Cabrera Cabrera v. United States Citizenship & Immigration Services

• Decision Date: 14 March 2019
• Docket Number: Case No. 18-cv-01602 (APM)
• Citation: 374 F.Supp.3d 153
• Parties: Marvin Yovany CABRERA CABRERA, Plaintiff, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants.
• Court: U.S. District Court — District of Columbia

374 F.Supp.3d 153

Marvin Yovany CABRERA CABRERA, Plaintiff,

v.UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants.

Case No. 18-cv-01602 (APM)

United States District Court, District of Columbia.

Signed March 14, 2019

Aaron Robert Caruso, Abod & Caruso, LLC, Gaithersburg, MD, for Plaintiff.

Rhonda Lisa Campbell, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

Amit P. Mehta, United States District Judge

I. INTRODUCTION

On January 12, 2017, Defendant U.S. Citizenship and Immigration Services ("USCIS") revoked Plaintiff Marvin Yovany Cabrera Cabrera's previously approved Form I-360 visa petition for special immigrant juvenile status. USCIS determined that Plaintiff was not eligible for special immigrant juvenile status because he filed his Petition on the day of his 21^st birthday, instead of before his 21^st birthday, as required by the agency's regulations. Plaintiff brings this action challenging the revocation of his I-360 Petition under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq., and the Equal Protection and Due Process Clauses of the United States Constitution.

Defendants move to dismiss Plaintiff's Complaint both for lack of subject matter jurisdiction and for failure to state a claim. As to subject matter jurisdiction, Defendants argue that this court lacks the power to review agency decisions revoking I-360 Petitions because such actions are discretionary and specifically excluded by statute from judicial review. As for failure to state a claim, Defendants maintain that Plaintiff has not adduced facts that render it plausible that the agency's action was arbitrary and capricious. Defendants also point out that the court lacks jurisdiction as to Plaintiff's constitutional claims, which must be raised directly with the D.C. Circuit.

The court grants Defendants' Motion to Dismiss in part and denies it in part. The court lacks jurisdiction over Plaintiff's APA claim insofar as he alleges that the revocation of his Petition was arbitrary and capricious because the agency unreasonably delayed in taking such action. The court, however, has jurisdiction to review Plaintiff's challenge to the reasonableness of USCIS's regulations on filing petitions seeking special immigrant juvenile status and the implementation of those regulations. Finally, with respect to Plaintiff's constitutional claims, the court defers to Plaintiff as to whether those claims should be transferred now or later to the D.C. Circuit for review.

II. BACKGROUND

A. Legal Background

Section 204(a)(1)(G) of the Immigration and Naturalization Act ("INA") allows persons qualifying for Special Immigrant Juvenile ("SIJ") status to obtain a residency visa and eventually seek lawful permanent residence. See 8 U.S.C. § 1154(a)(1)(G)(ii). Section 101(a)(27)(J) of the INA defines an SIJ as:

(J) an immigrant who is present in the United States—

(i) who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States, and whose reunification with 1 or both of the immigrant's parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law;

(ii) for whom it has been determined in administrative or judicial proceedings that it would not be in the alien's best interest to be returned to the alien's or parent's previous country of nationality or country of last habitual residence; and

(iii) in whose case the Secretary of Homeland Security consents to the grant of special immigrant juvenile status, except that—

(I) no juvenile court has jurisdiction to determine the custody status or placement of an alien in the custody of the Secretary of Health and Human Services unless the Secretary of Health and Human Services specifically consents to such jurisdiction; and

(II) no natural parent or prior adoptive parent of any alien provided special immigrant status under this subparagraph shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter;

8 U.S.C. § 1101(a)(27)(J). Essentially, the statute requires that anyone seeking SIJ status must have first been the subject of a local juvenile court order indicating that (1) he is a dependent of that court, (2) that reunification with one or both parents is not viable "due to abuse, neglect, abandonment, or a similar basis," and (3) that return to his home country is not in his best interest.

Satisfying the INA's definition of Special Immigrant Juvenile does not, however, by itself make one eligible for residency status. USCIS Regulations impose additional requirements. Those Regulations provide:

An alien is eligible for classification as a special immigrant under section 101(a)(27)(J) of the Act if the alien:

(1) Is under twenty-one years of age;

(2) Is unmarried;

(3) Has been declared dependent upon a juvenile court located in the United States in accordance with state law governing such declarations of dependency, while the alien was in the United States and under the jurisdiction of the court;

(4) Has been deemed eligible by the juvenile court for long-term foster care;

(5) Continues to be dependent upon the juvenile court and eligible for long-term foster care, such declaration, dependency or eligibility not having been vacated, terminated, or otherwise ended; and

(6) Has been the subject of judicial proceedings or administrative proceedings authorized or recognized by the juvenile court in which it has been determined that it would not be in the alien's best interest to be returned to the country of nationality or last habitual residence of the beneficiary or his or her parent or parents; or

(7) On November 29, 1990, met all the eligibility requirements for special immigrant juvenile status in paragraphs (c)(1) through (c)(6) of this section, and for whom a petition for classification as a special immigrant juvenile is filed on Form I-360 before June 1, 1994.

8 C.F.R. § 204.11(c).

For purposes of this case, the key requirement is that the applicant be "under twenty-one years of age." 8 C.F.R. § 204.11(c)(1). As with all eligibility criteria, the applicant must meet this age requirement "at the time of filing the benefit request." 8 C.F.R. § 103.2(b)(1). An application is considered "filed," per the Regulations, on "the date it is properly filed and received by USCIS." 8 C.F.R. § 204.1(b).

B. Factual Background

Plaintiff Cabrera Cabrera is a national of El Salvador, born December 9, 1993. Compl., ECF No. 1 [hereinafter Compl.], ¶ 6. Plaintiff last entered the United States on August 6, 2012. See id. According to Plaintiff, he "attempted to schedule a Court hearing in the Circuit Court for Prince George's County, Maryland," to secure the necessary juvenile-court certification for an I-360 Petition, "but the first available date was the day before Petitioner turned 21 years of age." Compl., ECF No. 1-11, Pl.'s Ex. 10 [hereinafter Pl.'s Appeal Br.], at 3.¹ That date was December 8, 2014. Plaintiff attended the hearing, and on December 8, 2014, the Circuit Court of Maryland for Prince George's County issued an order making the requisite findings that Plaintiff was a dependent of the court, that Plaintiff's reunification with his father was not viable, and that it was not in Plaintiff's best interest to return to El Salvador. Comp. ¶ 16; Compl., Order Regarding Minor Child's Eligibility for Special Immigrant Juvenile Status, ECF No. 1-2. Immediately upon receiving this order, Plaintiff's counsel completed and sent his application for I-360 status by overnight mail to the USCIS Dropbox in Chicago, Illinois. Pl.'s Appeal Br. at 3. USCIS does not allow I-360 Petitions to be hand-delivered or filed electronically. Comp. ¶ 18. Plaintiff concedes that USCIS did not receive his I-360 Petition until December 9, 2014, the very day he turned 21 years old. Comp. ¶ 19.

On December 24, 2014, USCIS sent Plaintiff a Receipt Notice acknowledging that his I-360 Petition had been received on December 9, 2014, and assigning this date as his priority date. See Compl., ECF No. 1-4, Pl.'s Ex. 3. Four months later, on April 24, 2015, USCIS approved Plaintiff's I-360 petition, despite Plaintiff not being age-qualified under the agency's Regulations. Comp. ¶ 22. Based on this approval, Plaintiff completed and submitted his I-485 Application to Register Permanent Residence or Adjust Status, which was received by USCIS on January 11, 2016. Id. ¶ 23; Compl., ECF No. 1-7, Pl.'s Ex. 6.

On September 1, 2016, a little more than 16 months after approving his I-360 Petition, USCIS sent Plaintiff a "Notice of Intent to Revoke" ("NOIR") his SIJ Petition approval. Compl. ¶ 25; Compl., ECF No. 1-8, Pl.'s Ex. 7 [hereinafter NOIR]. The NOIR explained that Plaintiff was 21 years old on the date his application was filed and therefore he did not qualify for special juvenile status under 8 C.F.R. § 204.11(c). Id. at 2. The NOIR notified Plaintiff that he had 30 days from receipt of the NOIR "to rebut and/or submit evidence supporting why [his] petition should not be revoked." Id. The NOIR further indicated that "[i]f no response is received within [the 30-day] period the petition will be revoked as indicated." Id. Plaintiff admits that he did not respond, as he concedes "no additional evidence existed." Compl. ¶ 26.

On January 12, 2017, USCIS sent Plaintiff its decision to revoke his approved I-360 Petition, Compl. ¶ 27; Compl., ECF No. 1-9, Pl.'s Ex. 8, as well as its decision to deny his I-485 application based on the revocation of his I-360 approval, Compl.

¶ 27; Compl., ECF No. 1-10, Pl.'s Ex. 9. Plaintiff was given a 15-day response period for the I-360 revocation and a 30-day response period for the I-485 denial. Between the 15-day and 30-day time limits, on February 10, 2017, Plaintiff...