Khanom v. Kerry, No. 13–CV–4280 MKB.

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Writing for the CourtMARGO K. BRODIE, District Judge
Citation37 F.Supp.3d 567
PartiesSanful KHANOM, Shafique Ullah, Ramon Hussain, Jomir Hussain and Milad Hussain, Plaintiffs, v. John KERRY, U.S. Secretary of State, Consul General of the United States at Dhaka, Bangladesh, Janet Napolitano, Secretary, U.S. Department of Homeland Security and USCIS Center Director, Vermont Service Center, Defendants.
Docket NumberNo. 13–CV–4280 MKB.
Decision Date15 July 2014

37 F.Supp.3d 567

Sanful KHANOM, Shafique Ullah, Ramon Hussain, Jomir Hussain and Milad Hussain, Plaintiffs
John KERRY, U.S. Secretary of State, Consul General of the United States at Dhaka, Bangladesh, Janet Napolitano, Secretary, U.S. Department of Homeland Security and USCIS Center Director, Vermont Service Center, Defendants.

No. 13–CV–4280 MKB.

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

Signed July 15, 2014.

37 F.Supp.3d 570

Salim Sheikh, New York, NY, for Plaintiffs.

Elliot M. Schachner, United States Attorneys Office, Brooklyn, NY, for Defendants.


MARGO K. BRODIE, District Judge:

Plaintiffs commenced this action on or about July 30, 2013 against Defendants John Kerry, the Consul General of the United States at Dhaka, Bangladesh, Janet Napolitano and the United States Citizenship and Immigration Services (USCIS) Center Director, Vermont Service Center. Plaintiffs seek (1) a mandamus order compelling Defendants to act on a Petition for Alien Relative Form I–130 and to act on and issue immigrant visas to Plaintiffs Shafique Ullah, Ramon Hussain, Jomir Hussain and Milad Hussain, pursuant to, inter alia, the Mandamus and Venue Act, 28 U.S.C. § 1361, and (2) a judicial declaration that the order denying the visas for permanent residency as relatives of Plaintiff Sanful Khanom was without basis in fact or law and contrary to and inconsistent with applicable statutes and regulations, pursuant to 28 U.S.C. § 2201. (Compl. ¶¶ 10–11.) Plaintiffs also seek attorneys' fees and costs pursuant to 28 U.S.C. § 2412. (Id. ¶ 12.) Defendants moved to dismiss the action as moot and for lack of subject matter jurisdiction. (Docket Entry No. 6, Defendants' Letter Motion to Dismiss as Moot (“Def. Letter Dismiss”); Docket Entry No. 12, Def. Letter dated May 5, 2014.) As discussed below, because the Court lacks subject matter jurisdiction, the Court grants Defendants' motion to dismiss the Amended Complaint.

I. Background

a. Factual Background

Khanom is a “lawfully admitted resident alien” of the United States who filed immigrant

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visa applications and an accompanying Petition for Alien Relative Forms I–130 (the “Petition”) for admission of her husband, Shafique Ullah, and three children (“the Beneficiaries”), all of whom are citizens of Bangladesh.1 (Compl. ¶ 1.) The Petition was approved by USCIS and forwarded to the United States consulate in Dhaka, Bangladesh, for processing of the immigrant visa applications. (Id. ¶ 2.) A consular official determined that the Beneficiaries were inadmissible under the Immigration and Nationality Act provision barring the admission of any alien who “knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law,” 8 U.S.C. § 1182(a)(6)(E)(i), as well as the provision barring “[a]ny alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States,” § 1182(a)(6)(C)(i). (Compl. ¶ 6.) From the documents submitted by the parties in connection with Defendants' application to dismiss this action, it appears that the consulate in Bangladesh returned the Petition to USCIS for review, and on September 25, 2013, USCIS notified Khanom of its intent to revoke the Petition. (Def. Letter Dismiss 3.) As discussed below, Khanom submitted an evidentiary package on October 28, 2013, responding to the notification, and on January 27, 2014, USCIS reaffirmed its previous decision granting the Petition, and returned the application to the United States consulate in Dhaka for review. (Docket Entry No. 7, Pl. Letter dated Dec. 24, 2013, 1; Docket Entry No. 9, Def. Letter dated Jan. 29, 2014, 1–3.)

b. Procedural Background

In their letter motion to dismiss this action as moot, Defendants contend that in September 2013, USCIS had issued to Khanom a notice of intent to revoke (“NOIR”) the Petition, upon which the application for the immigrant visas were based, and that Khanom had failed to timely respond to the NOIR. (Def. Letter Dismiss 1.) On December 2, 2013, citing Khanom's failure to respond, USCIS revoked the prior approval of the Petition, which revocation could have been appealed by Khanom to the Board of Immigration Appeals. (USCIS Letter dated Dec. 2, 2013, annexed to Def. Letter Dismiss, 1.) Defendants contend that the revocation of the approval of the Petition renders this action moot. (Def. Letter Dismiss 2.) Defendants

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alternatively argue that the action should be dismissed for lack of venue as “Khanom—the only plaintiff who resides in the United States—is a resident of the Bronx, which is in the Southern District of New York.” (Id. at 1 n. 1.)

On December 24, 2013, Plaintiffs submitted a letter stating that an evidentiary package responding to the NOIR had been delivered to the USCIS Vermont Service Center on October 26, 2013.2 (Dock. Pl. Letter dated Dec. 24, 2013, 1.) In response to Defendants' claim that the case was not filed in the proper venue, Plaintiffs claim that the action was filed in this district “based on the Defendant's residence, as the Department of Homeland Security maintains offices within the district.” (Id. )

On January 29, 2014, Defendants filed a “supplemental motion to dismiss,” asserting that in response to Plaintiffs' December 24, 2013 letter, USCIS investigated and determined that Khanom had timely filed a response to the notice of intent to revoke the Petition and as a result, reopened the matter. (Def. Letter dated January 29, 2014, 1.) According to Defendants, on January 27, 2014, the USCIS approved the Petition, (id. ), and they attached a copy of a form I797C “Notice of Action,” issued to Khanom, (id. at 3).

On May 2, 2014, Plaintiffs submitted a letter stating that USCIS's reaffirmation of its prior approval of the Petition did not render Plaintiffs' action moot as to the Consul General or the Secretary of State, since they have not yet approved the immigrant visa applications. (Docket Entry No. 11, Pl. Letter submitted May 2, 2014, 1.)3 Plaintiffs assert that the action “is not rendered moot unless and until the plaintiffs are granted visa[s]” by the Consul General in Bangladesh. (Id. ) Defendants assert that Plaintiffs' claims for relief in the form of an order directing the Consul General in Bangladesh to issue the visa is barred by the doctrine of consular nonreviewability, and that the Court lacks subject matter jurisdiction to review the conduct of a consular official with respect to a visa application or to review the denial of a visa application. (Def. Letter dated May 5, 2014, 1 (citing Wan Shih Hsieh v. Kiley, 569 F.2d 1179, 1181–82 (2d Cir.1978) ).)

II. Discussion

a. Standard of Review

i. Rule 12(b)(1)

“[A] district court may properly dismiss a case for lack of subject matter jurisdiction under Rule 12(b)(1) if it lacks the statutory or constitutional power to adjudicate it.” Shabaj v. Holder, 704 F.3d 234, 237 (2d Cir.2013) (alteration in original) (quoting Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir.2005) ). “ ‘[T]he court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff,’ but ‘jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.’ ” Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir.2008) (alteration in original) (citations omitted), aff'd, 561 U.S. 247, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010). A court may consider matters outside of the pleadings when determining whether subject matter jurisdiction exists. M.E.S., Inc. v. Snell, 712 F.3d 666, 671 (2d Cir.2013) ;

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Romano v. Kazacos, 609 F.3d 512, 520 (2d Cir.2010) ; Morrison, 547 F.3d at 170.

ii. Rule 12(b)(6)

In reviewing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court “must take all of the factual allegations in the complaint as true.” Pension Ben. Guar. Corp. ex rel. St. Vincent Catholic Med. Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 717 (2d Cir.2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ); see also Lundy v. Catholic Health Sys. of Long Island Inc., 711 F.3d 106, 113 (2d Cir.2013) (quoting Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir.2009) ); Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir.2011) (quoting Connecticut v. Am. Elec. Power Co., 582 F.3d 309, 320 (2d Cir.2009) ). A complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable...

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