Young v. Reno

• Decision Date: 16 July 1996
• Docket Number: Civil No. 95-00871 DAE.
• Citation: 931 F. Supp. 1495
• Parties: Karen Yuen Fong YOUNG, Plaintiff, v. Janet RENO, Attorney General of the United States, Defendant.
• Court: U.S. District Court — District of Hawaii

931 F. Supp. 1495

Karen Yuen Fong YOUNG, Plaintiff, v. Janet RENO, Attorney General of the United States, Defendant.

Civil No. 95-00871 DAE.

United States District Court, D. Hawai`i.

July 16, 1996.

Donald Ungar, San Francisco, CA, William F. Thompson, III, Lynch & Farmer, Honolulu, HI, for plaintiff.

Michael Chun, United States Attorneys Office, Honolulu, HI, Mary Reiko Osaka, Department of Justice, Immigration and Naturalization Service, Honolulu, HI, for defendant.

ORDER DENYING PLAINTIFF'S MOTION FOR A CONTINUANCE; DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; AND GRANTING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT

DAVID ALAN EZRA, District Judge.

The court heard the parties' motions on July 15, 1996. Donald Ungar, Esq., and William F. Thompson, III, Esq., appeared at the hearing on behalf of Plaintiff Karen Yuen Fong Young ("Plaintiff"); Mary Reiko Osaka, Special Assistant United States Attorney, appeared at the hearing on behalf of Defendant Janet Reno ("the Government"). After reviewing the motion and the supporting and opposing memoranda, the court DENIES Plaintiff's Motion for Continuance, DENIES Plaintiff's Motion for Summary Judgment, and GRANTS Defendant's Cross-Motion for Summary Judgment.

BACKGROUND

The following facts are not in dispute:¹ Plaintiff is a United States citizen who in 1984 submitted visa petitions under § 204 of the Immigration and Nationality Act (INA), 8 U.S.C. § 1154, to accord preferential immigrant status to four of her biological siblings² residing in Hong Kong.³ Plaintiff was adopted by a paternal aunt in Hong Kong when she was a child, and because of this adoptive, parent-child relationship, was permitted to immigrate to the United States. Complaint at III, ¶ 2. The visa petitions submitted by Plaintiff on behalf of her siblings were initially approved by the Immigration and Naturalization Service (INS) with priority dates of 1984,⁴ and the approved petitions were thereafter sent to the U.S. Department of State in Hong Kong for processing as visas might become available.

When visas became available in 1994 based on the 1984 priority dates, Plaintiff's siblings reportedly applied for visas at the American Consulate in Hong Kong, but were advised that their visa petitions had been approved in error and that preferential visa benefits were not available to them as the biological siblings of Plaintiff. Complaint at III, ¶ 3. In July 1994, the visa petitions were apparently returned to the California Service Center (CSC) of the INS, in Laguna Niguel, for visa revocation proceedings.

At the time Plaintiff filed her Complaint, she represented that the INS has taken no action on the petitions. Complaint at III, ¶ 3. In the Government's memorandum in support for its Motion for Summary Judgment, however, it reports that the CSC has now completed action on at least three of the petitions: the petitions relating to Yuen Mi Li Hui, Chun Wai Hui, and Chun Hang Hui were revoked by decision of the CSC dated April 3, 1996. See Exhibit "A" to Government's Motion for Summary Judgment. According to the Government, the status of the visa petition for Yuen Yi Wong Hui remains unclear.⁵

Plaintiff filed this action against the Government to challenge the revocation of the visa petitions for her four siblings on October 26, 1995. On April 23, 1996, Plaintiff filed a Motion for Summary Judgment and a memorandum in support thereof ("Plaintiff's Motion for Summary Judgment"). The Government filed a Motion to Dismiss or in the Alternative Cross-Motion for Summary Judgment on June 18, 1996 ("Government's Motion for Summary Judgment"), to which Plaintiff filed an opposition on July 1, 1996. Further, on July 3, 1996, Plaintiff filed a Motion for Continuance, stating that the District Court for Northern California in Ma v. Reno, Civ. No. 96-15611 (Order filed November 3, 1995), recently decided the issue presented here (in favor of the plaintiff), for which the Government has filed a notice of appeal in the Court of Appeals for the Ninth Circuit. The Government does not specifically oppose Plaintiff's motion for a continuance, but takes the position that there is no basis for one. See Defendant's Position for Request for Initial Continuance at 1-2.

STANDARD OF REVIEW

I. Review of INS Determination

A federal court may reverse an INS denial of a preferential visa petition only if the INS abused its discretion. The INS abuses its discretion if it bases its decision upon an improper understanding of the law. Kaliski v. District Dir. of INS, 620 F.2d 214, 216 n. 1 (9th Cir.1980). The Supreme Court has recognized that the construction of a statute by those charged with its administration is entitled to substantial deference. See United States v. Rutherford, 442 U.S. 544, 553, 99 S.Ct. 2470, 2475-76, 61 L.Ed.2d 68 (1979); McKart v. United States, 395 U.S. 185, 193-94, 89 S.Ct. 1657, 1662-63, 23 L.Ed.2d 194 (1969) (an agency is created for purpose of applying a statute in the first instance). If reasonable and not contrary to the discernable intent of Congress, the agency's interpretation should be approved even though it is not the only reasonable interpretation or the one the reviewing court would make if deciding the issue in the first instance. See Unemployment Compensation Comm'n v. Aragon, 329 U.S. 143, 153-54, 67 S.Ct. 245, 250-51, 91 L.Ed. 136 (1946); see also Chevron USA, Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984), quoted in Louisiana-Pacific Corp. v. ASARCO, Inc., 6 F.3d 1332, 1339 (9th Cir. 1993).⁶

II. Summary Judgment

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). The moving party has the initial burden of "identifying for the court those portions of the materials on file in the case that it believes demonstrate the absence of any genuine issue of material fact." T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)). If the moving party meets its burden, then the opposing party may not defeat a motion for summary judgment in the absence of any significant probative evidence tending to support its legal theory. Commodity Futures Trading Comm'n v. Savage, 611 F.2d 270, 282 (9th Cir.1979). The opposing party can neither stand on its pleadings, nor can it simply assert that it will be able to discredit the movant's evidence at trial. See T.W. Elec. Serv., 809 F.2d at 630; Fed.R.Civ.P. 56(e). In a motion for summary judgment, the court must view the facts in the light most favorable to the non-moving party. State Farm Fire & Cas. Co. v. Martin, 872 F.2d 319, 320 (9th Cir.1989).

DISCUSSION

I. Plaintiff's Motion for Continuance

In support of her motion for a continuance, Plaintiff cites a recent ruling from the Northern District of California in Ma v. Reno, No. C-95-2777-VRW, which follows the court's decision in Gee v. INS, 875 F.Supp. 666 (N.D.Cal.1994), discussed infra. Because the court ruled in Gee that the plaintiff's natural siblings were entitled to a family based preference classification under 8 U.S.C. § 1153(a)(4), despite the fact that she had been legally adopted by another family, these cases are favorable to Plaintiff.

The Government filed a timely notice of appeal of the district court's ruling in Ma, No. 96-15611, but the Solicitor General has not yet determined whether the Government will proceed with the appeal. It will be approximately one month before the Solicitor General's intentions are revealed. If the Government decides to pursue the appeal, this court recognizes that it could take several years before a final Ninth Circuit decision is issued in that case.

Plaintiff asserts that "the outcome of the Ma case will no doubt determine the outcome of this one," and requests that this court continue the hearing on these motions until the Government decides if it will in fact proceed in Ma (in which case Plaintiff will ask this court to hold the instant ruling in abeyance until a Ninth Circuit ruling is entered). Motion for Continuance at 2-3. The Government states that it does not oppose Plaintiff's Motion for Continuance. However, it contends that there is no basis for a continuance even if the Government pursues an appeal.

As set forth below, this court declines to follow the Northern District of California's reasoning in Gee and Ma and determines that the circumstances do not weigh in favor of a continuance here. The court therefore DENIES Plaintiff's Motion for Continuance.

II. Motions for Summary Judgment

In support of her motion for summary judgment Plaintiff asserts three distinct arguments: First, she claims that her adoption did not operate to sever her relationship with her biological siblings, contrary to the INS decision in Matter of Li, 20 I & N Dec. ___, Interim Decision 3207, 1993 WL 424163, at *6 (BIA Sept. 29, 1993), in which the Board of Immigration Appeals held that an adopted child "is precluded from successfully petitioning for visa preference classification on behalf of her natural sibling." Second, Plaintiff argues that because the BIA's decision in Matter of Li constituted a departure from a former rule, announced in Matter of Fujii, 12 I & N Dec. 495 (Dist.Dir.1967), that a natural sibling of an adopted child was entitled to a "brother and sister" immigration preference, the new rule should have been made under the Administrative Procedures Act, 5 U.S.C. § 553. Third, Plaintiff asserts that Matter of Li should not be applied retroactively in this case to affect the visa petitions for her siblings. The Government's primary argument in support of its cross motion for summary judgment is that Plaintiff cannot establish that the INS abused its discretion in revoking the immigration preference status.⁷

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