The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge
REPORT AND RECOMMENDATION
To the Honorable Richard J. Holwell, United States District
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.
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
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
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
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 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
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
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
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
. . . .
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 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 ...