Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kaur v. Boente

United States District Court, W.D. New York

February 6, 2017

SWARN KAUR and BHUPINDER SINGH, Plaintiffs,
v.
DANA J. BOENTE,[1] Attorney General of the United States; UNITED STATES DEPARTMENT OF JUSTICE; DEPARTMENT OF STATE, BUREAU OF CONSULAR AFFAIRS; and CONSULAR GENERAL U.S. EMBASSY, NEW DELHI, INDIA, Defendants.

          DECISION & ORDER

          HON. FRANK P. GERACI, JR. Chief Judge United States District Court

         INTRODUCTION

         Plaintiffs Swarn Kaur and Bhupinder Singh allege that the U.S. Embassy in New Delhi, India improperly denied Mr. Singh's visa application and changed his family-based preference category from F-1 (unmarried son or daughter of a U.S. citizen) to F-3 (married son or daughter of a U.S. citizen) without sufficient evidence of his marital status. Through this action, Plaintiffs seek a judicial declaration to that effect and a writ of mandamus compelling the Defendants to adjudicate Mr. Singh's visa application in light of certain evidence that he is, in fact, unmarried. ECF No. 1.

         Defendants, on the other hand, argue that this Court lacks subject matter jurisdiction over Plaintiffs' claims and have moved to dismiss the complaint under Rule 12(b)(1) of the Federal Rules of Civil Procedure. ECF No. 6. For the reasons stated below, Defendants' motion is granted.

         DISCUSSION

         I. Legal Standard

         “Federal courts are courts of limited jurisdiction whose power is limited strictly by Article III of the Constitution and congressional statute.” United Food & Commercial Workers Union, Local 919, AFL-CIO v. CenterMark Props. Meriden Square, Inc., 30 F.3d 298, 303 (2d Cir. 1994) (citing Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)). When a party moves to dismiss pursuant to Rule 12(b)(1), it is the court's duty to resolve disputed jurisdictional facts. Cargill Int'l S.A. v. M/T Pavel Dyenko, 991 F.2d 1012, 1019 (2d Cir. 1993). A court may fulfill its duty by reference to evidence outside the pleadings. Zappia Middle E. Const. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000). Furthermore, in resolving a challenge to subject matter jurisdiction, a court does not draw inferences in favor of the plaintiff. Newsom-Lang v. Warren Int'l, 129 F.Supp.2d 662, 663 (S.D.N.Y. 2001). Rather, the party asserting jurisdiction has the burden of proving by a preponderance of the evidence that jurisdiction exists. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).

         II. Background

         Swarn Kaur is a U.S. citizen who lives in Rochester, New York. Bhupinder Singh, her son, is a non-U.S. citizen who lives in India.

         Ms. Kaur filed a Petition for Alien Relative on behalf of Mr. Singh. On July 11, 2008, the U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services (“USCIS”) approved that petition and placed Mr. Singh in the family-based preference category F-3 (married son or daughter of a U.S. citizen). On November 24, 2010, upon notice of Mr. Singh's divorce from his wife, the Department of State's National Visa Center (“NVC”) changed Mr. Singh's preference category to F-1 (unmarried son or daughter of a U.S. citizen). The case was subsequently transmitted to the U.S. Embassy in New Delhi, India (“New Delhi Embassy”).

         On February 12, 2016, Mr. Singh appeared for an interview with a consular officer at the New Delhi Embassy. Plaintiffs allege that during the interview, the consular officer said that he had information that Mr. Singh was married and therefore ineligible for an immigrant visa in the F-1 category. However, the consular officer did not provide any evidence on the record or explain how he came to that conclusion. Plaintiffs allege that the consular officer refused Mr. Singh's request for legal counsel and then coerced Mr. Singh into providing a written statement admitting that he was married. Plaintiffs assert that the consular officer “acted in violation of Due Process guaranteed by [the] U.S. Constitution.” On March 14, 2016, Mr. Singh's petition was returned to the NVC with his preference category changed to F-3. Plaintiffs attempted to submit evidence that Mr. Singh is unmarried to no avail.

         On May 10, 2016, a consular officer at the New Delhi Embassy issued Mr. Singh a refusal letter stating that his visa application had been refused under 8 U.S.C. § 1182(a)(6)(C)(i) for Fraud and Misrepresentation. In another refusal letter dated May 16, 2016, the consular officer cited section 221(g) of the Immigration and Nationality Act.

         On November 15, 2016, USCIS reaffirmed its prior approval of Ms. Kaur's Petition for Alien Relative on behalf of Mr. Singh. On November 21, 2016, the NVC informed Plaintiffs that it had completed processing the petition and would forward the file to the New Delhi Embassy with Mr. Singh in the F-1 preference category. To date, Mr. Singh's visa application has not been granted and Plaintiffs allege that “Defendants are still not willing” to classify Mr. Singh as unmarried.

         III. Subject ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.