Wang v. Wolf
| Decision Date | 07 January 2021 |
| Docket Number | Case No. CV-19-06558-AB (JPRx) |
| Citation | 511 F.Supp.3d 1060 |
| Parties | JIAN WANG, and Dongchen Li, Plaintiffs, v. Chad F. WOLF, Acting Secretary of Homeland Security, et al., Defendants. |
| Court | U.S. District Court — Central District of California |
Meixuan Zhang, Reeves Immigration Law Group APLC, Pasadena, CA, for Plaintiffs.
Glenn M. Girdharry, U.S. Department of Justice, Joshua Samuel Press, DOJ-Civ, Washington, DC, for Defendants Kevin K. McAleenan, John P. Sanders, Kenneth Cuccinelli, Mark Koumans, Daniel M. Renaud, Sarah M. Kendall, United States Customs and Border Protection, United States Citizenship and Immigration Services, United States Department of Homeland Security, Robert E. Perez.
Glenn M. Girdharry, U.S. Department of Justice, Washington, DC, for Defendants Chad F. Wolf, Mark Morgan, Mark A. Morgan.
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
Before the Court is a Motion to Dismiss Plaintiffs’ First Amended Complaint ("Motion," Dkt. No. 40) filed by Defendants United States Citizenship and Immigration Services ("USCIS"), United States Customs and Border Protection ("USCBP"), United States Department of Homeland Security ("USDHS"), and seven individual heads of these and other law enforcement/immigration agencies, (collectively, "Defendants"). Plaintiffs Jian Wang and Dongchen Li ("Plaintiffs") filed an Opposition ("Opp'n.," Dkt. No. 41) and Defendants filed a Reply ("Reply," Dkt. No. 43). The parties also filed Court-ordered supplemental briefing. (Dkt. Nos. 53, 54.) For the following reasons, the Court GRANTS Defendants’ Motion.
In this civil action under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701, et. seq. , Plaintiffs Jian Wang ("Wang") and his wife Dongchen Li ("Li") seek judicial review of Defendants’ decision that Wang willingly and voluntarily signed Form I-407, abandoning his lawful permanent residence status, resulting in the denial of his pending Form I-829 Petition by Investor to Remove Conditions on Permanent Resident Status ("I-829 Petition"), and in the termination of Li's permanent residence status. The First Amended Complaint ("FAC," Dkt. No. 36) alleges as follows.
Both Wang and Li are citizens of China; Wang is currently in China and Li resides in Arcadia, California. (FAC ¶¶ 4-5.) Plaintiffs obtained conditional lawful permanent resident status ("CPR" or conditional green card) through the EB-5 immigrant investor visa program, with Wang the primary applicant and Li the derivative beneficiary spouse. (FAC ¶ 17.) In 2013, before Plaintiffs’ CPR status expired, Wang filed with USCIS a Form I-829 Petition by Investor to Remove Conditions on Permanent Resident Status ("I-829 Petition"). Id.
Wang regularly travelled between the United States and China to conduct business. (FAC ¶ 17.) On February 6, 2019, Wang was travelling back to the United States from China and entered at Daniel K. Inouye International Airport in Honolulu, Hawaii. (FAC ¶ 18.) At the airport, Wang signed USCIS and USDHS's Form I-407, Record of Abandonment of Lawful Permanent Resident Status ("Form I-407"). (FAC ¶ 18; see also Form I-407 (Mot. Ex. A1 , Dkt. No. 40-1).) The Form I-407 states Wang's name and gives the reason for abandoning lawful permanent resident status as "I don't Live America, I Live in China[.]" (Form I-407, § 10.) The form includes a paragraph entitled "Certification" stating that the signatory "knowingly, willingly, and affirmatively declare[s]" they have no intention of residing in the United States, and that they "knowingly and willingly abandoned [their] lawful permanent residence status" and waive the right to a hearing before an immigration judge about whether the person abandoned their lawful permanent residence status, below which is Wang's signature. (Form I-407, § 13(a).) It also shows that an interpreter was provided and CBP Officer Kim signed the form as well. (FAC ¶ 19; Form I-407 at 2.) At the port of entry, USCBP provided Wang a visitor visa waiver under 8 U.S.C. § 1182(d)(4), ("Form I-193") and admitted him into the United States as a temporary visitor for pleasure, in B-2 nonimmigrant status, valid until August 5, 2019. (FAC ¶ 20; see also Wang's Form I-193 Waiver (Mot. Exh. B, Dkt. No. 40-2).) On the Form I-193 waiver, Wang indicated that he needed visitor visa waiver because "I [gave] up my green card." (Form I-193, § 10.)
Wang contends that CBP Officer Kim coerced him into signing the Form I-407 that abandoned his lawful permanent residence status, and falsely told him that if he sought review, he could be barred from entering the United States for 5 years. (FAC ¶ 18.) Wang, who is not fluent in English, contends that he was not provided a competent interpreter because when one was finally brought to assist him, the interpreter had to use her phone to translate Officer Kim's speech. (FAC ¶ 19.) Wang alleges that he signed the form only because he was fearful he would be barred from entering the United States where his family and business reside, and that he did not sign it "willingly" or "voluntarily[.]" (FAC ¶ 20.)
Within 30 days of entering the United States, Wang contacted USCBP at Honolulu and told them he did not wish to relinquish his CPR status and that his signature was not knowing or voluntary, and he requested a hearing before an Immigration Judge pursuant to INA § 240. (FAC ¶ 21.) USCBP declined Wang's request, stating he "voluntarily, willingly and affirmatively abandoned his lawful permanent resident status." (Id. )
On April 24, 2019, USCIS denied Wang's I-829 petition to remove his conditional status on the ground that he had abandoned his permanent resident status and waived his right to a hearing before an immigration judge. (FAC ¶ 22.) On May 28, 2019, Wang filed a Form I-290B Notice of Appeal or Motion to Re-open USCIS's denial of his I-829 petition. (Id. ) On November 15, 2019, USCIS denied Wang's motion and affirmed the denial of his I-829 petition. (Id. ; see also Notice of Decision (Mot. Exh. C, Dkt. No. 40-3).) USCIS indicated that the agency originally denied Wang's I-829 petition "due to Petitioner's abandonment of his conditional permanent resident status," that reopening of the petition was not warranted because Wang did not support his reopening request with "affidavits or documentary evidence as required by 8 C.F.R. § 103.5(a)(2)," and as a result, Wang's motion (Notice of Decision.) As a derivative beneficiary, Wang's wife, Plaintiff Li, lost her CPR status as well. (FAC ¶ 22.)
On July 29, 2019, Wang filed this action under the Administrative Procedure Act ("APA"), the Immigration and Nationality Act ("INA"), and the Declaratory Judgment Act, asserting that he was coerced into signing the Form I-407 and that he did not voluntarily, willingly and affirmatively abandon his lawful permanent resident status. Wang also challenged the agency's decision not to commence removal proceedings against him.2 See Compl. Due to the expiration of his B-2 non-immigrant visa, Wang departed the United States in August 2019 and remains outside of the country. (FAC ¶ 23.)
Li has remained in the United States. On January 24, 2020, USCIS issued Li a Notice to Appear ("NTA") in immigration court to commence administrative removal proceedings. (FAC ¶ 23; see also NTA (Mot. Exh. D, Dkt. No. 40-4).) USCIS initiated proceedings against Li because she was a derivative beneficiary of Wang's I-829 petition and, because the agency denied Wang's I-829 petition based on his abandonment of his CPR status, Li's derivative CPR status "was terminated on April 24, 2019 because the principal conditional resident's Form I-829, Petition by Entrepreneur to Remove Conditions, was denied." (NTA.)
The FAC, filed on April 17, 2020, added Li as a plaintiff, asserting she was wrongly stripped of her conditional legal permanent resident status. (FAC ¶ 22.) She alleges that that "defendant's final action placing Plaintiff Li into removal proceedings pursuant to INA § 240 as a derivative spouse without the Petitioner, Plaintiff Wang, is a denial of due process[.]" (FAC, Prayer for Relief ¶ 3.)
Under the APA claim (first count), Plaintiffs assert that the "Defendants’ denial to place Plaintiff Wang in removal proceedings pursuant to INA § 240 is improper and reviewable under 5 U.S.C. § 702." (FAC ¶ 25.) Plaintiffs also ask the Court to determine that the Defendants’ decision that Wang voluntarily and knowingly abandoned his permanent resident status is arbitrary, capricious, and an abuse of discretion. (FAC ¶ 28.)
Under the INA claim (second count), Plaintiffs assert that "[i]n denying Plaintiffs’ I-829 petition due to abandonment of LPR status by Plaintiff Wang, and denying Plaintiff Wang's request to be put into proceedings pursuant to INA § 240 before an immigration judge, DHS acted contrary to statutory law, precedent decisions and policy memoranda." (FAC ¶ 34.)
Under the declaratory relief claim (third count), Plaintiffs assert "Plaintiff Wang is entitled to review of his denied Form I-829 in removal proceedings, which shall have the force and effect of a final judgment, in accordance with 28 U.S.C. § 2201(a)." (FAC ¶ 37.)
Plaintiffs seek the following relief: an order setting aside Defendants’ findings that Wang abandoned his lawful permanent residence status; that the Court find that Defendants’ refusal to put Wang in removal proceedings is arbitrary and capricious; that the Court find that Defendants’ action of putting Li in removal proceedings as a derivative spouse without Wang is a denial of due process; and other orders including allowing Wang to remain a lawful permanent resident while seeking review of his denied Form I-829, and ordering Defendants to issue a travel document so Wang can return to the United States to defend his right to remain a lawful permanent resident before an immigration judge. See FAC ¶...
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