Yeboah v. U.S. Department of Justice

• Decision Date: 29 September 2003
• Docket Number: No. 02-2921.,02-2921.
• Citation: 345 F.3d 216
• Parties: Julian Yeboah, Appellant v. UNITED STATES Department of Justice Immigration and Naturalization Service; Charles W. Zemski, District Director, United States Department of Justice, Immigration and Naturalization Service; Kenneth J. Elwood.
• Court: U.S. Court of Appeals — Third Circuit

345 F.3d 216

Julian Yeboah, Appellant v. UNITED STATES Department of Justice Immigration and Naturalization Service; Charles W. Zemski, District Director, United States Department of Justice, Immigration and Naturalization Service; Kenneth J. Elwood.

No. 02-2921.

United States Court of Appeals, Third Circuit.

Argued October 18, 2002.

Filed September 29, 2003.

COPYRIGHT MATERIAL OMITTED

Stephen G. Harvey, (Argued), Pepper, Hamilton, L.L.P., Philadelphia, Gerard A. Dever, Fine, Kaplan and Black, R.P.C., Philadelphia, PA, for Appellant.

Robert D. McCallum, Jr., Assistant Attorney General, Terri J. Scadron, Senior Litigation Counsel, Brenda M. O'Malley (Argued), Attorney, Office of Immigration Litigation, U.S. Department of Justice, Civil Division, Washington, DC, Counsel for Appellees.

Before: ROTH, GREENBERG, Circuit Judges and WARD^* District Judge.

OPINION OF THE COURT

ROTH, Circuit Judge:

We address two issues in this appeal. First, did the District Court have subject matter jurisdiction to review the denial of Julian Yeboah's request for consent to a dependency hearing for special immigrant juvenile (SIJ) status. Second, if it did have jurisdiction, was the Attorney General's denial of consent for a hearing arbitrary and capricious or an abuse of discretion under the Immigration and Naturalization Act, 8 U.S.C. § 1101, et seq. as amended (INA). We hold, in light of our decision in M.B. v. Quarantillo, 301 F.3d 109 (3d Cir.2002), that the District Court did have jurisdiction. In addition, we conclude that the Attorney General did not abuse his discretion or act arbitrarily or capriciously in denying Julian's request. Accordingly, we will affirm the grant of summary judgment to the Immigration and Naturalization Service (INS) by the District Court.

I. Facts

Julian (Kofi) Yeboah seeks SIJ status pursuant to 8 U.S.C. § 1101(a)(27)(J) (2002), which allows an alien juvenile to remain in the United States in long-term foster care if a state juvenile court declares the juvenile dependent due to abuse, neglect, or abandonment. Julian arrived at John F. Kennedy Airport in New York from the Republic of Ghana on March 4, 2000. He was 10 years old and unaccompanied, with no travel documents and only $1.25 in his pocket. Upon arrival in the United States, the INS took Julian into custody, where he remains. Julian's father and brother are in Ghana. His mother abandoned the family when Julian was a small child. The remaining facts are not clear. Julian alleges that a friend of his father placed him on the airplane to come to the United States. However, a Minister from the Ghanaian Embassy, who interviewed Julian, testified that Julian's father, Thomas Yeboah, placed Julian on the plane. Julian claims that he has no family in the United States, but an anonymous woman, believed to be Julian's aunt, telephoned the Ghanaian Embassy after Julian's arrival, fearful that he had not arrived. Julian states that he was abused and abandoned, but the medical reports, read together, are inconclusive.

The parties dispute the nature of Julian's relationship with his father. Dr. Marc A. Forman, a child psychologist, conducted a 90 minute interview with Julian. In his written report, prepared on Julian's behalf, Dr. Forman notes that Julian stated he came to the United States to escape his abusive father. In view of Julian's stuttering, nervous ticks in both eyes, bed wetting, depressed affect, and anxiety and sleep disturbance, Dr. Forman diagnosed Julian with Posttraumatic Stress Disorder stemming from physical abuse and "being sent out of the country... as an unaccompanied minor." Dr. Forman believed that Julian risked developing a "serious mental illness" if he were forced to return to Ghana and recommended that Julian remain in the United States in foster care. The report documented that Julian "thought his father had broken one of his fingers, or maybe his arm, but he couldn't remember which side."

The INS, however, concluded that Julian was not abused, based upon a separate medical examination at which Julian apparently was not asked about, and failed to mention, accidents or injuries during the previous year. X-rays and a CAT scan revealed no physical signs of past abuse. In addition, the INS District Director presented the comments of the staff at Berks County Youth Center that Julian did not exhibit depression or dysfunctional behaviors and was social, active, and "relatively happy." The INS did not offer the testimony of a competing child psychologist.

The INS believes that Julian's father placed him on the airplane in an attempt to secure United States citizenship for the boy, possibly as part of an unworkable long-term scheme to make the father and brother eligible for United States citizenship.¹ Julian's father originally told the INS that he wanted his son to return to Ghana. After Julian's first request for an SIJ hearing was denied, the father sent a declaration that he does not want Julian to come back. Julian has been in telephone contact with his father on 15 occasions between February and September 2001 and twice between December 2001 and January 2002.

The INS District Director, acting on behalf of the United States Attorney General, denied consent to an SIJ proceeding. Julian brought suit against the INS under the Administrative Procedure Act, 5 U.S.C. § 701, et seq. (APA) in the District Court for the Eastern District of Pennsylvania, arguing that the District Director's decision was arbitrary and capricious or an abuse of discretion. The government moved to dismiss the action under Fed. R. Civ. Pro. 12(b)(1), on the ground that the District Court lacked subject matter jurisdiction to review the decision of the Attorney General. The District Court held that the decision of the Attorney General was subject to judicial review and denied the government's motion to dismiss. Yeboah v. INS, No. 01-CV-3337, 2001 WL 1319544, at *1, 4, 2001 U.S. Dist. LEXIS 17360 *1, 17 (E.D.Pa. Oct. 26, 2001).

Both parties moved for Summary Judgment. The District Court remanded the matter to the INS District Director for reconsideration in light of the newly received declaration by Julian's father that he did not want Julian to return to Ghana. The INS again rejected Julian's petition on the basis that Julian was seeking SIJ status for the improper purpose of obtaining permanent resident status, rather than seeking relief from abuse, abandonment, or neglect. The District Director concluded:

Julian has failed to establish that he suffered abuse, abandonment, or neglect in Ghana. Thus, the Service has concluded that Julian is not seeking SIJ status for the purpose of obtaining relief from abuse, abandonment and neglect, but rather is seeking that status for the purpose of obtaining permanent residence.

The parties refiled cross-motions for Summary Judgment. The District Court granted Summary Judgement in favor of the INS and ordered the parties to proceed with the stipulated final removal order. Yeboah v. INS, 223 F.Supp.2d 650 (E.D.Pa.2002). Julian now appeals the grant of summary judgment by the District Court.

II. Jurisdiction and Standard of Review

The jurisdictional issue in this case is resolved by M.B. v. Quarantillo, 301 F.3d 109 (3d Cir.2002), in which a panel of this Court held that under the APA, 5 U.S.C. §§ 701-06, federal courts have jurisdiction to review the Attorney General's denial of an alien's request for consent to a state juvenile dependency hearing. The facts of M.B. parallel those of the present case: a plaintiff alien requested a state juvenile dependency hearing for purposes of determining whether the alien qualified for SIJ status.² Thus, pursuant to M.B., the District Court had subject matter jurisdiction under 28 U.S.C. § 1331 because this action arises under the APA.

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, as the District Court's order of June 26, 2002, is a final, appealable order.

Although this case is an appeal from the denial of a Fed. R. Civ. Pro. 56(c) cross-motion for Summary Judgment, our standard of review of the INS District Director's decision under the APA is limited to abuse of discretion. 5 U.S.C. § 706(2)(A) (stating that an agency action may be overruled if "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law"); see also M.B., 301 F.3d at 113 (citing INS v. Yang, 519 U.S. 26, 32, 117 S.Ct. 350, 136 L.Ed.2d 288 (1996)). Although a reviewing court must "engage in a substantial inquiry" of the administrative record before the agency, "the ultimate standard of review is a narrow one" where the reviewing court "is not empowered to substitute its judgment for that of the agency." C.K. v. New Jersey Dep't of Health & Human Serv., 92 F.3d 171, 181-82 (3d Cir.1996) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-16, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)) (internal citations omitted). The terms of the enabling statute establish the scope of agency authority and the factors to consider. C.K., 92 F.3d at 182. Where the statute is not informative, it is long-standing practice that the reviewing court must turn to legislative history. Director v. Sun Ship, Inc., 150 F.3d 288, 291 (3d Cir.1998) (citing Adams Fruit Co., Inc. v. Barrett, 494 U.S. 638, 642, 110 S.Ct. 1384, 108 L.Ed.2d 585 (1990)). Operating within this framework, the reviewing court may set aside the agency decision only if there is "clear error of judgment." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) (distinguished on other grounds). Thus, even if there are genuine issues of material fact, deference must be given to the agency's interpretation of the facts, so long as they are based upon credible information.

III. Discussion

A. Background

The SIJ provisions of the INA were enacted in 1990 to protect abused, neglected, or abandoned children who, with their families, illegally...