Chiang v. Skeirik

• Decision Date: 28 September 2009
• Docket Number: No. 08-2105.,08-2105.
• Citation: 582 F.3d 238
• Parties: Wen Y. CHIANG, Plaintiff, Appellant, v. Lynn SKEIRIK, in her official capacity as Director of the National Visa Center; Condoleezza Rice, in her official capacity as Secretary of State; Michael Chertoff, in his official capacity as Secretary of Homeland Security; Brian Ferinden, in his official capacity as Vice General Consul in Guangzhou, China; and the United States of America, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

582 F.3d 238

Wen Y. CHIANG, Plaintiff, Appellant, v. Lynn SKEIRIK, in her official capacity as Director of the National Visa Center; Condoleezza Rice, in her official capacity as Secretary of State; Michael Chertoff, in his official capacity as Secretary of Homeland Security; Brian Ferinden, in his official capacity as Vice General Consul in Guangzhou, China; and the United States of America, Defendants, Appellees.

No. 08-2105.

United States Court of Appeals, First Circuit.

Heard July 28, 2009.

Decided September 28, 2009.

Dean Carnahan, for appellant.

Anton P. Giedt, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellees.

Before BOUDIN, SELYA, and DYK,^* Circuit Judges.

DYK, Circuit Judge.

Wen Y. Chiang ("Chiang") appeals from a district court decision in an immigration case, dismissing his amended complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). We affirm.

I.

We recite the complex and protracted proceedings in the district court only to the extent relevant to the appeal.

Chiang, a U.S. citizen residing in Arlington, Massachusetts, sought a fiancée visa to permit his fiancée, Wen Hua Zhang (who took the Anglicized name "Amy"), to come to the United States so that the two could be married. Chiang v. Skeirik, No. 07-10451, slip op. at 2 (D.Mass. June 11, 2008). Under 8 U.S.C. § 1101(a)(15)(K)(i), a visa may be granted to a non-immigrant alien who "is the fiancée or fiancé 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."

The regulations provide a two-step process for securing such a visa. First, the United States citizen must file a petition with the Secretary of Homeland Security, through the United States Citizenship and Immigration Service ("USCIS"), for such a visa. See 8 U.S.C. § 1184(d)(1).¹ Second, if the petition is granted, the visa must also be approved by a consular official in the country in which the alien resides. See id.; 8U.S.C. § 1201(a)(1). Chiang filed a petition with USCIS on September 7, 2006.

On October 23, 2006, the USCIS approved Chiang's petition for a fiancée visa. On March 3, 2007, Amy's case was sent to the U.S. Consulate in Guangzhou, China ("the consulate") for further consideration.

On March 6, 2007, Chiang filed the pro-se complaint in this case. The complaint sought to compel USCIS to act promptly on the visa application and sought damages on various theories. Soon thereafter, sometime during the month of April 2007, Chiang and Amy participated in a marriage ceremony of some sort in China. Chiang v. Skeirik, No. 07-10451, slip op. at 3 (D.Mass. June 11, 2008).

On September 25, 2007, the consulate interviewed Amy. Chiang alleges that several improprieties occurred during the interview. These improprieties include: making Amy "wait until she was the last person interviewed"; not allowing Chiang to accompany Amy into the interview room; taking Chiang's file of documents and photographs and refusing to return them; and "acting in [a] concerted effort to deny Chiang's constitutional rights." At the conclusion of the interview, a consular official handed Amy a piece of paper informing her that her application for a visa had been denied based on the conclusion that she did not have a bona fide relationship with Chiang. This determination was largely based on the fact that Chiang had previously filed applications for two other Chinese women to come to the United States on fiancée visas. The consular official also advised Chiang that Amy's case would be returned to USCIS for review.

On December 4, 2007, the district court, finding a lack of subject matter jurisdiction, dismissed Chiang's complaint "to the extent that Chiang [sought] review of the reasons for the Consulate's denial of his fiancé's petition...." Chiang v. Skeirik, 529 F.Supp.2d 166, 174 (D.Mass.2007). The district court directed Chiang to file an amended complaint on or before January 18, 2008. Id. Chiang then filed an amended complaint (hereinafter "first amended complaint"), which asserted various counts against various government officials in their official capacities and against the United States.

Four counts of the first amended complaint are at issue in this appeal. Count I was a monetary claim against the United States, which Chiang described as a Bivens² claim, alleging that the employees of the consulate violated Chiang's Fifth Amendment rights by denying him due process during the processing of the visa application. Count II was also for money damages against the United States and was also described as a Bivens claim, alleging that the employees at the consulate violated Chiang's Fourth Amendment rights by unlawfully seizing his photographs and documents. Count III alleged that various government officials in their official capacities, the consulate, and the United States violated Chiang's Seventh Amendment right to a jury trial because the consulate denied the visa application in retaliation for filing this lawsuit. Count III sought money damages and other relief. Count IV alleged that processing delays and other actions of the consulate, "apart from the decision to deny the visa application," violated Chiang's constitutional right to marry and sought damages and other relief against the United States.

Following return of the petition from the consulate, on May 1, 2008 the USCIS denied Chiang's petition. The USCIS did not base its decision on a lack of a bona fide relationship (the ground for the consulate action). Instead, the USCIS concluded that Amy and Chiang were married in China and that Amy was therefore no longer eligible for a fiancée visa.

On June 11, 2008, the district court denied a preliminary injunction to require the issuance of the visa, finding that even under the assumption that the district court had jurisdiction to review the denial of the visa, there was not a likelihood of success on the merits. Chiang then filed an interlocutory appeal to this court challenging the denial of the preliminary injunction. Chiang subsequently dismissed that appeal.

The government then moved to dismiss the first amended complaint. On July 3, 2008, a magistrate judge issued a Report and Recommendation recommending that the district court grant the defendants' motion. Specifically, as pertinent to this appeal, the magistrate judge recommended dismissal of the first amended complaint: (1) for failure to state a proper claim for money damages against the United States; (2) for failure to state a claim because the complaint failed to allege a violation of Chiang's constitutional rights; (3) because the doctrine of consular nonreviewability precluded review of the denial of the visa; and (4) because the district court did not have jurisdiction over the USCIS denial because it was done for a "facially legitimate and bona fide" reason. Chiang v. Skeirik, No. 07-10451, slip op. at 15-16 (D.Mass. July 3, 2008).

On July 17, 2008, Chiang filed a motion for leave to file a second amended complaint and filed objections to the magistrate judge's Report and Recommendation. In the proposed second amended complaint, Chiang sought to add Bivens claims against Brian Ferinden (the Vice General Consul in Guangzhou, China), individually, and to add Bivens claims against two unknown consular officials.

On August 7, 2008, the district court adopted the Report and Recommendation of the magistrate judge. On August 10, 2008, Amy gave birth to a son, who now resides in the United States with Chiang. On August 11, 2008, the district court denied Chiang's motion to amend his first amended complaint "[b]ecause the proposed amendment would be futile and Plaintiffs do not get `repeated bites at the apple.'" On August 14, 2008, the district court dismissed the case pursuant to the Report and Recommendation of the magistrate judge.

Chiang timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291.

II.

On appeal, Chiang challenges the dismissal of his first amended complaint and denial of leave to amend.³ We review the court's dismissal, under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), de novo. Gargano v. Liberty Int'l Underwriters, Inc., 572 F.3d 45, 48 (1st Cir. 2009); Fothergill v. United States, 566 F.3d 248, 251 (1st Cir.2009).

A.

The district court had jurisdiction over Chiang's non-monetary constitutional claims pursuant to 28 U.S.C. § 1331, which gives the district courts jurisdiction over civil cases arising under the Constitution, laws, or treaties of the United States. See Burrafato v. U.S. Dep't of State, 523 F.2d 554, 556 (2nd Cir.1975) (stating that "the federal courts clearly had jurisdiction" over immigration disputes "grounded on an alleged violation of First Amendment rights of American citizens"); see also Am. Acad. of Religion v. Chertoff, 463 F.Supp.2d 400, 416 (S.D.N.Y.2006); Abourezk v. Reagan, 592 F.Supp. 880 (D.D.C.1984), vacated on other grounds, 785 F.2d 1043 (D.C.Cir.1986);.

Chiang argues that his right to marry was violated by the denial of the visa, the processing delays, and other actions of the consular officials. Even assuming that a United States citizen has a constitutional right to marry a foreign national, Chiang has always been free to marry Amy in China,⁴ in a third country, or, possibly, in the United States by proxy.⁵ There is no authority supporting the view that a United States citizen has a constitutional right to engage in a marriage ceremony in the United States at which the foreign national is present. The district court did not err in concluding that Chiang had failed to state a claim based on this theory.

Chiang also claims that the denial of the visa was improper because his traditional marriage to Amy in China is not regarded as legal by the USCIS for other immigration purposes, and the USCIS thus could not use the existence of the...