Yun Shi Li v. Garland

Decision Date21 November 2022
Docket Number21-cv-10601 (LJL)
CourtU.S. District Court — Southern District of New York
PartiesYUN SHI LI, Plaintiff, v. MERRICK B. GARLAND, Attorney General of the United States; UR M. JADDOU, Director of United States Citizenship and Immigration Services; ALEJANDRO MAYORKAS, Secretary of the U.S. Department of Homeland Security; PHYLLIS COVEN, Director for the District of New York United States Citizenship & Immigration Services; SUSAN QUINTANA, Director for Field Office of New York, Defendants. v.

YUN SHI LI, Plaintiff,
v.
MERRICK B. GARLAND, Attorney General of the United States; UR M. JADDOU, Director of United States Citizenship and Immigration Services; ALEJANDRO MAYORKAS, Secretary of the U.S. Department of Homeland Security; PHYLLIS COVEN, Director for the District of New York United States Citizenship & Immigration Services; SUSAN QUINTANA, Director for Field Office of New York, Defendants.

No. 21-cv-10601 (LJL)

United States District Court, S.D. New York

November 21, 2022


OPINION AND ORDER

LEWIS J. LIMAN, UNITED STATES DISTRICT JUDGE

Plaintiff Yun Shi Li (“Plaintiff”[1] or “Li”) brings this action (1) seeking de novo review of the denial by United States Citizenship and Immigration Service (“USCIS”) of her application for naturalization under the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1421(c) and (2) to set aside USCIS's denial of Plaintiff's application for naturalization on grounds that USCIS's decision was arbitrary and capricious under the Administrative Procedure Act (“APA”).

Defendants Merrick B. Garland, Attorney General of the United States; Ur M. Jaddou, Director, USCIS; Alejandro Mayorkas, Secretary, U.S. Department of Homeland Security;

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Denise M. Frazier,[2] District Director, USCIS New York District Office; Susan Quintana, Field Office Director, USCIS New York Field Office (collectively, “Defendants”) now move to dismiss this case pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim for relief. Dkt. No. 13.

For the following reasons, the motion to dismiss is granted.

BACKGROUND A. Family-Based Visas and the Child Status Protection Act

The Immigration and Nationality Act allows United States citizens and legal permanent residents (“LPRs”) to sponsor certain family members for visas. 8 U.S.C. § 1151(a), (b). Immediate relatives of U.S. citizens are not subject to yearly visa caps, see Id. § 1151(b)(2)(A)(i); more distant relatives of U.S. citizens and certain relatives of LPRs are allocated visas based on their “preference” category, see Id. § 1153(a)(1)-(4). There are several preference categories for family-sponsored immigrants: First preference (“F1”) is reserved for unmarried sons and daughters of citizens; second preference is subdivided into “F2A” (spouses and children younger than twenty-one of LPRs) and “F2B” (unmarried children over the age of twenty-one of LPRs) categories; third preference (“F3”) is reserved for married children of citizens; and fourth preference (“F4”) is for siblings of citizens. See Id. 1153(a)(1)-(4).[3] The law caps the number of visas that can be issued annually in each preference category. See Id. §§ 1151(c)(1)(A), 1153(a)(1)-(4).

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Before a relative can receive a visa, the sponsoring U.S. citizen or LPR (the “petitioner” as he or she is known) must file a Form I-130, Petition for Alien Relative (“Form I-130 Petition”) on behalf of a family member (the “beneficiary”). Id. § 1154(a)(1)(A)(I); 8 C.F.R. § 204.1(a)(1); Li v. Renaud, 654 F.3d 376, 378 (2d Cir. 2011). Once the claimed familial relationship is verified, USCIS approves the petition. See Drax v. Reno, 338 F.3d 98, 114 (2d Cir. 2003). Approval of a Form I-130 Petition by USCIS does not automatically bestow a visa on the beneficiary; rather, the beneficiary receives a “priority date”-the date on with the Form I-130 Petition was filed-and, if there are more approved beneficiaries than visas available, as there generally are for those who fall into one of the four preference categories, the beneficiary must wait until his or her priority date is called. See 8 C.F.R. § 204.1(b); Scialabba v. Cuellar de Osorio, 573 U.S. 41, 48 (2014) (plurality opinion); Cuthill v. Blinken, 990 F.3d 272, 274-275 (2d Cir. 2021). “The system is thus first-come, first-served within each preference category, with visas becoming available in order of priority date.” Scialabba, 573 U.S. at 48.

Petitioners can name one or more derivative beneficiaries on the same Form I-130. See Li v. Renaud, 709 F.Supp.2d 230, 232 (S.D.N.Y. 2010), aff'd, 654 F.3d 376. These “derivative beneficiar[ies],” including the spouse and minor children of the principal beneficiary, are entitled to “the same status, and the same order of consideration,” regardless of whether the parent or child would separately qualify for a visa through one of the family preference categories. 8 U.S.C. § 1153(d), (h); Scialabba, 573 U.S. at 48.

“All of this takes time-and often a lot of it.” Scialabba, 573 U.S. at 50; see also Renaud, 654 F.3d at 378 (“Given the annual limitations on the total number of visas that may be granted for a particular family preference category-and on the number of natives of a single country who may receive visas-the waiting line to receive a visa often is long.”). It takes time

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for USCIS to approve a Form I-130 Petition; it frequently takes even more time for a visa to become available after a Form I-130 Petition is approved; and it takes time for USCIS to approve a visa once one becomes available. Scialabba, 573 U.S. at 50. So Congress enacted the Child Status Protection Act (“CSPA”), 116 Stat. 927, to protect both primary and derivative children from aging out of a preference category (i.e., turning twenty-one) while waiting. Scialabba, 573 U.S. at 51; see 8 U.S.C. § 1153(h). The CSPA carves out two periods of time from the statutory age of primary and derivative beneficiaries: the time spent waiting for USCIS to approve the Form I-130 Petition and the time spent waiting for the USCIS to approve a beneficiary's visa, after one has become available. See 8 U.S.C. § 1153(h)(1), (2); Scialabba, 573 U.S. at 52-53. Statutory time, however, does not stop during the period after the relevant Form I-130 Petition has been approved but before a visa has become available. If the beneficiary ages out of the preference category during this period, the CSPA provides that “the alien's petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.” 8 U.S.C. § 1153(h)(3).

The question of if and how this subsection applied to derivative beneficiaries whose petition could not “automatically be converted” into a second family-preference category was settled by the Board of Immigration Appeals (“BIA”) in Matter of Wang, 25 I. & N. Dec. 28 (2009). Before Matter of Wang, the BIA had addressed the issue in a single, unpublished opinion. In Matter of Garcia, the BIA concluded that, under the CSPA, aged-out derivative beneficiaries could inherit a primary beneficiary's priority date. See Matter of Garcia, 2006 WL 2183654, at *4 (DCBABR June 16, 2006). There, the respondent was the derivative beneficiary on her mother's F4 From I-130 Petition, which was filed by her mother's U.S.-citizen sibling. Id. at *1. But the respondent had aged out of her mother's F4 Petition and her mother filed an F2

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petition on her behalf. Id. at *2. With scant reasoning, the BIA concluded that under the CSPA, “the respondent is entitled to retain the January 13, 1983, priority date that applied to the original fourth-preference petition.” Id. at *4.

But in Matter of Wang, the BIA declined to follow this unpublished decision. 25 I. & N. Dec. at 33 n.7. In Matter of Wang, a U.S. citizen filed an F4 Form I-130 Petition on behalf of her brother. Id. at 29. Wang's wife and three children were derivative beneficiaries of the F4 Petition for which Wang was the primary beneficiary. Id. While waiting for a visa to become available, Wang's daughter turned twenty-two. Id. As a result, Wang's daughter was no longer eligible to be a derivative beneficiary on the F4 Petition filed by her aunt. After he received a visa based on his sister's Form I-130 Petition and became an LPR, Wang then filed a new F2 Petition on behalf of his daughter. Id. at 29-30. He argued that under the CSPA, his daughter's petition should receive the same priority date as the F4 Petition filed by his sister on his behalf. Id. The BIA rejected this argument and instead held that the priority date retention provisions of the CSPA do not apply because “there was no available category to which the beneficiary's petition could convert . . . [as] the niece of a United States citizen.” Id. at 38-39. Although the daughter might have been entitled to the priority date on the petition filed by her aunt had she been the aunt's daughter and aged-out of category F2A to F2B, because the original petition sought a visa once the daughter aged out as a derivative beneficiary on the original F4 Petition, there was no category pursuant to which she would be entitled to be a beneficiary on a petition filed by her aunt. Though Wang's daughter could now qualify for an F2 visa through her relationship with her father, she was not entitled to a visa by virtue of her relationship with her aunt and she could not inherit the priority date her father was given based on the original

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petition. She, in essence, could not skip the line and was entitled only to the priority date on the Form I-130 Petition her father filed on her behalf.

The Supreme Court upheld the BIA's interpretation of the CSPA in Scialabba v. Cuellar de Osorio, 573 U.S. 41. Justice Kagan, in her plurality opinion on behalf of herself and two other Justices, upheld the BIA's interpretation of 8 U.S.C. § 1153(h)(3) in Matter of Wang on Chevron grounds. See Id. at 56-64. Justice Kagan found § 1153(h)(3) was ambiguous because its first clause-“If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d)”-appeared to encompass all aged-out beneficiaries and thus pointed to broad-based relief, while its second clause-“the alien's petition shall automatically be converted to the appropriate category”-on its face...

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