Calle v. Acting Attorney Gen. Matthew G. Whitaker
| Decision Date | 31 January 2019 |
| Docket Number | 18-CV-1957(SJF) |
| Parties | JAIME ROLANDO ESPINOZA CALLE, Plaintiff, v. ACTING ATTORNEY GENERAL MATTHEW G. WHITAKER, SECRETARY KIRSTJEN M. NIELSEN, ACTING DEPUTY SECRETARY CLAIRE M. GRADY, DISTRICT DIRECTOR THOMAS CIOPPA, ACTING DISTRICT DIRECTOR JOHN THOMPSON, and BARBARA Q. VELARDE, CHIEF OF THE ADMINISTRATIVE APPEALS OFFICE, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
I. Introduction
On March 30, 2018, plaintiff Jaime Rolando Espinoza Calle ("plaintiff") commenced this action pursuant to, inter alia, the Administrative Procedure Act ("APA"), 5 U.S.C. § 706, seeking judicial review of decisions of USCIS denying his applications for Special Immigrant Juvenile ("SIJ") classification ("I-360 Petitions") and to compel defendants, all of whom are sued only in their official capacity, , to grant his I-360Petitions. Pending before the Court is defendants' motion to dismiss plaintiff's claims in their entirety pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction and failure to state a claim for relief; or, in the alternative, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, defendants' motion is granted to the extent set forth herein.
II. Background
Plaintiff was born in Ecuador on September 11, 1994 and is currently twenty-four (24) years old. (Compl., ¶ 15). Plaintiff arrived in the United States in or around 2011, when he was sixteen (16) years old. (Administrative Record ["AR"] at 2, 104, 112).
At some unidentified time, plaintiff submitted a verified guardianship petition, dated July 31, 2015, i.e., six (6) weeks prior to his twenty-first (21st) birthday, to the Family Court of the State of New York, County of Queens (the "Family Court" or the "juvenile court")4. (Compl., ¶ 16). On August 18, 2015, i.e., approximately three and a half (3 ½) weeks prior to his twenty-first (21st) birthday, plaintiff filed a motion in the Family Court for an order of "Special Findings" pursuant to article 6 of the New York Family Court Act. (AR at 106). The Family Court initially scheduled a hearing on the petition and motion for September 1, 2015, but, for reasons unknown, subsequently rescheduled it for September 10, 2015, i.e., the day before plaintiff's twenty-first (21st) birthday. (Compl., ¶ 16; AR 106).
On September 2, 2015, i.e., nine (9) days prior to his twenty-first (21st) birthday, plaintiff sent an I-360 Petition seeking SIJ classification (the "First I-360 Petition") to USCIS via express mail, which was received by the USCIS on September 3, 2015.5 (Compl., ¶ 17; AR 1-14). The First I-360 Petition, inter alia, indicated that plaintiff's "case was still pending before the family court in Queens," and plaintiff did not submit any orders issued by the Family Court therewith. (Compl., ¶ 17; AR 1-14).
On September 10, 2015, i.e., one (1) week after plaintiff filed his First I-360 Petition and one (1) day before plaintiff's twenty-first (21st) birthday, a referee of the Family Court stated on the record that she was granting the guardianship petition, (Compl., ¶ 18; AR 116), and signed a "Special Immigrant Juvenile Status Order" ("SIJ Order") finding, inter alia, (i) that plaintiff was under twenty-one (21) years of age and unmarried; (ii) that plaintiff was "dependent upon the Family Court, or has been committed to or placed in the custody of a state agency or department, or an individual or entity appointed by the state or Family Court[;]" (iii) that "[r]eunification with one or both of his/her parents [was] not viable due to . . . abandonment[] and/or [] a similar basis under New York law because . . . [his] father has never supported him financially or emotionally[,] he rarely communicates with his father[,] [and] since 2011 [his] mother has not supported him financially[;]" and (iv) that it was not in plaintiff's "best interest to be removed from the United States and returned to . . . Ecuador. . . ." (AR 46; Compl., ¶¶ 18-19). However, for reasons unknown, the Family Court did not issue the Order Appointing Guardian of thePerson ("Guardianship Order"), granting guardianship of plaintiff until his twenty-first (21st) birthday and authorizing the clerk of the Family Court to issue letters of guardianship, until January 15, 2016, more than four (4) months after plaintiff's twenty-first (21st) birthday. (AR 18-19). Nonetheless, the clerk of the Family Court issued "Letters of Guardianship of the Person of a Minor" ("Letters of Guardianship") on September 10, 2015, one (1) day prior to plaintiff's twenty-first (21st) birthday.6 (Compl., ¶ 18; AR 20, 47).
The following day, i.e., plaintiff's twenty-first (21st) birthday, plaintiff filed another I-360 Petition seeking SIJ classification with USCIS (the "Second I-360 Petition"), with which he submitted the SIJ Order and the Letters of Guardianship issued by the Family Court.7 (Compl., ¶ 20; AR at 35-65, 147-164).
On December 21, 2015, USCIS sent plaintiff a "Notice of Intent to Deny" ("NOID"), indicating, inter alia, that it intended to deny his First I-360 Petition because: (i) he did not submit a copy of his birth certificate or other evidence of his age, nor copies of the Family Court orders upon which his claim to eligibility for SIJ classification was based; and (ii) in part 6 of the petition, "which asks if you have been declared dependent upon a juvenile court of the United States and if a juvenile court has declared that reunification with one or both of your parents is not viable due to abuse, neglect, abandonment, or a similar basis under state law, [plaintiff] wrote in 'pending.'" (AR at 14-16; Compl., ¶ 21). The NOID further indicates, in relevant part:(i) that before USCIS's decision became final, plaintiff was thereby provided an opportunity to submit documentary evidence to "overcome the deficiencies forming the grounds for the intended denial," (AR at 14); and (ii) that plaintiff had thirty (30) days from the date thereof, i.e., until January 20, 2016, to submit his response "and any additional information and/or evidence to support [his] positions." (Id. at 16).
On January 19, 2016, USCIS received a letter from plaintiff's counsel, dated January 15, 2016, in response to the NODI, indicating: (AR at 17-20).
By decision dated January 28, 2016 (the "January Decision"), USCIS denied plaintiff's First I-360 Petition on the grounds: (i) that the documentary evidence in the record, which included, inter alia, the Family Court orders, i.e., the Guardianship Order, the Letters of Guardianship and the SIJ Order, were "insufficient to show that th[e] petition was not submitted primarily for immigration purposes[;]" and (ii) that in order to be classified as an SIJ, the petition "must have been properly filed with the required supporting documents and approvable at the time of filing," but plaintiff's First I-360 Petition "was not approvable at the time of filing" because all of the Family Court orders "were executed after the date of filing." (AR at 21-23; Compl., ¶ 22).
On February 17, 2016, USCIS denied plaintiff's Second I-360 Petition (the "February Decision") on the basis that he was ineligible to be classified as an SIJ because he was twenty-one (21) years of age at the time of filing that petition. (AR 147, 172-75; Compl., ¶ 23).
On February 22, 2016, plaintiff filed a notice of appeal to the AAO of the January Decision denying his First I-360 Petition. (AR 24-53, 207; see Compl., ¶ 24).
On March 8, 2016, plaintiff filed a notice of appeal to the AAO of the February Decision denying his Second I-360 Petition, (AR 180-234; Compl., ¶ 25), together with a transcript of the Family Court proceedings held on September 10, 2015. (Compl., ¶ 25).
By decision dated November 3, 2016 (the "First AAO Decision"), (AR 66-71), the AAO dismissed plaintiff's appeal from the January Decision, finding, inter alia, that the Director "properly determined that [plaintiff] had not established his eligibility [for SIJ classification] at the time of filing as the requisite juvenile court guardianship/dependency order was not in effect at the filing of the [First I-360 Petition]."8 (AR at 68-70; see Compl., ¶ 26).
By decision dated December 1, 2016 (the "Second AAO Decision"), (AR 239-245), the AAO dismissed plaintiff's appeal from the February Decision, finding, inter alia, (i) that the Director "properly determined that [plaintiff] was ineligible for SIJ classification because [he] was 21 years of age and was no longer a child under the [INA] when he filed the [Second] [I-360] [P]etition on his 21st birthday[,]" (AR at 242); and (ii) that plaintiff "does not benefit under the settlement agreement" in the class action, Perez-Olano v. Holder, No. 05-cv-2604 (C.D. Cal. 2005) (the "Perez-Olano Settlement Agreement"), or under the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 ("2008 TVPRA"), Pub. L. No. 110-457, 122 Stat. 5044 (2008), "as he was not under 21 years of age and did not qualify as a child under the[INA] when he filed the [Second I-360] petition, as required." (AR 243; see Compl., ¶ 28).
On or about December 5, 2016, plaintiff sent a motion to reopen and to reconsider the First AAO Decision to the USCIS via priority overnight mail ("First Reconsideration Motion"), (AR 72-139; see Compl., ¶ 27), "explaining, in part, that under New York law, a Judge's order becomes effective when the Judge states on the record in the transcript that she is granting the requested relief." (Compl., ¶ 27).
On or about December 19, 2016, plaintiff sent a motion to reopen and to reconsider the Second AAO Decision to the USCIS via express mail ("Second Reconsideration Motion"). (AR 245-315; s...
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