Naik v. Renaud

• Decision Date: 22 May 2013
• Docket Number: Civil Action No. 12–cv–4057 (JAP).
• Parties: Neil A. NAIK, Plaintiff, v. Daniel RENAUD, Director, Vermont Service Center of United States Citizenship & Immigration Services, and United States Citizenship & Immigration Services, Defendants.
• Court: U.S. District Court — District of New Jersey

947 F.Supp.2d 464

Neil A. NAIK, Plaintiff,

v.Daniel RENAUD, Director, Vermont Service Center of United States Citizenship & Immigration Services, and United States Citizenship & Immigration Services, Defendants.

Civil Action No. 12–cv–4057 (JAP).

United States District Court,

D. New Jersey.

May 22, 2013.

Thomas E. Moseley, Law Office of Tom Moseley, Newark, NJ, for Plaintiff.

Lana Lunskaya Vahab, Geoffrey Forney, U.S. Department of Justice, Washington, DC, for Defendants.

OPINION

PISANO, District Judge.

This is an immigration matter concerning Plaintiff Neil A. Naik (“Plaintiff”)'s Petition for Alien Relative (“I–130 petition”), which he filed on behalf of his wife. Defendant Daniel Renaud is the Director of the Vermont Service Center (“VSC”), which is part of United States Citizenship & Immigration Services (“USCIS”) (collectively “Defendants”). Defendants denied Plaintiff's I–130 petition because the Adam Walsh Act (“AWA”) prohibits Defendants from granting the I–130 petition of a United States citizen convicted of a specified offense against a minor unless the Secretary of Homeland Security determines that the citizen poses no risk to the alien. Subsequently, Plaintiff appealed this decision to the Board of Immigration Appeals (“BIA”), which remanded the I–130 petition to Defendants to obtain more information. As a result, Defendants sent Plaintiff a Notice of Intent to Deny (“NOID”) his petition and requested additional information. Prior to responding to the NOID, Plaintiff filed a Complaint in this Court, challenging Defendants' denial of his I–130 petition and requesting that the Court approve the I–130 petition. Presently before the Court is Defendants' Motion to Dismiss for lack of jurisdiction and for failure to state a claim [docket # 4]. This Court decides the Motion without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons discussed below, Defendants' Motion is granted.

I. BACKGROUND¹

Plaintiff is a United States citizen residing in New Jersey. On November 14, 2003, he was convicted of endangering the welfare of a minor pursuant to N.J.S.A. § 2C:24–4a and was subsequently sentenced to two days incarceration, three years probation, and community supervision for life. At some point thereafter, Plaintiff married Jyosna Naik, a native and citizen of India. On March 15, 2009, he filed an I–130 petition on behalf of his wife to initiate her immigration to the United States.

Defendants are responsible for adjudicating Plaintiff's I–130 petition. On December 10, 2010, Defendants denied Plaintiff's I–130 petition based on the application of the AWA to Plaintiff's 2003 conviction.² On January 5, 2011, Plaintiff appealed this decision to the BIA, which considered the question of “whether approval of the visa petition filed on behalf of” Jyosna Naik “is barred by” the AWA. Compl. ¶ 8; Compl., Ex. A; docket # 4–2, Ex. 1. On October 14, 2011, the BIA remanded the case to Defendants for “further development of the record.” Compl. ¶ 8, Ex. A. Specifically, the BIA asked the parties to respond to the following questions:

(1) Whether the government has the burden of proving that the petitioner's conviction is for a “specified offense” against a minor under section 111 of the AWA?

(2) Whether the categorical and modified categorical approaches should be used in making the foregoing determination?

(3) If the petitioner was found to have been convicted of a “specified offense” against a minor, is there a rebuttable presumption that the petitioner will pose a risk to the principal beneficiary or a derivative beneficiary? Further, what is the basis for this presumption and does it apply only to visa petitions where the principal beneficiary or a derivative beneficiary is a minor?

(4) If the petitioner is found to have been convicted of a “specific offense” against a minor, whether and under what authority, the government applies a “beyond a reasonable doubt” standard in determining—as a matter of discretion—if the petitioner is a risk to the safety or well-being of the principal beneficiary or a derivative beneficiary?

(5) Whether the Director must explain the rationale for his/her conclusion that the petitioner poses a risk to the principal beneficiary or a derivative beneficiary?

(6) As here, where the principal beneficiary is not a minor beneficiary and where there are no minor derivative beneficiaries, does the AWA require the petitioner to prove only that he or she poses no risk to the adult principal beneficiary and any adult derivative beneficiaries?

Finally, in the event that the Director denies this visa petition again under the AWA and the petitioner files an appeal to this Board, the parties are advised to include a jurisdictional statement. Specifically,

(7) Whether this Board has jurisdiction to review the question of whether the Secretary applied the correct standard in determining whether a petitioner has shown he or she is not a risk to the principal beneficiary or a derivative beneficiary?

(8) What is the nature and scope of the Board's jurisdiction over other aspects of the appeal?

[Compl., Ex. 1.]

On August 21, 2012, Defendants sent Plaintiff a NOID letter, giving Plaintiff “an opportunity to submit documentary evidence that ... [he] feel[s] may overcome the grounds for the intended denial” [docket # 4, Ex. 1].

However, prior to the NOID letter, on June 29, 2012, Plaintiff filed a Complaint in this Court, alleging: (1) it is “impermissibly retroactive” to apply the AWA, which was enacted in 2006, to his 2003 conviction; (2) the AWA “was not intended to apply to a marriage between consenting adults”; (3) the application of the “beyond a reasonable doubt” standard violates the plain language of the AWA, is inconsistent with the burden of proof applicable to adjudication of a visa petition, and constitutes a “substantive requirement implemented without required notice and comment under the Administrative Procedure Act (‘APA’)”; (4) the AWA violates substantive and procedural due process under the Fifth Amendment because it does not provide a hearing before a neutral adjudicator, meaning a citizen's liberty interest in his marriage is subject to the unreviewable discretion of an executive branch official, and it violates the Fifth and Eighth Amendments by imposing a “constitutionally excessive penalty” on a United States citizen; (5) Defendants did not apply the categorical approach to determine if Plaintiff's conviction falls within the parameters of the AWA; (6) Defendants have failed to adjudicate the remand of Plaintiff's petition in a timely manner, thereby violating the APA and the Immigration & Nationality Act; and (7) Defendants' failure to take action is subject to correction by mandamus. Compl. ¶¶ 10, 12, 14, 16, 18, 20, 22. Plaintiff requested that the Court find the AWA inapplicable to his I–130 petition, order Defendants to approve the petition, and grant Plaintiff costs and attorney's fees.

On September 17, 2012, Defendants filed the Motion to Dismiss at issue here [docket # 4]. Plaintiff filed a Cross–Motion for Summary Judgment on November 26, 2012 [docket # 13], but on November 29, 2012, this Court denied Plaintiff's Cross–Motion as premature and directed him to file an opposition to Defendants' Motion to Dismiss [docket # 16]. Plaintiff filed his opposition brief on December 5, 2012 [docket # 17], and Defendants filed a reply brief on December 18, 2012, in which they stated that Plaintiff responded to the NOID on November 27, 2012 [docket # 18]. Plaintiff submitted a sur-reply without seeking permission ³, and Defendants responded to it [docket # 19, 21].

Defendants have not yet rendered a final decision on Plaintiff's I–130.

II. DISCUSSION

A. 12(b)(1) and 12(b)(6) Standards

Under Federal Rule of Civil Procedure 12(b)(1), a case may be dismissed for “lack of subject-matter jurisdiction.” Challenges to jurisdiction under Rule 12(b)(1) may be either facial or factual. Petruska v. Gannon Univ., 462 F.3d 294, 302 n. 3 (3d Cir.2006), cert. denied,550 U.S. 903, 127 S.Ct. 2098, 167 L.Ed.2d 813 (2007). A facial attack challenges the sufficiency of the pleadings, and the trial court “must consider the allegations of the complaint as true.” Id. However, in a factual attack, plaintiff's allegations are afforded no presumption of truthfulness, id., and the trial court may review evidence outside the pleadings. Gould Electronics Inc. v. United States, 220 F.3d 169, 176 (3d Cir.2000). The plaintiff bears the burden of establishing that jurisdiction exists. Petruska, 462 F.3d at 302 n. 3.

Under Federal Rule of Civil Procedure 12(b)(6), a case may be dismissed for “failure to state a claim upon which relief can be granted.” “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ... a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Therefore, in order to withstand a motion to dismiss pursuant to 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). The plausibility standard is satisfied “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. The plausibility standard is not a “probability requirement,” but “it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. To decide if a complaint meets this plausibility standard and therefore, survives a motion to dismiss, the Third Circuit has required a three step analysis: (1) the Court must “outline the elements a plaintiff...