Coniglio v. Garland

Citation556 F.Supp.3d 187
Decision Date17 August 2021
Docket NumberCase No. 1:20-cv-1342-FB
Parties Peter CONIGLIO ; Minxuan Qui a.k.a. Minxuan Qiu, Plaintiffs, v. Merrick GARLAND, in his official capacity as Attorney General of the United States; Alejandro Mayorkas, in his official capacity as Secretary of the Department of Homeland Security ; Tracy Renaud, in her official capacity as Acting Director of United States Citizenship and Immigration Services.
CourtU.S. District Court — Eastern District of New York

For the Plaintiffs: THEODORE N. COX, 325 Broadway, Suite 201, New York, NY 10007.

For the Defendants: JACQUELINE M. KASULIS, Acting United States Attorney, Eastern District of New York, By: PAULINA STAMATELOS, Assistant United States Attorney, 271-A Cadman Plaza East, Brooklyn, New York 11201.


BLOCK, Senior District Judge:

Plaintiffs Peter Coniglio, a United States citizen, and Minxuan Qiu, his stepson,1 allege that Defendant United States Citizenship and Immigration Services (USCIS) unlawfully revoked its approval of a Form I-130 Petition for Alien Relative ("the Form I-130" or "the Petition") which Coniglio had filed on Qiu's behalf. Had USCIS not withdrawn its approval, Qiu would have been eligible to apply for an immigrant visa and, eventually, a green card and citizenship.

Qiu and Coniglio state claims under the Administrative Procedure Act (APA), Declaratory Judgment Act (DJA), and the Fifth Amendment of the United States Constitution. All three causes of actions rely on their claims that USCIS (1) revoked Qiu's classification as an "immediate relative" based upon an impermissible construction of 8 U.S.C. § 1101(b)(1)(B) that excludes children who turn 18 on the date of their parents’ marriage; (2) failed to consider their argument that Second Circuit and Board of Immigration Appeals (BIA) precedent mandate a "lenient" construction of that statute; and (3) disobeyed a BIA remand order that required consideration of their arguments. See 8 U.S.C. § 1101(b)(1)(B) (defining "child" to include "an unmarried person under twenty-one years of age who is ... a stepchild, whether or not born out of wedlock, provided the child had not reached the age of 18 years at the time the marriage creating the status of stepchild occurred").

The Government moves to dismiss Qiu and Coniglio's claims for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). In the alternative, it asks the Court to enter summary judgment in their favor. The Government's motions are denied, and the Court, sua sponte , enters judgment in favor of Qiu and Coniglio.


Minxuan Qiu was born at 4:15 PM on October 7, 1996 in Chengdu, China. He and his mother, Tao Coniglio (née Min), are citizens of the People's Republic of China.

On October 7, 2014, Qiu's mother married his stepfather, Peter Coniglio. They were married in Brooklyn, New York, at approximately 11:25 AM, Eastern Daylight Time. Thus, the marriage occurred at 11:25 PM, China Standard Time.

On or about March 20, 2015, Coniglio filed a Form I-130 to classify Qiu as an "immediate relative." See 8 U.S.C. § 1151(b)(2)(A)(i) (defining "immediate relative" to include children); see also 8 U.S.C. § 1101(b)(1)(B) (defining "child" to include "a stepchild, whether or not born out of wedlock, provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred"). USCIS approved the petition in September of 2015 and forwarded it to the United States consulate in Guangzhou, China. See 8 U.S.C. § 1154(b) (if the Attorney General or, after 2002, the Secretary of Homeland Security "determines that the facts stated in the petition are true and that the [alien beneficiary] is an immediate relative, ... [he shall] approve the petition and forward one copy thereof to the Department of State").

The Guangzhou consulate received the petition sometime between September of 2015 and December of 2016 and scheduled a "personal interview" at some point during that period. After the interview, a consular official concluded that "the statements made by the beneficiary [Qiu] under oath during the personal interview with a consular officer constitute good and sufficient cause to conclude that the step-parent relationship between the beneficiary and petitioner [Coniglio] was not established before the beneficiary turned 18." A.R. 94.2 The consulate therefore declined to issue an immigrant visa and "returned the ... petition with a recommendation that it be reconsidered and [its approval] revoked." Id.

On April 10, 2018—almost two years after receiving the consulate's recommendation—USCIS issued a Notice of Intent to Revoke (NOIR) its approval of the petition. Qiu and Coniglio submitted a timely response to the notice, but USCIS failed to acknowledge their evidence and brief. See A.R. 62-79 (Coniglio's letter response dated May 7, 2018 and enclosed exhibits); cf. A.R. 80 ("Decision" letter dated June 6, 2018 from USCIS inaccurately stating that "[the] petitioner has failed to respond to our notice of intended revocation or to provide any additional evidence in support of the petition"). It therefore formally revoked its prior approval.

Coniglio appealed USCIS's decision to the BIA. Now represented by counsel, Qiu and Coniglio raised two issues on appeal. First, they argued that USCIS's strict interpretation of 8 U.S.C. § 1101(b)(1)(B) as requiring a marriage to occur before a beneficiary's eighteenth birthday was inconsistent with binding Second Circuit and BIA precedent. Second, they argued that USCIS erred as a matter of fact and law when it found that Qiu and Coniglio had failed to respond to the NOIR.

The BIA vacated USCIS's revocation and remanded the case for further proceedings. In its remand order, the BIA noted that "the petitioner has raised arguments on appeal" and emphasized Qiu and Coniglio's argument that, "under Duarte-Ceri v. Holder , the [Second Circuit] Court [of Appeals] rejected the notion that a child turned 18 at the stroke of midnight" and instead endorsed a lenient construction of the immigration law which "will ... preserve a right or prevent a forfeiture." A.R. 23 (quoting 630 F.3d 83 (2d Cir. 2010) ). It further stated that "the Director's decision does not address these arguments and incorrectly found that the petitioner did not respond to the NOIR." Id. It concluded that a remand was warranted to "provide the Director with an opportunity to consider the petitioner's response to the NOIR and the petitioner's arguments on appeal." Id.

On January 29, 2020, USCIS issued a second "Decision" letter to revoke Qiu's status. A.R. 2-4 (full decision letter). The three page decision consists of (1) a one-page review of the procedural history, (2) a paragraph listing the evidence Qiu and Coniglio previously submitted, (3) a half page of verbatim quotations from the Immigration and Nationality Act and its implementing regulations, (4) a paragraph reiterating USCIS's position that Qiu and Coniglio's "step-relationship is not valid for immigration purposes" because "[at] the time of the marriage, [Qiu] was not under the age of 18 years," and (5) a required notice of Qiu and Coniglio's right to appeal. Id. The document includes no discussion of Qiu and Coniglio's legal arguments, although it does state that USCIS issued its NOIR "after a review of the entire record." Id.

Because Qiu and Coniglio did not appeal this decision, it become final on February 28, 2020. Id. (noting that USCIS decisions become final after 30 days).

This action followed.

A. Rule 12(b)(1)

"A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks statutory or constitutional power to adjudicate it." Hui Fen Zhu v. McAleenan , 501 F. Supp. 3d 139, 140 (E.D.N.Y. 2020) (quoting Makarova v. United States , 201 F.3d 110, 113 (2d Cir. 2000) ). The plaintiff must show, by a preponderance of the evidence, that subject matter jurisdiction exists. Id. "In reviewing a 12(b)(1) motion to dismiss, the court must accept as true all material factual allegations in the complaint, but the court is not to draw inferences from the complaint favorable to [the party asserting jurisdiction]." Tiraco v. New York State Bd. of Elections , 963 F. Supp. 2d 184, 190 (E.D.N.Y. 2013) (quoting J.S. ex rel. N.S. v. Attica Cent. Sch. , 386 F.3d 107, 110 (2d Cir. 2004) ). The Court may also refer to evidence outside the pleadings, including the administrative record. Makarova , 201 F.3d at 113.

"Subject matter jurisdiction is a threshold issue and, thus, when a party moves to dismiss under ... Rule 12(b)(1) and 12(b)(6), the ... court must address the 12(b)(1) motion first." Saleh v. Holder , 84 F. Supp. 3d 135, 138 (E.D.N.Y. 2014) (internal citations omitted).

B. Rule 12(b)(6)

"To survive a motion to dismiss [under Rule 12(b)(6) ], a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is facially plausible when "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ).

C. Rule 56

On a motion for summary judgment, the Court must "resolv[e] all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." Sloley v. VanBramer , 945 F.3d 30, 36 (2d Cir. 2019) (citing Burg v. Gosselin , 591 F.3d 95, 97 (2d Cir. 2010) ). Summary judgment is appropriate only if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).

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