Yeboah v. U.S. Dept. of Justice, I.N.S.

• Decision Date: 26 June 2002
• Docket Number: No. 01-CV-3337,01-CV-3337
• Citation: 223 F.Supp.2d 650
• Parties: Julian YEBOAH, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, and Kenneth J. ELWOOD, in his capacity as District Director, Immigration and Naturalization Service, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

223 F.Supp.2d 650

Julian YEBOAH, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, and Kenneth J. ELWOOD, in his capacity as District Director, Immigration and Naturalization Service, Defendants.

No. 01-CV-3337

United States District Court, E.D. Pennsylvania.

June 26, 2002.

Stephen G. Harvey, Pepper, Hamilton and Scheetz, Gerard A. Dever, Fine, Kaplan and Black, RPC, Philadelphia, PA, for Plaintiff.

Linda L. Bocchino, Assistant U.S. Attorney, Seth Weber, U.S. Attorney's Office, Philadelphia, PA, Alison Marie Igoe, Brenda M. O'Malley, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, Susan R. Becker, United States Attorney, Assistant United States Attorney, Philadelphia, PA, for Defendants.

OPINION AND ORDER

VAN ANTWERPEN, District Judge

Julian Yeboah was ten years old when he arrived alone from Ghana at New York's John F. Kennedy airport on March 4, 2000. He had $1.25 in his pocket, no travel documents, and seemingly, no one to call when he arrived in the United States. The Immigration and Naturalization Service (INS) took Julian into custody upon arrival and he has been in INS custody ever since.

No one but Julian seems certain how or why he came to the United States by himself, and his version is confusing. Julian interviewed with a child psychiatrist who reported that the boy was running away from his abusive father — Julian's mother had long since abandoned the family. Julian claims that a friend of his father's swept him up and put him on an airplane. Initially, Julian's father reported his son missing. After first saying he wanted Julian to return to Ghana, the father now says he does not want Julian back.

Plaintiff wishes to petition for Special Immigrant Juvenile (SIJ) status under 8 U.S.C. § 1101(a)(27)(J)(i), as amended, which would allow him to remain in the country as an abused, neglected or abandoned child if he were declared dependent on a state juvenile court. Under this provision, the INS retains jurisdiction over Julian and must give its consent for his case to go before a state court for a dependency hearing.

The INS has refused to allow Julian to attend a dependency hearing. The INS found that Julian's account of abuse, neglect and abandonment lacked credibility. The agency believes that Julian's father probably sent him to America in an illfated effort to improve his son's prospects for the future, in the hope that someday Julian's father and brother might come to join him here. The INS points to statements to that effect which Julian's father made to officials in Ghana and which Julian made to the Ghanian Embassy in the United States. Among other evidence, the INS highlights the fact that while in the agency's custody, Julian has maintained regular telephone communication with his father — suggesting that Julian's father has not abandoned him.

When the INS refused Julian's petition to go before a state juvenile court, he sued the agency demanding review of its decision under the Administrative Procedure Act (APA), 5 U.S.C. § 706. Specifically, Plaintiff requested that we declare the decision arbitrary, capricious and an abuse of discretion, in violation of the APA, and that we enjoin the INS to consent to a dependency hearing. The agency argued that we did not have subject matter jurisdiction to review the case under Fed. R.Civ.P. 12(b)(1), but we rejected this notion. Yeboah v. I.N.S., 2001 WL 1319544 (E.D.Pa.2001).

The parties subsequently filed cross motions for summary judgment. After oral argument on March 13, 2002, we remanded the case to the INS District Director for reconsideration in light of additional evidence obtained after his original decision denying Julian consent to go before a state juvenile court. The INS reconsidered, but even with this additional evidence, the agency rejected Julian's petition, and the parties re-filed summary judgment motions.

Because the SIJ provision gives the INS discretion to consent to a dependency hearing, we have no authority to overturn the agency's ruling unless it abused this discretion or issued an arbitrary or capricious decision. We find that Plaintiff has presented no evidence suggesting the INS abused its discretion by failing to consider Julian's case, straying from its own regulations or otherwise denying Julian due process. Moreover, the INS' decision — while not the only decision the agency could have made — was not arbitrary or capricious, based on the facts the agency considered. Accordingly, we must grant summary judgment to the INS and deny summary judgment to Plaintiff. The parties may now proceed on the stipulated final removal order entered by Immigration Judge William Van Wyke in York, Pennsylvania on August 22, 2001, which was not executed by stipulation pending the outcome of this lawsuit.

I. STANDARD OF REVIEW

The standard of review is the most important determining factor in this case. If we were reviewing the case de novo, then we might be free to look at the complete record regarding the possibility of SIJ status for Julian and determine whether we thought he seemed to be abused, neglected or abandoned such that it would not be in his best interest to return to Ghana. However, our authority is not so pervasive.

A. Reviewing the Agency's Decision-Making

Plaintiff challenges the INS' internal policies, regulations and procedures which helped the agency reach its conclusion regarding Julian. The SIJ provision amended by Congress in 1997 merely states that no juvenile court can determine a petitioner's dependency "unless the Attorney General [through the INS] specifically consents to such jurisdiction" 8 U.S.C. 1101(a)(27)(J)(iii)(I). Congress never defined the parameters governing such consent. The INS moved to fill this void with a memorandum labeled "Clarification of Interim Field Guidance" regarding SIJ status, which states, "The [INS] district director, in consultation with the district counsel, should consent to the juvenile court's jurisdiction if: 1) it appears that the juvenile would be eligible for SIJ status if a dependency order is issued; and 2) in the judgment of the district director, the dependency proceeding would be in the best interest of the juvenile." Plaintiff's Complaint, Ex. A, Memorandum for Regional Directors, Subject: Special Immigrant Juveniles, July 9, 1999, p. 2.

Defendant argues that we should defer to the INS' two-pronged reasoning and methodology described in the agency's field guidance, and Plaintiff rebuts that the INS memorandum is not entitled to deference.

In general, when Congress has not directly spoken to the precise question at issue, we may not "simply impose our own construction on the statute." Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Fatin v. INS, 12 F.3d 1233, 1239 (3rd Cir.1993). "Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id.

Despite the paucity of cases nationwide applying the 1997 amendment to the SIJ provision, one Federal District Court in New Mexico did interpret the statute, holding that the "Interim Field Guidance is not the type of agency decision which warrants Chevron deference." Yu v. Brown, 92 F.Supp.2d 1236, 1243 (D.N.M. 2000).¹ The Yu court noted that the memo incorporated no legal reasoning or statutory construction, but merely set forth its policy cursorily. Id. The court explained,

It is impossible for the Court to determine whether the INS's construction of [the 1997 amendment to the SIJ provision] ... is reasonable without any indication of the reasoning, analysis or rationale underlying the INS's conclusion. Other courts that have had the benefit of reviewing the INS's legal reasoning and analysis underlying its interpretation of a statute, have rejected such interpretations where it found the legal reasoning flawed. [Citations.] In the absence of any legal reasoning, [relevant] analysis or reference to any overriding policy concerns, deference to the Interim Field Guidance is not warranted.

Finally, the Interim Field Guidance is not the type of agency decision which warrants Chevron deference. The Tenth Circuit has made clear that an agency's statutory construction is entitled to Chevron deference only when it is reached through the proper rulemaking procedures pursuant to the Administrative Procedure Act, such as either an administrative rulemaking or an adjudicative decision. [Citations.] Here, the only INS interpretation offered by the Government is an Interim Field Guidance, not arrived at through the proper rulemaking or adjudicative channels, which blankly [sets forth the policy] without any statutory construction or legal analysis explaining this conclusion. Under these circumstances, the Court is not bound to follow this INS interpretation and would even be remiss if it deferred to such an unsupported and unexplained statutory construction. Id. at 1243-1244.

We are inclined to agree with the Yu court's thinking, which suggests that this INS field guidance memo should not carry the force of law, entitled to Chevron deference. Even so, Defendant suggested at oral argument and we concur that the INS field guidance might be entitled to "respect according to its persuasiveness" (also called Skidmore deference) — a standard given new life by the Supreme Court subsequent to the Yu decision. See U.S. v. Mead Corp., 533 U.S. 218, 222, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001), citing Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944). See also Michael C. ex rel. Stephen C. v. Radnor Tp. School Dist., 202 F.3d 642, 649 (3rd Cir. 2000) ("This court has held that the level of deference to be accorded such interpretive rules depends upon their persuasiveness. Admittedly, they do not rise to the level of a...