Pinnaka v. United States

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NARENDRANATH CHOWDARY PINNAKA, SRUTHI KURAPATI, and MINOR CHILD A.K.P., Plaintiffs, v. UNITED STATES OF AMERICA, U.S. DEPARTMENT OF STATE, ANTONY BLINKEN, U.S. CONSULATE GENERAL KOLKATA, MELINDA PAVEK, U.S. DEPARTMENT OF HOMELAND SECURITY, ALEJANDRO MAYORKAS, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, UR MENDOZA JADDOU, U.S. CUSTOMS AND BORDER PROTECTION, CBP CHICAGO FIELD OFFICE, PATRICK SALGADO, CAR26188 NIKOLLA, and JOHN DOE(S) 1-10, Defendants.

No. 24-CV-86

United States District Court, E.D. Wisconsin

September 20, 2024

DECISION AND ORDER ON DEFENDANTS' MOTION TO DISMISS COUNTS ONE THROUGH TEN, PLAINTIFFS' MOTION TO STRIKE AND MOTION FOR DEFAULT JUDGMENT, AND DEFENDANTS' MOTION FOR LEAVE TO FILE ANSWER TO COUNTS ELEVEN THROUGH THIRTEEN INSTANTER

NANCY JOSEPH, UNITED STATES MAGISTRATE JUDGE

Indian nationals Narendranath Chowdary Pinnaka and Sruthi Kurapati along with their minor child, A.K.P., an American citizen petition for a writ of mandamus and seek declaratory and injunctive relief against the United States of America, the U.S. Department of State (“DOS”) and Secretary of State Antony Blinken; U.S. Consulate General Kolkata and Consul General Melinda Pavek; U.S. Department of Homeland Security (“DHS”) and DHS Secretary Alejandro Mayorkas; U.S. Citizenship and Immigration Services (“USCIS”) and USCIS Director Ur Mendoza Jaddou U.S. Customs and Border Protection (“CBP”) and CBP Chief Patrick Salgado; and John Doe(s) 1-10 (collectively the “Defendants”). Plaintiffs allege that Defendants improperly denied Pinnaka a visa in violation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 500, et seq. and the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101, et seq. Plaintiffs further allege that Defendants have unreasonably delayed rendering a decision on Pinnaka's visa application. Plaintiffs also sue under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, et seq. Defendants move to dismiss the immigration claims (Counts One through Ten) pursuant to Fed.R.Civ.P. 12(b)(6) on the grounds that they are barred by the doctrine of consular nonreviewability.

Plaintiffs' FOIA claims are found in Counts Eleven through Thirteen. Defendants answered the FOIA claims within the body of their motion to dismiss brief. (Docket # 13 at 16-20.) Plaintiffs move to strike Defendants' answer to these claims as untimely and move for the entry of default judgment in their favor. (Docket #17 at 25-30.) In response, Defendants move for leave to file their answer to these counts instanter. (Docket # 21.) Plaintiffs oppose Defendants' motion.

For the reasons further explained below, Defendants' motion to dismiss is granted in part and denied in part. Counts One through Eight and Count Ten are dismissed. Count Nine may go forward. Defendants' motion for leave to file an answer to the FOIA claims (Counts Eleven through Thirteen) instanter is granted. Plaintiffs' motion to strike the answer and for default judgment is denied.

BACKGROUND

In July 2013, Pinnaka, an Indian national, entered the United States on a studentbased F-1 visa to pursue a master's degree in electrical engineering. (Compl. ¶¶ 9, 16, Docket # 1.) After completing his degree, he began working in the United States. (Id. ¶ 16.) In 2016, Pinnaka applied for and was granted an employment-based H-1B visa. (Id.) Kurapati, also an Indian national, entered the United States in September 2013 to complete a master's degree in biomedical science as well as a Doctor of Dental Medicine degree. (Id. ¶¶ 9, 17.) Kurapati has been working as a dentist since 2020 on an employment-based H1-B visa. (Id. ¶ 17.) Pinnaka and Kurapati were married in 2016. (Id. ¶ 18.) In 2019, their minor child, A.K.P., was born in the United States. (Id. ¶ 20.)

In February 2021, Pinnaka's mother suffered a medical emergency and Pinnaka traveled to India to visit her. (Id. ¶ 21.) While in India, Pinnaka was injured and underwent surgery. (Id.) On May 11, 2021, Pinnaka returned to the United States, arriving at O'Hare Airport. (Id. ¶ 22.) While going through immigration and customs, Pinnaka was taken for questioning and inspection by a CBP officer. (Id. ¶ 22.) After questioning and searching through Pinnaka's electronic devices, the CBP officer informed Pinnaka that he was inadmissible because he used a “fake resume” with “fake experience” to obtain employment for his H1-B visa. (Id. ¶ 23.) Pinnaka was ordered removed from the United States under INA § 235(b)(1) and banned from re-entering. (Id. ¶ 39.) Plaintiffs contend that this inadmissibility finding was unlawful, legally erroneous, violated due process, and was unsupported by the evidence. (Id. ¶¶ 34-63.) On May 13, 2021, Pinnaka was returned to India. (Id. ¶ 25.)

On September 9, 2021, Plaintiffs submitted to CBP a request to vacate the expedited removal order and to remove the inadmissibility finding against Pinnaka. (Id. ¶ 26.) The request was denied on May 19, 2022. (Id.) On January 19, 2023, Plaintiff submitted to the USCIS a request to reopen Pinnaka's inadmissibility finding. (Id. ¶ 27.) This request was denied on February 14, 2023. (Id.) On August 9, 2023, Plaintiffs submitted to the U.S. Consulate General Kolkata an application to waive the inadmissibility finding and for Pinnaka to be issued an H-4 visa as the spouse of Kurapati, an H1-B visa holder. (Id. ¶ 28.) This request remains pending without decision. (Id.) On August 14, 2023, Pinnaka visited the U.S. consulate in India to seek re-entry to the United States with an H-4 visa but was refused. (Id. ¶ 29.) On October 23, 2023, Plaintiffs submitted to the DHS a request to withdraw the inadmissibility finding, which was denied on November 21, 2023. (Id. ¶ 30.)

On December 14, 2023, Pinnaka submitted FOIA requests to the DOS, the USCIS, and the CBP, requesting all materials in connection with Pinnaka's immigration requests and inadmissibility determination. (Id. ¶¶ 31-33.) Plaintiffs allege that neither the DOS, the USCIS, nor the CBP have timely responded to the requests. (Id.)

On January 22, 2024, Plaintiffs sued Defendants in a thirteen-count complaint. (Docket # 1.) Counts One through Ten relate to the immigration decisions affecting Pinnaka, while Counts Eleven though Thirteen allege violations of FOIA based on the three December 14, 2023 requests stated above. Defendants were served on January 24, 2024. (Docket # 6.) On March 25, 2024, the parties filed a stipulation asking to stay the case to pursue early resolution of the claims. (Docket # 10.) An Order granting the stipulation and staying the case was entered on April 1, 2024. (Docket # 11.) On May 1, 2024, Defendants filed the instant partial motion to dismiss the immigration counts, as well as an answer to the three FOIA counts. (Docket # 12.) Plaintiffs oppose Defendants' motion to dismiss the immigration counts and subsequently moved to strike Defendants' answer to the FOIA counts as untimely and requested default judgment be entered in their favor on the FOIA counts. Defendants moved for leave to file their answer to the FOIA counts instanter.

Defendants' Motion to Dismiss Immigration Counts One through Ten (Docket # 12)

Defendants move to dismiss Counts One through Ten of Plaintiffs' complaint based on the doctrine of consular nonreviewability.

STANDARD OF REVIEW

A motion to dismiss based on the doctrine of consular nonreviewability challenges the case's merits, not the federal court's subject matter jurisdiction, thus it is properly brought under Fed.R.Civ.P. 12(b)(6). See Matushkina v. Nielsen, 877 F.3d 289, 294 n.2 (7th Cir. 2017). A motion to dismiss under Fed.R.Civ.P. 12(b)(6) challenges the sufficiency of the complaint on the basis that the plaintiff has failed to state a claim upon which relief can be granted. A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The Supreme Court has interpreted this language to require that the plaintiff plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). In Ashcroft v. Iqbal, the Supreme Court elaborated further on the pleadings standard, explaining that a “claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,” though this “standard is not akin to a ‘probability requirement.'” 556 U.S. 662, 678 (2009). The allegations in the complaint “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (internal citation omitted).

When determining the sufficiency of a complaint, the court should engage in a two-part analysis. See McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011). First, the court must “accept the well-pleaded facts in the complaint as true” while separating out “legal conclusions and conclusory allegations merely reciting the elements of the claim.” Id. (citing Iqbal, 556 U.S. at 680). Next, “[a]fter excising the allegations not entitled to the presumption [of truth], [the court must] determine whether the remaining factual allegations ‘plausibly suggest an entitlement to relief.'” Id. (citing Iqbal, 556 U.S. at 681). As explained in Iqbal, “[d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” 556 U.S. at 679. All factual allegations and any reasonable inferences must be construed in the light most favorable to the nonmoving party. Price v. Bd. of Educ. of City of Chicago, 755 F.3d 605, 607 (7th Cir. 2014).

ANALYSIS

1. Legal Framework

By seeking to set aside the...