Lin Liu v. Smith
| Decision Date | 25 January 2021 |
| Docket Number | 19 cv. 10784 (JGK) |
| Citation | 515 F.Supp.3d 193 |
| Parties | LIN LIU, Plaintiff, v. Daniel B. SMITH, et al., Respondents. |
| Court | U.S. District Court — Southern District of New York |
Elizabeth Montano, John Pratt, Kurzban Kurzban Tetzeli & Pratt, P.A., Coral Gables, FL, Ira Jay Kurzban, Kurzban Kurzban Weinger Tetzeli & Pratt, P.A., Miami, FL, for Plaintiff.
Rebecca Ruth Friedman, Simon Nakajima, DOJ-USAO, New York, NY, for Respondents.
The plaintiff, Lin Liu, applied for an immigrant visa as a derivative child of her father, who applied for and received an employment-based fifth preference visa ("EB-5 visa"). The defendants denied Ms. Liu a visa because, by the time a visa number became available, she was too old to qualify as a derivative child. Ms. Liu alleges that the defendants calculated her age incorrectly pursuant to the Child Status Protection Act (the "CSPA"), and that she is entitled to a visa as a derivative child of her father. She alleges that the defendants unreasonably interpreted the CSPA, that the defendants improperly adopted a legislative rule in contravention of notice and comment procedures, and that the rule was unlawfully retroactively applied to her. She brings this suit against Daniel B. Smith, in his official capacity as Acting United States Secretary of State, Edward J. Ramotowski, in his official capacity as Deputy Assistant Secretary of State for Visa Services, the United States Department of State ("DOS"), and the United States of America. The defendants move to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the motion to dismiss is granted .
The following allegations are taken from the Complaint and are accepted as true for purposes of the motion to dismiss.
The plaintiff, Lin Liu, is a Chinese national. Compl. ¶¶ 42, 68. On September 18, 2014, Ms. Liu's father filed an I-526 petition for an EB-5 visa, when the plaintiff was 18 years old. Compl. ¶ 43. With certain limitations, children and spouses of individuals applying for family- or employment-based visas, including an EB-5 visa, can qualify for the same status as the adult applicant. Compl. ¶ 14; 8 U.S.C. § 1153(d). To qualify as a derivative child, the individual must be unmarried and under 21 years old. Compl. ¶ 15; 8 U.S.C. § 1101(b)(1).
Once a visa petition is filed, it is assigned a "priority date" that determines the order in which a visa number becomes available. Compl. ¶ 8; see 8 U.S.C. § 1153(e). After a petition is approved, the petitioner and derivative family members must wait for that visa number to become "available." Compl. ¶ 9. When the petitioner's priority date becomes "current," the individual and the individual's derivative family members can apply for the visas. Compl. ¶ 10. DOS publishes a monthly Visa Bulletin, which lists priority dates that are current by country of origin and category. When a priority date becomes current depends, in part, on the country of origin because Congress sets limits by country of origin and category on the number of visas that can be issued. Compl. ¶ 12. After an applicant has submitted all the required fees and documents to the National Visa Center (the "NVC"), part of DOS, and the visa number becomes available, the applicant must appear for an in-person interview. 8 U.S.C. §§ 1202(h), 1201(a)(1).
In 2014, President Obama issued a presidential memorandum seeking to simplify and streamline the visa application system. Compl. ¶ 31. In response to the memorandum, the Government modified the Visa Bulletin. Compl. ¶¶ 33-34. Before these changes, the Visa Bulletin only listed when priority dates became current for final action, meaning when the visa numbers were authorized for issuance. See Compl. ¶¶ 34-35. The Government changed the Visa Bulletin to show not only when the priority date became current for final action, but also when applicants could submit their materials to the NVC. Id. The chart showing the date at which the priority date becomes current for final action is titled "APPLICATION FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES" and the chart showing the date on which the applicant can submit materials to the NVC is titled "DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS." Compl. ¶ 35. The NVC accepts application materials, as listed on the Dates for Filing chart of the Visa Bulletin, before the visa is "authorized for issuance" under the Final Action Dates chart. Compl. ¶ 38.
The plaintiff began the visa application process after her father's I-526 petition was approved on February 19, 2016. Compl. ¶¶ 46-47. On August 3, 2016, the NVC completed its review of the plaintiff's application materials and placed her in line for an interview with the United States Consulate. Compl. ¶ 54. Before her interview, the plaintiff's priority date in the Dates for Filing chart retrogressed, meaning it was no longer current. Compl. ¶ 55. Visa retrogression occurs when more people in a particular category or country apply for a visa than the number of visas available for that month. On January 22, 2018, the plaintiff's priority date once again became current in the Dates for Filing chart and the plaintiff and her family were again placed in line for an interview with the Consulate. Id. The interview took place on May 30, 2019, and the plaintiff's priority date became current in the Final Action Dates chart in May 2019. Compl. ¶¶ 56-58. At that point, the plaintiff was 23 years old. Compl. ¶ 57. At the interview, the plaintiff's parents’ visas were issued, but the plaintiff's visa was denied because she was too old to be considered a derivative child. Compl. ¶¶ 58-59.
The Child Status Protection Act (the "CSPA") was enacted to ensure that the administrative delay in processing visa applications did not lead to children aging out of their derivative status. Compl. ¶ 19, 21. Under the CSPA, age for purposes of derivative status is calculated as follows:
8 U.S.C. ¶ 1153(h)(1) ; Compl. ¶ 23.
The parties agree that the plaintiff's petition had been pending for one year, five months, and one day. See P. Br. at 6 n.1. The dispute in this case centers around the proper interpretation of when a visa number becomes "available" for purposes of determining an applicant's age under the CSPA. If the date a visa number becomes available, for CSPA purposes, were determined by when the applicant's priority date becomes current on the Dates for Filing chart, then the plaintiff should have been considered a derivative child of her father. However, the defendants interpreted the statute to mean a visa number becomes available when the applicant's priority date becomes current on the Final Action Date chart because a visa could not have been issued prior to that date. Based on the defendant's interpretation, the plaintiff was not considered a derivative child and was denied a visa on that basis.
The plaintiff brings claims for: (1) declaratory judgment that the defendant's interpretation of the CSPA is improper; (2) declaratory judgment that the implementation of the updated Visa Bulletin violated the notice and comment rulemaking procedures of the Administrative Procedures Act (the "APA"); and (3) declaratory judgment that the requirements set forth by the updated Visa Bulletin were improperly applied retroactively. The defendants move to dismiss all claims on the basis that the Government's application of the statute is lawful.
In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiff's favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007).2 The Court's function on a motion to dismiss is "not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient."
Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). The Court should not dismiss the complaint if the plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
While the Court should construe the factual allegations in the light most favorable to the plaintiff, "the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions." Id. When presented with a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiff's possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002).
The plaintiff first seeks a declaratory judgment that the defendants’ interpretation of the CSPA is unlawful. The CSPA specifies that, to calculate age, one must subtract from the applicant's age the time lost due to administrative delay after the "visa number becomes available" so long as the applicant sought to acquire the visa within one year of availability. 8 U.S.C. §...
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