Gujarat High Court
Dineshchandra Rambhai ... vs Union Of India on 26 February, 2021
Bench: Vipul M. Pancholi
C/SCA/7360/2020 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7360 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
==========================================================
1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
==========================================================
DINESHCHANDRA RAMBHAI BRAHMBHATT
Versus
UNION OF INDIA
==========================================================
Appearance:
MR BHARAT T RAO(697) for the Petitioner(s) No. 1,2
KSHITIJ M AMIN(7572) for the Respondent(s) No. 1,2
NOTICE UNSERVED(8) for the Respondent(s) No. 3
==========================================================
CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 26/02/2021
ORAL JUDGMENT
1. In this petition which is filed under
Article 226 of the Constitution of India, the
petitioner has prayed for the following reliefs:
C/SCA/7360/2020 JUDGMENT
"60(A) To issue a writ of mandamus or a writ
in the nature of mandamus or any other
appropriate writ, order or direction,
directing the respondent no.1 to issue
directions to the respondent no.3 to
forthwith issue letter of approval and/or
Indian Passport as per law to Master Vatsal
in pursuance of applications and requests
made by petitioners and Master Vatsal to the
respondent nos.1 & 3 through his grandfather
and guardian the petitioner no.1 and for the
reasons stated in the Memo of Petition and in
the interest of justice.
(B) Pending admission, hearing and final
disposal of the above Special Civil
Application, Your Lordships may be pleased to
direct the respondent no.1 to issue
directions to the respondent no.3 to
forthwith issue letter of approval and/or
Indian Passport to Master Vatsal in pursuance
of applications and requests made by
petitioners and Master Vatsal to the
respondent nos.1 & 3 and through petitioner
no.1 for the reasons stated in the Memo of
Petition and in the interest of justice.
(C) To grant ad-interim relief in terms of
Para 60(B) hereinabove for the reasons stated
in the Memo of Petition.
(D) xxxxx
(E) xxxxx"
2. Heard learned advocate Mr.Rao appearing
for the petitioner and learned Central Government
Standing Counsel Mr.Amin for the respondents.
Looking to the issue involved in the present
petition, learned counsels appearing for the
C/SCA/7360/2020 JUDGMENT
parties jointly requested that the same be
disposed off finally at admission stage.
3. Rule. Learned Central Government
Standing Counsel Mr.Kshitij Amin waives service
of notice of rule for respondent nos.1 and 2.
3.1 Learned advocate Mr.Rao appearing for
the petitioner submits that the petitioner no.2
is permanent resident of India whereas petitioner
no.1 has gone for immigration at USA in the year
2005 on a petition being filed by his daughter
who is citizen of USA. Petitioner no.1 thereafter
became citizen of USA in the year 2010, wife of
the petitioner no.1 also immigrated to USA with
petitioner no.1 and she is having green card
issued by USA. The petitioner no.2 is son of
petitioner no.1. It is submitted that son of
petitioner no.2 namely Master Vatsal Mitulkumar
Brahmbhatt was born on 11.2.2003 and he is having
Indian Passport no.F0024010 issued on 24.7.2004
having validity till 23.7.2009. It is submitted
that the petitioner no.2 and his wife had, along
with their son Master Vatsal, applied for visa of
USA and were granted the said Visa on 23.6.2008
which was valid upto 19.7.2013. Thereafter, they
had entered USA on 30.6.2008.
3.2 It is further submitted that passport of
C/SCA/7360/2020 JUDGMENT
Master Vatsal was expiring on 23.7.2009.
Therefore, application for renewal of his
passport was made well in time with the office of
respondent no.3. However, respondent no.3 refused
to process the said application and did not
accept the prescribed fees for the same.
Thereafter, the petitioner no.2 and his wife
returned to India. However, Master Vatsal did not
return to India because he wanted to pursue his
studies in USA only. The petitioner no.1,
therefore took the moral responsibility to
complete the education of Master Vatsal in USA.
Thereafter, Master Vatsal completed his primary,
secondary and higher secondary education in
public schools run by State of Illinois. He also
completed Diploma Course in Community Services.
It is submitted that Illinois state has also
granted facility of free medical treatment which
is funded by the state. Learned advocate Mr.Rao
has referred to various documents placed on
record in support of the aforesaid submissions.
3.3 At this stage, it is pointed out that
petitioner no.1 has applied for immigration of
petitioner no.2, wife of petitioner no.2 and
Master Vatsal as per US immigration laws and the
said petition is under process by the USA
Government under case category I-130 on
25.5.2012.
C/SCA/7360/2020 JUDGMENT
3.4 At this stage, it is also contended that
Master Vatsal was facing hardship in absence of
valid identity proof and therefore petitioner
no.1 and his wife decided to adopt Master Vatsal
and therefore filed application for adoption as
per the laws of Illinois state in Circuit Court.
The aforesaid petition was filed with the
required documents.
3.5 Learned advocate Mr.Rao thereafter
contended that as Master Vatsal was getting
difficulties in getting admission in US colleges,
in the absence of passport and/or valid identify
proof, he sent e-mail to respondent no.3 for the
passport on 2.3.2020. The respondent no.3, vide
communication dated 3.3.2020, asked for certain
details. It is submitted that Master Vatsal
immediately replied and asked whether he should
send all documents through PDF attachment or
documents copies through email or regular post.
Thereafter, reminder was sent from time to time.
Learned advocate Mr.Rao has referred to the
averments made in the memo of the petition and
pointed out the correspondence which took place
between the concerned parties. Ultimately, on
10.5.2020, the respondent no.3 asked to provide
the current legal visa status documents. The
petitioner no.2, sent a copy of notice of I-797-C
C/SCA/7360/2020 JUDGMENT
to the concerned respondent on 11.5.2020. It was
informed to the respondent no.3 that all the
documents and copy of Derivation Immigration
Petition known as I-797-C and also requested to
give renewal/reissue the passport of his son i.e.
Vatsal as soon as possible.
3.6 It is submitted that till date the
respondents have not renewed the passport of the
petitioner. At this stage, learned advocate
Mr.Rao has referred to the provisions contained
in Section 6 of the Passport Act of 1967 and
thereafter contended that passport can be refused
only on the grounds mentioned in the said
provision. In the present case, the concerned
respondent authority has not taken any decision
for renewal/re-issuance of the passport of the
petitioner and therefore appropriate direction be
issued to the respondents.
3.7 At this stage, learned advocate Mr.Rao
has placed on record the relevant documents
including the Instructions for Application to
Register Permanent Residence or Adjust Status
issued by Department of Homeland Security, US
Citizenship and Immigration Services(`USCIS' for
short). He has also placed on record all
documents with regard to I-130, Petition in Alien
Relative. After referring to the relevant
C/SCA/7360/2020 JUDGMENT
documents, it is contended that the petitioner
no.1 has filed form I-130 Immigration Petition
for Alien Relative for his son Mitulkumar
Bhrahmbhatt-petitioner no.2 herein in the year
2012 and USCIS issued I-797C, on receipt of I-130
in the name of petitioner no.2-Mitulkumar
Brahmbhatt as a principal applicant. The
petitioner no.1 who is US citizen, has accepted
guardianship of Master Vatsal. It is also
contended that as per the concerned Manual which
is placed on record, derivative status of spouse
and unmarried children of an Alien Beneficiary
are entitled to the same preference
classification and same priority date as
principal alien. It is therefore contended that
in view of the above, concerned US citizen and
immigration services issued I-797C in the name of
principal applicant i.e. the petitioner no.2-
Mitulkumar Brahmbhatt. Thus, I-797C is in the
name of petitioner no.2. It is also submitted
that Master Vatsal is son of Mitulkumar and
therefore as per the concerned immigration rules,
Master Vatsal is derivative beneficiary and
entitled for the same immigration benefits.
Learned advocate would further submit that when
petitioner no.2-Mitulkumar gets immigration visa
call, at the same time, master Vatsal will also
get immigration benefits. As Master Vatsal is
residing in USA, he has only filed I-485 form for
C/SCA/7360/2020 JUDGMENT
Adjustment of Status in USA and thereafter he
will be extended the benefits of green card.
3.8 It is also submitted that passport is
required for identification purpose and the
present respondent nos.1 and 2 are not concerned
with the visa of Master Vatsal. It is therefore
urged that appropriate direction be issued to the
respondents to consider the case of Master Vatsal
for re-issuance/renewal of the passport.
4. On the other hand, learned central
government standing counsel Mr.Amin for the
respondents referred to the affidavit-in-reply
filed on behalf of respondent no.2 and submitted
that the passport of master Vatsal was expired on
23.7.2009. It is submitted that concerned
authority has suggested him to apply for
Emergency Certificate for going back to India as
Master Vatsal came to USA on tourist visa. It is
submitted that alleged overstay of Master Vatsal
is illegal. It is further submitted that I-797C
notice of action by USCIS service towards its
beneficiary Mitulbhai-petitioner no.2 herein
clearly states that the notice does not grant any
immigration status or benefit. I-797C, notice of
action in respect of Master Vatsal has not been
provided by the petitioner no.1 to the authority.
It is also contended that till date, there is no
C/SCA/7360/2020 JUDGMENT
refusal by the respondent authority for
renewal/issuance of the passport in favour of
Master Vatsal and therefore this Court may not
entertain this petition.
5. I have considered the submissions
canvassed by learned advocates for the parties
and I have also gone through the material placed
on record. From the record, it transpires that
dispute is with regard to non-issuance/non-
renewal of passport of Master Vatsal, son of
petitioner no.2 and grandson of petitioner no.1
herein. It is revealed that passport of Master
Vatsal expired on 23.7.2009 and therefore the
application for renewal was filed well in
advance. However, the said application was not
processed by respondent no.3. It is stated that
Master Vatsal visited USA in 2008 on tourist visa
and thereafter the said visa expired on
19.7.2013. It is the specific case of petitioners
that Master Vatsal got all the benefits provided
by USA administration including free health,
medical, education and other services. Petitioner
no.1 is citizen of USA and is grandfather of
Master Vatsal. It is further revealed that the
petitioner no.1 is US citizen and has filed form
I-130, Immigration Petition for Alien Relative
for his son Mitulkumar-petitioner no.2 in the
year 2012 and therefore USCIS issued I-797C in
C/SCA/7360/2020 JUDGMENT
the name of Mitulkumar Brahmbhatt-petitioner no.2
as principal applicant. Petitioner no.1 who is US
citizen has accepted guardianship of Master
Vatsal.
6. In the aforesaid background, this Court
would like to refer the provisions upon which
reliance is placed. The relevant instructions for
Application to Register Permanent Residence or
Adjust Status issued by Department of Homeland
Security, USCIS are as under:
" Who may file Form I-485:
xxxxxx
2. Derivative Applicant (files based on a
principal applicant)
A principal applicant's spouse and children,
who are not beneficiaries of their own
immigrant petition, may be eligible to apply
for adjustment under the same immigrant
category as the principal applicant. These
family members are called "derivative
applicants". A derivative applicant must
designate which immigrant category he or she
is applying under by selecting the
appropriate box listed on Form I-485, Part 2.
Application Type or Filling Category, Item
Numbers 2.a.-8.e.
C/SCA/7360/2020 JUDGMENT
Some immigrant categories do not allow for
derivative applicants, while a few categories
allow additional family members to apply as
derivative applicants. See the Additional
Instructions for more details.
Under U.S.immigration law, you are a `child'
if you are unmarried, under 21 years of age,
and meet the definition of `child' found in
the INA and USCIS policy guidance. Visit
www.uscis.gov/tools/glossary for more
information on the definition of `child'. You
may still be considered a child for
immigration purposes even after turning 21
years of age if you qualify under the
provisions of the Child Status Protection Act
(CSPA). For more information on CSPA, see
www.uscis.gov/green-card/green-card-
processes-and-procedures/child-status-
protection-act/child-status-protection-act-
cspa.
xxxxx
When should I File Form I-485:
xxxxx
Derivative Adjustment Applicant
With the exception of U nonimmigrants,
asylees, and refugees, USCIS cannot approve
your Form I-485 as a derivative applicant
C/SCA/7360/2020 JUDGMENT
until the principal applicant has been
granted lawful permanent resident status.
If you are currently the spouse or child
(unmarried and under 21 years of age) of a
principal applicant, you may file Form I-485
if an immigrant visa is immediately available
to you and you meet all the filing
requirements. You may file at any of the
following times:
1. At the same time the principal applicant
files Form I-485.
2. After the principal applicant filed a
Form I-485 that remains pending a final
decision by USCIS.
3. After USCIS approves the principal
applicant's Form I-485, if the principal
applicant is still a lawful permanent
resident and if, at the time of the principal
applicant's Form I-485 approval, you were the
principal applicant's spouse or child; or
4. After the principal applicant obtained
an immigrant visa and entered the United
States as a lawful permanent resident if the
principal applicant is still a lawful
permanent resident and, at the time of the
principal applicant's entry, you were the
principal applicant's spouse or child.
Xxxx
C/SCA/7360/2020 JUDGMENT
What Evidence Must You Submit with Form I-
485:
xxxxx
2. Government-Issued Identity Document with
Photograph
All Form I-485 applicants should submit a
photocopy of a government-issued identity
document that has their photograph.
Typically, this will be your passport or
similar document, even if the passport is now
expired. It can also be any other government-
issued identity document such as a driver's
license or military identification document.
Xxxxx
Additional Instructions for Family-Based
Applicants:
Immediate relative of a U.S.Citizen (Form I-
130, petition for Alien Relative)
Immediate relatives of U.S.citizens include
the following relatives of U.S.citizens:
spouses, unmarried children under 21 years of
age, and parents (if the U.S.citizen is 21
years of age or older)
Immediate relatives do not have to wait until
C/SCA/7360/2020 JUDGMENT
Form I-130 is approved to file Form I-485.
You may file your Form I-485 together with
your Form I-130, while Form I-130 is pending,
or after your Form I-130 is approved.
Immediate relatives always have a visa
available once Form I-130 is approved.
Derivative applicants are not allowed in this
category."
7. So far as I-130, Petition for Alien Relative
is concerned, relevant instructions are as under:
"We will generally approve your Form I-130 if
you can establish a relationship between you
and your relative that qualifies them to
immigrate to the United States. Generally,
once we approved the petition, your relative
may apply to become an LPR. This is the
second step in the process. Certain
candidates must wait until a visa number is
available before they can apply. If your
relative qualifies as an candidate relative,
an immigrant visa always is available.
If your relative is already in the United
States and a visa is available, they may be
eligible to get their Green Card by filling
Form I-485, Application to Register Permanent
Residence or Adjust Status."
C/SCA/7360/2020 JUDGMENT
8. From the aforesaid relevant provisions,
it can be said that the spouse and children of an
Alien Beneficiary are entitled to the same
preference classification and same priority date
as the principal alien gets. Therefore, USCIS
issued I- 797C in the name of principal applicant
i.e. petitioner no.2 herein. In the present case,
Master Vatsal is son of petitioner no.2-applicant
in whose favour I-797C has been issued and
therefore Master Vatsal is derivative beneficiary
and entitled for the same immigration benefits.
Thus, when the petitioner no.2-Mitulkumar
Brahmbhatt gets immigration visa call, at the
same time, his son Master Vatsal will also get
immigration benefits and as Master Vatsal is
residing in USA, he has to file only I-485 Form
for Adjustment of Status in USA and thereafter he
will be extended the benefits of green card.
9. It is true that till date, the concerned
respondents-authorities have not rejected the
request of the petitioners to reissue/renew the
passport of Master Vatsal. However, it is
required to be noted that in view of the
aforesaid discussion, insistence on the part of
the concerned respondent authority to provide I-
797C issued in favour of Master Vatsal would not
be proper.
C/SCA/7360/2020 JUDGMENT
10. It is also pertinent to note that
respondent authority can refuse to issue passport
on the grounds mentioned in Section 6 of the
Passport Act. Therefore, it is not proper on the
part of the respondent authority to contend that
Master Vatsal has overstayed at USA and his visa
has expired in the year 2013 and therefore he
would not be entitled to get the passport. Even
on this ground also, his application is not
rejected till date. Whether Master Vatsal is
having valid visa or not is to be considered by
the concerned Visa Authority and Master Vatsal
wants passport for the purpose of his
identification proof.
11. In view of the facts and circumstances
of the present case and in view of the discussion
made hereinabove, this petition is allowed. The
respondents are hereby directed to consider the
case of Master Vatsal-grandson of petitioner no.1
and son of petitioner no.2 for re-
issuance/renewal of Indian Passport. The letter
of approval/passport shall be issued to Master
Vatsal as per the applications and requests made
petitioner within four weeks from the date of
receipt of this order. Rule is made absolute.
(VIPUL M. PANCHOLI, J)
SRILATHA
