Aybar v. Johnson

• Decision Date: 05 January 2018
• Docket Number: Civil Action No. 16–1539 (ES) (JAD)
• Parties: Carmen Josefina Contreras AYBAR and Dario De Jesus Moreta Contrera, Plaintiffs, v. Jeh JOHNSON, in his official capacity as Secretary of Homeland Security, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

295 F.Supp.3d 442

Carmen Josefina Contreras AYBAR and Dario De Jesus Moreta Contrera, Plaintiffs,

v.Jeh JOHNSON, in his official capacity as Secretary of Homeland Security, et al., Defendants.

Civil Action No. 16–1539 (ES) (JAD)

United States District Court, D. New Jersey.

Filed January 5, 2018

James Irving McClammy, Davis Polk & Wardwell, New York, NY, Samuel Isaac Portnoy, Gibbons PC, Newark, NJ, for Plaintiffs.

Mark Christopher Orlowski, Office of the U.S. Attorney District of New Jersey, Newark, NJ, Sherease Rosalyn Pratt, U.S. Department of Justice, Washington, DC, for Defendants.

OPINION

Salas, District Judge

I. Introduction

The facts of this case are tragic and, unfortunately, so is the result. In 2005, Plaintiff Carmen Josefina Contreras Aybar left the Dominican Republic and traveled to the United States on what she anticipated to be a short trip. During her stay, she took a job at a clothing store in Manhattan. Later that year, Carmen suffered a vicious and brutal rape at the hands of her co-worker, resulting in her hospitalization. Nevertheless, Carmen assisted the authorities and cooperated with police officers, leading to her attacker's arrest.

Because of her cooperation with law enforcement, Carmen received a U Visa—a type of lawful temporary status offered to victims of rape and other violent crimes who cooperate with law enforcement in the investigation and prosecution of those crimes. After Carmen adjusted from her U Visa status to Legal Permanent Resident ("LPR") status, she sought to take advantage of another provision of the U Visa statutory regime. That provision allows for former U Visa holders to apply for derivative U nonimmigrant status for qualifying family members, such as children under the age of twenty-one. As a former U Visa holder, Carmen filed a petition (the first step of a two-step process) to adjust the status of her twenty-year-old son, Plaintiff Dario de Jesus Moreta Contrera, who was then living in the Dominican Republic. United States Citizenship and Immigration Services ("USCIS") approved Carmen's petition, and Dario, who had since traveled to the United States, filed his application for adjustment of status (the second step of the process).

But, as explained in more detail below, USCIS revoked approval of Carmen's petition and denied Dario's pending application because Dario did not remain a "child" (i.e., under twenty-one) through the adjudication of his application. That requirement—that the "qualifying family relationship" continue to exist through the adjudication process—is mandated by 8 C.F.R. § 245.24(g)(2), a Department of Homeland Security ("DHS") regulation referred to herein as the "Age–Out Rule." Plaintiffs brought this action to challenge the legality of the Age–Out Rule.

Before the Court are Plaintiffs' motion for summary judgment (D.E. No. 24) and Defendants'¹ cross-motion for summary judgment (D.E. No. 25). The Court has jurisdiction under 28 U.S.C. § 1331 and the authority for judicial review under 5 U.S.C. § 702. The Court has considered the parties' submissions and decides the matter without oral argument under Federal Rule of Civil Procedure 78(b). For the following reasons, the Court DENIES Plaintiffs' motion for summary judgment and GRANTS Defendants' cross-motion for summary judgment.

II. Relevant Background

A. The U Visa Statutory Scheme

In 2000, Congress enacted the Victims of Trafficking and Violence Protection Act of 2000 ("VTVPA"), which created the U–1 nonimmigrant visa classification ("U Visa") within the Immigration and Nationality Act ("INA"). VTVPA, Pub. L. No. 106–386, 114 Stat. 1464 (codified as amended at 8 U.S.C. § 1101, et seq. ).² The U Visa is a temporary legal status offered to alien victims of rape and other specified violent crimes who have cooperated (or are likely to cooperate) in the investigation and prosecution of those crimes. 8 U.S.C. § 1101(a)(15)(U)(i)(III). Since a U Visa affords alien victims only temporary status, a U Visa holder may, after three years and upon meeting certain conditions, apply for an adjustment of status to LPR under 8 U.S.C. § 1255(m). To do so, the U Visa holder must complete a Form I–485. Congress's express intent in enacting the U Visa scheme was both to "strengthen the ability of law enforcement agencies to detect, investigate and prosecute" the specified crimes, and to "offer[ ] protection to victims of such offenses in keeping with the humanitarian interests of the United States." VTVPA, Pub. L. No. 106–386, § 1513(a)(2)(A).

In addition, Congress created two mechanisms for alien victims to adjust the status of their children (or other qualifying members) "when doing so is justified on humanitarian grounds, for family unity, or is otherwise in the public interest." Id. at § 1513(a)(2)(C). First , under 8 U.S.C. § 1101(a)(15)(U)(ii)(II) and related regulations, a victim who holds or is applying for a U Visa may apply for his or her child to receive derivative U nonimmigrant status (a "derivative U Visa"). Second , a former U Visa holder may apply to adjust the status of his or her alien child to LPR status if the former U Visa holder has already adjusted or is adjusting to LPR status and the qualifying family member never held a derivative U Visa. See 8 U.S.C. § 1255(m)(3). This case deals with the second scenario.

8 U.S.C. § 1255(m)(3) reads:

Upon approval of adjustment of status ... of an alien [admitted into the United States under 8 U.S.C. § 1101(a)(15)(U)(i) (i.e., a U Visa holder) ] ... the Secretary of Homeland Security may adjust the status of or issue an immigrant visa to a spouse, a child, or, in the case of an alien child, a parent who did not receive a nonimmigrant visa under section 1101(a)(15)(U)(ii) of this title if the Secretary considers the grant of such status or visa necessary to avoid extreme hardship.

Under the INA, a "child" is defined as "an unmarried person under twenty-one years of age." Id. § 1101(b)(1).

Congress explicitly directed the Attorney General, Secretary of Homeland Security, and the Secretary of State to promulgate regulations to implement the provisions contained within Title V of the VTVPA and the Violence Against Women Act of 2005. See Violence Against Women and Department of Justice Reauthorization Act of 2005 ("VAWA"), Pub. L. No. 109–162 § 828, 119 Stat. 2960, 3066 (codified as amended in scattered sections of 8 U.S.C.). The DHS promulgated regulations implementing the U Visa statute. 72 Fed. Reg. 53014 (Sept. 17, 2007) (codified in relevant parts at 8 C.F.R. § 214.14, et. seq. ). Applicable here is the regulatory framework later set forth by the DHS allowing principal U Visa holders to adjust their status and the status of their qualifying family members.

In short, the DHS created a two-step process for former U Visa holders to adjust the status of a qualifying family member. First , the former U Visa holder files an I–929 petition on behalf of the qualifying family member. 8 C.F.R. § 245.24(h). Second , the qualifying family member files a Form I–485 (commonly referred to as an application for a "green card") to adjust his or her status. Id. § 245.24(i). Under 8 C.F.R. 245.24(g), a petitioner must demonstrate that:

(1) The qualifying family member has never held U nonimmigrant status;

(2) The qualifying family relationship, as defined in paragraph (a)(2) of this section, exists at the time of the U–1 principal's adjustment and continues to exist through the adjudication of the adjustment or issuance of the immigrant visa for the qualifying family member ;

(3) The qualifying family member or the principal U–1 alien, would suffer extreme hardship as described in 8 CFR 245.24(g) (to the extent the factors listed are applicable) if the qualifying family member is not allowed to remain in or enter the United States; and

(4) The principal U–1 alien has adjusted status to that of a lawful permanent resident, has a pending application for adjustment of status, or is concurrently filing an application for adjustment of status.

The regulation at 8 C.F.R. § 245.24(g)(2) —the Age–Out Rule—mandates that the intended beneficiary maintain his or her "qualifying family relationship" until USCIS completely adjudicates his or her application for adjustment of status. Where, like here, the "qualifying family relationship" is parent-child, the Age–Out Rule requires the intended beneficiary to remain a "child" (i.e., under the age of twenty-one) through the adjudication process. The Age–Out Rule thus dictates that an otherwise eligible child who was under the age of twenty-one when his or her parent filed the I–929 petition will lose eligibility to adjust status if he or she turns twenty-one before USCIS approves the application.

In 2013, Congress changed the law regarding current U Visa holders to provide "age-out" protection for their children seeking derivative U nonimmigrant status. See VAWA of 2013, Pub. L. No. 113–4, § 805, 127 Stat. 54, 111 (codified at 8 U.S.C. § 1184(p) ). Now, children of current U Visa holders who apply for derivative U nonimmigrant status need not remain under twenty-one through the adjudication of their petition; rather, they need only be under twenty-one on the date their petition is filed. But Congress did not change the law for former U Visa holders (like Carmen). Thus, the Age–Out Rule applies here.

B. Factual Background

The parties do not dispute the material facts in this case. Carmen came to the United States in 2005 and left her daughter and son, Dario, with her ex-husband in the Dominican Republic. (D.E. No. 24–4, Certified Administrative Record ("CAR") at 36–37, ¶¶ 2–3; 44, ¶ 6). During her stay, Carmen took a job in Manhattan to help with the expenses of her trip. (Id. at 36–37, ¶ 3). While working, Carmen was forcibly raped by a co-worker. (Id. at 37–38, ¶¶ 4–8). Carmen was hospitalized, distraught, and traumatized, and as a result, needed ongoing psychological treatment. (Id. at 38–40, ¶¶ 7–8, 12–17). Despite her trauma following the attack, Carmen...