37 F. Supp. 3d 567
E.D.N.Y2014Background
- Plaintiffs filed this action on July 30, 2013 against Kerry, Napolitano, and the US-CIS Vermont Service Center.
- They seek mandamus to compel action on Form I-130 petitions and visa issuance for four Bangladeshi relatives, and a declaratory judgment about a prior visa denial.
- Defendants moved to dismiss the Amended Complaint as moot and for lack of subject matter jurisdiction.
- Khanom, a lawfully admitted resident, filed I-130 petitions for her husband and three children; USCIS approved then sent to Dhaka consulate.
- Consulate found the beneficiaries inadmissible under INA provisions; USCIS issued a NOIR and later reaffirmed approval in 2014.
- The action raising mandamus and declaratory relief is argued to be moot and barred by consular nonreviewability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is there federal subject-matter jurisdiction under 1331? | Plaintiffs seek federal review of consular decisions under federal statutes. | Consular nonreviewability precludes such review; no federal question. | Lacks jurisdiction under 1331. |
| Does Little Tucker Act (1346(a)(2)) waive jurisdiction for equitable relief? | Claim seeks non-monetary relief; federal statutes support jurisdiction. | Little Tucker Act covers money judgments only; no equitable relief. | Lacks jurisdiction under 1346(a). |
| Does Mandamus and Venue Act (1361) provide jurisdiction to compel visa issuance? | Requests mandamus to compel action on visa petitions. | Visa issuance is discretionary by consular officials; mandamus cannot compel. | Lacks jurisdiction under 1361. |
| Does the Declaratory Judgment Act (2201) create jurisdiction? | Seeks declaratory relief concerning visa denial. | DJAct does not create jurisdiction without underlying federal claim. | Lacks jurisdiction under 2201. |
Key Cases Cited
- Hsieh v. Napolitano, 569 F.2d 1181 (2d Cir. 1978) (consular nonreviewability doctrine)
- Am. Acad. of Religion v. Napolitano, 573 F.3d 115 (2d Cir. 2009) (consular nonreviewability; First Amendment context)
- Ngassam v. Chertoff, 590 F. Supp. 2d 461 (S.D.N.Y. 2008) (APA and consular review limitations)
- Castillo v. Rice, 581 F. Supp. 2d 468 (S.D.N.Y. 2008) (consular non-reviewability and review limits)
- Lunney v. United States, 319 F.3d 550 (2d Cir. 2003) (APA limits; agency discretion exception)
- Califano v. Sanders, 430 U.S. 99 (U.S. 1977) (statutory limits on implied jurisdiction)
- Am. Acad. of Religion v. Chertoff, 463 F. Supp. 2d 400 (S.D.N.Y. 2006) (mandamus when agency fails to act timely)
- Shen v. U.S. Consulate Gen. at Shanghai, 866 F. Supp. 779 (S.D.N.Y. 1994) (consular review limitations)