Fingerson v. Dep't of Homeland Sec.

Decision Date26 July 2016
Docket NumberCIVIL ACTION NO. 3:14-CV-00782-TBR
Parties Brian E. FINGERSON, Plaintiff, v. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.
CourtU.S. District Court — Western District of Kentucky

Charles C. Nett, Nett Immigration Law Office, PLLC, Louisville, KY, for Plaintiff.

Michael D. Ekman, U.S. Attorney Office, Louisville, KY, Stacey I. Young, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

Thomas B. Russell, Senior Judge, United States District Court

Brian E. Fingerson filed this action against the U.S. Department of Homeland Security and U.S. Citizenship and Immigration Services,1 challenging USCIS's denial of the Form I-130, Petition for Alien Relative, he filed on behalf of Banele Gumede, his putative adopted son. USCIS erred, Fingerson argues, because the regulation upon which it relied to deny his petition, 8 C.F.R. § 204.2(d)(2)(vii), conflicts with 8 U.S.C. § 1101(b)(1). He seeks declaratory and injunctive relief under the Administrative Procedure Act, 5 U.S.C. § 702. Pursuant to Federal Rule of Civil Procedure 12(b)(6), the Department asks the Court to dismiss Fingerson's suit in its entirety. Because USCIS's regulations reasonably construe 8 U.S.C. § 1101(b)(1), the Department's Motion to Dismiss, R. 13, is GRANTED .

I.
A.

Banele Gumede is a native and citizen of South Africa. R. 1 at 2–3, ¶ 4 (Complaint). In July 2009, at the age of fifteen, Gumede entered the United States on a nonimmigrant student visa. Id. at 2–4, ¶¶ 4, 8. The Fingersons served as Gumede's host family and legal guardians. Id. at 4–5, ¶ 10. Gumede was to remain in the United States for one year before returning home to South Africa. Id. at 5, ¶ 11.

Sometime in 2010, however, Gumede learned that his mother's health had seriously deteriorated. Id. at 5–6, ¶ 12.2 According to Brian E. Fingerson, Gumede's mother asked that the Fingerson family care for Gumede because none of his relatives in South Africa were suitable guardians. Id. , ¶¶ 12–13. To that end, Fingerson claims, Gumede's mother relinquished her parental rights. Id. at 6, ¶ 13. On September 23, 2010, a Kentucky court entered a putative adoption order. Id.

Subsequently, in August 2011, Fingerson filed a Form I-130, Petition for Alien Relative, on Gumede's behalf listing Gumede as his adopted son. Id. , ¶ 14. In February 2012, U.S. Citizenship and Immigration Services issued a Notice of Intent to Deny the Petition. Id. at 7, ¶ 16. USCIS determined that because Gumede was a South African citizen, his adoption must comply with the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption and its implementing legislation. See R. 1-4 at 4–5 (USCIS Decision).3 Concluding that Fingerson had not done so, USCIS denied the petition in March 2013. Id. at 5; see also R. 1 at 7–8, ¶¶ 17–18. The Board of Immigration Appeals affirmed. See R. 1-5 at 2–3 (BIA Decision); see also R. 1 at 8, ¶ 19.

B.

On November 24, 2014, Fingerson filed this action against the Department and USCIS, challenging USCIS's denial of the Form I-130, Petition for Alien Relative, he filed on behalf of Gumede. R. 1 at 1–4, ¶¶ 1, 5–7. He seeks declaratory and injunctive relief under the Administrative Procedure Act, 5 U.S.C. § 702. Id. at 1–2, ¶ 1. Pursuant to Federal Rule of Civil Procedure 12(b)(6), the Department asks the Court to dismiss Fingerson's suit in its entirety. See R. 13 at 1 (Motion to Dismiss).

II.

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). In order to survive a motion to dismiss under Civil Rule 12(b)(6), a party must "plead enough ‘factual matter’ to raise a ‘plausible’ inference of wrongdoing." 16630 Southfield Ltd. P'ship v. Flagstar Bank, F.S.B. , 727 F.3d 502, 504 (6th Cir.2013) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). A claim becomes 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." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Should the well-pleaded facts support no "more than the mere possibility of misconduct," then dismissal is warranted. Id. at 679, 129 S.Ct. 1937. The Court may grant a motion to dismiss "only if, after drawing all reasonable inferences from the allegations in the complaint in favor of the plaintiff, the complaint still fails to allege a plausible theory of relief." Garceau v. City of Flint , 572 Fed.Appx. 369, 371 (6th Cir.2014) (citing Iqbal , 556 U.S. at 677–79, 129 S.Ct. 1937 ).

III.

Ultimately, Fingerson challenges USCIS's determination that he must petition to classify Gumede as his "child" under 8 U.S.C. § 1101(b)(1)(G) rather than 8 U.S.C. § 1101(b)(1)(E). See R. 14 at 3–6 (Response); see also R. 1 at 16–17, ¶¶ 34–37. To understand the nuances of Fingerson's argument, though, it is necessary to briefly discuss the nation's immigration law scheme.

A.

The Immigration and Nationality Act affords preferential immigration status to an alien who is an "immediate relative" of a United States citizen. See 8 U.S.C. § 1154(b). The Act allows a United States citizen to petition to confer status as an immediate relative to his or her "child." See id. § 1154(a)(1)(A)(i) (right to petition); see also id. § 1151(b)(2)(A)(i) (definition of "immediate relative"). Until 1999, the Immigration and Nationality Act contained only two definitions of "child" related to adopted children. First, section 101(b)(1)(E) defined "child" as a person "adopted while under the age of sixteen years if the child has been in legal custody of, and has resided with, the adopting parent or parents for at least two years." Id. § 1101(b)(1)(E)(i). Second, section 101(b)(1)(F) broadened the definition of "child" by eliminating the custody and residency requirement if the child qualified as an "orphan" under the Act. Id. § 1101(b)(1)(F)(i).

In 2000, however, the Senate acceded to the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption, opened for signature May 29, 1993, S. Treaty Doc. No. 105-51 (1998), 1870 U.N.T.S. 182 (entered into force May 1, 1995). See S. Res. of Advice and Consent, 106th Cong., 146 Cong. Rec. S8866–67 (daily ed. Sept. 20, 2000). The Convention proposes to establish "safeguards" and a "system of cooperation" and mutual "recognition" for intercountry adoptions—all with an eye towards preventing "the abduction, the sale of, or traffic in children." Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption, art. 1, ¶ 1. By its terms, the Convention applies

where a child habitually resident in one Contracting State ("the State of origin") has been, is being, or is to be moved to another Contracting State ("the receiving State") either after his or her adoption in the State of origin by spouses of a person habitually resident in the receiving State, or for the purposes of such an adoption in the receiving State or in the State of origin.

Id. art. 2, ¶ 1.4 The Convention mandates that signatories establish basic requirements for all intercountry adoptions, such as ascertaining that the child is adoptable, that the child's parents or guardians voluntarily consented to the adoption, and that the prospective adoptive parents are suitable guardians. Id. arts. 4–5. In addition, it requires each signatory to designate a "central authority" responsible for certifying that an intercountry adoption satisfies the Convention's requirements. Id. arts. 6, 15–21.

While the Convention is a binding international agreement, it is not self-executing. See S. Res. of Advice and Consent; see also S. Exec. Doc. No. 106-14, at 10–11 (2000). "That is, the Convention creates obligations only for State Parties and ‘does not by itself give rise to domestically enforceable federal law’ absent ‘implementing legislation passed by Congress.’ " Bond v. United States , ––– U.S. ––––, ––––, 134 S.Ct. 2077, 2084, 189 L.Ed.2d 1 (2014) (plurality) (quoting Medellin v. Texas , 552 U.S. 491, 505 n. 2, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008) ). Instead, it leaves the "details of its implementation up to each Contracting State." S. Treaty Doc. No. 105-51, at iii.

To implement the United States' treaty obligations, Congress passed the Intercountry Adoption Act of 2000, Pub. L. No. 106–279, 114 Stat. 825. See 42 U.S.C. § 14901(b)(1). Section 302(a) of that Act added a third definition of "child" to the Immigration and Nationality Act. Tracking the language of article 2 of the Convention, it defined "child" as a person

younger than 16 years of age at the time a petition is filed on the child's behalf to accord a classification as an immediate relative under [8 U.S.C. § 1151(b) ], who has been adopted in a foreign state that is a party to the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, ... or who is emigrating from such a foreign state to be adopted in the United States.

8 U.S.C. § 1101(b)(1)(G)(i).5 However, Congress said that most of the Act (including the addition of the third definition of child) would not take effect until the Convention entered into force in the United States. 42 U.S.C. § 14901 note. The Convention would not enter into force, in turn, until the U.S. Department of State and USCIS promulgated all necessary implementing regulations. See S. Res. of Advice and Consent.

In 2007, USCIS promulgated an interim rule to implement the provisions of the Intercountry Adoption Act. See Classification of Aliens as Children of United States Citizens Based on Intercountry Adoptions Under the Hague Convention, 72 Fed. Reg. 56,832 (Oct. 4, 2007) (codified at 8 C.F.R. pts. 103, 204, 213a, 299, and 322). The Convention itself took effect on April 1, 2008. See Deposit of...

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