Singh v. Tillerson

1

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

NIRMAL SINGH,

Plaintiff, Civil Action No. 16-922 (CKK)

v.

REX W. TILLERSON, et al.,

Defendants.

MEMORANDUM OPINION
(September 21, 2017)

Plaintiff Nirmal Singh, a lawful permanent resident of the United States, has brought

this action seeking relief in connection with the decision by the United States Consulate in New

Delhi, India to deny immigrant visas for Mr. Singh’s wife, Surjeet Kaur, and his four children:

daughter Gurwinder Kaur, daughter Jasveer Kaur; son Sukhwant Singh; and son Kulwant

Singh. Defendants – who include Rex W. Tillerson, Secretary of the United States Department

of State, Richard R. Verma, in his official capacity as United States Ambassador to India, the

Consulate General and two consular officers employed by the United States Embassy in New

Delhi, India – have moved to dismiss Plaintiff’s Amended Complaint pursuant to Federal Rules

of Civil Procedure 12(b)(1), for lack of subject matter jurisdiction, and 12(b)(6), for failure to
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state a claim.

1
Pursuant to Federal Rule of Civil Procedure 25(d), the Court has automatically substituted the
name of the current Secretary of State for his predecessor.
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After reviewing the parties’ submissions, relevant case law and applicable statutory

authority, the Court finds that the doctrine of consular nonreviewability precludes the district

court’s exercise of jurisdiction and Plaintiff fails to state a claim. 2 Accordingly, the Court shall

GRANT Defendants’ [19] Motion to Dismiss Plaintiff’s Amended Complaint for the reasons

discussed herein. A separate Order accompanies this Memorandum Opinion.

I. BACKGROUND

Plaintiff Nirmal Singh (“Plaintiff”) entered the United States in 1993; his employer

petitioned for an immigrant visa on behalf of Plaintiff, his wife and children, and the petition

was approved on August 20, 2004. Am. Compl. ¶¶ 9, 11. Plaintiff claims that as of that date,

his four children were all unmarried and under the age of 21, and pursuant to the Child Status

Protection Act (“CSPA”), 8 U.S.C. § 1153(h)(1), immigrant visas should have been available to

his family members. Am. Compl. ¶ 11.

Plaintiff obtained his immigration visa and consequent Lawful Permanent Resident

(“LPR”) status on January 22, 2008. Am. Compl. ¶ 15. Shortly thereafter, Plaintiff filed a

Form I-824, seeking “follow-to-join” eligibility for his family members, which was approved

on June 2, 2009. Am. Compl. ¶¶ 16, 32. In August 2010, Plaintiff’s family members appeared

for immigrant visa interviews at the United States Embassy in New Delhi, India, but they were

subsequently denied visas, in 2011, on grounds of material misrepresentation and alien

smuggling. Am. Compl. ¶¶ 36-37. In June 2013, Plaintiff’s family members appeared for a

2
The Court’s consideration has focused on the following documents: Pl.’s Amended Compl.,
ECF No. 5; Defs.’ Mot. to Dismiss Pl.’s Am. Compl. (“Defs.’ Mot.”), ECF No. 19; Pl.’s Opp’n
to Defs.’ Mot. (“Pl.’s Opp’n”), ECF No. 20; and Defs.’ Reply Brief (“Defs.’ Reply”), ECF No.
21. The motion is fully briefed and ripe for adjudication. In an exercise of its discretion, the
Court finds that holding oral argument in this action would not be of assistance in rendering a
decision. See LCvR 7(f).
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second interview, which resulted in a denial for the same reasons – misrepresentation and alien

smuggling. Am. Compl. ¶¶ 54-56.

On January 17, 2017, Plaintiff’s wife and four children appeared at the Embassy in New

Delhi for another interview before a consular officer for purposes of demonstrating their

eligibility for immigrant visas. Defs.’ Mot., Ex. 1 (Declaration of Bryan Giblin, U.S.

Department of State Attorney Advisor in the Legal Affairs, Advisory Opinions Division of the

Visa Office, Bureau of Consular Affairs) ¶ 4. In letters provided to Plaintiff’s children, the

consular officer stated that each was “found ineligible to receive an immigrant visa” under 8

U.S.C. § 1182(a)(6)(C)(i), which prohibits a visa to anyone who has tried to obtain one by

fraudulent means or misrepresentation. Defs.’ Mot., Exs. 2-3 (January 17, 2017 letters from the

consular officer to the Plaintiff’s four children). Plaintiff’s wife was also found ineligible for an

immigrant visa , pursuant to 8 U.S.C. § 1182(a)(6)(E), on grounds that she made material

misrepresentations for the purpose of aiding and abetting aliens who were trying to enter the

United States. Defs.’ Mot., Ex. 4 (January 17, 2017 letter from consular officer to Plaintiff’s

wife). 3 On May 16, 2016, Plaintiff filed his Complaint challenging the consular’s denials, and

on July 17, 2017, he filed his Amended Complaint. .

II. LEGAL STANDARD

On a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, the plaintiff

bears the burden of establishing that the court has jurisdiction. See Lujan v. Defenders of

3
For purposes of pending motion, the Court has reviewed the administrative filings that have
been attached to the parties’ pleadings. These are either referenced or necessarily relied upon by
the complaint, or are official public documents subject to judicial notice, and are consequently
subject to the Court’s review for purposes of the pending motion. No party has contested this
point. See Al-Aulaqi v. Panetta , 35 F. Supp. 3d 56, 67 (D.D.C. 2014) (“A court may take
judicial notice of facts contained in public records of other proceedings . . . .” (citing Covad
Communications co. v. Bell Atlantic Co., 407 F.3d 1220, 1222 (D.C. Cir. 2005))).
 4

Wildlife, 504 U.S. 555, 561 (1992); Hollingsworth v. Duff, 444 F. Supp. 2d 61, 63 (D.D.C.

2006) (citation omitted). In reviewing a motion to dismiss pursuant to Rule 12(b)(1), courts

must accept as true all factual allegations in the complaint and construe the complaint liberally,

granting plaintiff the benefit of all inferences that can be drawn from the facts alleged. See

Leatherman v Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164

(1993); Koutny v. Martin, 530 F. Supp. 2d 84, PIN CITE (D.D.C. 2007) (“[A] court accepts as

true all of the factual allegations contained in the complaint and may also consider ‘undisputed

facts evidenced in the record’”) (internal citations omitted). A court need not accept as true “a

legal conclusion couched as a factual allegation” nor an inference “unsupported by the facts set

out in the complaint.” Trudeau v. Fed. Trade Comm’n, 456 F.3d 178, 193 (D.C. Cir. 2006)

(quoting Papasam v. Allain, 478 U.S. 265, 286 (1986)). In deciding a motion to dismiss

pursuant to Rule 12(b)(1), a court is not limited to the allegations of the complaint but may also

consider materials outside of the pleadings. Herbert v. Nat’l Acad. of Sciences, 974 F.2d 192,

197 (D.C. Cir. 1992).

Pursuant to Rule 12(b)(6), a party may move to dismiss a complaint on grounds that it

“fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A

complaint is not sufficient if it “tenders ‘naked assertion[s]’ devoid of ‘further factual

enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 557 (2007)). In order to survive a motion to dismiss under Rule

12(b)(6), a complaint must contain sufficient factual allegations that, if accepted as true, “state a

claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. When considering a

Rule 12(b)(6) motion, courts may consider “the facts alleged in the complaint, documents

attached as exhibits or incorporated by reference in the complaint” or “documents upon which
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the plaintiff’s compliant necessarily relies even if the document is produced not by the plaintiff

in the complaint but by the defendant in a motion to dismiss.” Ward v. District of Columbia

Dep’t of Youth Rehab. Servs., 768 F. Supp. 2d 117, 119 (D.D.C. 2011) (internal quotation

marks omitted). The court may also consider documents in the public record of which the court

may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007).

III. ANALYSIS

Defendants assert the following grounds for dismissing Plaintiff’s Amended Complaint:

1) Plaintiff’s claims are moot because he received the relief he requested in the form of written

determinations of denial of visas; 2) Plaintiff is not entitled to judicial review because he lacks a

constitutional interest in the visa denials; and 3) the consular officer’s visa denials satisfy the

applicable standard as they are facially legitimate and bona fide. Each of these arguments by

Defendants and the Plaintiff’s responses thereto will be considered in turn.

Mootness

In his Amended Complaint, Plaintiff “seeks remand and asks this court to compel agency

action unlawfully withheld, in particular, the immediate issuance of immigrant visas to his

family members, or proper factual determination of their eligibility.” Am. Compl. ¶ 114

(emphasis added). Subsequent to Plaintiff filing an Amended Complaint, on January 17, 2017,

Plaintiffs’ wife and children were again interviewed by a consular officer to determine their

eligibility for visas, and they were thereafter provided with a written explanation containing

specific references regarding the reasons for the denials.

The consular officer explained that the determination that the Plaintiff’s children had

misrepresented their ages was based on “official school records, inconsistencies in [their]

previous visa application[s], and information in [their] medical report[s]” and further, that such
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misrepresentations were “material” and disqualified them pursuant to 8 U.S.C. §

1182(a)(6)(C)(i) from being eligible to receive visas. See Exs. 2-3. The consular officer further

elaborated that the misrepresentations pertained “directly to [their] status as [children]” and

because their ages were misrepresented by more than four years, they had “materially

misrepresented [their] identit[ies].” Id. With regard to Plaintiff’s wife, the consular officer

indicated that she had “knowingly and willfully misrepresented [her] children’s ages in an

attempt to help them qualify as derivative children” and that such misrepresentation “[was]

material to each of [her] children’s identity and/or qualifications for a visa.” See Ex.4.

Accordingly, because one of the alternative grounds of relief requested by Plaintiff — a

factual determination of his family members’ eligibility for lawful permanent resident status —

has been provided, Defendants argue that the case is moot on that basis. A case is “moot when

‘the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the

outcome.’” Albritton v Kantor, 944 F. Supp. 966, 974 (D.D.C. 1996) (quoting County of Los

Angeles v. Davis, 440 U.S. 625, 631 (1979)). Even in situations where a court may have had

jurisdiction when the complaint was filed, a case can become moot and should be dismissed

when “events outrun the controversy such that the court can grant no meaningful relief.”

McBryde v. Comm. to Review Circuit Council Conduct and Disability Orders of Judicial

Conference of U.S., 264 F.3d 52, 55 (D.C. Cir. 2001).

Plaintiff does not directly address the Defendants’ argument that the case is moot because
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he received a written determination of his family members’ denial of eligibility for visas. 4

Plaintiff does argue however that the visa denials have violated his due process rights and thus,

he is entitled to judicial review. In the event that some issues have been rendered moot but “the

plaintiff retains some personal stake in the controversy and there are outstanding issues that a

court may resolve, those claims may proceed for review[.]” Longwood Village Restaurant, Ltd.

v. Ashcroft, 157 F. Supp. 2d 61, 66 (D.D.C. 2001). Assuming arguendo that Plaintiff’s claims

have not been mooted by receipt of the consular officer’s determinations, and Plaintiff retains

some viable claims that the court may resolve, the Court now turns to the doctrine of consular

nonreviewability, which generally precludes judicial review of the executive branch’s decisions

to deny a visa, and the Court further examines whether the visa denials have resulted in a

violation of Plaintiff’s constitutional rights, which might permit such review.

The Visa Application Process and Consular Non-reviewability

The Immigration and Nationality Act of 1952, 8 U.S.C. § 1101, et seq. (“INA”), governs

visa processing for aliens seeking a visa as an accompanying spouse or child. When

accompanying family members seek to join the principal applicant more than six months after

the principal applicant has entered the United States, the accompanying members are

“following to join” that applicant. See 8 U.S.C. § 1153(d); 22 C.F.R. § 40.1(a)(1). The family

members must also present documentation, sign and verify their visa application, and appear for

an in-person interview with a consular officer. See 8 U.S.C. § 1202(b), (e) & (h).

4
Plaintiff does not contest the fact that the consular officer provided reasons for the visa denials
but he does contest the reasons given by the consular officer, referring to them as “alternative
facts.” Pl.’s Opp’n at 12. Plaintiff also asserts that the case is not “moot for lack of standing”
and engages in a discussion about standing that is non-responsive to Defendants’ claim of
mootness. Defendants do not address Plaintiff’s assertion of standing although they do note that
Plaintiff is a lawful permanent resident and not a United States citizen.
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Plaintiff in the instant case is seeking judicial review of the consular officer’s decision to

deny his wife and children visas. Courts do not typically have subject-matter jurisdiction to

review these claims because the INA confers “upon consular officers [the] exclusive authority

to review applications for visas.” Saavedra Bruno v. Albright, 197 F.3d 1153, 1156-57 (D.C.

Cir. 1999). Matters of “policy toward aliens are . . . so exclusively entrusted to the political

branches of government as to be largely immune from judicial inquiry or interference.” Id. at

1159 (quoting Harisiades v. Shaughnessy, 342 U.S. 580, 589 (1952)) (internal quotation marks

omitted); see also United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950)

(“[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.”).

The scope of judicial review of consular decisions was addressed by the Supreme Court

in Kleindienst v. Mandel, which involved a First Amendment challenge by United States

citizens to the Attorney General’s visa waiver denial for a foreign journalist who was invited

for a speaking tour. See Kleindienst v Mandel, 408 U.S. 753 (1972). In a decision written by

Justice Harry A. Blackmun, the Supreme Court found that judicial review of a denial that

implicates a constitutional right is limited to ensuring that the decision was supported by a

“facially legitimate” and “bona fide” reason, and the Court declined to “look behind the

exercise of that discretion, [or] test it by balancing its justification against the First Amendment

interests of those who seek personal communication with the applicant.” Mandel, 408 U.S. at

770.

Over a decade after Mandel was decided, the Court of Appeals for the D.C. Circuit was

presented with facts similar to that case in Abourezk, and the Court of Appeals remanded the

consolidated cases back to the district court for a “reexamination of the visa denials in question
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to insure that the challenged government action is within the statutory and constitutional

authority of the State Department.” Abourezk v. Reagan, 785 F. 2d 1043, 1062 (D.C. Cir.

1986). In determining that it had jurisdiction to conduct a limited review, the Court of Appeals

noted that if the Supreme Court “harbored doubts concerning federal court subject matter

jurisdiction in Mandel, it would have raised the issue on its own motion.” Abourezk, 785 F.2d at

1050. Accordingly, the D.C. Circuit “joined the First, Second, and Ninth Circuits in

authorizing limited inquiry into the facial legitimacy of and bona fide reason for a consular

decision when [a] plaintiff asserts that the decision infringes upon [his] constitutional rights.”

Mostofi v. Napolitano, 841 F. Supp. 2d 208, 211 (D.D.C. 2012); see also Udugampola v.

Jacobs, 795 F. Supp. 2d 96, 105 (D.D.C. 2011) (finding a limited exception to the consular

nonreviewability doctrine applies when the visa decision “violates a constitutionally protected

liberty interest” but deciding that plaintiffs’ claim did not fall into the limited exception).

In 2015, the Supreme Court issued its decision in Kerry v. Din, and both parties point to

Justice Anthony Kennedy’s concurring and controlling opinion in that case as being instructive

with regard to the doctrine of consular nonreviewability, but for different reasons. 5 In Din,

Justice Kennedy declined to decide whether a United States citizen had a marriage-based liberty

interest in her spouse’s visa application that would allow for limited judicial review because

“even assuming she [had] such an interest, the Government satisfied due process when it

notified Din’s husband that his visa was denied under the immigration statute’s terrorism

5
Defendants rely on Din to support their argument on consular nonreviewability if there is a
facially legitimate and bona fide reason for the denial, while Plaintiff points to Din as support for
his assertion that “once the Government has shown a facially legitimate and bona fide reason,
plaintiff has the burden of proving that the reason was not bona fide by making an affirmative
showing of bad faith on the part of the consular officer who denied a visa.” Pl.’s Opp’n at 12.
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bar[.]” 6 Kerry v. Din, 135 S. Ct. 2128, 2139 (2015). Justice Kennedy found that the consular

officer had provided a facially legitimate and bona fide reason for the visa refusal when the

officer cited to the general statutory basis for inadmissibility, even without citing to a more

specific subsection or proffering additional facts. Din, 135 S. Ct. at 2140-41.

Plaintiff Singh asserts that he falls within the limited exception to consular

nonreviewability because of his “protected interest aris[ing] from family liberty” and his

“liberty interest related to employment.” Pl.’s Opp’n at 13. Plaintiff does not point to any case

law in support of his theory that he has a “liberty interest related to employment,” which would

entitle him to judicial review, and the Court declines to recognize this theory.

The right to exercise freedom of personal choice in matters of marriage and family life is

a liberty interest protected by the Due Process Clause. See Cleveland Bd. of Educ. v. LaFleur,

414 U.S. 632 (1974); Griswold v. Conn., 381 U.S. 479 (1965). With regard to Plaintiff‘s claim

that he is being deprived of life with his wife and children while he is a resident of the United

States, however, the Court notes that Plaintiff does not assert that the visa denials void his

relationship with his family members or prevent him from living with his family anywhere else

in the world besides the United States. Furthermore, while the Constitution protects an

individual’s right to marry and the marital relationship, these constitutional rights are not

implicated when a spouse is removed or denied entry to the United States. Swartz v. Rogers,

254 F.2d 338, 339 (D.C. Cir. 1958), cert. denied, 357 U.S. (1958). In Swartz, the D.C. Circuit

opined that:

6
When a “fragmented Court decides a case and no single rationale explaining the result enjoys
the assent of five Justices, the holding of the Court may be viewed as that position taken by those
Members who concurred in the judgments on the narrowest grounds.” Cardenas v. United States,
826 F.3d 1164, 1171 (9th Cir. 2016) (citing Marks v. United States, 430 U.S. 188, 193 (1977)).
 11

Certainly deportation would put burdens upon the marriage. It would impose upon the
wife the choice of living abroad with her husband or living in this country without him.
But deportations would not in any way destroy the legal union which the marriage
created. The physical conditions of the marriage may change, but the marriage continues.
Under these circumstances we think the wife has no constitutional right which is violated
by the deportation of her husband.

Swartz, 254 F.2d at 339.

Considering the relationship between parent and adult child, the Honorable John D. Bates

found that:

[N]o court has held that a parent possesses a constitutionally protected liberty interest in
maintaining a relationship with his adult child free from indirect government interference.
Rather, all circuits to address the issue have expressly declined to find a violation of the
familial liberty interest where state action has only an incidental effect on the parent’s
relationship with his adult child, and was not aimed specifically at interfering with the
relationship.

Al-Aulaqi v Obama, 727 F. Supp. 2d 1, 27 (D.D.C. 2010) (internal quotation marks omitted);

see also Butera v. District of Columbia, 235 F.3d 637, 656 (D.C. Cir. 2001) (noting that a

parent does not have a constitutionally protected liberty interest in the companionship of a child

who is past minority and independent.)7 See generally Movimiento Democracia, Inc. v.

Chertoff, 417 F. Supp. 2d 1350, 1353 (S.D. Fla. 2006) (“[T]here is no statutory or constitutional

right to familial association with a person trying to immigrate to the United States. On the

contrary, various cases have shown that neither United States citizens nor lawful permanent

residents have any due process or equal protection rights insofar as the deportation of their

spouses or other family members.”)

In this case Defendants have not violated any constitutionally protected right to freedom

7
Plaintiff makes no assertion that any of his children are still minors. The Court notes that, on
August 20, 2004, over 13 years ago, Jasveer Kaur, the oldest child, was alleged to be 18 years of
age. Pl.’s Opp’n at 3. See also Am. Compl. ¶ 11 (stating that on August 20, 2004, Jasveer “had
just turned 19 years of age.”)
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of personal choice in marriage and family life that Plaintiff may hold “because they have done

nothing more than to say that the residence of [Plaintiff’s] marriage partner[ ] [and presumed

adult children] may not be in the United States.” Mostofi v. Napolitano, 841 F. Supp. 2d 208,

213 (D.D.C. 2012) (internal quotation marks and citation omitted). The Court concludes

therefore that the defendants’ denial of Plaintiff’s family members’ visas did not implicate a

liberty interest protected by the Fifth Amendment, and the Plaintiff’s claim does not fall within

the narrow exception to consular nonreviewability. Accordingly, the Court does not have

subject matter jurisdiction to review the Defendants’ denial of the visa applications.

Even if this Court were to find that Plaintiff had a liberty interest that overrode the

general principle of consular nonreviewability and accorded jurisdiction, Plaintiff’s claim

would still fail. In Din and Mandel, the Supreme Court made it clear that judicial review of

consular decisions to deny visa applications is limited, and such decisions need only be based

on a “facially legitimate and bona fide reason.” See Din, 135 S. Ct. at 2141 (Kennedy, J.,

concurring); Mandel, 408 U.S. at 770. Plaintiff’s children were denied visas pursuant to

8 U.S.C. § 1182(a)(6)(C)(i), and his wife’s visa application was denied pursuant to 8 U.S.C. §

1182(a)(6)(E), and such denials were memorialized in letters provided to Plaintiff’s family

members. Those statutory provisions provide a facially legitimate reason for denial of visa

applications, and in fact, the statutory provisions cited by the consular officer are narrower than

the provision relied upon in Din.

Defendants contend that “[o]nce the government has made a showing of facial

legitimacy, the plaintiff has the burden of proving that the denial was not bona fide by making

an affirmative showing of bad faith on the part of the consular officer who denied [ ] a visa that

is plausibly alleged with sufficient particularity.” Defs.’ Mot. at 16 (internal quotation marks
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omitted) (citing Din, 135 S. Ct. at 2141 (Kennedy, J., concurring)). Plaintiff’s assertion of

“bad faith” relates to a 2011 consular decision whereby his family members’ visas were denied,

and Plaintiff discusses alleged attempts by the consular officer “to coerce by insult, intimidation

and threats a writing of untrue birth dates.” Pl.’s Opp’n at 15. Plaintiff’s assertion bears no

relationship to the 2017 consular decision at issue. The letters explaining the January 2017

denials clearly indicate that the consular officer based the denials on a review of school records,

medical reports and other documents, as well as interviews with the applicants and

inconsistencies in previous visa applications, and they do not reference the 2011 consular

decision. See Exs. 2-4.

The Court finds that Plaintiff’s Amended Complaint lacks any facts that might plausibly

suggest that the consular officer who made the January 2017 determination on Plaintiff’s family

members’ visas acted in bad faith, and accordingly, the Court finds that the consular officer’s

explanation is both facially legitimate and bona fide, and denial of the visas would survive the

Court’s inquiry even if Plaintiff established entitlement to reviewability.

DATED: September 21, 2017
________/s/__________________
COLLEEN KOLLAR-KOTELLY
United States District Judge