Qi Liang Chen v. Napolitano

• Decision Date: 26 August 2009
• Docket Number: No. 09 Civ. 1832 (DLC).,09 Civ. 1832 (DLC).
• Citation: 651 F.Supp.2d 63
• Parties: QI LIANG CHEN and Fei Jiang, Plaintiffs, v. Janet NAPOLITANO, Secretary of the United States Department of Homeland Security; John F. Grissom, Acting Chief, Administrative Appeals Office; Michael Aytes, Acting Director of the United States Citizenship and Immigration Service; United States Citizenship and Immigration Service, Defendants.
• Court: U.S. District Court — Southern District of New York

651 F.Supp.2d 63

QI LIANG CHEN and Fei Jiang, Plaintiffs, v. Janet NAPOLITANO, Secretary of the United States Department of Homeland Security; John F. Grissom, Acting Chief, Administrative Appeals Office; Michael Aytes, Acting Director of the United States Citizenship and Immigration Service; United States Citizenship and Immigration Service, Defendants.

No. 09 Civ. 1832 (DLC).

United States District Court, S.D. New York.

August 26, 2009.

COPYRIGHT MATERIAL OMITTED

Daniel Bernard Lundy, Barst & Mukamal LLP, New York, NY, for plaintiffs.

Preet Bahara, United States Attorney, David Vincent Bober, Assistant United States Attorney, New York, NY, for defendants.

OPINION & ORDER

DENISE COTE, District Judge.

Plaintiffs Qi Liang Chen and Fei Jiang filed this action for declaratory and injunctive relief following the denial of Chen's application for a waiver of inadmissibility by the United States Citizenship and Immigration Services ("CIS") and the dismissal of Chen's appeal.¹ The defendants, the CIS and others, filed this motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), Fed.R.Civ. P., on June 19, 2009. For the following reasons, the motion is denied.

BACKGROUND

The following facts are undisputed or taken from the plaintiffs' complaint. Chen, a native and citizen of China, was paroled into the United States in 1996 after he attempted to enter the country with an altered passport.² Chen married plaintiff Jiang, a United States citizen who had immigrated to the United States at age 16, on September 16, 2002. They have two children, a son from Jiang's previous marriage and a daughter born in November 2002. In April 2005, plaintiffs filed an I-485 application for adjustment of status, seeking to adjust Chen's status to lawful permanent resident. Because Chen's use of an altered document to enter the United States rendered him ineligible for adjustment of status, they also filed an I-601 application along with the I-485, seeking a waiver of inadmissibility pursuant to 8 U.S.C. § 1182(i) on the ground that Jiang would suffer "extreme hardship" if Chen were not allowed to remain in the country. Among the documents that Chen submitted in support of his application were copies of his income tax returns for the years 2002-2004 that he and Jiang jointly filed, bank statements, and letters from Chen's and Jiang's employers describing their positions and salaries. In 2004, Chen and Jiang reported an adjusted gross income of $33,012. The primary source of the couple's income was wages ($20,104), with taxable interest ($198), dividends ($25), business income ($9,095), and rental real estate ($3,600) providing secondary sources of income. Jiang's 2004 W-2 indicates that the wages she earned as a cashier accounted for $6,768 of the couple's $20,104 total.

In August 2005, CIS issued an I-72 request for additional documents to support "Fei Jiang's claim that she will suffer extreme hardship upon [Chen's] removal from the United States." In response to the request, Chen submitted, inter alia, copies of the permanent resident card of Jiang's mother, as well as copies of the certificates of naturalization of Jiang's sister and brother.

CIS denied Chen's waiver of inadmissibility application on October 5, 2006, finding that Chen had "failed to show that [his] removal from the United States would result in extreme hardship to [his] United States citizen wife." Plaintiffs timely appealed this decision to the CIS Administrative Appeals Office ("AAO"), and the AAO dismissed the appeal on January 27, 2009, again on the ground that Chen had not shown that Jiang would experience extreme hardship were he to be removed to China. The AAO's decision stated that "the entire record was reviewed" and noted that the record contained the following documents:

A brief from counsel in support of the appeal; statements from the applicant's wife and sister; a copy of the articles of incorporation for a business, signed by the applicant; a psychological evaluation of the applicant's wife performed by a licensed psychologist; a copy of the applicant's wife's naturalization certificate; a copy of the applicant's sister's permanent resident card; a copy of a deed to a real estate owned by the applicant and his wife, and; a copy of a notorial certificate for the applicant's wife evidencing her birth.

The AAO's list of documents does not include the tax returns, bank statements or job letters, nor does it include Jiang's mother's green card or her sister's and brother's naturalization certificates.³

After reviewing the statement submitted by Jiang, in which she described economic and emotional hardship that she would experience were she and her children either to remain in the United States following Chen's removal or to follow him to China, the AAO concluded that Chen "has not established that a qualifying relative will experience extreme hardship if he is prohibited from remaining in the United States." The first reason that the AAO gave for its decision was that

the applicant has not submitted sufficient documentation of his family's economic needs, his income, or any other sources of income they have. The applicant's wife stated that the applicant is the primary source of income, but she did not state what secondary sources they have, or the amounts of such income.

The AAO also found that Chen "has not provided any evidence to support that he or his wife would experience difficulty finding employment in China."

Turning to the question of emotional hardship, the AAO concluded that Chen had not distinguished the emotional hardship that Jiang would suffer "from that which is commonly experienced by those separated from family due to the inadmissibility of a spouse," and that he had not shown that his children would have difficulty adapting to life in China. Next, the AAO considered Jiang's attestation that she cares for her elderly mother, who resides with Chen and Jiang, stating that "the applicant has not submitted any documentation to show that his mother-in-law resides in the United States, that she resides with the applicant and his wife, or that she has been diagnosed with health conditions that require assistance." The AAO also stated that, aside from the naturalization certificate of Jiang's brother, Chen "has not submitted any documentation to support that his wife has other family in the United States." The AAO thus concluded that "the applicant has not provided adequate documentation to show that his wife would endure significant additional emotional hardship due to separation from her family members should she return to China." On March 20, 2009, CIS denied Chen's application for adjustment of status to permanent resident because the denial of his application for a waiver of inadmissibility meant that Chen remained inadmissible and thus ineligible for adjustment of status.

Plaintiffs filed this lawsuit on February 26, 2009 to challenge the denial of the application of the waiver of inadmissibility, naming as defendants Secretary of Homeland Security Janet Napolitano, Acting Chief of the AAO John F. Grissom, Acting Director of the CIS Michael Aytes, and the CIS. Plaintiffs do not contest Chen's inadmissibility. Rather, they aver that the denial of the waiver of inadmissibility was based on "an erroneous interpretation of the hardship standard, mischaracterizations of the record, and an erroneous and overly stringent evidentiary burden." Acknowledging that, as discussed below, the Immigration and Nationality Act ("INA") strips courts of jurisdiction to review the Attorney General's discretionary decisions to waive or to refuse to waive inadmissibility, 8 U.S.C. § 1182(i)(2), the complaint alleges that the denial was not in accordance with established law and constitutional due process, and falls outside the boundaries of the jurisdiction-stripping provision.

The defendants (collectively, "the Government") moved to dismiss the complaint on June 19, 2009 pursuant to Rule 12(b)(1), Fed.R.Civ.P., for lack of subject matter jurisdiction, arguing that the decision to waive inadmissibility on grounds of extreme hardship is discretionary and therefore, under the INA's jurisdiction-stripping provision, not subject to judicial review. The plaintiffs filed an opposition brief on July 17. The Government did not file a reply.

DISCUSSION

"Determining the existence of subject matter jurisdiction is a threshold inquiry, and a claim is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Arar v. Ashcroft, 532 F.3d 157, 168 (2d Cir.2008) (citation omitted). "A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Morrison v. National Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir.2008) (citation omitted). A court must "accept as true all material factual allegations in the complaint," Shipping Fin. Serv. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir.1998) (citation omitted), but must refrain from "drawing from the pleadings inferences favorable" to the party asserting jurisdiction. APWU v. Potter, 343 F.3d 619, 623 (2d Cir.2003) (citation omitted).

The Government asserts that the relevant statutory framework precludes judicial review of the decision on the waiver of inadmissibility in this instance. It argues that the decision regarding whether "extreme hardship" has been established is entrusted to the Attorney General's discretion and that the plaintiffs merely dispute the Government's fact-finding and its discretionary decision, and thus do not raise a question of law or constitutional claim required for subject-matter jurisdiction.

1. Statutory Framework

a. Adjustment of Status and Waiver of Inadmissibility

The Attorney General may adjust the status of an eligible alien present in the United States to the status of lawful...