Gee v. INS, C-94-0659-VRW.

• Decision Date: 07 December 1994
• Docket Number: No. C-94-0659-VRW.,C-94-0659-VRW.
• Citation: 875 F. Supp. 666
• Parties: Mary Pui Ching GEE, Plaintiff, v. IMMIGRATION AND NATURALIZATION SERVICE, et al., Defendants.
• Court: U.S. District Court — Northern District of California

875 F. Supp. 666

Mary Pui Ching GEE, Plaintiff, v. IMMIGRATION AND NATURALIZATION SERVICE, et al., Defendants.

No. C-94-0659-VRW.

United States District Court, N.D. California.

December 7, 1994.

Eugene K. Chow, Kip Evan Steinberg, Donald L. Ungar, San Francisco, CA, for plaintiff.

Michael J. Yamaguchi, U.S. Atty., Mary Beth Uitti, Chief, Civil Div., Asst. U.S. Atty., Susan L. Kamlet, Asst. U.S. Atty., San Francisco, CA, for defendants.

ORDER

WALKER, District Judge.

Plaintiff challenges the Immigration and Nationalization Service's ("INS") revocation of immigrant visa petitions that she filed on behalf of her natural siblings. Plaintiff Mary Pui Ching Gee emigrated from Hong Kong in 1968 under an immigration provision that permitted orphans to enter the United States for adoption by U.S. citizens. Plaintiff became a naturalized American citizen in 1974.

When plaintiff immigrated to the United States in 1968, she left behind five biological siblings. Three of these siblings now reside in the United States; two are American citizens and one is a lawful permanent resident. These siblings emigrated from Hong Kong under a provision of the Immigration and Naturalization Act ("the Act") that gives an immigration preference to brothers and sisters of United States citizens. The other of plaintiff's siblings, Pui Pik Wong and Pui Kei Wong, have unsuccessfully petitioned the INS for immigrant visas. Plaintiff argues the INS erred denying these visas, because it incorrectly denied the siblings the same family based preference classification under 8 U.S.C. § 1153(a)(4). Plaintiff has filed this action, asking the court to order the INS to confer this status on plaintiff's siblings. Complaint ¶ IV(2).

I

Plaintiff filed immigrant visa petitions for her siblings on November 25, 1980. The petitions were approved by the INS Officer-in-Charge in Hong Kong on December 31, 1980. Administrative Record at 117. Over ten years later,¹ on February 13, 1991, the Officer-in-Charge wrote to plaintiff, informing her that her siblings were not entitled to the family based preference classification. Because plaintiff was adopted, the INS argued that the

adoption nullified the relationship between her and the beneficiaries (her natural brother and sister) for immigration purposes. Therefore, plaintiff and the beneficiaries did not qualify as "children" of a common parent. Accordingly, the beneficiaries were ineligible to be classified as her brother and sister for immigration purposes.

Administrative Record at 115. (citing Matter of Kong, 17 I & N Dec 151 (BIA 1979)).

Plaintiff's subsequent appeal accomplished nothing. See Defendant's Memorandum at 3-4, ¶¶ 4-7. The Board of Immigration Appeals ("the Board") dismissed plaintiff's appeal on June 6, 1991, based on plaintiff's failure to identify adequately the basis of the appeal. Administrative Record at 105. Plaintiff had filed a notice of appeal two months earlier but "due to a comedy of errors" the board did not receive plaintiff's brief.² See Motion for Summary Judgment at 2. Plaintiff filed a motion for reconsideration of the Board's dismissal in December 1991, but action was delayed on the motion for reconsideration because the INS misplaced the files relating to the petition. See Defendant's Memorandum at 4, ¶ 7.

On January 12, 1993, the INS Officer-in-Charge reviewed the files and stated, "It is the opinion of this office that the sibling relationships * * * are maintained regardless of any adoptions." Administrative Record at 26. The officer asked plaintiff to file new visa petitions and later approved them. See Defendant's Memorandum at 4, ¶¶ 9, 10. Plaintiff then withdrew the motion for reconsideration, assuming the dispute was over. See Chow Declaration, attachment at 2 (Cravener Memorandum, October 24, 1994).

On September 16, 1993, however, a consular officer refused to issue a visa for plaintiff's brother and sister, stating that plaintiff

was adopted out of her siblings' family and subsequently immigrated to the U.S. through the adopted family. The adoption severed the family tie for immigration purposes. The petition has been returned to the INS for review and possible revocation.

Visa Refusal Sheet, Sept 16, 1993, attached to Plaintiff's Reply Brief. On October 11, 1994, plaintiff filed in Hong Kong a motion for reconsideration of this decision. The Hong Kong consulate refused to accept the motion for reconsideration, stating that "the petitions had been revalidated * * * and forwarded on to the U.S. Consulate in Hong Kong and the Consulate had never sent the petitions back to the INS for revocation." Varnals Declaration at 2. The petitions have since been returned to the INS for revocation and the motion for reconsideration has been filed. Id. at 3. No action has yet been taken by the INS on this motion for reconsideration. Id.

On September 29, 1993, the Board of Immigration Appeals held in a different case, Matter of Li, that an adopted child "is precluded from successfully petitioning for visa preference classification on behalf of her natural sibling." 20 I & N Dec ___, Interim Decision 3207 (BIA 1993). The INS has not since specifically applied this decision to the instant case, but it is only a matter of time. All INS and consular officials are required to follow BIA decisions. 8 CFR § 3.1(g) ("Decisions of the BIA shall be binding on all officers and employees of the Immigration and Naturalization Service or Immigration Judges in the administration of the Immigration and Nationality Act."); Administrative Record at 121 ("The INS general counsel's legal opinion must be considered binding in view of INS's exclusive authority to revoke petitions.").

In this action plaintiff requests that this court issue a declaratory judgment holding that the revocation of the visa petitions violates the Act. Plaintiff also asks this court to order defendants to give plaintiff's siblings "fourth family-based preference classification" and to reimburse plaintiff for attorney fees and costs incurred bringing this action. Complaint ¶¶ IV(1) — IV(4).

Plaintiff has filed a motion for summary judgment asking for judgment as a matter of law. In a November 3 order, the court concluded that the doctrines of mootness and ripeness did not defeat plaintiff's claim for relief. The court ordered the parties to submit supplemental briefs addressing the merits of plaintiff's claim. Having reviewed the supplemental briefs of the parties, the court GRANTS plaintiff's motion for summary judgment.

II

The Immigration and Naturalization Act provides family based immigration preferences to unmarried sons and daughters of citizens and resident aliens, married sons and daughters of citizens, and brothers and sisters of citizens. 8 U.S.C. § 1153(a). "Qualified immigrants who are the brothers or sisters of citizens of the United States, if such citizens are at least 21 years of age, shall be allocated visas in a number not to exceed 65,000." 8 U.S.C. § 1153(a)(4). The Act does not define brother or sister, but does define "parent" and "child."

The definition of "child" was amended in 1957 to include "a child adopted while under the age of sixteen years if the child has been in the legal custody of, and has resided with, the adopting parent or parents for at least two years." 8 U.S.C. § 1101(b)(1)(E); see P.L. 85-316, 71 Stat. 639 (1957). Before the amendment, when an American citizen married an alien with illegitimate or adopted children, the wife was entitled to a preferential immigration status but the children were not. See H.Rep. No. 1199, 85th Cong., 1st Sess., reprinted in 1957 U.S.C.C.A.N. 2016, 2020. The amendment changed this result and furthered "the clearly expressed legislative intent to keep together the family unit wherever possible" and provide a "liberal treatment of children." Id at 2020-21.

This amended definition of "child" also provides that "no natural parent of any such adopted child shall after the child's adoption, by virtue of such parentage, be accorded any right, privilege, or status under this chapter." 8 U.S.C. § 1101(b)(1)(E). This provision prevents an alien from giving up a child for adoption and then gaining an immigration advantage in the United States.

While the Act prevents natural parents from gaining an immigration preference from an adopted child, the Act does not address whether natural siblings may gain a preference. The Board first addressed this question in Matter of Fujii, 12 I & N Dec 495 (BIA 1967), holding a natural sibling of an adopted child entitled to a "brother and sister" immigration preference. Id. at 497. The decision focused on congressional intent:

The term "brothers or sisters" as used in the Act is not defined. The normal definition is a person having the same parent or parents as another. * * * As previously stated, the petitioner and beneficiary are the legitimate issue of the same parents. * * * To conclude * * * that the relationship of brother and sister created by the legitimate birth of the petitioner and beneficiary to the same parents was destroyed by the subsequent adoption of the latter would be to place upon the statute a harsher construction than that intended by Congress.

Id. at 496.

Fujii has since been overruled. In Matter of Kong, 17 I & N Dec 151 (BIA 1979), the Board held that a sibling relationship created by adoption (and not by birth) did not survive for immigration purposes the termination of the adoption. This holding was extended to relationships between natural brothers and sisters in Matter of Li, 20 I & N Dec ___, Interim Decision 3207 (BIA 1993).

In Li, the Board relied on the provision in the Act that no natural parent can be accorded any "right, privilege or status." See 8 U.S.C. § 1101(b)(1)(E). The Board argued that because the definitions of "parent," "father" and "mother" are dependent on the definition of "child," see 8 U.S.C. § 1101(b)(2), "one must look to the parent/child definitions as a...