Feimei Li v. Renaud

• Citation: 709 F.Supp.2d 230
• Decision Date: 27 April 2010
• Docket Number: No. 08 Civ. 7770(VM).,08 Civ. 7770(VM).
• Parties: Feimei LI and Duo Cen, Plaintiffs,v.Daniel M. RENAUD, Director Vermont Service Center, U.S. Citizenship and Immigration Services, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

709 F.Supp.2d 230

Feimei LI and Duo Cen, Plaintiffs,v.Daniel M. RENAUD, Director Vermont Service Center, U.S. Citizenship and Immigration Services, et al., Defendants.

No. 08 Civ. 7770(VM).

United States District Court,

S.D. New York.

April 27, 2010.

Margaret Wai Wong, Margaret Wong & Assoc., Co., LPA, Cleveland, OH, for Plaintiff.

David Vincent Bober, U.S. Attorney's Office, New York, NY, for Defendants.

DECISION AND ORDER

VICTOR MARRERO, District Judge.

Plaintiffs Feimei Li (“Li”) and her son Duo Cen (“Cen”) (collectively, “Plaintiffs”) brought this action against the following defendants in their official capacity: Paul Novak as Director of the Vermont Service Center of the United States Citizenship and Immigration Services (the “USCIS”), Jonathan Scharfen as Acting Director of the USCIS, Eric Holder as the Attorney General of the United States, and Janet Napolitano as the Secretary of the Department of Homeland Security (collectively, “Defendants”). Plaintiffs' complaint (the “Complaint”), broadly stated, asserts that the USCIS applied an improper interpretation of a federal immigration statute, the Child Status Protection Act (the “CSPA”), Pub.L. No. 107-208, 116 Stat. 927 (2002), § 203(h) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1153(h), issued by the Board of Immigration Appeals (“BIA”). When construed properly, according to Plaintiffs, the CSPA would permit Cen to immigrate to the United States immediately as opposed to requiring him to wait for a number of years to obtain a visa. Defendants now move to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”) for failure to state a claim upon which relief can be granted. They argue that the statute at issue is ambiguous and that, under Chevron USA, Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), the Court must defer to the agency interpretation because Plaintiffs have failed to show that the ruling was arbitrary, capricious, or manifestly contrary to the statute. For the reasons stated below, Defendants' motion is GRANTED.

I. BACKGROUND

A. FAMILY PREFERENCE PETITIONS UNDER THE INA

The present dispute requires a fairly extensive background discussion of the family-based, immigration visas here at issue. Permission to enter the United States may take one of many routes. The family-based, immigrant visa avenue requires a United States citizen or lawful permanent resident to file a Form I-130 Petition for Alien Relative (“Form I-130 Petition”) with the USCIS. See 8 U.S.C. §§ 1153(a), 1154(a)(1)(A)(i), (a)(1)(B)(i)(I); 8 C.F.R. § 204.1(a)(1); Drax v. Reno, 338 F.3d 98, 113-14 (2d Cir.2003). In a Form I-130 Petition, the United States citizen or lawful permanent resident who files the form is known as the petitioner (“Petitioner”) and the alien relative attempting to gain entry to the United States is known as the beneficiary (“Beneficiary”). When another alien attempts to obtain the benefits of the main Beneficiary's Form I-130 Petition, the first Beneficiary is referred to as the primary beneficiary (“Primary Beneficiary”) and the additional one as the derivative beneficiary (“Derivative Beneficiary”).

For example, if the Petitioner lists the parent of a child as a Beneficiary on the Form I-130 Petition, the parent is the Primary Beneficiary and the child may be named as a Derivative Beneficiary.

Congress delineated various family preference categories (“Family Preference Categories”) by which to classify the Beneficiary in relation to the Petitioner See Drax, 338 F.3d at 114. These categories encompass the Petitioner's immediate relatives, including his spouse, parents, offspring, and siblings. Notably, Congress has not promulgated a Family Preference Category for non-immediate family, such as grandchildren, nieces, or nephews.

When a Petitioner submits a Form I-130 Petition on behalf of an alien, the USCIS determines whether the alien is in fact qualified to be a Beneficiary. See 8 U.S.C. § 1154(b). Only those Beneficiaries who fit into a Family Preference Category qualify. Once the Beneficiary is deemed qualified, the USCIS approves the Form I-130 Petition. See Bolvito v. Mukasey, 527 F.3d 428, 430 (5th Cir.2008); see also Drax, 338 F.3d at 114. Petitioners may name one or more Derivative Beneficiaries on a single Form I-130 Petition for one of several reasons. Some name Derivative Beneficiaries to avoid paying multiple Form I-130 Petition filing fees for various Beneficiaries who may qualify under one of the Family Preference Categories. Others do so in order to name Derivative Beneficiaries who would not otherwise qualify as Beneficiaries aside from the status they derive from the Primary Beneficiary.

The USCIS's approval of a Form I-130 Petition does not automatically cause the agency to provide a visa or grant permanent lawful resident status; instead it results only in rendering the Beneficiary eligible to receive permission to enter the country pursuant to further rules governing the applicable Family Preference Category. See id. at 432 n. 4. Under certain numerical limitations (the “Numerical Limitations”), Congress limits the number of visas available each year for each Family Preference Category. According to the United States Department of State, the number of applications each year for visas for Chinese alien Beneficiaries far exceeds the Numerical Limitations for each Family Preference Category. Thus, even though USCIS grants a Petitioner's Form I-130 Petition, the Chinese Beneficiary must nonetheless wait for permission to actually enter the United States.

To keep the visa process orderly while approved Beneficiaries await permission to enter the United States, the USCIS assigns Beneficiaries priority dates (“Priority Dates”). A Priority Date is, in effect, a place on a waiting line. See Bolvito, 527 F.3d at 430 (stating that the “alien's place in the waiting line for an immigrant visa is determined by [his] ... priority date.”). The line forms because the number of visas available each year for each Family Preference Category, at least for approved Beneficiaries from China, exceeds its corresponding Numerical Limitation.

The Priority Date is dictated by the date on which the Petitioner filed the Form I-130 Petition. See 8 C.F.R. § 204.1(c). The earlier a Beneficiary's Priority Date, the longer she has waited and the closer she is to the end of the visa waiting line. In many cases, entry to the United States will not follow Form I-130 Petition approval for a term of years that is not insubstantial.

Not all aliens are subject to the Numerical Limitations. For example, United States citizen Petitioners' “immediate relatives”-e.g., unmarried children under twenty-one years of age (“Child” or “Children”) see 8 U.S.C. § 1101(b)(1), or spouses-are immediately eligible for a visa upon approval of the Form I-130 Petition. See 8 U.S.C. § 1151; Azizi v. Thornburgh, 908 F.2d 1130, 1131-32 (2d Cir.1990). The Numerical Limitations, however, do apply to relatives of United States citizens who do not qualify as immediate relatives, and even for immediate relatives when the Petitioner is merely a lawful permanent resident. The USCIS categorizes those who are subject to the Numerical Limitations into a Family Preference Category upon approval of their Form I-130 Petition. See Drax, 338 F.3d at 114.

Congress established four Family Preference Categories, each of which is subject to a different Numerical Limitation based on a formula that takes into account both the Family Preference Category itself and the Beneficiary's country of origin. See 8 U.S.C. §§ 1151(a)(1) & (c), 1153(a); Bolvito, 527 F.3d at 429-32 (explaining the visa petitioning process, Family Preference Categories, and Numerical Limitations). Congress provided first preference (the “F1 Family Preference Category”) to unmarried adult sons and daughters of United States citizens. See 8 U.S.C. § 1153(a)(1). Congress then allocated second preference to two-subsets: (1) spouses and Children of lawful permanent residents (the “F2A Family Preference Category”), see id. § 1153(a)(2)(A), and (2) unmarried adult sons and daughters of lawful permanent residents (the “F2B Family Preference Category”), see id. § 1153(a)(2)(B). The F2B Family Preference Category is the one most directly at issue in the present litigation. Congress reserved the third and fourth Family Preference Categories for United States citizen Petitioners' married adult children (the “F3 Family Preference Category”) and siblings (the “F4 Family Preference Category”). See id. 1153(a)(3) & (4). None of the Family Preference Categories confers Beneficiary status for Petitioners' nieces, nephews, or grandchildren.

Under this framework, an issue arises when Children Derivative Beneficiaries face possible separation from their parents when the United States grants the latter a visa. To avoid separating a Child from a parent upon the parent's entry to the United States, Congress gave the Child Derivative Beneficiary “the same status” and “order” as the parent Primary Beneficiary, as long as the Derivative Beneficiary maintains his status as a Child when the visa is granted. See Id. § 1153(d). However, while a Primary Beneficiary parent awaits a visa, her Child Derivative Beneficiary may “age out” by turning twenty-one years old and thus no longer qualify as a Child. See Bolvito, 527 F.3d at 435-36 (“[A] qualifying familial relationship that is terminated due to ... ‘aging out’ ... no longer entitles the [Derivative Beneficiary] to accompany[ ] or follow[ ]” the primary beneficiary to the United States).

The age-out provision has led to a substantial number of Derivative Beneficiaries losing their entitlement to preferences and order on the waiting line. Some of these Derivative Beneficiaries age out because of administrative delays caused by the large number of visa petitions and the lack of resources to adjudicate them...