YAN WON LIAO v. Holder
| Decision Date | 03 March 2010 |
| Docket Number | 09 CIV. 3518(BMC).,08 CIV. 2697(BMC),09 CIV. 3703(BMC),No. 09 CIV. 3776(BMC),09 CIV. 3675(BMC),09 CIV. 3776(BMC) |
| Citation | 691 F. Supp.2d 344 |
| Parties | YAN WON LIAO and Jin Wen Huang, Plaintiffs, v. Eric HOLDER, Jr., United States Attorney General, et al., Defendants; Jian Feng Zhao and Bing Xiong Zhao, Plaintiffs, v. Eric Holder, Jr., United States Attorney General, et al., Defendants; Chao Huang and Shu Ling Kan, Plaintiffs, v. Eric Holder, Jr., United States Attorney General, et al., Defendants; Qiguang He and Guangming He, Plaintiffs, v. Paul Novak, Director, Vermont Service Center, U.S. Citizenship and Immigration Services, et al., Defendants; Xing Jin Mei and Wan Ting Liang, Plaintiffs, v. Eric Holder, Jr., United States Attorney General, et al., Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Margaret Wong, Margaret Wong & Associates Co., LPA, Cleveland, OH, Yan Won Liao, Jin Wen Huang, for Plaintiff.
Elliot M. Schachner, United States Attorneys Office, Eastern District of New York, Brooklyn, Eric Holder, Jr., United States Attorney General, Alejandro Mayorkas, Director U.S. Citizenship and Immigration Services, Janet Napolitano, Secretary, Department of Homeland Security, Paul Novak, Director, Vermont Service Center, United States Citizenship and Immigration Services, for Defendant.
Plaintiffs are lawful permanent residents of the United States and their alien adult children. The parents petitioned the United States Citizenship and Immigration Services ("USCIS") for visas for those children. Both the parents and adult children challenge the priority date that defendants assigned to the visa petitions. This Court, without objection, consolidated the above captioned cases as the facts of each case are identical in all material respects; they pose the same legal issue; and the same counsel represents each plaintiff.
Shortly after defendants filed a motion to dismiss in the lead case,1 the United States District Court for the Central District of California decided Costelo v. Chertoff, 08-cv-688-JVS(SHX), 2009 WL 4030516 (C.D.Cal. Nov. 10, 2009) hereinafter Costelo Decision, which involved a class action raising the same legal issue as plaintiffs raise here, and in which a judgment on the merits was entered in favor of the defendants. In the present action, defendants contend that because Costelo was a class action and the class encompassed the parents here, res judicata bars relitigation of these claims. For the reasons discussed below, this Court finds that the parents' claims are barred by res judicata and the children's claims also fail on that basis and for lack of standing. The Court therefore grants defendants' motion to dismiss.
The relevant facts of all five consolidated cases are essentially the same. The parents are former Chinese citizens who immigrated to the United States based on the citizenship of their siblings who were already United States citizens. The parents obtained visas after their siblings filed Form 1-130 Petitions for Alien Relatives, requesting a visa on their behalf. Since the parents were siblings of a United States citizen, they were placed in the family fourth-preference category and were assigned a priority date based on the day the Form 1-130 was filed. See 8 C.F.R. § 204.1(c) (). The parents were the primary beneficiaries under those petitions, and any of their children who were under the age of 21 were derivative beneficiaries; that is, the children under the age of 21 were given the same status and visa priority as their parents. See 8 U.S.C. § 1153(d).
The parents eventually obtained visas. By that time, however, their children were over the age of 21 and considered adults. As a result, they no longer qualified as "children" who could derive beneficiary status under their parents' petitions, and they lost their eligibility to immigrate to the United States. The parents subsequently became permanent residents and immigrated to the United States without them.
Once the parents became lawful residents, they filed Form 1-130 Petitions for Alien Relatives, in which they requested visas for their adult children. The parents specifically requested that the USCIS "carry over" the same priority date that they and their then-minor children had received when the parents' siblings had filed the original visa petitions. The UCIS approved the petitions and placed the adult children in the family second-preference category, as an unmarried child 21 or older of an alien lawfully admitted for permanent residence. However, the petitions were assigned a priority date based on when the parents filed the forms on behalf of their adult children—not the priority date the parents had received when their siblings filed for visas on their behalf years earlier.2 If the USCIS had granted the adult children the earlier priority date, they would be able to obtain visas immediately, which is the relief that plaintiffs seek here.
Plaintiffs contend that the USCIS failed to apply the appropriate priority date to the adult children's visa petitions. The Child Status Protection Act of 2002 ("CSPA"), Pub.L. No. 107-208, 116 Stat. 927, which was enacted to protect beneficiaries from "aging out"3 due to administrative delays, contains a provision that converts an aged-out alien's petition to the appropriate category and enables them to retain the original priority date that was issued for the original petition.4 Plaintiffs argue that this automatic conversion and priority date retention provision should be applied broadly to cover all derivative beneficiaries of any visa petition classification. They maintain that the USCIS should have applied this provision to the adult children's petitions, as derivative beneficiaries of a fourth-preference visa petition, and assigned the same priority date as the earlier petitions issued to their parents. Defendants contend, in contrast, that this provision is limited in scope and does not apply in these cases because the adult children's petitions cannot be converted to a new category and only petitions filed by the same petitioner can retain an earlier priority date.
On July 16, 2009, the district court in Costelo v. Chertoff, 258 F.R.D. 600 (C.D.Cal.2009) hereinafter Costelo Class Action, granted the plaintiffs' motion for class action certification under Rule 23(b)(2). Id. at 610. The class certified consisted of:
Aliens who became lawful permanent residents as primary beneficiaries of third- and fourth-preference visa petitions listing their children as derivative beneficiaries, and who subsequently filed second-preference petitions on behalf of their aged-out unmarried sons and daughters, for whom defendants have not granted automatic conversion or the retention of priority dates pursuant to INA § 203(h)(3).
Id. The court limited the class to the parents, as primary beneficiaries, because it was clear that they had standing. Id. at 609. The court noted that it was "less clear . . . whether the children of such aliens have standing as derivative beneficiaries." Id.
In considering the "commonality" requirement for class certification, the court indicated that the underlying common question of law is whether the automatic conversion and date retention provisions of § 203(h)(3) apply to aliens who age out of eligibility for an immigrant visa as the derivative beneficiary of a third- or fourth-preference visa petition, and on whose behalf a second-preference petition is later filed by a different petitioner.
Id. at 608. Moreover, the court ruled that certification under Rule 23(b)(2) was proper because "the question of whether defendants have or have not failed to act is uniformly applicable to the class ... and plaintiffs seek injunctive and declaratory relief as well as costs and fees, but do not seek compensatory damages." Id. at 610.
The parties in Costelo subsequently filed cross-motions for summary judgment on the issue of whether "a provision of the CSPA, § 203(h)(3) of the INA, codified at 8 U.S.C. § 1153(h)(3), allows `aged-out' derivative beneficiaries of third- or fourth-preference visa petitions to automatically convert their derivative petitions to second-preference visa petitions, thereby retaining their original priority date." Costelo Decision, at 2. That is precisely the issue here.
The Board of Immigration Appeal's ("BIA") had previously interpreted the language of INA § 203(h)(3) in In re Wang, 25 I. & N. Dec. 28 (B.I.A. June 16, 2009) (Interim Decision). In Wang, the BIA held that "the automatic conversion and priority date retention provisions of the CPSA do not apply to an alien who ages out of eligibility for an immigrant visa as the derivative beneficiary of a' fourthpreference visa petition, and on whose behalf a second-preference petition is later filed by a different petitioner." Id. at 28. Specifically, the BIA determined that: (1) the beneficiary's petition could not be converted to another category because "no category exists for the niece or nephew of a United States citizen;" and (2) the beneficiary could not retain the priority date from the earlier petition because it was not filed by the same petitioner. Id. at 38-39. Therefore, the sole issue for the district court in Costelo to decide on summary judgment, was whether it should give deference to the BIA's decision in Wang.
On November 10, 2009, the district court issued an Order denying plaintiffs' motion and granting defendants' motion for summary judgment. Costelo Decision, at 4. In its decision, the district court noted that it previously decided this exact issue in Zhang v. Napolitano, 663 F.Supp.2d 913, 914-15 (C.D.Cal.2009), where it gave Chevron deference to the BIA's decision in Wang. Costelo Decision, at 2. In Zhang, the district court found that § 203(h)(3) was ambiguous because the...
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Obiri v. Holder
... ... #4, Ex. 1-2. He subsequently filed a second preference petition on behalf of his unmarried daughter after she aged out. Id. , Ex. 4. USCIS, as in Costelo, did not grant the daughter automatic conversion or retention of the priority date accorded to her father (Ex. 5). Liao v. Holder, 691 F. Supp. 2d 344 (E.D.N.Y. 2010)(finding summary judgment dismissal of Costelo action was res judicata to litigants challenging priority dates assigned to visa petitions). Tolulope Obiri is also a class member because she is in privity with her father. Liao, 691 ... ...
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