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ZHANG v. UNITED STATES CITIZENSHIP & IMMIGRATION SERVICE

November 8, 2005.

DE YU ZHANG, Plaintiff,
v.
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICE, Defendant.



The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge

REPORT AND RECOMMENDATION

To the Honorable Richard J. Holwell, United States District Judge:

On April 25, 2005, pro se plaintiff De Yu Zhang filed a complaint in this Court against the United States Citizenship and Immigration Service ("CIS").*fn1 (Dkt. No. 1: Compl.) The complaint stems from Zhang's disagreement with the initial refusal of the United States Consulate in China to issue visas to Zhang's wife Xi Ying Chen and his two step-children Ru Lan Chen and Qi Bin Chen. (Compl. ¶¶ 2-3, 11-12.) Zhang has refiled Form I-130 "Petitions for Alien Relatives" with CIS, and asks the Court to direct the government to promptly (and implicitly, positively) decide his new visa petitions. (Compl. ¶ 14 & Wherefor Clause.)

  Presently before the Court is the government's motion to dismiss pursuant to Rules 12(b)(1), (6) & (7), Fed.R.Civ.P. (Dkt. No. 10.) For the reasons set forth below, the government's motion to dismiss (Dkt. No. 10) should be GRANTED.

  FACTS

  Plaintiff De Yu Zhang ("Zhang") was born in China in 1949 and entered the United States in 1981. (Dkt. No. 1: Compl. ¶¶ 1, 4 & Att. 9: Zhang Passport; accord, Dkt. No. 6: Loprest Aff. Ex. A at 36: Zhang Passport.)*fn2 Zhang is a resident of New York County. (Compl. ¶ 1; see Loprest Aff. Ex. A at 5: 10/31/02 Form I-130 Petition.) Zhang was naturalized in the Eastern District of New York on June 6, 1995. (Compl. Att. 8: Cert. of Naturalization.)

  In 1990, Zhang submitted a visa petition for his first wife, Rui Hua Zhang, and three children to the INS. (See Compl. ¶ 4 & Att. 3-5: 4/18/05 Form I-130 Petitions ¶ D2.) In April 1992, Zhang was joined in the United States by his first wife and their three children. (Compl. ¶ 4.) In May 1995, Zhang divorced his first wife. (Compl. ¶ 4; Compl. Att. 11: 5/5/95 Divorce Judgment.)

  In September 1995, four months after his divorce, Zhang married his second wife, Jin Xiu Chen, in China. (See Compl. ¶ 5 & Att. 3-5: 4/18/05 Form I-130 Petitions.) As Zhang had become a citizen in June 1995, he immediately filed Form I-130 "Petition for Alien Relative" ("I-130 petition"), seeking to have his second wife and two step-children classified as immediate relatives of an American citizen. (See Compl. Att. 3-5: 4/18/05 Form I-130 Petitions ¶ D2.) In January 2001, Zhang divorced his second wife. (See Compl. ¶ 5 & Att.10: 1/8/01 Divorce Judgment.)

  In August 2002, Zhang met his third wife Xi Yin Chen ("Chen") in China. (Compl. ¶ 7 & Att. 3-5: 4/18/05 Form I-130 Petitions.) They married in China one month later on September 30, 2002. (Compl. ¶ 7 & Att. 12: Notarial Marriage Certificate.) On October 31, 2002, Zhang returned to the United States and immediately filed I-130 petitions with the INS for Chen and her two children. (Compl. ¶ 8; Loprest Aff. Exs. A-C: 10/3/03 "Approved" Form I-130 Petitions.) The INS approved these petitions on October 3, 2003 and sent them to the Immigrant Visa Unit at the United States Consulate General in Guangzhou, China, the nearest consulate to the Chens. (See Loprest Aff. Ex. A at 2-5.)

  On December 13, 2004, a consular officer in China reviewed the petition and Chen's supporting documents, but required Chen to return with more documents for a second review. (Compl. ¶ 10.) On December 28, 2004, Chen returned with more documents, but the consular officer again denied the visas for lack of evidence supporting the marriage. (Compl. ¶ 11; see Loprest Aff. Ex. A at 2-4: 1/26/04 [sic] Consulate Memo to Dep't of Homeland Security.)*fn3 On January 26, 2005, Chen again returned to the consulate with more documents. (Compl. ¶¶ 11-12.) Michael Yen, Chief of the Immigrant Visa Unit at the U.S. Consulate in Guangzhou, concluded that Zhang and Chen "have failed to establish that they have a bona fide relationship" but rather, the "facts compel the conclusion that the marriage is only for immigration purposes." (Loprest Aff. Ex. A at 2-4: 1/26/0[5] Consulate Memo to Dep't of Homeland Security, at 2.) The Consulate Memo explained:
The petitioner [Zhang] and primary beneficiary [Chen] claimed they called each other often before the marriage and the petitioner's first visit. Even though clients can call calling card companies to receive an itemized list of calls made on the card, the petitioner and primary beneficiary only submitted calling cards as evidence. Even if they couldn't acquire an itemized list, the physical card cannot prove any phone calls were made using the card. Besides a few photos of the petitioner's August trip to China, the beneficiary submitted no evidence of a premarital relationship.
The petitioner claims he has visited the primary beneficiary two additional times in the subsequent years. He provided evidence of an entry stamp for 2003 in his passport and copies of 2005 plane tickets. However, the photos from these trips are few in number and do not demonstrate significant time spent together.
Between visits, the primary beneficiary submitted little evidence of contact. Phone records show few phone calls, and most last less than five minutes. The primary beneficiary also submitted only three letters. Each letter is extremely general and primarily refers to nothing more than the visa application process.
In addition, during the interview, the primary beneficiary did not seem to know many details about her husband. She knew very little about his interests, jobs or even the identity of the co-sponsor.
. . . .
  The lack of any significant evidence of a relationship, prior to or after the marriage cast serious doubt on the bona fides of the relationship between the primary beneficiary and the petitioner. The sworn statements made during the interview and evidence submitted by the beneficiaries after the petition was initially approved constitutes good and sufficient cause to conclude that the beneficiary and petitioner's "marriage" exists to circumvent U.S. immigration laws. We hereby return the petition and request your concurrence that the petition be revoked. (Loprest Aff. Ex. A: 1/26/0[5] Consulate Memo at 3-4.) On March 28, 2005, the Department of State returned the petitions to the CIS "for reconsideration and, if appropriate, revocation," on the ground that the "[r]elationship is not bona fide." (Loprest Aff. Ex. A at 1: 3/28/05 Consular Return/Case Transfer Cover Sheet.)

  On or about April 18, 2005, Zhang re-filed I-130 visa petitions with the CIS for Chen and her two children. (Compl. Att. 3-5: 4/18/05 Form I-130 Petitions; see Compl. ¶ 12.) As far as the record shows, they are pending.

  Zhang's Complaint and the Government's Motion to Dismiss

  On April 25, 2005, Zhang commenced this action, stating that he disagreed with the consulate's failure to grant visas to his wife and step-children. (Compl. ¶ 2). Zhang also asserts that he is "without other adequate remedy," and seeks a judgment directing the government to "process/adjudicate [his new] application promptly." (Compl. ¶ 14).

  On July 27, 2005, the Government moved to dismiss Zhang's complaint under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction, 12(b)(6) for failure to state a claim, and 12(b)(7) for failure to join an indispensable party. (Dkt. No. 10: Gov't Motion; Dkt. No. 12: Gov't Br.) On August 26, 2005, Zhang responded to the motion by letter, simply asking "the government" to issue the visas, and including some documentation (photos, airline ...


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