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Keywords

plaintiffjurisdictionsubpoenahearingmotionvisajudicial reviewliensmotion to dismiss
plaintiffjurisdictionsubpoenahearingmotionvisajudicial reviewliensmotion to dismiss

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Shen v. U.S. Consulate Gen.

Facts

On March 30, 1993, two subpoenas were issued by this court in Shen v. Japan Airlines, 93 Civ. 1501 (LLS), a case in which Shen is one of two plaintiffs. Through those subpoenas, Shen sought to compel the appearance of his father and mother, Baokeng Shen and Jinling Tang (collectively, 'Shen's parents'), as witnesses at a hearing before Judge Stanton scheduled May 7, 1993. Both of Shen's parents reside in Shanghai, People's Republic of China, and were served at their home. According to the Complaint in this action, their applications for visas to enter the United States were denied on April 6, 1993 by a consular officer at the United States Consulate in Shanghai. On or about April 9, 1993, Shen filed this action, by which he seeks to enjoin the United States Consul from denying his parents' visa applications.

On March 30, 1993, two subpoenas were issued by this court in Shen v. Japan Airlines, 93 Civ. 1501 (LLS), a case in which Shen is one of two plaintiffs. Through those subpoenas, Shen sought to compel the appearance of his father and mother, Baokeng Shen and Jinling Tang (collectively, 'Shen's parents'), as witnesses at a hearing before Judge Stanton scheduled May 7, 1993. Both of Shen's parents reside in Shanghai, People's Republic of China, and were served at their home. According to the Complaint in this action, their applications for visas to enter the United States were denied on April 6, 1993 by a consular officer at the United States Consulate in Shanghai. On or about April 9, 1993, Shen filed this action, by which he seeks to enjoin the United States Consul from denying his parents' visa applications.

Issue

Whether the court has subject matter jurisdiction to review the Consul's decision to deny visa applications.

Whether the court has subject matter jurisdiction to review the Consul's decision to deny visa applications.

Rule

Under 221 of the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. 1201, the issuance of visas to aliens who seek to enter the United States is the responsibility of United States Consuls. The consular officer must deny the application if it appears that the applicant is ineligible to receive a visa.

Under 221 of the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. 1201, the issuance of visas to aliens who seek to enter the United States is the responsibility of United States Consuls. The consular officer must deny the application if it appears that the applicant is ineligible to receive a visa.

Analysis

The court found that the consular decision to deny Shen's parents visas was not subject to review by the court, thus it lacked subject matter jurisdiction over Shen's Complaint. The court noted that Congress specifically exempted the exercise of the power to grant or refuse visas from review by the Secretary of State, which has been interpreted to eliminate both administrative and judicial review.

The court found that the consular decision to deny Shen's parents visas was not subject to review by the court, thus it lacked subject matter jurisdiction over Shen's Complaint. The court noted that Congress specifically exempted the exercise of the power to grant or refuse visas from review by the Secretary of State, which has been interpreted to eliminate both administrative and judicial review.

Conclusion

The court granted the Consul's motion to dismiss. The Clerk of Court is directed to close the above-captioned action.

The court granted the Consul's motion to dismiss. The Clerk of Court is directed to close the above-captioned action.

Who won?

The United States Consulate General prevailed in the case because the court determined it lacked subject matter jurisdiction to review the visa denial.

The United States Consulate General prevailed in the case because the court determined it lacked subject matter jurisdiction to review the visa denial.

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