Boire v. Johnson, Case No. 4:15cv0660 TCM
| Decision Date | 15 September 2015 |
| Docket Number | Case No. 4:15cv0660 TCM |
| Court | U.S. District Court — Eastern District of Missouri |
| Parties | AFOUSSATOU BOIRE, Plaintiff, v. JEH JOHNSON, Secretary, U.S. Dep't of Homeland Security, et al., Defendants. |
This immigration dispute is before the Court1 on the opposed motion to dismiss filed by defendants Jeh Johnson, Secretary of the United States Department of Homeland Security; Loretta E. Lynch, Attorney General of the United States2; Leon Rodriguez, Director of the United States Citizenship and Immigration Services (USCIS); Terri Robinson, Acting District Director, USCIS Kansas District Office; and the United States of America (hereinafter collectively referred to as "Defendants").
Afoussatou Boire (Plaintiff) is a citizen of Mali. (Compl. ¶ 6.) In January 2000, when she was nineteen years old, she entered the United States as a J-2 dependent of her father, Dr. Soualika Boire, a J-1 nonimmigrant alien under 8 U.S.C. § 1101(a)(15)(J). (Id. ¶ 20.) In September 2000, Dr. Boire returned to Mali. (Id. ¶ 22.) Plaintiff did not. (Id. ¶ 23.) Instead,she changed to an F-1 student visa status, earning an Associate's degree in 2006, a Bachelor's degree in 2008, and then a Master's degree in 2011. Each degree is in nursing. (Id.) Between the Associate's degree and Bachelor's degree, Plaintiff's employer, Barnes-Jewish Hospital, petitioned for I-140 status for her as an immigrant worker. (Compl. ¶ 24.) The petition was granted. (Id.) Plaintiff then filed in September 2007 an I-485 application to adjust her status to that of a lawful permanent resident. (Id. ¶ 25.) She was interviewed pursuant to this application in December 2013. (Id. ¶ 28.) In March 2014, her application was denied on the grounds that under her J-2 status she was obligated to, but did not, either return to Mali for two years or request and receive a waiver of that requirement. (Id.)
On April 28, 2014, Plaintiff moved to reopen the decision. (Compl. Ex. B.) While her motion was pending, the Republic of Mali notified the United States Department of State that it had no objection to Plaintiff remaining the United States. (Compl. Ex. F.) Plaintiff applied to the State Department for a waiver of the requirement she return to Mali. (Compl. Ex. G.) The waiver was granted in September 2014. (Id.) The notice cautions in bold, all-capital letters that it does not grant any immigration status. (Id.)
Eight days before Plaintiff applied for the waiver, her motion to reopen was denied. (Compl. Ex. B.)
Ten days after she was granted the waiver, Plaintiff moved to reopen and reconsider the adverse decision on her I-485 application. (Compl Ex. C.) The motion was dismissed as untimely. (Id.)
Plaintiff then filed this action under the Administrative Procedure Act (APA), 5 U.S.C. §§ 702, 704, seeking review of the decision denying her I-485 application and a judgment that the denial was arbitrary, capricious, and a violation of her due process rights. She also requests an award of attorney's fees and costs.3
Defendants move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) on the grounds that Plaintiff failed to comply with the requirement of her J-2 status that she return to her home country for two years or request a waiver of that requirement before she apply to adjust her status to that of a legal permanent resident.
When ruling on a Rule 12(b)(6) motion to dismiss for failure to state a claim, the Court must take as true the alleged facts and determine whether they are sufficient to raise more than a speculative right to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). The Court does not, however, accept as true any allegation that is a legal conclusion. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). And, when ruling on a Rule 12(b)(6) motion, the Court "is limited to the material properly before it . . . , which may include public records and materials embraced by the complaint." Noble Sys. Corp. v. Alorica Central, LLC
, 543 F.3d 978, 983 (8th Cir. 2008).
"A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702. The APA provides for judicial review of "final agencyaction for which there is no other remedy in a court." 5 U.S.C. § 704. Under the APA, "[t]he reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, abuse of discretion, or otherwise not in accordance with law . . . [or] without observance of procedure required by law." 5 U.S.C. §§ 706(2)(A) and (D). An adverse agency action "would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.
, 463 U.S. 29, 44 (1983). And, "Courts should be slow to overturn an administrative decision . . . [but] are not obliged to stand aside and rubberstamp their affirmance of [such] decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy behind the statute." NLRB v. Brown, 380 U.S. 278, 291 (1965) (quotations omitted).
The question before the Court is whether Plaintiff's claim that the denial of her request to adjust her status based on her failure to return to Mali for two years or timely obtain a waiver of that requirement may be held unlawful under the APA.
A person admitted under this section is not eligible to apply for permanent residence until he (i) has "resided and been physical present in the country of his nationality or his last residence for an aggregate of at least two years following departure from the United States" or (ii) has had the residency requirement waived by the Attorney General after the foreign country of his nationality or last residence has stated in writing that it has no objection to such waiver.4 8 U.S.C.A. § 1182(e).
When Congress enacted 8 U.S.C. § 1101(a)(15)(J) in 1961, the Senate version of the bill included a sentence reading, "'To the extent that the spouse and minor children of the person admitted under the new category (J) are issued a visa in that category, they, too, would be subject to the 2-year residence abroad provision.'" Naomi Schorr & Stephen Yale-Loehr, The Odyssey of the J-2: Forty-Three Years of Trying Not to Go Home Again, 18 Geo. Immigr. L.J. 221, 237 (2004) (quoting S.Rep. No. 87-372 at 19 (1961)). This version was not enacted. Id.
Nine years later, Congress amended 8 U.S.C. § 1182(e) to read that its requirements applied to a person entering on a J visa, or acquiring such status when already in the United States, to "'participate in' certain exchange visitor programs." Id. at 240. See
also note 3, supra.
Subsequently, a regulation of the Department of State classified as a J-1 visa holder an alien qualified under § 1101(a)(15)(J) and, among other things, accepted to participate in an exchange visitor program. 22 C.F.R. § 41.62(a)(1). A J-2 visa holder is the spouse orminor child of a J-1 visa holder. 22 C.F.R. § 41.62(b). See also 22 C.F.R. § 41.12 (). That spouse or minor child is subject to two-year requirement of § 1182(e). 22 C.F.R. § 41.62(c)(4). Additionally, a regulation of USCIS defines as ineligible for adjustment of status to that of permanent resident "any alien who has or had the status of an exchange visitor under [§ 1101(a)(15)(J)] and who is subject to the foreign residence requirement of [§ 1182(e)], unless the alien has complied with the foreign residence requirement or has been granted a waiver of that requirement, under that section." 8 C.F.R. § 245.1(c)(2). The USCIS regulations further provide that, "A spouse or child admitted to the United States or accorded status under [§ 1101(a)(15)(J)] to accompany or follow to join an exchange visitor who is subject to the foreign residence requirement of [§ 1182(e)] is also subject to that requirement." 8 C.F.R. § 212.7(c)(4).
Thus, the Department of State and USCIS have interpreted the foreign residence requirement of § 1182(e) to apply to J-2 visa holders. Their interpretation of that statue is entitled to deference "unless it is 'contrary to statutory language.'" Hernandez v. Holder, 760 F.3d 855, 858 (8th Cir. 2014) (quoting Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-45 (1984)). It is not. By its terms, § 1182(e) applies to "any person admitted under section 1101(a)(15)(J)." 8 U.S.C. § 1182(e). See Hernandez, 760 F.3d at 859 (...
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