Chan v. U.S. Citizenship & Immigration Servs.

Decision Date23 October 2015
Docket NumberNo. 1:14–CV–00289–MOC.,1:14–CV–00289–MOC.
CourtU.S. District Court — Western District of North Carolina
Parties Wan Hang Gloria CHAN and Robert S. Roland, Plaintiffs, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants.

Andrew William Clopman, Andrew W. Clopman, P.A., Stuart, FL, Anthony Fisichella, Jr., Law Office of Tony Fisichella, Arden, NC, for Plaintiffs.

Tiffany M. Mallory, U.S. Attorneys Office, Charlotte, NC, for Defendants.


MAX O. COGBURN, JR., District Judge.

THIS MATTER is before the court on the parties' cross motions for summary judgment ( 18, 19). The court heard oral arguments on the motions on September 9, 2015. Having considered the motions and reviewed the pleadings, the court enters the following Order.

I. Factual Background

The material facts in this case are not in dispute. Plaintiff Robert S. Roland is a United States citizen residing in Hendersonville, North Carolina. His wife, Plaintiff Wan Hang Gloria Chan, is a native of China and a citizen of the United Kingdom residing in Hendersonville, North Carolina. See (# 19–2; 19–3). On July 25, 1983, Roland was charged in Dade County, Florida with one count of lewd and lascivious behavior, two counts of lewd and lascivious assault, and one count of indecent exposure. See Administrative Record ("AR") 753. Roland pleaded no contest to indecent exposure, adjudication of guilt on that charge was withheld, and the court sentenced Roland to one year of probation after the remaining charges were dismissed. Id. On May 29, 1994, Roland was again charged in Dade County with two counts of lewd and lascivious assault on a child under 16 years of age. AR 754. On December 6, 1995, Roland pleaded guilty to the two counts as charged and was sentenced to five years of probation. Id.

On March 20, 2009, Roland and Chan were married in Palm Beach County, Florida. AR 858. On January 11, 2011, Roland filed the I–130 petition ("Form I–130"), which is the first step in obtaining lawful permanent resident status for an alien relative, that is the subject of the instant litigation.1 AR 703, 917. Along with that I–130 petition, Roland submitted evidence of his criminal record, including the offenses from 1983 and 1994, records showing he completed court-ordered sex-offender treatment, a letter from the individual who treated him, an affidavit from Chan, two affidavits from women he had previously been in relationships with, five affidavits from friends, and evidence that Chan completed police force inspector training in Hong Kong and worked as Chief Inspector of Police Road Safety in Hong Kong from 1992 to 1996. AR 815. Concurrently, Chan filed an Application to Register Permanent Residence or Adjust Status ("Form I–485"). AR 856.

On September 14, 2011, United States Citizenship and Immigration Services ("USCIS") issued Roland a Request for Evidence and Notice of Intent to Deny ("RFE/NOID") the I–130 Form. AR 712–15; 838; (# 19–7). The RFE/NOID concluded that Roland had been convicted of what appeared to be an offense that would render him ineligible to act as a petitioner for the I–130 petition and requested additional evidence to establish that he was not precluded from filing the visa petition. Id. Specifically, the RFE/NOID indicated that Roland's prior convictions appeared to be specified offenses under the Adam Walsh Act ("AWA") and that the evidence submitted failed to show that Roland posed no risk to the safety or well-being of Chan. (# 19–7).

On December 14, 2011, USCIS received Roland's response, which included additional criminal records related to his convictions, additional records of his mental health treatment, copies of newspaper articles, and various photographs of Chan. AR 838; (# 19–8). On June 27, 2013, Roland and Chan appeared for an interview in connection with the I–130 petition and I–485 application. AR 785. On January 13, 2014, USCIS denied the I–130 petition on the basis that Roland had been convicted of a specified offense against a minor as defined in the AWA and failed to prove beyond any reasonable doubt that he posed no risk to the safety and well-being of Chan, the beneficiary of the petition. See Notice of Denial (# 19–8); AR 703. On May 15, 2014, USCIS denied Chan's I–485 application on the basis that there was no approved visa petition. See USCIS Decision (# 19–10); AR 703.

On November 3, 2014, Plaintiffs filed the instant action, seeking review under the Administrative Procedure Act ("APA") and declaratory relief under the Declaratory Judgment Act. By the complaint, Plaintiffs assert that the Defendants' denial of the I–130 Petition is erroneous as a matter of law, arbitrary and capricious, and constitutes and abuse of discretion through its heightened burden of proof and retroactive application. Plaintiffs also argue that Defendants' denial of the I–130 Petition is unconstitutional in that it violates due process and Plaintiff Roland's right to marry and pursue happiness. Finally, Plaintiffs argue that Defendants' denial of the I–485 Application is arbitrary and capricious under the APA. In term of relief requested, Plaintiffs seek declaratory judgments stating that: 1) Defendants' decision denying the I–130 Petition was arbitrary and capricious in violation of the APA; 2) Defendants' interpretation of the Immigration and Nationality Act, as amended by the Adam Walsh Act, infringes on Plaintiffs' fundamental right to marry and their due process rights; 3) Plaintiff Chan is entitled to adjustment of status to that of a lawful permanent resident; and 4) Defendants' decision denying Plaintiff Chan's I–485 Application is unlawful under the APA.

II. Standard of Review

Summary judgment is rendered when there is no genuine issue of material fact which requires a trial and a party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Generally, summary judgment is appropriate "when a party who will bear the burden at trial fails to make a showing sufficient to establish an essential element of the case." Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253, 258 (4th Cir.1998). While there may be disputes over facts in the course of proceedings, "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)(internal citations omitted).

Where a court reviews the decision of an administrative agency, "a motion for summary judgment 'stands in a somewhat unusual light, in that the administrative record provides the complete factual predicate for the court's review.' " Piedmont Envtl. Council v. U.S. Dep't of Transp., 159 F.Supp.2d 260, 268 (W.D.Va.2001)aff'd in part, remanded in part, 58 Fed.Appx. 20 (4th Cir.2003)(quoting Krichbaum v. Kelley, 844 F.Supp. 1107, 1110 (W.D.Va.1994), aff'd, 61 F.3d 900 (4th Cir.1995)(unpublished)). Here, to the extent that Plaintiffs assert challenges to a final agency action pursuant to the APA, "it is the role of the agency to resolve factual issues to arrive at a decision that is supported by the administrative record, whereas 'the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.' " Sierra Club v. Mainella, 459 F.Supp.2d 76, 90 (D.D.C.2006)(citing Occidental Eng'g Co. v. INS, 753 F.2d 766, 769–70 (9th Cir.1985); Northwest Motorcycle Ass'n v. United States Dep't of Agriculture, 18 F.3d 1468, 1472 (9th Cir.1994)). "Summary judgment thus serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review." Id. (citations omitted).

III. Statutory Framework

The Immigration and Nationality Act ("INA") provides the right for a citizen to file a visa petition for his or her spouse. INA § 204(a)(1)(A)(i), 8 U.S.C. § 1154(a)(1)(A)(i). However, in 2006, Congress passed the Adam Walsh Child Protection and Safety Act of 2006 ("AWA"), Pub.L. No. 109–248, 120 Stat. 587 (2006), which amended the INA to bar citizens convicted of a "specified offense against a minor" from filing any family-based visa petition unless the citizen can prove to the satisfaction of the Secretary of the Department of Homeland Security ("DHS") that they pose no risk to the intended alien beneficiary. See 8 U.S.C. §§ 1154(a)(1)(A)(i), 1154(a)(1)(A)(viii)(I). A "specified offense against a minor," as defined in the AWA, includes all offenses by child predators, 42 U.S.C. § 16911, including, inter alia, "(C) Solicitation to engage in sexual conduct.... (H) Criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct ... [and] (I) Any conduct that by its nature is a sex offense against a minor." See 42 U.S.C. § 16911(7). Thus, where a person such as Plaintiff Roland has been convicted of an offense against a minor, he may not petition on behalf of a beneficiary unless "the Secretary ... in the [DHS] Secretary's sole and unreviewable discretion, determines that the citizen poses no risk to the alien with respect to whom a petition ... is filed." 8 U.S.C. § 1154(1)(A)(viii)(I)(emphasis added). Review of an I–130 Petition under the AWA therefore involves two determinations: 1) whether the petitioner has been convicted of a qualifying crime and, 2) whether the petitioner has proven that he poses no risk to the alien beneficiary.

In enacting the AWA, Congress was silent regarding the standard of proof that a petitioner faces in proving that he or she poses no risk to the beneficiary. However, USCIS has posited via guidance memoranda that a petitioner must provide evidence that establishes "beyond a reasonable doubt" that he or she poses no such risk. See "Guidance for Adjudication of...

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