UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
February 16, 2007
JOHN LI, PLAINTIFF,
MICHAEL CHERTOFF, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Loretta A. Preska, U.S.D.J.
OPINION AND ORDER
Plaintiff, claiming to be a naturalized United States citizen, "challenges the delay of the [United States Citizenship and Immigration Service] and its service center and/or district office as well as [the] United States Department of State and its center, embassy and/or [the] Consul General in processing the Plaintiff's petitions for classification of his immediate relatives, who otherwise are entitled to immigrate to the United States, had the petitions been adjudicated and approved timely." (Compl. ¶ 1).*fn1 Plaintiff seeks an order from the Court compelling the Defendants (collectively, the "Government") to "act upon" (i) the petition he filed seeking to have his claimed wife (a Chinese citizen) and her two claimed children by a prior marriage (also Chinese citizens) classified as the immediate relatives of a United States citizen for immigrant visa purposes, and (ii) the immigrant visa applications filed by his wife and step children. (Id. at Part VII(3)).
The Court lacks subject matter jurisdiction to compel the Government to adjudicate the pending visa applications in this case. The Court of Appeals has held that "[i]t is settled that the judiciary will not interfere with the visa-issuing process." Wan Shih Hsieh v. Kiley, 569 F.2d 1179, 1181 (2d Cir. 1978). The Court of Appeals has also held that the doctrine of consular nonreviewablity precludes judicial review of a consular official's decision to issue or withhold a visa. See United States ex rel. London v. Pehlps, 22 F.2d 288, 290 (2d Cir. 1927) ("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.").
Plaintiff seeks to circumvent this long-standing precedent by contending that the doctrine does not apply to a request that a visa be adjudicated (as opposed to granted) within a reasonable period of time. (See Letter from Joe Zhenghong Zhou, counsel for Plaintiff, to the Court, dated December 15, 2006 ("Pl. Ltr."), at 2). Plaintiff cites no decision from the Court of Appeals in support of this proposition. (Id.) Moreover, at least one court in the Southern District has dismissed a similar case where a pro se plaintiff sought to compel the adjudication of long-delayed visa petitions and visa applications for his spouse and two step children living in China.*fn2 See Zhang v. U.S. CIS, No. 05 Civ. 4086, 2005 WL 3046440, at *5-7 (S.D.N.Y. Nov. 8, 2005). Thus, the Court lacks subject matter jurisdiction over the visa decisions at issue here.
Even if the Court had subject matter jurisdiction, Plaintiff fails to state a cognizable claim. Plaintiff contends that his Fifth Amendment "liberty and property interests [have] been and are being violated by the government agencies' almost [five-]year delay without a decision on his spouse's visa application." (Pl. Ltr. at 6). Specifically, Plaintiff asserts that he has "sustained monetary damages [because] he had to pay unnecessary expenses to travel back to visit his spouse and step children in China" and that he has "suffered injury mentally, physically, and psychologically because [he] has been separated from his wife, [he has] been missing his wife all the time, [and he has] been unable to have a normal husband-wife life without extra costs and expenses on travel." (Id.).
Plaintiff cites no authority in support of his constitutional argument. To the contrary, Plaintiff concedes that his "alien relatives do not have a constitutionally-protected interest in immigration status" or a "constitutional or statutory right to enter the United States." (Id.). Moreover, the Court of Appeals has gone so far as to hold that "no constitutional right of a citizen spouse is violated by [the] deportation of his or her alien spouse." Burrafato v. U.S. Dep't of State, 523 F.2d 554, 555 (2d Cir. 1975). Thus, it cannot be that the mere failure to "act upon" the visa applications at issue violates any of Plaintiff's constitutional rights.*fn3
Accordingly, Plaintiff's Order to Show Cause is rejected, and his Complaint is dismissed. The Clerk of the Court shall mark this action closed and all pending motions denied as moot.