Chiang v. Skeirik

United States Court of Appeals
For the First Circuit

No. 08-2105

WEN Y. CHIANG,

Plaintiff, Appellant,

v.

LYNN SKEIRIK, in her official capacity as Director of the
National Visa Center; CONDOLEEZZA RICE, in her official capacity
as Secretary of State; MICHAEL CHERTOFF, in his official capacity
as Secretary of Homeland Security; BRIAN FERINDEN, in his
official capacity as Vice General Consul in Guangzhou, China; and
the UNITED STATES OF AMERICA,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before
Boudin, Selya, and Dyk,* Circuit Judges.

Dean Carnahan for appellant.
Anton P. Giedt, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellees.

September 28, 2009

*
Of the Federal Circuit, sitting by designation.
 DYK, Circuit Judge. Wen Y. Chiang (“Chiang”) appeals

from a district court decision in an immigration case, dismissing

his amended complaint pursuant to Federal Rules of Civil Procedure

12(b)(1) and 12(b)(6). We affirm.

I.

We recite the complex and protracted proceedings in the

district court only to the extent relevant to the appeal.

Chiang, a U.S. citizen residing in Arlington,

Massachusetts, sought a fiancée visa to permit his fiancée, Wen Hua

Zhang (who took the Anglicized name “Amy”), to come to the United

States so that the two could be married. Chiang v. Skeirik, No.

07-10451, slip op. at 2 (D. Mass. June 11, 2008). Under 8 U.S.C.

§ 1101(a)(15)(K)(i), a visa may be granted to a non-immigrant alien

who “is the fiancée or fiancé of a citizen of the United States .

. . and who seeks to enter the United States solely to conclude a

valid marriage with the petitioner within ninety days after

admission.”

The regulations provide a two-step process for securing

such a visa. First, the United States citizen must file a petition

with the Secretary of Homeland Security, through the United States

Citizenship and Immigration Service (“USCIS”), for such a visa.

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See 8 U.S.C. § 1184(d)(1).1 Second, if the petition is granted,

the visa must also be approved by a consular official in the

country in which the alien resides. See id.; 8 U.S.C. §

1201(a)(1). Chiang filed a petition with USCIS on September 7,

2006.

On October 23, 2006, the USCIS approved Chiang’s petition

for a fiancée visa. On March 3, 2007, Amy’s case was sent to the

U.S. Consulate in Guangzhou, China (“the consulate”) for further

consideration.

On March 6, 2007, Chiang filed the pro-se complaint in

this case. The complaint sought to compel USCIS to act promptly on

the visa application and sought damages on various theories. Soon

thereafter, sometime during the month of April 2007, Chiang and Amy

participated in a marriage ceremony of some sort in China. Chiang

1
8 U.S.C. § 1184(d)(1) provides:

A visa shall not be issued under the
provisions of section 1101(a)(15)(K)(i) of
this title until the consular officer has
received a petition filed in the United States
by the fiancée [or] fiancé of the applying
alien and approved by the Secretary of
Homeland Security. . . . It shall be approved
only after satisfactory evidence is submitted
by the petitioner to establish that the
parties have previously met in person within 2
years before the date of filing the petition,
have a bona fide intention to marry, and are
legally able and actually willing to conclude
a valid marriage in the United States within a
period of ninety days after the alien’s
arrival . . . .

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v. Skeirik, No. 07-10451, slip op. at 3 (D. Mass. June 11, 2008).

On September 25, 2007, the consulate interviewed Amy.

Chiang alleges that several improprieties occurred during the

interview. These improprieties include: making Amy “wait until she

was the last person interviewed”; not allowing Chiang to accompany

Amy into the interview room; taking Chiang’s file of documents and

photographs and refusing to return them; and “acting in [a]

concerted effort to deny Chiang’s constitutional rights.” At the

conclusion of the interview, a consular official handed Amy a piece

of paper informing her that her application for a visa had been

denied based on the conclusion that she did not have a bona fide

relationship with Chiang. This determination was largely based on

the fact that Chiang had previously filed applications for two

other Chinese women to come to the United States on fiancée visas.

The consular official also advised Chiang that Amy’s case would be

returned to USCIS for review.

On December 4, 2007, the district court, finding a lack

of subject matter jurisdiction, dismissed Chiang’s complaint “to

the extent that Chiang [sought] review of the reasons for the

Consulate’s denial of his fiancé’s petition. . . .” Chiang v.

Skeirik, 529 F. Supp. 2d 166, 174 (D. Mass. 2007). The district

court directed Chiang to file an amended complaint on or before

January 18, 2008. Id. Chiang then filed an amended complaint

(hereinafter “first amended complaint”), which asserted various

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counts against various government officials in their official

capacities and against the United States.

Four counts of the first amended complaint are at issue

in this appeal. Count I was a monetary claim against the United

States, which Chiang described as a Bivens2 claim, alleging that

the employees of the consulate violated Chiang’s Fifth Amendment

rights by denying him due process during the processing of the visa

application. Count II was also for money damages against the

United States and was also described as a Bivens claim, alleging

that the employees at the consulate violated Chiang’s Fourth

Amendment rights by unlawfully seizing his photographs and

documents. Count III alleged that various government officials in

their official capacities, the consulate, and the United States

violated Chiang’s Seventh Amendment right to a jury trial because

the consulate denied the visa application in retaliation for filing

this lawsuit. Count III sought money damages and other relief.

Count IV alleged that processing delays and other actions of the

consulate, “apart from the decision to deny the visa application,”

violated Chiang’s constitutional right to marry and sought damages

and other relief against the United States.

Following return of the petition from the consulate, on

May 1, 2008 the USCIS denied Chiang’s petition. The USCIS did not

base its decision on a lack of a bona fide relationship (the ground

2
See Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971).
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for the consulate action). Instead, the USCIS concluded that Amy

and Chiang were married in China and that Amy was therefore no

longer eligible for a fiancée visa.

On June 11, 2008, the district court denied a preliminary

injunction to require the issuance of the visa, finding that even

under the assumption that the district court had jurisdiction to

review the denial of the visa, there was not a likelihood of

success on the merits. Chiang then filed an interlocutory appeal

to this court challenging the denial of the preliminary injunction.

Chiang subsequently dismissed that appeal.

The government then moved to dismiss the first amended

complaint. On July 3, 2008, a magistrate judge issued a Report and

Recommendation recommending that the district court grant the

defendants’ motion. Specifically, as pertinent to this appeal, the

magistrate judge recommended dismissal of the first amended

complaint: (1) for failure to state a proper claim for money

damages against the United States; (2) for failure to state a claim

because the complaint failed to allege a violation of Chiang’s

constitutional rights; (3) because the doctrine of consular

nonreviewability precluded review of the denial of the visa; and

(4) because the district court did not have jurisdiction over the

USCIS denial because it was done for a “facially legitimate and

bona fide” reason. Chiang v. Skeirik, No. 07-10451, slip op. at

15-16 (D. Mass. July 3, 2008).

On July 17, 2008, Chiang filed a motion for leave to file
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a second amended complaint and filed objections to the magistrate

judge’s Report and Recommendation. In the proposed second amended

complaint, Chiang sought to add Bivens claims against Brian

Ferinden (the Vice General Consul in Guangzhou, China),

individually, and to add Bivens claims against two unknown consular

officials.

On August 7, 2008, the district court adopted the Report

and Recommendation of the magistrate judge. On August 10, 2008,

Amy gave birth to a son, who now resides in the United States with

Chiang. On August 11, 2008, the district court denied Chiang’s

motion to amend his first amended complaint “[b]ecause the proposed

amendment would be futile and Plaintiffs do not get ‘repeated bites

at the apple.’” On August 14, 2008, the district court dismissed

the case pursuant to the Report and Recommendation of the

magistrate judge.

Chiang timely appealed. We have jurisdiction pursuant to

28 U.S.C. § 1291.

II.

On appeal, Chiang challenges the dismissal of his first

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amended complaint and denial of leave to amend.3 We review the

court’s dismissal, under Federal Rules of Civil Procedure 12(b)(1)

and 12(b)(6), de novo. Gargano v. Liberty Int’l Underwriters,

Inc., 572 F.3d 45, 48 (1st Cir. 2009); Fothergill v. United States,

566 F.3d 248, 251 (1st Cir. 2009).

A.

The district court had jurisdiction over Chiang’s non-

monetary constitutional claims pursuant to 28 U.S.C. § 1331, which

gives the district courts jurisdiction over civil cases arising

under the Constitution, laws, or treaties of the United States.

See Burrafato v. U.S. Dep’t of State, 523 F.2d 554, 556 (2nd Cir.

1975) (stating that “the federal courts clearly had jurisdiction”

over immigration disputes “grounded on an alleged violation of

First Amendment rights of American citizens”); see also Am. Acad.

Of Religion v. Chertoff, 463 F. Supp. 2d 400, 416 (S.D.N.Y. 2006);

Abourezk v. Reagan, 592 F. Supp. 880 (D.D.C. 1984), vacated on

other grounds, 785 F.2d 1043 (D.C. Cir. 1986);.

Chiang argues that his right to marry was violated by the

denial of the visa, the processing delays, and other actions of the

3
Chiang also challenges the denial of a preliminary
injunction. The United States asserts that Chiang’s voluntary
dismissal of his interlocutory appeal of the denial of the
preliminary injunction bars a challenge to the injunctive order as
part of the appeal from the final order. In view of our decision
that the first amended complaint was properly dismissed, we need
not decide whether this court has jurisdiction to review the
preliminary injunction. See Myers Investigative & Sec. Servs.,
Inc. v. United States, 275 F.3d 1366, 1370 (Fed. Cir. 2002) (court
may decline to reach subject matter jurisdiction if claim is moot).
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consular officials. Even assuming that a United States citizen has

a constitutional right to marry a foreign national, Chiang has

always been free to marry Amy in China,4 in a third country, or,

possibly, in the United States by proxy.5 There is no authority

supporting the view that a United States citizen has a

4
See Consulate General of the United States,
Guangzhou, China, Getting Married in China,
http://guangzhou.usembassy-china.org.cn/information_about_getting
_married_in_china2.html.
5
As suggested by guidance in the U.S. Department of
State Foreign Affairs Manual 40.1 N1.3, proxy marriages can
sometimes be acceptable in immigration cases:

9 FAM 40.1 N1.3-1 Consummated [proxy marriage]
For the purpose of issuing an immigrant visa
(IV) to a “spouse”, a proxy marriage that has
been subsequently consummated is deemed to
have been valid as of the date of the proxy
ceremony. Proxy marriages consummated prior
to the proxy ceremony cannot serves [sic] as a
basis for the valid marriage for immigration
purposes.

9 FAM 40.1 N1.3-2 Unconsummated [proxy
marriage]
A proxy marriage, that has not been
subsequently consummated, does not create or
confer the status of “spouse” for immigration
purposes pursuant to INA 101(a)(35). A party
to an unconsummated proxy marriage may be
processed as a nonimmigrant fiancé(e). A
proxy marriage celebrated in a jurisdiction
recognizing such marriage is generally
considered to be valid, thus, an actual
marriage in the United States is not necessary
if such alien is admitted to the United States
under INA provisions other than as a spouse.

9 U.S. Dep’t of State Foreign Affairs Manual 40.1 N1.3 (2008)
(available at http://www.state.gov/documents/
organization/86920.pdf).

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constitutional right to engage in a marriage ceremony in the United

States at which the foreign national is present. The district

court did not err in concluding that Chiang had failed to state a

claim based on this theory.

Chiang also claims that the denial of the visa was

improper because his traditional marriage to Amy in China is not

regarded as legal by the USCIS for other immigration purposes, and

the USCIS thus could not use the existence of the marriage as a

ground for denying a fiancée visa. Under the doctrine of consular

nonreviewability, in immigration disputes nonconstitutional issues

are generally outside the jurisdiction of the courts.6 “[I]t is

not within the province of any court, unless expressly authorized

by law, to review the determination of the political branch of the

Government to exclude a given alien.” United States ex rel. Knauff

v. Shaughnessy, 338 U.S. 537, 543 (1950). In particular, “when the

Executive exercises this power negatively on the basis of a

facially legitimate and bona fide reason, the courts will [not]

look behind the exercise of that discretion.” Kleindienst v.

Mandel, 408 U.S. 753, 770 (1972).

6
Adams v. Baker, 909 F.2d 643, 649 (1st Cir. 1990)
(“[I]n the absence of statutory authorization or mandate from
Congress, factual determinations made by consular officers in the
visa issuance process are not subject to review by the Secretary of
State, 8 U.S.C. § 1104(a)(1), and are similarly not reviewable by
courts.”); see Saavedra Bruno v. Albright, 197 F.3d 1153, 1159-60,
1162-63 (D.C. Cir. 1999) (“The doctrine [of consular
nonreviewability] holds that a consular official’s decision to
issue or withhold a visa is not subject to judicial review, at
least unless Congress says otherwise.”).
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 In this case the Executive presented a “facially

legitimate and bona fide” reason for the denial. The USCIS simply

said that no visa could issue since the parties were already

married. District courts have no authority or jurisdiction to go

behind the facial reason to determine whether it is accurate—for

example, because the marriage would not be recognized. Thus,

Chiang has failed to state a plausible entitlement to relief and

the district court did not err in dismissing this claim under Rule

12(b)(6).7

B.

In the first amended complaint, Chiang asserted two

claims for money damages against the United States. He asserts on

appeal that the district court erred in dismissing these claims

because they were proper Bivens claims. “The Bivens doctrine

allows plaintiffs to vindicate certain constitutionally protected

rights through a private cause of action for damages against

federal officials in their individual capacities.” DeMayo v.

Nugent, 517 F.3d 11, 14 (1st Cir. 2008) (emphasis added). “The

purpose of Bivens is to deter individual federal officers from

committing constitutional violations.” Corr. Servs. Corp. v.

7
Chiang alternatively argues that the decision by the
consulate, that Chiang and Amy have no “bona fide relationship,”
was unsupported by the facts. Under the doctrine of consular
nonreviewability, the courts similarly have no jurisdiction to
review this finding of fact. Chiang’s claim that his Seventh
Amendment right to a jury trial was somehow violated because the
consulate denied the visa application in retaliation for filing
this lawsuit is frivolous.
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Malesko, 534 U.S. 61, 70 (2001).

Chiang failed to name any officers in their individual

capacities in his first amended complaint. A Bivens claim does not

lie against the United States. McCloskey v. Mueller, 446 F.3d 262,

271-72 (1st Cir. 2006) (The Bivens “doctrine does not override

bedrock principles of sovereign immunity so as to permit suits

against the United States, its agencies, or federal officers sued

in their official capacities.”). The district court did not err in

dismissing Counts I-IV under Rule 12(b)(1).

C.

Finally, Chiang asserts that the district court

improperly denied his motion to file a second amended complaint.

We review the district court’s denial of the motion for leave to

amend for abuse of discretion. Braunstein v. McCabe, 571 F.3d 108,

126 (1st Cir. 2009). This court defers to the district court’s

denial of a motion for leave to amend if any adequate reason for

the decision is apparent in the record. ACA Fin. Guar. Corp. v.

Advest, Inc., 512 F.3d 46, 55 (1st Cir. 2008). The district court

refused Chiang’s motion for leave to amend “because the proposed

amendment would be futile.” Chiang v. Skeirik, No. 07-10451,

Electronic Order (D. Mass. Aug. 11, 2008) (citing Glassman v.

Computervision Corp., 90 F.3d 617, 623 (1st Cir. 1996)). Chiang

argues that his “motion to amend his Amended Complaint would have

added the correct parties” as defendants to the Bivens claims.

Pl.-Appellant Br. 19. As stated previously, Chiang sought to add

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claims against Brian Ferinden (the Vice General Consul in

Guangzhou, China), individually, and add claims against two unknown

consular officials (presumably in their individual capacities).

Chiang alleges that Brian Ferinden “refused to assist Chiang” when

Chiang complained to Ferinden about the seizure of all of his

documents. Id. at 23. Chiang alleges that one of the two unknown

consular officials made Amy wait “until she was the last person

interviewed and thus was in part of the concerted and joint actions

to deprive Chiang of his constitutional rights.” The other

consular official allegedly “unlawfully took Chiang’s entire file,

which was not needed for any legitimate consular activities” and

refused to return it.

Assuming that the specific allegedly wrongful acts

occurred, none of them supports a Bivens claim. While the

appropriation of Chiang’s papers might conceivably support a claim

for monetary recovery on some sort of takings theory (if the

appropriation was authorized) or an order directing the return of

the papers (if the appropriation was unauthorized), we fail to see

how the appropriation of Chiang’s papers—whether authorized or

unauthorized—could support a Bivens claim. See Wilkie v. Robbins,

551 U.S. 537, 555 (2007) (no Bivens claim where alternative

remedies available). Likewise, Chiang’s conclusory statements that

Ferinden and two unknown consular officials made a joint and

concerted effort to violate Chiang’s constitutional rights do not

raise a viable claim of a constitutional violation. As this court

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noted in Maldonado v. Fontanes, “the tenet that a court must accept

as true all of the allegations contained in a complaint is

inapplicable to legal conclusions. Threadbare recitals of the

elements of a cause of action, supported by mere conclusory

statements, do not suffice.” 568 F.3d 263, 268 (1st Cir. 2009)

(quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)).

Here the record shows that the proposed amendment would

have been futile, because the proposed amendment would still not

state a proper Bivens claim.8 Thus, the district court did not

abuse its discretion when it denied Chiang’s motion for leave to

file his second amended complaint.

III.

For the foregoing reasons, we affirm the dismissal of

Chiang’s complaint.9

Affirmed.

8
In addition, the amendment would have been futile
because Chiang never indicated any way in which the District Court
of Massachusetts could acquire jurisdiction over the defendants
whom he proposed to add.
9
On June 29, 2009, the USCIS in Vermont both granted
Chiang’s motion to reopen and reconsider his petition for a fiancée
visa and approved that petition. This approval does not affect the
existence of a case or controversy because the defendants urge that
the visa petition was granted in error and that the granted visa
petition will soon be rescinded.
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