, U.S. Consulate; William Bent, Chief, Immigrant Visa Unit, U.S. Consulate, Santo Domingo, Dominican

Republic; Michael Chertoff, Secretary, Department of Homeland Security; Emilio Gonzalez, Director, U.S. CIS; and Donald Neufeld, Chief, Field Operations, Domestic Operations, U.S. CIS, Respondents.

No. 07 Civ. 2628(DAB).

United States District Court, S.D. New York.

July 28, 2008.

Dawn Pipek Guidone, Esq., Mineola, NY, for Petitioners.

F. James Loprest, Jr., Sp. Asst. U.S. Attorney, S.D.N.Y., New York, NY, for Respondents.

MEMORANDUM & ORDER

DEBORAH A. BATTS, District Judge.

Petitioners Enrique Castillo and Eridania del Carmen Paez filed a Petition for Writ of Mandamus (the "Petition") on March 30, 2007 seeking to compel the United States Consulate located in Santo Domingo, Dominican Republic to schedule immediately an interview to allow them to present evidence in support of Ms. Paez' application for a K-3 visa. Ms. Paez, a citizen of the Dominican Republic, had married Mr. Castillo, a United States citizen, in the Dominican Republic on July 18, 2006. Shortly after the wedding, Mr. Castillo filed an immigrant visa petition (Form 1-130) with the United States Citizenship and Immigration Service ("USCIS") as well as an application for a K-3 non-immigrant visa (Form 1-129) on behalf of his wife. The K-3 visa, which was created by Congress in 2000, would allow Ms. Paez to come to the United States to be with her husband pending the processing of her immigrant visa petition. Before a K-3 visa can be issued to Ms. Paez, however, she is required to present proof of her eligibility at an interview at the United States Consulate in Santo Domingo, Dominican Republic (the "Consulate"). The Consulate placed Ms. Paez on a waiting list for an interview; the list consisted of more than 27,500 cases as of February 28, 2007. Petitioners contend that, in creating the K-3 visa. Congress intended that applicants such as Ms. Paez should be granted expedited interviews by United States consulates in order to determine their eligibility for the visa.¹

Now before the Court is Defendants' Motion to Dismiss the Petition and the Amended Petition on the grounds that subject matter jurisdiction is lacking with respect to both petitions, that the Amended Petition fails to state a claim for which relief may be granted and that, with respect to newly-added petitioners Mr. Gomez and Mr. Pichardo, venue is improper. While Petitioners oppose the Motion to Dismiss, they concede that both the original Petition and the Amended Petition fail, on their face, to invoke the Court's subject matter jurisdiction. Petitioners contend, however, that they should be granted leave to file a Second Amended Petition in which they will assert an adequate basis for subject matter jurisdiction.

For the reasons stated below, Respondents' Motion to Dismiss the Petition and the Amended Petition for lack of subject matter jurisdiction, pursuant to Fed. R.Civ.P. 12(b)(1), is GRANTED. Additionally, because Petitioners fail to demonstrate an adequate basis for the Court to exercise subject matter jurisdiction over their claims, Petitioners' request for leave to file a Second Amended Petition is DENIED.

LEGAL STANDARD

Rule 12(b) (1) of the Federal Rules of Civil Procedure provides for dismissal of a claim when the federal court "lacks jurisdiction over the subject matter." Fed. R.Civ.P. 12(b)(1). Under Rule 12(b)(1) even "a facially sufficient complaint may be dismissed for lack of subject matter jurisdiction if the asserted basis for jurisdiction is not sufficient." Frisone v. Pepsico Inc., 369 F.Supp.2d 464, 469 (S.D.N.Y. 2005) (citations omitted).

When resolving issues surrounding subject matter jurisdiction, a district court is not confined to the complaint and may refer to evidence outside the pleadings, such as affidavits. 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 Frisone, 369 F.Supp.2d at 469-70 ("no presumptive truthfulness attaches to the complaint's jurisdictional allegations"). The court must nevertheless construe all ambiguities and draw all inferences in a plaintiffs favor. Id. Ultimately, however, the plaintiff "bears the burden of proving subject matter jurisdiction by a preponderance of the evidence." Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir.2005) (citing Luckett v. Bure, 290 F.3d 493, 497 (2d Cir.2002)).

Both the Petition and the Amended Petition state that the Court's subject matter jurisdiction over this action is grounded in the All Writs Act, 28 U.S.C. § 1651, and Rule 21(c) of the Federal Rules of Appellate Procedure. (Petition ¶ 2; Am. Petition ¶ 2.)

The All Writs Act provides that "[t]he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1651(a). The Supreme Court has held that the "All Writs Act authorizes writs `in aid of [the courts'] respective jurisdictions' without providing any federal subject-matter jurisdiction in its own right ...." Syngenta Crop Protection, Inc. v. Henson, 537 U.S. 28, 31, 123 S.Ct. 366, 154 L.Ed.2d 368 (2002) (citing Clinton v. Goldsmith, 526 U.S. 529, 534-535, 119 S.Ct. 1538, 143 L.Ed.2d 720 (1999)). The Second Circuit Court of Appeals has thus held that the All Writs Act:

while not conferring an independent basis of jurisdiction, provides a tool courts need in cases over which jurisdiction is conferred by some other source, and in such cases the Writs Act authorize[s] a federal court to issue such commands ... as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained.

Sprint Spectrum L.P. v. Mills, 283 F.3d 404, 413 (2d Cir.2002) (quoting United States v. Tablie, 166 F.3d 505, 506-07 (2d Cir.1999)).

DISCUSSION

Rule 21(c) of the Federal Rules of Appellate Procedure provides no basis for jurisdiction over this matter.² It is also clear that the Petition and Amended Petition fail to invoke the Court's subject matter jurisdiction under the All Writs Act alone. See Hutchinson v. Mukasey, No. 07 CV 10716(GBD), 2007 WL 4323006, at *2 (S.D.N.Y. Dec.10, 2007) ("The Writs Act, alone, does not confer [subject matter] jurisdiction"). Petitioners moreover concede in their opposition to Respondents' Motion to Dismiss that neither the Petition nor the Amended Petition "expressly reflect the basis" for subject matter jurisdiction.³ (Pets.' Mem. at 9.) Petitioners nevertheless request leave to file a Second Amended Petition in which they would allege that subject matter jurisdiction exists pursuant to (1) the mandamus statute, 28 U.S.C. § 1361, (2) the Administrative Procedure Act (the "APA"), 5 U.S.C. §§ 1701, et seq. and (3) the federal question statute, 28 U.S.C. § 1331. (Id.)

The mandamus statute provides that:

[t]he district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.

28 U.S.C. § 1361. A writ of mandamus is an extraordinary measure that courts typically grant "sparingly, to redress a `clear abuse of discretion.'" See In re Repetitive Stress Injury Litigation, 11 F.3d 368, 373 (2d Cir.1993) (quoting Richardson Greenshields Securities, Inc. v. Lau, 825 F.2d 647, 652 (2d Cir.1987)). A court has mandamus jurisdiction only when a plaintiff has a clear right to the relief requested, there is a plainly defined and peremptory duty on the defendant's part to do the act in question, and no other adequate remedy is available. See Heckler v. Ringer, 466 U.S. 602, 616-617, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984).

Petitioners claim that a writ of mandamus is warranted in this case because Respondents have failed to schedule interviews for the spouses and fiancees named in the Petition and Amended Petition on an expedited basis, in contravention of sections 101(a)(15)(K) (i)-(iv) of the Immigration and Nationality Act (the "INA"). (Pets.' Mem. at 9.) With reference to the K-1 and K-3 visas for which Petitioners seek expedited interviews, the INA provides that K visas are available to:

subject to subsections (d) and (p) of section 1184 of this title, an alien who—

(i) is the fiancee or fiance of a citizen of the United States ... and who seeks to enter the United States solely to conclude a valid marriage with the petitioner within ninety days after admission (ii) has concluded a valid marriage with a citizen of the United States ... who is the petitioner, is the beneficiary of a petition to accord a status under section 1151(b)(2)(A)(i) of this title that was filed under section 1154 of this title by the petitioner, and seeks to enter the United States to await the approval of such petition and the availability to the alien of an immigrant visa

* * *

8 U.S.C. § 1101(a)(15)(K)(i)-(ii). The INA further provides that in the case of K-1 visas:

A visa shall not be issued under the provisions of section 1101(a)(15)(K)(i) of this title until the consular officer has received a petition filed in the United States by the fiancée or fiancé of the applying alien and approved by the Secretary of Homeland Security....