Taing v. Chertoff
| Decision Date | 12 December 2007 |
| Docket Number | Civil Action No. 07-10499-WGY. |
| Parties | Neang Chea TAING, Petitioner/Plaintiff, v. Michael CHERTOFF, Secretary, Department of Homeland Security; Emilio Gonzalez, Director, U.S. Citizenship and Immigration Service; Dennis Riordan, District Director of Boston MA, U.S. Citizenship and Immigration Service. Respondents/Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Thomas Stylianos, Jr., Lowell, MA, for Petitioner/Plaintiff.
Mark T. Quinlivan, United States Attorney's Office, Boston, MA, for Respondents/Defendants.
This case presents a question of first impression in the First Circuit, viz does a properly filed "immediate relative" visa petition lapse upon the death of the immediate relative during the processing period? This case arises out of the denial by the United States Citizenship and Immigration Service ("government") of an "immediate relative" visa petition upon an application for adjustment of status where the petitioner's husband died while the application was pending.
The Plaintiff/Petitioner Neang Chea Taing ("Mrs.Taing"), a citizen of Cambodia, is the surviving spouse of naturalized United States citizen Techumsen Chip Taing ("Mr.Taing"). Soon after their wedding, Mr. Taing filed an immigrant visa petition (the "Petition") on behalf of his wife1 and Mrs. Taing filed an adjustment of status application (the "Application") (the Petition and the Application will collectively be referred to as the "Applications"). She also filed a request for work authorization which was immediately granted. Before the government had processed the Applications, Mr. Taing died. As a result, the government denied Mrs. Taing's Applications on the ground that, after Mr. Taing's death, Mrs. Taing was no longer eligible for an immigrant visa or a status adjustment because she was no longer a spouse of a U.S. citizen and, therefore, no longer an "immediate relative" pursuant to the terms of I.N.A. section 201(b)(2)(A)(I).
Mrs. Taing brings this action seeking declaratory and injunctive relief and mandamus to compel the government a) to rule, as matter of statutory construction, that Mrs. Taing remains an "immediate relative" spouse under the I.N.A. section 201(b)(2)(A)I; b) reopen and resolve her immigrant visa petition; and c) reopen and resolve her application for adjustment of status.
The issue is whether the government correctly interprets section 201(b)(2)(A)(I) of the I.N.A. and whether, based on this interpretation, correctly denied Mrs. Taing's Applications.
Mrs. Taing filed a Petition for Writ of Mandamus and Complaint for Declaratory and Injunctive Relief ("Compl.") [Doc. No. 1], on March 14, 2007, against Alberto Gonzales, United States Attorney General;2 Michael Chertoff, Secretary of the Department of Homeland Security; Emilio Gonzalez, Director of the U.S. Citizenship and Immigration Service; and Dennis Riordan, District Director of the Boston Massachusetts District Office of the U.S. Citizenship and Immigration Service, the office which has jurisdiction over (and denied) Mrs. Taing's Applications (collectively the "government"). The complaint contains three counts which are not very clearly presented. This Court reconstructs them as follows: (1) unlawful deprivation of the opportunity to obtain adjustment to the status of a Lawful Permanent Resident, I.N.A. section 245, id. ¶¶ 29-30; (2) injunctive relief to "compel agency action unlawfully withheld or unreasonably delayed" and to hold unlawful agency action that is not in accordance with law3 which in turn is said to have caused Mrs. Taing a "legal wrong" under 5 U.S.C. section 702, as she has no other adequate remedy in a court, id. ¶¶ 31-33; (3) the government's failure to perform duties owed to Mrs. Taing under the I.N.A. and 28 U.S.C. section 1361 with the result that she was stripped of her status as an Immediate Relative Spouse upon an allegedly erroneous statutory construction and not for any discretionary reason. Id. ¶¶ 34-37.
On August 2, 2007 the government filed a Motion to Dismiss, Defs. Mot. to Dismiss ("Defs. Mot. to Dismiss") [Doc. No. 11], and a Memorandum in Support of the Motion to Dismiss, Defs. Mem. in Supp. of Mot. to Dismiss [Doc. No. 12] ("Defs.Mem."). On August 27, 2007 Mrs. Taing filed a Memorandum in Opposition to the Motion to Dismiss, Pl. Opp'n Mem. to Defs. Mot. to Dismiss [Doc. No. 14] ("Pl. Opp'n Mem.").
On June 17, 2004 Mrs. Taing entered the United States as a tourist. Compl ¶¶ 9, 21. During her visit, she fell in love with Mr. Thing, a naturalized United States citizen of Cambodian heritage, and married him on October 4, 2004. Id. ¶ 9. In December 2004, Mr. Taing filed a petition for his wife to obtain an immigrant visa as an immediate relative (an I-130 petition) under the I.N.A. section 204(a). Id. ¶¶ 10, 23. He paid all the necessary filing fees. Id. ¶ 23. Mrs. Taing filed, on her own behalf, an application for adjustment of status (an I-485 application) under the I.N.A. section 245(a). Id. ¶¶ 10, 22. She paid all the necessary filing fees. Id. ¶ 22. She also applied for a work authorization which was immediately granted. Id. ¶¶ 10, 11. On July 2, 2005, Mr. Taing died. Id. ¶ 12. On September 13, 2005, the government issued a notice to Mrs. Taing and her now deceased husband to appear for an interview regarding their Applications. The government had scheduled that interview for October 13, 2005.4 Id. ¶ 14. Mrs. Taing appeared for the interview alone. Id. On October 26, 2005, the Applications were denied. On April 10, 2006, the Department of Homeland Security mailed Mrs. Taing a Notice to Appear charging her with being a visa overstay. Id. ¶ 16.
Mrs. Taing's prior counsel filed a petition to have her considered a widow of a citizen who had been married for two years at the time of the citizen's death but as Mrs. Taing had manifestly not been married for two years at the time of Mr. Taing's death, this petition was denied. Id. ¶ 18.
Both parties agree that the facts alleged above are accurate. They disagree, however, as to the proper interpretation of section 201(b)(2)(A)(I) of the I.N.A. and whether Mrs. Taing remains an "immediate relative" of a citizen of the United States after her husband's death.
This Court has jurisdiction over this case pursuant to 8 U.S.C § 1331; the, Administrative Procedure Act, 5 U.S.C. § 701 et seq.; the Mandamus Act, 28 U.S.C. § 1361; and the Declaratory Judgments Act, 28 U.S.C. § 2201.
Venue is appropriate pursuant 28 U.S.C section 1391(e) as Mrs. Taing resides in Lowell, Massachusetts; a substantial part of the events giving rise to the claim occurred in Eastern Massachusetts, and the office that denied the Application was the Boston Region/District Office of the United States Citizenship and. Immigration Services (an agency of the United States Department of Homeland Security).
Mrs. Taing has no available administrative remedies. The Board of Immigration and Naturalization appeals determined in Matter of Sano 19 I. & N. Dec. 299 (1985) that it does not have jurisdiction to rule on the immigrant petition (I-130) brought by a beneficiary (Mrs. Taing) and not by a petitioner (Mr. Taing). There is no administrative appeal for the denial of a petitioner's Application to Adjust Status (I-485). Mrs. Taing recognizes that although she could renew her application in removal proceedings before the Executive Office of Immigration Review ("EOIR") such action would be futile without an immigrant visa as the EOIR lacks jurisdiction over visa petitions.
"Pure question of law [such as the proper definition of `spouse' under section 1151] raised in a petition to review a decision of the [Board of Immigration Appeals] are reviewed de novo." de Martinez v. Ashcroft, 374 F.3d 759, 761 (9th. Cir. 2004). The First Circuit held in North American Industries, Inc. v. Feldman, 722 F.2d 893 (1st. Cir.1983) that "federal courts may engage in a plenary review of questions of law, including questions of statutory construction and interpretation." Id. at 898 (citing Tovar v. INS, 612 F.2d 794, 797 (3rd Cir.1980); de los Santos v. INS, 525 F.Supp. 655, 660 (S.D.N.Y.1981)).
[T]he decision to grant or deny a petition to obtain a preferential immigration classification is one that is within the discretion of INS, and thus, a federal court may reverse an INS denial of a preference classification only if the INS abused its discretion. The INS abuses its discretion if it bases its decision upon an improper understanding of the law or if there is no evidence to support the decision .... while it is true that an appellate court must give great deference to the construction accorded a statute by the agency charged with its administration, deference to an agency's interpretation of the law does not equate with blind faith. A court is obliged to accept the administrative construction of a statute only so far as it is reasonable, and consistent with the intent of Congress in adopting the statute. Thus, if the Agency's interpretation of the statute is found to be inconsistent with the statutory language, legislative history, or purpose of the statute, it must be invalidated. Moreover, an administrative decision based on erroneous legal standards cannot stand.
North American Industries, 722 F.2d at 898, 899. (citations omitted).
The First Circuit has also held that "the judiciary is the final authority on issues of statutory construction and must reject administrative construction which are contrary to clear congressional intent." Succar v. Ashcroft, 394 F.3d 8, 22 (1st Cir. 2005).
Along this same line, the Ninth Circuit held in Freeman v. Gonzales, 444 F.3d 1031 (9th Cir.2006), a case with practically the same facts as those present here, that it had "jurisdiction to review [Taing's] purely legal claim that the district director violated her due...
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...the opposite sex, it does not mandate that spouses lose their status as such with the death of either one of them."1 Taing v. Chertoff, 526 F.Supp.2d 177, 184 (D.Mass.2007), appeal docketed, No. 08-1179 (1st Cir. Feb. 11, 2008). Second, the language of the USA Patriot Act of 2001 and the Na......
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