Sheikh v. United States Dep't Of Homeland Sec.

• Decision Date: 15 December 2009
• Docket Number: No. CV 09-5330 SVW (RCx).,CV 09-5330 SVW (RCx).
• Citation: 685 F.Supp.2d 1076
• Court: U.S. District Court — Central District of California
• Parties: Sakil SHEIKH and Saaedahmed Rasheed Sheikh, Plaintiffs, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY; U.S. Citizenship and Immigration Services, Defendants.

685 F.Supp.2d 1076

Sakil SHEIKH and Saaedahmed Rasheed Sheikh, Plaintiffs,

v.UNITED STATES DEPARTMENT OF HOMELAND SECURITY; U.S. Citizenship and Immigration Services, Defendants.

No. CV 09-5330 SVW (RCx).

United States District Court,

CD. California.

Decided: Dec. 15, 2009.

Wade J. Chernick, Wade J. Chernick Law Offices, Encino, CA, for Plaintiffs.

Jonathan D. Wasden, United States Department of Justice, Washington, DC, Kevin B. Finn, AUSA-Office of U.S. Attorney Los Angeles, CA, for Defendants.

ORDER DENYING DEFENDANTS' MOTION TO DISMISS FOR LACK OF JURISDICTION [5]

STEPHEN V. WILSON, District Judge.

I. Introduction

Plaintiffs' Complaint asks this Court to review the United States Customs and Immigration Service's ("USCIS") decision to deny the reinstatement of an 1-130 Immigrant Petition for Relative that was filed by Najma Sheikh, a United States lawful permanent resident, on behalf of her brother, Plaintiff Saaedahmed Rasheed Sheikh. The Petition was automatically revoked upon Najma Sheikh's death. USCIS subsequently denied reinstatement of the Petition under 8 C.F.R § 205.1(a)(3)(i)(C), ultimately concluding that humanitarian grounds did not warrant reinstatement in Plaintiffs' case. Plaintiffs contend that USCIS's decision was an abuse of discretion.

The Department of Homeland Security and USCIS (collectively "Defendants") bring this Motion to Dismiss, arguing that the Court lacks jurisdiction under the Administrative Procedures Act to review USCIS's decision to deny the reinstatement of the 1-130 Petition.

II. Factual Background

Plaintiff Saaedahmed Sheikh ¹ is a nonUnited States citizen living in India.

(Compl. ¶ 2.) Much of his immediate family had immigrated to the United States over the past few decades, including his mother father, sister, and brother. (See id. ¶¶ 4-6 9.) In November of 1991, Saaedahmed's sister, Najma Sheikh, filed an 1-130 Immigrant Petition for Relative on Saaedahmed Sheikh's behalf. (Id. ¶ 4.) The petition was approved by United States Customs and Immigration Services (USCIS) on February 10, 1992. (Id.) On March 28, 1998 prior to the time a visa became available for Saaedahmed and while he was still living in India, Najma Sheikh died. (Compl. at 17 [Death Certificate].) USCIS revoked the approved visa petition in January 2006, in light of Najma Sheikh's death. (Compl. ¶ 7.)

On February 21, 2001, Saaedahmed's mother, Nasimabibi Sheikh, filed an 1-130 Immigrant Petition for Relative on Saaedahmed's behalf, which was subsequently approved. (Compl. ¶ 5.) On October 7, 2005, Nasimabibi Sheikh died. Upon her death, USCIS revoked the approved visa petition. (Id.)

In December 2005, just prior to the revocation of these two 1-130 Petitions, Saaedahmed's brother, Plaintiff Sakil Sheikh (who was also a U.S. lawful permanent resident), sent a letter to USCIS informing them of the deaths of his mother and sister. (Compl., Exh. C.) In this letter, Sakil requested that the Agency reinstate for humanitarian reasons the first Petition filed by his sister, Najma Sheikh, on Saaedahmed's behalf, with its original priority date of November 1991. (Id.) Sakil requested that he be allowed to step in his sister's shoes as the petitioner for his brother Saaedahmed, and stated that he would be financially responsible for Saaedahmed. (Id.) In January 2006, USCIS issued a Notice of Decision denying the request for reinstatement. (Compl., Exh. D.)

On April 4, 2007, Plaintiff Sakil, through counsel, again sent a letter to USCIS requesting reinstatement of the November 1991 immigrant visa petition filed on Saaedahmed's behalf, pursuant to 8 C.F.R. § 205.1(a)(3)(i)(C) "in the exercise of discretion and for compelling humanitarian reasons." (Compl. ¶ 8, Exh. E.) Sakil stated that his father was gravely ill with lung cancer and heart disease, and provided evidence from a Theology Professor, who attested to the importance in the Muslim culture of children tending to their parents when the parent is near death. (Id.) Sakil again requested to step in the shoes of his deceased sister as the petitioner for Saaedahmed. (Id.)

The USCIS denied this second request on March 17, 2009. (Compl., Exh. I.) In its Notice of Decision, the USCIS concluded that humanitarian reasons did not warrant reinstatement of the petition under 8 C.F.R. § 205.1(a)(3)(i)(C). In so doing, USCIS cited seven factors from the Department of State's Foreign Affairs Manual, which the Agency commonly uses to make the "humanitarian reasons" determination. (Id.) On balance, USCIS concluded that the application of the factors to the Sheikh family did not weigh in favor of reinstatement. (Id.) Specifically, USCIS noted (among other things) that although Saaedahmed's father and brother were living in the United States, his immediate family, including his wife and children, were with him in India. USCIS also pointed to the fact that although Saaedahmed's father was gravely ill, he already had one son in the United States who was caring for him adequately. (Id.)

Plaintiffs filed the present action on July 22, 2009, seeking review of USCIS's decision denying reinstatement of the November 1991 Immigration Petition for Relative for Plaintiff Saaedahmed on humanitarian grounds pursuant to 8 C.F.R. § 205.1(a)(3)(i)(C). Plaintiffs argue that USCIS abused its discretion in refusing to reinstate the Petition.

Defendants move to dismiss the Complaint on the grounds that this Court lacks jurisdiction to review the decision of the USCIS under the Administrative Procedures Act ("APA"), 5 U.S.C. §§ 701, 702. This Motion raises complex issues of administrative and immigration law, and requires the Court to examine an immigration code that "is notoriously complicated and has been described as 'second only to the Internal Revenue Code in complexity.' " Hovhannisyan v. U.S. Dep't of Homeland Sec, 624 F.Supp.2d 1135, 1142 (C.D.Cal.2008) (quoting Singh v. Gonzales, 499 F.3d 969, 980 (9th Cir.2007)).

III. Overview of the Relevant Statutory Framework

Because Defendants' Motion challenges this Court's jurisdiction to review the decision of USCIS not to reinstate the Petition on Plaintiff's behalf after his sister's death it is critical to understand USCIS' authority to deny reinstatement of the Petition. Thus, the Court begins with a brief overview the process for family preference petitions under the Immigration and Nationality Act ("INA"), and the statutory and regulatory framework relevant to USCIS's action in this case.

A. Petition Process Generally²

To enter and remain in the United States, Congress requires each alien to possess a valid visa conferring immigrant or non-immigrant status. 8 U.S.C. §§ 1182(a)(7)(A) and (B). Congress has established several different categories of "immigrant visas." The family-based immigrant visa categories require a United States citizen or lawful permanent resident "petitioner" to file a Form 1-130 with USCIS to classify the intended alien beneficiary under one of the congressionallycreated immigrant relative categories under the INA. 8 U.S.C. §§ 1153(a)(1), 1154(a)(l)(A)(i) and (a)(l)(B)(i)(I). There are various categories for spouses, parents, children, and siblings.

The filing date of a petition constitutes the "priority date" and establishes the alien beneficiary's spot in the waiting line for an immigrant visa. 8 C.F.R. § 204.1(c). Once the petition is filed, USCIS must investigate to determine if the petitioner has alleged true facts and whether the intended beneficiary qualifies for the benefit based upon a valid relationship to the petitioner. 8 U.S.C. § 1154(b). If USCIS determines that the facts of the petition are true and the alien beneficiary is an immediate relative of the petitioner as defined by statute, then USCIS must approve the petition and notify the Department of State. Id. The Department of State then authorizes the consular official in the alien's country to grant the preference status. See Bolvito v. Mukasey, 527 F.3d 428, 430-32 n. 4 (5th Cir.2008) ("the approval of Form 1-130 results in the beneficiary of the petition being classified... for purposes of issuing a visa for admission to the United States; it does not grant a visa or permanent resident status.")

The granting of the petition does not result in a visa being immediately issued to the alien. Congress has limited the number of visas that the government will grant each year depending on the beneficiary's relationship to the petitioner and on the beneficiary's country of origin. 8 U.S.C. § 1151(a)(1) and (c). For example, Congress may provide that each year, 65, 000 immigrant visas will be available for petitions based on a sibling relationship, where the alien beneficiary is from India. The Department of State makes this number of immigrant visas available and issues them "to eligible immigrants in the order in which a petition in [sic] behalf of each such immigrant is filed..." 8 U.S.C. § 1153(e). Thus, an alien may have to wait several years before a visa number will become available to him or her under the numerical allocation system. See Ogbolumani v. USCIS, 523 F.Supp.2d 864, 869-70 (N.D.I11.2007) ("due to oversubscriptions in that visa preference category, visa numbers might not be immediately available for the alien relative"). For this reason, the priority date assigned to the alien beneficiary, which is established by the date the petition is filed, is very important.

B. The Authority to Revoke Approved Visa Provisions and Humanitarian Reinstatement

Congress has vested the Secretary of Homeland Security with discretion to revoke an approved visa petition. Specifically, 8 U.S.C. § 1155 provides in its entirety:

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 [relating to family-based immigrant visas among others]. Such revocation shall be effective as of the date of approval of any such petition.

If...