United States District Court, S.D. New York
August 16, 2005.
DONG, LI QUI (A 70 886 440) AND, DONG, ZHI WEN (SON) Plaintiffs,
TOM RIDGE,[fn1] SECRETARY, DEPARTMENT OF HOMELAND SECURITY Defendants.
The opinion of the court was delivered by: HAROLD BAER, Jr., District Judge[fn*] [fn*] Alissa Hazan, a summer 2005 intern in my Chambers, and currently a second year law student at New York University School of Law, provided substantial assistance in the researching and drafting of this opinion.
*fn1 Tom Ridge was succeeded by Michael Chertoff in February of
2005 as Secretary, Department of Homeland Security. Plaintiffs'
original complaint named the Attorney General as Defendant, but
on December 15, 2004, Plaintiffs filed an Amended Complaint that
replaced Tom Ridge as Defendant.
OPINION & ORDER
On September 9, 2002, Plaintiffs Dong, Li Qui ("Li Qui") and
Dong, Zhi Wen ("Zhi Wen") (collectively, "Plaintiffs"), filed the
instant action against Defendant, Tom Ridge, former Secretary of
the Department of Homeland Security (herein, "the Government"),
for a declaration that Zhi Wen is a "child" eligible for the
issuance of an asylee visa under the Child Status Protection Act.
Plaintiffs move for summary judgment and the Government
cross-moves to dismiss, or in the alternative, for summary
judgment in the Government's favor. For the following reasons,
the Government's motion to dismiss is GRANTED and Plaintiffs'
motion for summary judgment is DENIED.
On December 21, 1989, Li Qui, a forty-nine-year-old citizen of
China, entered the United States. (Certified Administrative
Record of Proceedings at p. 3) ("Record"). He applied to the
former Immigration and Naturalization Service ("INS")*fn2
for political asylum on May 12, 1993, and in his application
described the persecution he claimed to have suffered at the
hands of local government officials in China. Id. This
persecution was in reaction to the birth of his and his wife's second child, which violated the Chinese government's
birth control policy. Id. In his description of the inhumane
treatment he experienced, Li Qui explained that his wife had been
forced to have an abortion and he was threatened with
sterilization. Id. Li Qui claimed to have fled the country in
fear for his freedom and safety. Id.
On February 6, 1997, Li Qui was granted political asylum
pursuant to Section 208 of the Immigration and Nationality Act
("INA"), 8 U.S.C. § 1158. (Am. Compl. ¶ 2.) Shortly thereafter,
Li Qui began to file I-730 Refugee/Asylee Relative Petitions
("I-730") to attempt to have his wife and two children join him
in the United States. (Am. Compl. ¶ 7.) Li Qui filed six separate
petitions on behalf of his son, Zhi Wen, who was fifteen years
old at the time of the first petition. Id. Li Qui claims that
the first six I-730 petitions he filed on behalf of Zhi Wen were
denied due to mis-mailings, failures to properly file, and
ineffective assistance of counsel. On March 21, 2002,
approximately one month prior to Zhi Wen's twenty-first birthday,
the INS approved Li Qui's seventh I-730 petition, and sent it to
the American Consulate in Guangzhou, China. (Am. Compl. ¶ 8.) Li
Qui then flew to Guangzhou with the original approved petition to
attempt to obtain an interview and visa issuance prior to April
14, 2004, when Zhi Wen would turn twenty-one. (Am. Compl. ¶ 9.)
Unfortunately, the I-730 file had not reached the American
Consulate in Guangzhou by that date, and this was a problem
despite the Petitioner having flown to China with the approved
petition well in advance of his son's twenty-first birthday, and
Zhi Wen was not issued a visa. (Am. Compl. ¶ 10.) On September
12, 2002, Li Qui filed an eighth I-730 petition on behalf of Zhi
Wen. INS denied that petition on August 27, 2003, because by that
point Zhi Wen had already turned twenty-one and thus "aged out"
of eligibility as a relative of Li Qui. (Rec. at 34-40.)
On August 6, 2002, Congress passed the Child Status Protection
Act, Pub.L. No. 107-208, 116 Stat 927 (Aug. 6, 2002). Section 4
of the CSPA amends Section 208(b)(3) of the INA, and states in
An unmarried alien who seeks to accompany, or follow
to join, a parent granted asylum under this
subsection, and who was under 21 years of age on the
date on which such parent applied for asylum under
this section, shall continue to be classified as a
child for purposes of this paragraph . . . if the
alien attained 21 years of age after such application
was filed but while it was pending.
CSPA, Section 4, 116 Stat at 928.
The Bureau of Citizenship and Immigration Services ("BCIS")
(formerly INS) issued an internal memorandum ("BCIS Memo") on
July 23, 2003, to provide guidance for the implementation of the
CSPA. (Memorandum For Overseas District Directors, "Processing Derivative Refugees and Asylees under the Child Status Protection
Act" July 23, 2003.) The BCIS Memo states that a derivative is
eligible for "continued classification as a child" when:
[t]he Form I-730 from which the derivative is
benefiting was pending on August 6, 2002, and the
derivative was under the age of 21 at the time the
I-730 was filed . . . [and] Form? I-730 [is] to be
considered pending as of August 6, 2002, if [it] was
approved as of that date, but the beneficiaries had
not yet been issued documentation to travel to the
(BCIS Memo, p. 2) (emphasis in original.) Plaintiffs assert that
the BCIS Memo interprets "pending" to mean "that the I-730 was
received at an overseas district office, and security checks were
pending as of August 6, 2002, or that the I-730 had not been
revoked prior to August 6, 2002. (Am. Compl. ¶ 12.) Plaintiffs
further contend that Zhi Wen's seventh I-730 petition "has never
been revoked; it was filed when he was under twenty-one, and the
CSPA compels visa issuance absent any security issues." (Am.
Compl. ¶ 13.)
On September 9, 2002, Plaintiffs filed a Complaint with this
Court and on December 15, 2004, filed an Amended Complaint.
Plaintiffs requested that the Court: (1) declare Zhi Wen a child
under the CSPA eligible for issuance of an asylee visa; (2) issue
a writ of mandamus, compelling the Defendant to issue an asylee
visa to Zhi Wen; (3) grant attorney fees to Plaintiffs under the
Equal Access to Justice Act; and (4) grant such other relief as
it may deem necessary and proper. Plaintiffs then filed a motion
for summary judgment. In their reply memorandum in support of
this motion, Plaintiffs withdrew their request for an order to
compel the Government to issue a visa, and maintained only their
request for a declaration that Zhi Wen is a child under the CSPA,
as well as their request for attorneys fees. As such, the only
substantive issue for this Court to consider is Plaintiffs'
request for such a declaration.
On March 23, 2005, the Government filed a cross-motion to
dismiss the amended complaint or, in the alternative, for summary
judgment. The Government contends that the complaint should be
dismissed because this Court lacks subject matter jurisdiction to
review visa issuance decisions made by consulates. Furthermore,
the Government claims that Plaintiffs have failed to cite a
statute under which this Court would have jurisdiction to hear
A. Applicable Legal Standard
The Government moves to dismiss for lack of subject matter
jurisdiction in accordance with Rule 12(b)(1) of the Federal
Rules of Civil Procedure. Fed.R.Civ.P. 12(b)(1). This Court
must accept all of the facts alleged in the Complaint as true and
"draw all reasonable references in favor of the plaintiff." Raila v. United States, 355 F.3d 118, 119
(2d Cir. 2004). Under such a motion, "the plaintiff bears the
burden of proving by a preponderance of the evidence that
jurisdiction exists," Chayoon v. Chao, 355 F.3d 141, 143 (2d
Cir. 2004) (citing Garcia v. Akwesasne Hous. Auth.,
268 F.3d 76, 84 (2d Cir. 2001)), and jurisdiction must be "affirmatively"
demonstrated. APWU et. al. v. Potter, 343 F.3d 619, 623 (2d
Cir. 2003). Dismissal of the complaint is only appropriate where
"it appears beyond doubt that the plaintiff can prove no set of
facts which would entitle him or her to relief." Raila,
355 F.3d at 119.
B. Subject Matter Jurisdiction
The decision to grant asylum to an alien's beneficiary is an
exercise of discretion by the Secratary of Homeland Security.
See 8 U.S.C. § 1158(b)(3)(A). Once asylum is granted, the
beneficiary must also obtain an asylee visa from the State
Department, specifically a United States Consul, in order to
enter the United States. See generally 9 United States
Department of State, Foreign Affairs Manual, Appendix O, Part
1700 (available on Westlaw at "IMMLS PSD FAMO 1700");
8 U.S.C. § 1201.
As a general rule, courts lack subject matter jurisdiction to
review the visa-issuing process. Wan Hsieh Shih v. Kiley,
569 F.2d 1169, 1171 (2d Cir. 1978); see also Pena v. Kissinger,
409 F.Supp. 1182, 1185 (2d Cir. 1976) ("consular decision-making
[is] immune from judicial scrutiny"). "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." London v. Phelps, 22 F.2d 288, 290
(2d Cir. 1927). The Supreme Court affirmed this restriction on
judicial review of immigration decisions in Kleindienst v.
Mandel, and held that courts may not "look behind the exercise"
of an official's discretionary authority to deny admission to an
alien. 408 U.S. 753, 770 (1972).
To circumvent this precedent of "consular nonreviewability,"
plaintiffs argue that they do not seek a review of consular
decisions but rather the bases for the determinations. See
Grullon v. Kissinger, 417 F.Supp. 337 (E.D.N.Y. 1976); Al
Makaaseb General Trading Co., Inc. v. Christopher, 94 Civ. 1179,
1995 WL 110117, at *1 (S.D.N.Y. Mar. 13, 1995). In Grullon, the
plaintiff, a lawful permanent resident, attempted to obtain an
immigrant visa for his father that was denied because an American
Consulate concluded that the visa applicant was not the
legitimate father of the plaintiff. Grullon,
417 F.Supp. at 338. The plaintiff sought to distinguish his case from the
Supreme Court's decision in Kleindienst on the basis that he
did not seek review of a consular action, but merely a preliminary declaration of his
father's immigrant status. Grullon, 417 F.Supp. at 339. The
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. Id. at 339-40.
In Al Makaaseb, the plaintiffs sought a declaration from the
district court that the consul's decision to deny a visa was
unreasonable. 1995 WL 110117, at *1. Similar to Grullon, the
plaintiffs in Al Makaaseb maintained that their challenge was
not of the consul's denial of the visa but rather an allegedly
wrongful inclusion of the visa applicant on a "lookout" list that
resulted in the denial. Al Makaaseb, 1995 WL 110117, at *3. The
court in Al Makaaseb held that "such a challenge cannot be
divorced from an attack on the decision itself . . . [and] [that]
plaintiffs cannot make an end-run around nonreviewability of the
decision by challenging its foundation." Id. The court
concluded that a determination of the legitimacy of the visa
applicant's inclusion on the "lookout" list "would inevitably
thrust this Court into the forbidden realm of reviewing consular
visa decisions" and therefore it lacked jurisdiction to consider
the plaintiffs' claim. Id. at *4.
Al Makaaseb further held that judicial review of a visa
denial is prohibited even where the consular decision is
allegedly contrary to agency regulations or policy.
The doctrine of nonreviewability of consular
officers' visa determinations is essentially without
exception. Thus, even where a consular judgment rests
on allegedly erroneous information, courts generally
will not intervene.
Id. at *2 (internal quotations omitted). This decision extends
to circumstances where a consular officer may have inaccurately
interpreted and applied the INA. Id. See also Burrafato v.
United States Dep't of State, 523 F.2d 554
, 557 (2d Cir. 1975)
(holding that jurisdiction did not exist even if the Department
of State failed to comply with its own regulation).
Here, Plaintiffs have abandoned their request that the Court
order a visa issuance for Zhi Wen, and only seek a declaration of
Zhi Wen's status as a "child," pursuant to INA promulgations that
interpret the CSPA. Plaintiffs' situation replicates that of the
plaintiffs in the Grullon and Al Makaaseb cases. Grullon,
417 F.Supp. at 337; Al Makaaseb, 1995 WL 110117, at *1. Here,
Plaintiffs effectively seek a review of a consular decision by
"challenging its foundation." Al Makaaseb, 1995 WL 110117, at
*3. The American Consul's decision to not issue Zhi Wen a visa
was based on his age of twenty-one, just as the visa denials in
Grullon and Al Makaaseb were based on status determinations
of the legitimacy of a father-son relationship and the inclusion
of an applicant on a "lookout" list, respectively. Grullon,
417 F.Supp. at 337; Al Makaaseb, 1995 WL 110117, at *1. A review
and declaration as to whether or not Zhi Wen should be considered
a "child" would inexorably propel this Court into the proscribed
territory of reviewing consular visa decisions and as such is
outside the scope of review. Al Makaaseb, 1995 WL 110117, at
The Consul's decision to deny Zhi Wen a visa appears, at least
from the record before me, to contradict the BCIS policy
articulated in the BCIS Memo. Zhi Wen should have been considered
a "child" while the issuance of his visa was pending. If true,
this is a violation of law perpetuated not by malfeasance but by
an unthinking, slow-moving consul. While reprehensible, it cannot
be a basis for judicial review. The Court's inability to review
consular decisions is "essentially without exception." Al
Makaaseb, 1995 WL 110117, at *2. In addition, although the
Government seems to have no reason or explanation for its failure
to issue Zhi Wen's visa to enter the country prior to his
twenty-first birthday, unfortunately "[w]hether the consul has
acted reasonably or unreasonably is not for us to determine."
London, 22 F.2d at 290.
As such, this Court lacks jurisdiction to right the wrong.
Perhaps Congress will do it.
For the reasons set forth above, Plaintiff's motion for summary
judgment is DENIED and the Government's motion to dismiss is
GRANTED. The Clerk of Court is instructed to close this motion
and any open motions and remove this case from my docket.
IT IS SO ORDERED.