Sakoo v. U.S. Citizenship & Immigration Servs., Case No. 19-11540
| Decision Date | 16 December 2019 |
| Docket Number | Case No. 19-11540 |
| Parties | MANUALE H. SAKOO, Plaintiff, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
Honorable Victoria A. Roberts
Mag. Judge R. Steven Whalen
(1) GRANTING PLAINTIFF'S MOTION FOR EXTENSION OF TIME TO FILE RESPONSE [ECF No. 14] AND
Eveln P. Keka ("Keka") filed a visa petition on behalf of her son, Manuale H. Sakoo ("Sakoo"). Keka died while the application was pending and before Sakoo relocated to the U.S. The United States Citizenship and Immigration Services ("USCIS") subsequently revoked the visa petition. Sakoo brings this suit to obtain an immigrant visa despite the death of his petitioner-mother. Sakoo sues under 8 U.S.C. § 1153(a)(3)(C)(i).
USCIS filed a Motion to Dismiss. Sakoo filed an untimely responsive pleading, which the Court allowed and reviewed.
The Court finds it has no jurisdiction and that Sakoo fails to state a plausible claim. The Court GRANTS Defendant's motion.
On February 17, 2006, Keka filed a Form I-130 visa petition on behalf of her son, Sakoo, a resident and citizen of Germany. Keka classified Sakoo as a "married son of a U.S. citizen" (Preference Category F3). In November 2007, USCIS approved her visa petition and forwarded it to the Department of State's National Visa Center to await visa availability.
Before entering the United States, a beneficiary must wait for assignment of a visa number. See 8 C.F.R. § 204.2(d)(3). Beneficiaries might wait years before a visa becomes available; the demand for family-preference visas exceeds the supply. See Scialabba v. Cuellar de Osorio, 573 U.S. 41, 48 (2014). Every month, the Department of State sets a cut-off date for each family preference category, indicating that visas are available for beneficiaries with priority dates earlier than the cut-off. See 8 CFR § 245.1(g)(1); 22 CFR § 42.51(b); Scialabba, 573 U.S. at 41.
Within each preference category, visas are distributed on a first-come, first-serve basis and are available in order of priority date. Scialabba,573 U.S. at 48. When Keka filed the petition in February 2006, no visas were available for individuals in Sakoo's preference category, F3 (married son of a U.S. citizen). The October 2007 visa bulletin listed the cut-off date for F3 applicants from Germany as February 15, 2000. Sakoo's priority date was February 17, 2006, the date Keka filed the petition.
On September 27, 2017, Keka died. Upon her death, USCIS revoked Sakoo's visa petition. Sakoo filed this action against USCIS, alleging the Government abused its discretion when it automatically revoked the visa petition when Keka died.
USCIS brings its motion under Fed.R.Civ.P. 12(b)(1) - claiming that the Court lacks subject matter jurisdiction to review USCIS' decision - and Fed.R.Civ.P. 12(b)(6) - arguing Sakoo fails to state a claim.
The Court reviews the Secretary's decision in accordance with the standard of review set forth in the Administrative Procedure Act (APA). 42 U.S.C. § 1395oo(f)(1); Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994). Under the APA, the Court canset aside an agency decision if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," or "unsupported by substantial evidence in a case ... otherwise reviewed on the record of an agency hearing provided by statute." 5 U.S.C. § 706(2)(A), (E).
The scope of review is narrow, and a Court must not substitute its judgment for that of the agency. Motor Veh. Mfrs. Ass'n v. State Farm Mutual Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).
Dismissal is appropriate under Fed.R.Civ.P. 12(b)(1) where the Court lacks subject matter jurisdiction over a plaintiff's claim. If a Rule 12(b)(1) motion challenges the Court's subject matter jurisdiction based on the sufficiency of the allegations, the motion is a facial attack. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.1994). In reviewing a Rule 12(b)(1) facial attack, the Court must accept all material allegations as true and construe them in a light most favorable to the non-moving party. Id. The Court should review 12(b)(1) challenges before others. Gould, Inc. V. Pechiney Ugine Kuhlmann, 853 F.2d 445, 450 (6th Cir.1988).
USCIS' 12(b)(1) challenge to standing encompasses "facial" attacks on the Court's subject matter jurisdiction, placing the burden on Sakoo to show jurisdiction. Golden v. Gorno Bros., Inc., 410 F.3d 879, 881 (6th Cir.2005); Cartwright v. Garner, 751 F.3d 752, 759 (6th Cir. 2014); United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994); DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004).
A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests a complaint's legal sufficiency. The federal rules require that a complaint contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Indeed, "[t]o survive a motion to dismiss, 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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible where the facts allow the Court to infer that the defendant is liable for the misconduct alleged. Id. This requires more than "bare assertions of legal conclusions"; a plaintiff must provide the "grounds" of his or her "entitlement to relief." League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007); Twombly, 550 U.S. at 555 (). Ultimately, the question is "'not whether [the plaintiff] will ultimately prevail' . . . but whether [the] complaint [is] sufficient to crossthe federal court's threshold." Skinner v. Switzer, 562 U.S. 521, 529-30 (2011) (citations omitted).
In deciding a motion under Rule 12(b)(6), the Court must construe the complaint in the light most favorable to the plaintiff, accept as true all well-pled factual allegations, and draw all reasonable inferences in favor of the plaintiff. Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008). The Court "may consider the Complaint and any exhibits attached thereto, public records, items appearing in the record of the case and exhibits attached to defendant's motion to dismiss so long as they are referred to in the Complaint and are central to the claims contained therein." Id.
A. Petitions for Married, Adult Children Under the Immigration and Nationality Act (INA) Are Revocable
Under §1154 of the Act, a lawful permanent resident may petition the Attorney General for a visa for a married, adult child. 8 U.S.C. § 1154(a)(2)(b)(ii). Although § 1154 specifically refers to the Attorney General - and § 1155 specifically refers to the Secretary of Homeland Security - the Homeland Security Act of 2002 states that "all statutory references to the Attorney General in immigration statutes are construed as referencingthe appropriate DHS official." Hamdi ex rel Hamdi v. Napolitano, 620 F.3d 615, 621 n.4 (6th Cir. 2010).
The Court begins by asking whether the authority to revoke visa petitions, pursuant to § 1155, is within the discretion of the Secretary.
The Court must first look to the plain language of the statute. Mwarasu v. Napolitano, 619 F.3d 545, 549 (6th Cir. 2010). If the text of the statute is unambiguous, the Court looks no further to determine its meaning. Chrysler Corp. v. Comm'r of Internal Revenue, 436 F.3d 644, 654 (6th Cir. 2006). However, if the meaning of the statute is not clear upon a plain reading of the full text, the Court must consider the "common-law meaning of the statutory terms." Hamdi, 620 F.3d at 621. Finally, if the statutory language is unclear, the Court must look to legislative history. Id.
Upon a plain reading of the text of this statute, the Court finds that it is clear: the Secretary has discretion to revoke approved petitions, at any time, for any reason, judged to be sufficient cause.
The statute provides:
The Secretary of Homeland Security may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under section 1154 of this title. Such revocation shall be effective as of the date of approval of any such petition.
(emphasis added).
The statute says that the Secretary "may" revoke a petition "at any time." This suggests discretion. Zacdvydas v. Davis, 533 U.S. 678, 697 (2001)("'may' suggests discretion"); Ghanem v. Upchurch, 481 F.3d 222, 224 (5th Cir.2007) (); El-Khader v. Monica, 366 F.3d 562, 567 (7th Cir.2004) ().
Although the conditions for revocation seem limited to situations where there is "good and sufficient cause," what constitutes good and sufficient cause is wholly within the Secretary's discretion, as well, because it is what he "deems" it to be. The term "deem" is not defined in the INA, see 8 U.S.C. § 1101, but the common meaning of "deem" is "to consider, think, or judge." Black's Law Dictionary (11th ed. 2019).
The plain language of the statute indicates that the Secretary judges whether good and sufficient cause exists to revoke a petition, decides whether to revoke it, and can revoke at any time, or not at all. See e.g. Hanif v. Dept. of Homeland Security, 472 F.Supp.2d 914 (E.D. Mich. 2007);Mohammad v. Napolitano, 680 F.Supp.2d 1, 7 (D. D.C....
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