Sutton v. Napolitano

• Decision Date: 15 November 2013
• Docket Number: No. 13–cv–173–wmc.,13–cv–173–wmc.
• Citation: 986 F.Supp.2d 948
• Parties: Christopher SUTTON, Plaintiff, v. Janet NAPOLITANO, Secretary, Department of Homeland Security; Alejandro Mayorkas, Director, U.S. Citizenship and Immigration Services; Kay F. Leopold, District Director, Milwaukee Field Office, U.S. Citizenship and Immigration Services; and Eric Holder, U.S. Attorney General, U.S. Department of Justice, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

986 F.Supp.2d 948

Christopher SUTTON, Plaintiff,

v.Janet NAPOLITANO, Secretary, Department of Homeland Security; Alejandro Mayorkas, Director, U.S. Citizenship and Immigration Services; Kay F. Leopold, District Director, Milwaukee Field Office, U.S. Citizenship and Immigration Services; and Eric Holder, U.S. Attorney General, U.S. Department of Justice, Defendants.

No. 13–cv–173–wmc.

United States District Court, W.D. Wisconsin.

Nov. 15, 2013.

Nicklaus James Misiti, Law Offices of Nicklaus Misiti, New York, NY, for Plaintiff.

Anna Emily Nelson, Sherease Rosalyn Pratt, United States Department of Justice, Washington, DC, Leslie K. Herje, U.S. Attorney's Office, Madison, WI, for Defendants.

OPINION & ORDER

WILLIAM M. CONLEY, District Judge.

Plaintiff Christopher Sutton seeks a writ of mandamus under the Mandamus and Venue Act (“MVA”) or an order under the Administrative Procedure Act (“APA”) that would compel U.S. Citizenship and Immigration Services (“USCIS”) to (1) respond to an order of the Board of Immigration Appeals (“BIA”) and (2) rule on his I–130 petition for his spouse's permanent residency. He also challenges the constitutionality of the Adam Walsh Child Protection and Safety Act of 2006 (“AWA”) as applied to him. Defendants have filed various motions under Rule 12(b)(1) to dismiss the case for lack of subject matter jurisdiction. (Dkt. # 49.) ¹ The court will grant the last of these motions in part and dismiss Sutton's constitutional claims, because those claims are not ripe, but will deny that same motion with respect to Sutton's claims under the APA and the MVA. In light of the impending deadline for filing motions for summary judgment, the court will also extend that deadline to December 16, 2013 to file or revise such motions.

STATUTORY AND REGULATORY SCHEME

Immigration is governed by the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., and the accompanying regulations. If an alien wishes to apply for adjustment of status to permanent residency under the INA, “[a]n immigrant visa must be immediately available.” 8 C.F.R. § 245.2(a)(2). This generally means that “the alien beneficiary may file the adjustment application only after the Service has approved the visa petition.” 8 C.F.R. § 245.2(a)(2)(B) (emphasis added).

An exception to this general rule exists for immediate relatives of U.S. citizens (a category that by definition includes spouses), since there are no numeric limitations on visas for immediate relatives. See8 U.S.C. § 1151(b)(2)(A)(i).

Under 8 C.F.R. § 245.2(a)(2)(B), an alien may file an adjustment application, pursuant to 8 U.S.C. § 1154(a)(1)(A)(i) (“Clause (i)”), if approval of a visa petition filed by their U.S. citizen spouse is pendingthat would make a visa immediately available.²

To begin this process, the citizen spouse must file an I–130 petition on behalf of the alien spouse. See8 C.F.R. § 204.1(a)(1). The alien spouse may concurrently or thereafter file his or her application for adjustment of status. 8 C.F.R. § 245.2(a)(2)(B). If it is determined after investigation that the facts in the petition are true and the alien application is in fact an “immediate relative,” the adjudicator “shall ... approve the petition.” 8 U.S.C. § 1154(b).

Under 8 U.S.C. § 1154(a)(1)(A)(viii)(I), however, this statutory right to petition “shall not apply to a citizen of the United States who has been convicted of a specified offense against a minor, unless the Secretary of Homeland Security, in the Secretary's sole and unreviewable discretion, determines that the citizen poses no risk to the alien with respect to whom a petition described in [C]lause (i) is filed.” The term “specified offense against a minor” is defined in the AWA at 42 U.S.C. § 16911(7) and includes “[c]riminal sexual conduct involving a minor” and “[a]ny conduct that by its nature is a sex offense against a minor.” 42 U.S.C. § 16911(7)(H, I). Thus, if a citizen has been convicted of a “specified offense against a minor” and does not satisfactorily demonstrate to the Secretary that he or she poses no risk to his immediate relative, he is not eligible to petition for that relative at all and the pending petition will be denied on those grounds. Moreover, without the “immediate relative” classification, the related visa will not be considered “immediately available” for the alien spouse, making that spouse ineligible for adjustment of status.

ALLEGATIONS OF FACT

Plaintiff Christopher Sutton is a natural-born U.S. citizen residing in Madison, Wisconsin. He is married to Volha Sutton, who is not a U.S. citizen. Christopher and Volha have two children. In September 2007, Christopher filed a I–130 Petition for Alien Relative with USCIS, and Volha filed an I–485 Application to Adjust Status and become a permanent resident.

Unfortunately, Christopher had been convicted in 1997 of 3rd degree sexual assault in violation of Wis. Stat. § 940.225(3). The sexual assault occurred when he was 20 years old and involved a minor, who was 15 years of age and thus unable to consent as a matter of Wisconsin law. Because of this conviction, USCIS contacted Christopher on April 23, 2008, asking for: (1) details surrounding the arrest, final disposition, and sentencing in the case; (2) evidence of rehabilitation demonstrating he posed no risk to his wife's safety and well-being; (3) evidence demonstrating exemplary behavior to the community; and (4) any other character evidence. Christopher timely responded.

On September 3, 2008, Christopher received a Notice of Intent to Deny (“NOID”) his I–130 petition, which indicated that he had failed to prove that he posed no risk to his wife and gave him an additional 30 days to provide further evidence. On September 11, 2009, Sutton received a notice that his I–130 petition had been denied, because USCIS had determined he was “ineligible to file a petition for immigrant status due to [his] prior criminal history involving the sexual assault of a minor.” (Compl. Exh. F (dkt. # 2–11).)

Following an unsuccessful appeal to USCIS, Christopher appealed to the Board of Immigration Appeals (“BIA”). On July 15, 2011, the BIA issued its decision, finding “that a remand for further development of the record [was] appropriate.” (Compl. Exh. H (dkt. # 2–13) (“Remand Order”).) It posed eight questions to the parties and asked that they consider and respond to them “[t]o the extent that one or more of the issues ... [were] relevant in this case and have not been addressed by the Field Office Director or by the parties on appeal.” ( Id.) Finally, the BIA ordered that “[t]he record is remanded for further proceedings consistent with this order.” ( Id.)

Christopher responded with a brief that he submitted to the BIA and USCIS to answer the eight questions. (Compl. Exh. I (dkt. # 2–14).) He also submitted unsolicited documents to USCIS on multiple occasions before October 2012. On October 22, 2012, USCIS issued a new Request for Evidence asking for: (1) evidence of rehabilitation not previously submitted; (2) evidence of exemplary behavior to his community since his arrest not previously submitted; (3) certified records indicating successful completion of counseling or rehabilitation programs; (4) certified evaluations by licensed professionals; (5) evidence not previously submitted demonstrating “intervening good and exemplary service” to the community or in the uniformed services; and (6) news accounts and court transcripts describing the nature and circumstances of the offense against a minor, as well as any other criminal, violent, or abusive behavior incidents. (Compl. Exh. K (dkt. # 2–15).) Christopher provided a response. On May 6, 2013, USCIS issued another NOID, requesting additional evidence. On June 4, 2013, Christopher responded to the request. Christopher alleges that he cannot fully and adequately respond to USCIS's requests for additional evidence, however, without receiving its responses to the BIA's Remand Order. USCIS has not yet issued a decision in his case.

Christopher now asks this court to (1) compel defendants to comply with the BIA's Order “that they ‘consider and respond’ to the 8 question remand,” (Second Amended Compl. (dkt. # 47) 12); and (2) decide the pending I–130 petition. He also asks the court to declare the AWA unconstitutional as applied to him.

OPINION

As courts of limited subject matter jurisdiction, federal courts “possess only that power authorized by Constitution and statute ... which is not to be expanded by judicial decree.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (internal citation omitted). Therefore, this court cannot even consider the merits of a case unless first determining that it has subject matter jurisdiction to do so. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981). The burden of proof on a Rule 12(b)(1) issue is on the party asserting jurisdiction. United Phosphorus, Ltd. v. Angus Chemical Co., 322 F.3d 942, 946 (7th Cir.2003), overruled on other grounds by Minn–Chem, Inc. v. Agrium, Inc., 683 F.3d 845 (7th Cir.2012). “On a motion to dismiss under Rule 12(b)(1), the court is not bound to accept the truth of the allegations in the complaint, but may look beyond the complaint and the pleadings to evidence that calls the court's jurisdiction into doubt.” Bastien v. AT & T Wireless Servs., Inc., 205 F.3d 983, 990 (7th Cir.2000) (citing Commodity Trend Serv., Inc. v. Commodity Futures Trading Comm'n, 149 F.3d 679, 685 (7th Cir.1998)).

Christopher Sutton's Complaint alleges that this court has subject matter jurisdiction under the Fifth Amendment of the Constitution; 28 U.S.C. § 1331; 8 U.S.C. § 1329; 5 U.S.C. §§ 555(b) and 706(1); and 28 U.S.C. § 1361.³ The court will consider these bases for jurisdiction in turn, beginning with Christopher's constitutional claim.

I. Plaintiff's Constitutional Claim

Plaintiff asks in his Complaint...