Teleanu v. Koumans

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Citation480 F.Supp.3d 567
Docket Number19-CV-8177 (VEC)
Parties Florin TELEANU (A200747483) and Natasha Teleanu, Plaintiffs, v. Mark KOUMANS, Acting Director of United States Citizenship & Immigration Services, United States Citizenship & Immigration Services, Barbara Q. Velarde, Chief Administrative Appeals Office, and Administrative Appeals Office, Defendants.
Decision Date20 August 2020

Thomas Edward Moseley, Law Offices of Thomas E. Moseley, Newark, NJ, for Plaintiffs.

Joseph Anthony Marutollo, DOJ-USAO, Brooklyn, NY, for Defendants.

OPINION AND ORDER

VALERIE CAPRONI, United States District Judge:

This action stems from the United States Citizenship and Immigration Services’ ("USCIS") denial of Plaintiff Florin Teleanu's application for a waiver of the two-year foreign residence requirement of his Nonimmigrant Exchange Visitor visa. Plaintiff and his wife Natasha Teleanu ("the Teleanus") seek review of the administrative decision. Defendants moved to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) and, in the alternative, for summary judgment on the merits. See Dkt. 28. Plaintiffs cross-moved for summary judgment. Dkt. 34. For the following reasons, Defendantsmotion to dismiss is GRANTED in part and DENIED in part. Plaintiffscross-motion for summary judgment is GRANTED.

BACKGROUND

Florin Teleanu, a citizen of Romania, came to the United States in 2003 on a J-1 Nonimmigrant Exchange Visitor visa ("J-1 visa") to study economics and finance at Brandeis University. Second Am. Compl. ("SAC"), Dkt. 27 ¶¶ 1, 9. J-1 visas provide temporary status to foreign professionals who have "no intention of abandoning" their home countries but come to the United States to work or study. SAC ¶¶ 3, 8; 8 U.S.C. § 1101(a)(15)(J). J-1 visas carry a two-year foreign residence requirement that requires the holder to return to his home country upon expiration of the visa for two years before applying for permanent legal residence in the United States. 8 U.S.C. § 1182(e). After his graduate program concluded in 2005, Mr. Teleanu began working at Blackrock Financial Management ("Blackrock"). SAC ¶ 10. Although Mr. Teleanu's J-1 visa expired in 2006, he has continued to work for Blackrock on an annually-renewed O-1 visa.1 SAC ¶ 10; Admin. R. ("A.R."), Dkts. 12-24 at 993–94, 1066. To date, Mr. Teleanu has not completed the two-year foreign residence requirement of his J-1 visa. SAC ¶¶ 10, 12.

In September 2015, Mr. Teleanu married Natasha Teleanu (née Waglow), a United States citizen who is an Assistant United States Attorney.2 SAC ¶¶ 11-12. In June 2017, Mr. Teleanu applied to USCIS for a waiver of the foreign residence requirement of his J-1 visa on the grounds that returning to Romania for two years would cause exceptional hardship to his wife. SAC ¶ 13; A.R. at 788-99, 982–92. On August 8, 2018, the California Service Center ("CSC") of USCIS denied Mr. Teleanu's waiver application. SAC ¶ 13; A.R. at 496-99. Although the CSC agreed that Ms. Teleanu would experience exceptional hardship if she were forced to relocate to Romania with her husband, namely because she would be unable to practice law there and would face significant career setbacks upon her return to the United States, the CSC concluded that Ms. Teleanu would not face exceptional hardship if she remained in the United States while her husband returned to Romania. SAC ¶ 13; A.R. at 496-99. The CSC explained that Mr. Teleanu failed to demonstrate that his wife would experience anything more than the usual emotional, physical, and financial difficulties associated with a temporary separation. SAC ¶ 13; A.R. at 498-99.

Shortly before the CSC's decision, Ms. Teleanu gave birth to a son, J.T.3 SAC ¶ 12. In September 2018, Mr. Teleanu appealed the CSC's decision and submitted evidence that his compliance with the two-year home residence requirement would cause exceptional hardship to J.T. SAC ¶ 14. Mr. Teleanu also argued that his departure would delay and potentially prevent him and his wife from having a second child because of Ms. Teleanu's advanced maternal age.4 Id. On February 4, 2019, the Administrative Appeals Office of USCIS ("AAO") denied the appeal; the AAO concluded that the psychological and financial hardships to Ms. Teleanu and J.T. did not "rise beyond the common results of a two-year separation." A.R. at 165. Specifically, the AAO reasoned that the "ever-present stress concerning [her husband's] immigration status" was "not interfering with [Ms. Teleanu's] ability to attend to her daily activities and responsibilities," and that she would not face "exceptional difficulties" meeting her and J.T.’s financial needs. Id. at 164. With respect to J.T., the AAO concluded that although separating J.T. from his father "amounts to hardship," Mr. Teleanu had "not shown that his son's hardship exceeds the hardship ordinarily anticipated in such circumstances." Id.

On September 12, 2019, the AAO denied Mr. Teleanu's motion to reopen and reconsider his waiver application. SAC ¶ 16; A.R. at 2-4. Although the AAO acknowledged the Teleanus’ desire to have a second child, it noted that Mr. Teleanu had not established that his wife "would be unable to visit" him in Romania or that they would be unable to "pursue alternative medical avenues to continue their family planning efforts." A.R. at 3.

Plaintiffs seek review and reversal of the USCIS’ decision that Mr. Teleanu's two-year absence would not impose exceptional hardship on his wife and son; Plaintiffs argue that the decision was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A) ; SAC ¶¶ 19-30. Defendants move to dismiss for lack of subject matter jurisdiction, and, in the alternative, for summary judgment on the merits. See Defs.’ Mem. of Law, Dkt. 29.

DISCUSSION
I. DefendantsMotion to Dismiss for Lack of Subject Matter Jurisdiction is Denied
A. Legal Framework

"A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States , 201 F.3d 110, 113 (2d Cir. 2000). When a court lacks subject matter jurisdiction, dismissal is mandatory. See Fed. R. Civ. P. 12(h)(3) ; Arbaugh v. Y & H Corp. , 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006).

Under the APA, a person "suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute" is entitled to judicial review of the agency action, unless judicial review is precluded by statute or the challenged decision was committed to agency discretion. 5 U.S.C. § 702 ; Ruiz v. Mukasey , 552 F.3d 269, 273 (2d Cir. 2009) (citing 5 U.S.C. § 701(a) ). An administrative decision is committed to agency discretion "where the governing law is ‘drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion.’ " Vela-Estrada v. Lynch , 817 F.3d 69, 71 (2d Cir. 2016) (quoting Heckler v. Chaney , 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) ). In determining whether a "meaningful standard" exists for review of an agency's action, courts consider, inter alia , "the statutory language and structure, the statutory history, the nature of the agency action, and the regulations promulgated under the statute." Treats Int'l Enters., Inc. v. S.E.C. , 828 F. Supp. 16, 18 (S.D.N.Y. 1993) (citing Dina v. Att'y Gen. , 793 F.2d 473 (2d Cir. 1986) ). There is a strong presumption that Congress intends administrative action to be subject to judicial review; the presumption can only be overcome by "clear and convincing evidence" to the contrary. Sharkey v. Quarantillo , 541 F.3d 75, 84 (2d Cir. 2008).

B. The USCIS’ Exceptional Hardship Determination Is Subject to Judicial Review

The Immigration and Nationality Act ("INA") provides that nonimmigrants admitted under J-1 exchange visas are subject to a two-year foreign residence requirement before they may apply for permanent residence in the United States. 8 U.S.C. § 1182(e). An applicant may request a waiver of the requirement on the grounds of exceptional hardship to the applicant's spouse or child.5 Id. The waiver process has three steps. Id. First, the Secretary of the Department of Homeland Security ("DHS"), through his agents at USCIS, must determine whether the applicant's departure would impose "exceptional hardship" upon the applicant's spouse or child (if they are citizens or permanent residents). Id. ; 22 C.F.R. § 41.63(b)(2)(i). If such hardship exists, the Secretary of DHS may then request a favorable recommendation from the Waiver Review Division ("WRD") of the Department of State. 22 C.F.R. § 41.63(b)(2)(ii). Upon a favorable recommendation from the WRD, the Secretary of DHS may waive the two-year residency requirement if he finds it to be in the public interest. 8 U.S.C. § 1182(e) ; 22 C.F.R. § 41.63(b)(2)(iii).

Here, Plaintiffs seek judicial review of USCIS’ decision that Mr. Teleanu's spouse and child would not experience exceptional hardship if he were to depart for two years. That is, Plaintiffs seek review of the agency's decision at step one. Defendants argue that the Court lacks jurisdiction to review that decision because it is "solely within the government's discretion by statute and is therefore ‘isolated entirely from judicial review.’ " Defs.’ Mem. of Law, Dkt. 29 at 15 (citing Dina , 793 F.2d at 476 ). The Court disagrees. At the outset, Defendants’ reliance on Dina is misplaced. In Dina, the INS found that the immigrant's departure would cause exceptional hardship to his citizen family but denied the waiver because the USIA recommended against the waiver. 793 F.2d at 475. Dina challenged the denial, arguing, inter alia , that USIA had abused its discretion in recommending against the waiver. Id. The Dina court's holding, therefore, was limited to the...

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    ... ... “Judicial review of agency ... action under the arbitrary and capricious standard is ... necessarily narrow, ” Teleanu v. Koumans , 480 ... F.Supp.3d 567, 576 (S.D.N.Y. 2020) (cleaned up), and ... “[u]nder this narrow standard of review, a court is not ... ...
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    ...to only those of their parents). (119.) See infra Section II.C. (120.) 8 U.S.C.S 1182(e). (121.) Id. (122.) See Teleanu v. Koumans, 480 F. Supp. 3d 567, 574 (S.D.N.Y 2020) (discussing the standard and finding that the hardship must be "greater than the anxiety, loneliness, and altered finan......

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