United States District Court, W.D. New York
DECISION & ORDER
FRANK P. GERACI, JR. Chief Judge United States District Court
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.
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.
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).
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
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
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.
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.
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.