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Toor v. Clinton

June 3, 2009

HARINDER TOOR & KAMALJOT GILL, PETITIONERS,
v.
HILLARY RODHAM CLINTON, SECRETARY OF STATE, ET AL. RESPONDENTS.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

MEMORANDUM RE: RESPONDENTS' AMENDED MOTION TO DISMISS FOR LACK OF JURISDICTION AND FOR A PRELIMINARY INJUNCTION RENEWED OPPOSITION TO MOTION (Doc. 21.)

I. INTRODUCTION

This is an immigration case brought by Petitioners Harinder Toor ("Toor"), a U.S. Citizen, and his fiancé Kamaljot Gill ("Gill"), a citizen and national of India, following the Consular General of India's denial of Gill's nonimmigrant visa application. Petitioners claim that the Consular General of India has a non-discretionary duty to reconsider denied visas under 22 C.F.R. § 42.81(e); and, in Gill's case, that the U.S. Embassy violated this duty when it returned Gill's case to the Department of State's National Visa Center ("NVC") for further review.

This matter is before the court on the following motions:

first, the Petitioners' motion for a preliminary injunction (Doc. 7.); and second, the Respondents' motion to dismiss the case based on the court's lack of subject matter jurisdiction and for failure to state a claim for which relief can be granted (Doc. 21.), which was filed in response to Petitioners' motion.

II. FACTUAL BACKGROUND*fn1

On January 28, 2008, Toor filed a petition with the U.S. Citizenship and Immigration Services ("USCIS") to have his fiancé, Gill, classified as a nonimmigrant under the Immigration and Nationality Act, 8 USC § 1101(a)(15)(K). (Compl. ¶ 16.) Toor sought to have Gill classified as an alien who seeks to enter the United States to conclude a valid marriage within 90 days.*fn2 (Id. ¶ 23.) On June 2, 2008, the USCIS approved Gill's Petition for Fiancee (form I-129F) and forwarded the approved petition to the NVC. (Id. ¶ 23.) On June 9, 2008, the NVC sent Gill's case to the U.S. Embassy in New Delhi, India (the "Embassy"). (Id. ¶ 23)

On June 18, 2008, the Embassy issued a letter to Gill instructing her to apply for her nonimmigrant visa on form DS-230. The letter also explained that she would be required to provide additional documentation at an upcoming interview. (Id. ¶ 23.) Gill submitted form DS-230 and the Embassy scheduled Gill's interview for October 16, 2008. (Id. ¶ 24.)

Following the interview on October 16, 2008, the Embassy declined to issue a visa to Gill and requested that she submit additional documentation to an Embassy sub-office. (Id. ¶ 27.) On December 15, 2008, Gill submitted additional documentation to the Embassy sub-office in Chandigarh, India. (Id. ¶ 28.)

On January 27, 2009, Gill went to the Embassy's sub-office to pickup a letter concerning her visa petition. (Id. ¶ 33.) The letter, dated January 14, 2009, informed Gill that the Consular General of India declined to issue a visa to her at that time. The letter stated that her petition was being returned to the NVC and that no further action was to be taken by the Embassy regarding her immigration visa case. (Id.)

On January 16, 2009, Gill's petition was sent to the NVC by consular post. (See Respondents' Amended Motion ("RAM"), 4:24-4:26, filed March 17, 2009.) On February 19, 2009, the NVC forwarded the petition to USCIS for review and possible revocation of the visa petition. (Id.) The petition is currently under review with USCIS. (Id.)

III. PROCEDURAL BACKGROUND

On February 12, 2009, Petitioners filed a Petition for Writ of Mandate pursuant to 28 U.S.C. § 1361 and Complaint pursuant to the Administrative Procedures Act ("APA") against the following individuals:*fn3 Secretary of State Hillary Clinton, Consul General Peter Kaestner of the U.S. Embassy in New Delhi, India, Secretary of the U.S. Department of Homeland Security Janet Napolitano, Director of the USCIS Jonathan Scharfen, and USCIS's California Service Center Director Christina Poulos, (collectively, "Respondents"). (Doc. 2.) Petitioners state that the U.S. Embassy in India refused to lawfully adjudicate Gill's visa petition in accordance with the Immigration and Nationality Act ("INA") and its regulations.

On February 13, 2009, Petitioners moved for a temporary restraining order and preliminary injunction, seeking to enjoin the U.S. Embassy in India from returning Gill's nonimmigrant visa petition to either the NVC or the USCIS. (Doc. 6-7.) Petitioners argued that the return of the petition will cause irreparable harm in that it will ...


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