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- 192

Chhabra v. Blinken



## UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT



# SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY

ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF

APPELLATE PROCEDURE 32.1 AND THIS COURT ’ S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NO TATION “ SUMMARY ORDER ” ). A PARTY CITING A SUMMARY

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2
New York, on the 1 3 t h d a y of D e c e m b e r , two thousand twenty

- two

. 3

4

PRESENT: 5

AMA L YA L. KEARSE

, 6

MICHAEL H. PARK

, 7 MYRNA PÉREZ, 8 Circuit Judges. 9

_____________________________________ 10

11 Dr. Vijay Chhabra

, Ranjna Chhabra, 12

13 Plaintiff s

-

Appellant s , 14

15

v. 22

- 192 16

17 Antony J. Blinken, Secretary of State

, United 18 States Department of State, Alejandro 19 Mayorkas, Secretary of DHS, United States 20 Department of Homeland Security, Ur M. 21
Jaddou, Director of USCIS, United States 22 Citizenship & Immigration Services, 23

24 Defendants

- Appellee s. * 25

26

_____________________________________ 27

28

29

* The Clerk of Court is respectfully directed to amend the caption as set forth above.2 FOR PLAINTIFF S

– APPEL L ANT S : T HOMAS E. M OSEL E Y , Esq., 1 Newark, NJ

. 2

3

FOR DEFENDANT S

– APPELLEES : V ARUNI N ELSON

, Assistant 4 U.S. Attorney ( Layaliza 5 Soloveichik, A ssistant U.S. 6 Attorney

, on the brief ) for 7

Breon Peace, U.S. Attorney, 8

E astern District of New 9

York

, Brooklyn, NY

. 10

11

Appeal from a n order of the United States District Court for the Eastern District of New 12

York (Glasser, J .). 13

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 14

DECREED that the order of the district court is AFFIRMED

. 15

Plaintiffs

- Appellant s Dr. Vijay Chhabra (“Chhabra”) and Ranjna Chhabra appeal the 16

district court ’ s order granting the g overnment’s motion to dismi ss and den ying their motion s for 17

summary judgment and to amend the ir complaint. We assume the parties ’ familiarity with the 18

underlying facts, the procedural history, and the issues on appeal. 19

Plaintiffs asked the district court to find that Chhabra’s conviction for tax evasion under 26 20

U.S.C. § 7201, for which he was ordered removed from the United States , is not a crime involving 21

moral turpitude (“CIMT”) and to direct that his visa to re

- enter the United States be processed with 22

“reasonable promptness” by the consular office in New Delhi, India

. The g overnment moved to 23

dismiss the complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6); Plaintiffs moved 24

for su mmary judgment and to amend the ir complaint. 25

We review de novo a district court’s grant of a motion to dismiss under Rule 12(b)(6) for 26

failure to state a claim upon which relief can be granted

. Bldg. Indus. Elec. Contractors Ass ’ n v. 27

City of New York

, 67 8 F.3d 184, 187 (2d Cir. 2012). We also review a denial of leave to amend 283 de novo when denial is based on a determination that amendment would be futile

. Smith v. Hogan

, 1

794 F.3d 249, 253 (2d Cir. 2015)

. 2

We affirm because Plaintiffs’ claim is barred under the doctrine of consular 3

nonreviewability. This Court has long held that “a consular officer’s decision to deny a visa is 4

immune from judicial review.” Am. Acad. of Religion v. Napolitano , 573 F.3d 115, 123 (2d Cir. 5

2009). Chhabra’ s visa denial was based on a “ facially legitimate and bona fide reason,” and so 6

our review can go no further. Id. at 125

. At bottom, Plaintiffs ask us to order the consular office 7

in India to process Chhabra’s visa application to re

- enter the United Stat es, which we cannot do. 8

The district court , furthermore, did not err in denying leave to amend. “ Leave to amend 9

may properly be denied if the amendment would be futile

, as when the proposed new pleading 10

fails to state a claim on which relief can be granted.” Anderson News, L.L.C. v. Am. Media, Inc.

, 11

680 F.3d 162, 185 (2d Cir. 2012) (internal citation s omitted)

. Plaintiffs sought to amend their 12

complaint to allege that t he Department of Homeland Security (“DHS”) , not the consular office, 13

determined that Chhabra’s conviction for tax evasion was a CIMT. 14

But the CIMT designation was not independently made by DHS. Instead, this 15

determination was made by an immigration jud ge and affirmed by the Board of Immigration 16

Appeals (“BIA”) during Chhabra’s removal proceedings. This Court also denied review of the 17

BIA’s affirmance. Chhabra v. Holder , 444 F. App ’ x 493, 494 (2d Cir. 2011) . Plaintiffs now 18

seek to collaterally attack a legal determination made in Chhabra’s removal proceedings through 19

a claim brought under the Administrative Procedure Act (“APA”). This is not permitted. See 20

Singh v. USCIS , 878 F.3d 441, 445 (2d Cir. 2017) (explaining th at indirect challenges to removal 21

orders may not be brought under the APA). 224 We have considered Plaintiffs’ remaining arguments and find them to be without merit. 1

Accordingly, we AFFIRM the order of the district court. 2

FOR THE COURT: 3

Catherine O ’ Hagan Wolfe, Clerk of Court 4