Schreiber v. McCament
Citation | 349 F.Supp.3d 1063 |
Decision Date | 28 September 2018 |
Docket Number | Case No. 17-2371-DDC-JPO |
Parties | Lt. Col. Patrick SCHREIBER, Plaintiff, v. James MCCAMENT, et al., Defendants. |
Court | United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas |
Rekha Sharma-Crawford, William M. Sharma-Crawford, Sharma-Crawford Attorneys LLC, Scott A. Girard, Law Offices of Scott A. Girard, Kansas City, MO, for Plaintiff.
Adrienne Zack, U.S. Department of Justice, San Francisco, CA, Jackie A. Rapstine, Office of the United States Attorney, Topeka, KS, T. Monique Peoples, U.S. Department of Justice—Environment Enforcement Section, Washington, DC, for Defendants.
Plaintiff Lt. Col. Patrick Schreiber seeks review under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706, of a decision by the United States Citizenship and Immigration Services ("USCIS") denying Mr. Schreiber's I-130 immigrant visa petition. Plaintiff has filed an "Opening Brief" (Doc. 21) that asks the court to reverse the decision denying his visa petition. Plaintiff asks the court to deem the agency's decision as arbitrary, capricious, and an abuse of discretion. He also asks the court to deem the decision a violation of the United States Constitution, the plain language of the governing statute, and the agency's own policies. After reviewing the administrative record and considering both parties' arguments, the court affirms the USCIS's decision. The court explains why, below.
The parties do not dispute the facts of this case, and the court summarizes those facts presented in the parties' briefing.
Plaintiff and his wife, Soo Jin Schreiber, are both United States citizens. Mrs. Schreiber's1 brother's daughter, Hyebin, was born in South Korea in 1997. Hyebin arrived in the United States on December 15, 2012, when she was 15 years old, on a student visa. She lived with plaintiff and his wife from that point forward and attended school in Lansing, Kansas. Plaintiff and his wife adopted Hyebin, and the District Court of Leavenworth County, Kansas, issued a decree of adoption on November 17, 2014. That Court concluded that Hyebin's biological parents "freely and voluntarily" had consented to the adoption. Doc. 16 at 55. Hyebin received her Kansas birth certificate on December 14, 2017. And the United States Department of Defense issued Hyebin a military identification card.
Plaintiff alleges that USCIS officials told him that, because Hyebin was a citizen based on the adoption, he needed to file a Form N-600—an Application for a Certificate of Citizenship. Plaintiff filed the form pro se. The USCIS's Kansas City Field Office denied plaintiff's application. Plaintiff alleges that USCIS officials then directed him to file a visa petition for Hyebin—an I-130 Petition for Alien Relative. Plaintiff's I-130 visa petition asked that Hyebin be classified as an immediate relative—specifically, as a "legitimated" child—under the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101(b)(1)(C).2 Doc. 16 at 137–38, 122–26 ( ). USCIS issued a Notice of Intent to Deny plaintiff's visa petition because Hyebin was more than 16 years old when plaintiff and his wife adopted her. The age cutoff to classify a person as an adopted "child" for immigration purposes is 16 years under a different provision of the INA, 8 U.S.C. § 1101(b)(1)(E).3 Plaintiff responded to USCIS's Notice, arguing that Hyebin should be classified as a child under the legitimation category in § 1101(b)(1)(C), instead of under the adoption category in § 1101(b)(1)(E).
USCIS denied plaintiff's I-130 visa petition. Plaintiff argues that USCIS made the decision "without any analysis or consideration as to the applicability of § 1101(b)(1)(C)" to the petition. Doc. 21 at 10. Plaintiff then timely appealed USCIS's decision to the Board of Immigration Appeals ("BIA"). He again argued that Hyebin should be classified as a "legitimated" child under § 1101(b)(1)(C).
The BIA dismissed plaintiff's appeal. The BIA concluded that the adoption provision categorizing a person as a "child" in § 1101(b)(1)(E) could not apply to Hyebin because her adoption was finalized after she already had turned 16. The BIA also determined that Hyebin could not be categorized as a child under § 1101(b)(1)(C)'s legitimation provision because plaintiff had not established that Hyebin is his biological child. The BIA cited Matter of Bueno , 21 I. & N. Dec. 1029 (BIA 1997), where the BIA held that, "to qualify as the legitimated child of the petitioner under section 101(b)(1)(C) of the [Immigration and Nationality Act], the beneficiary must be the biological child of the petitioner." Doc. 16 at 68. The BIA noted plaintiff did not argue that he is Hyebin's biological father. The BIA also explained that it had considered the amicus curiae's arguments.4 Specifically, they had argued that Kansas law recognized adoption as an avenue to establish paternity, but the BIA did not use those arguments as grounds for its decision. Finally, the BIA concluded that it did not have jurisdiction to "rule on the constitutionality of the laws it administers." Id. (citing Matter of Fuentes-Campos , 21 I. & N. Dec. 905, 912 (BIA 1997) ).
Plaintiff now argues that the BIA "denied the appeal without any real analysis." Doc. 21 at 10 ( ). Plaintiff also asserts that neither USCIS nor the BIA has alleged that plaintiff's visa petition or family relationships are fraudulent. Instead, plaintiff contends in this appeal that he has "no category under which to petition for [the citizenship of] his daughter." Doc. 21 at 10–11.
Plaintiff's "Opening Brief" (Doc. 21) seeks review under the APA of the BIA's decision denying plaintiff's I-130 visa petition for his daughter. He raises both statutory and constitutional arguments. The APA grants federal courts authority to review agency decisions. See 5 U.S.C. § 702. And the APA recognizes that this court properly can evaluate "agency action, findings, and conclusions found to be ... contrary to constitutional right, power, privilege, or immunity." 5 U.S.C. § 706(2)(B). Indeed, the APA provides that a reviewing court must set aside an agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Id. at § 706(2)(A) ; see also Kobach v. Election Assistance Comm'n , 772 F.3d 1183, 1197 (10th Cir. 2014) (citations omitted). When a court applies the "arbitrary and capricious" standard of review under the APA, it "must ‘ascertain whether the agency examined the relevant data and articulated a rational connection between the facts found and the decision made.’ "
Kobach , 772 F.3d at 1197 (quoting Aviva Life & Annuity Co. v. FDIC , 654 F.3d 1129, 1131 (10th Cir. 2011) ).
The Supreme Court describes the scope of review under this standard as a "narrow" one, and it cautions that a court must not "substitute its judgment for that of the agency." Judulang v. Holder , 565 U.S. 42, 132 S.Ct. 476, 483, 181 L.Ed.2d 449 (2011) (citations and internal quotation marks omitted); see also Kobach , 772 F.3d at 1197 .
Despite this deferential standard, a court's review still plays an important role by "ensuring that agencies have engaged in reasoned decisionmaking." Judulang , 132 S.Ct. at 483–84. This standard requires a court to "assess, among other matters, whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Id. at 484 (citations and internal quotation marks omitted). Also, the court must determine whether the agency supported its determination with "substantial evidence." Hall v. U.S. Dep't of Labor, Admin. Review Bd. , 476 F.3d 847, 854 (10th Cir. 2007) (internal quotations omitted). Substantial evidence requires "more than a scintilla but less than a preponderance of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent the [agency's] findings from being supported by substantial evidence." Id. In particular, there is a "limited scope of judicial inquiry into immigration legislation." Fiallo v. Bell , 430 U.S. 787, 792, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977) ( ). Judicial review of agency action must be based on the "whole record or those parts of it cited by a party." 5 U.S.C. § 706 ; see also SEC v. Chenery Corp. , 318 U.S. 80, 87, 63 S.Ct. 454, 87 L.Ed. 626 (1943) ( ).
Plaintiff argues, first, that the plain meaning of 8 U.S.C. § 1101(b)(1)(C) is unambiguous and that the court should not give any deference to the agency's determination under Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). He makes several arguments why there is no prerequisite biological relationship for a child to become "legitimated" under § 1101(b)(1)(C). Second, plaintiff contends that the USCIS's denial of his visa petition violates two constitutional provisions: the Fifth Amendment and the Tenth Amendment. After summarizing the parties' arguments, the court addresses them in the sections below.
Plaintiff asserts that defendants "insistently shoehorned" his visa petition on his daughter's behalf into the adoption provision of the INA ( § 1101(b)(1)(E) ). He argues that each statutory...
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