United States District Court, Eastern District of New York
October 25, 1999
EDERLINA ROGAN AND HENRY ROGAN, PLAINTIFFS,
JANET RENO, U.S. DEPARTMENT OF JUSTICE, AND IMMIGRATION AND NATURALIZATION SERVICE, DEFENDANTS.
The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
This immigration matter involves the Defendant Immigration and
Naturalization Service's ("INS") denial of the Plaintiffs visa petition
to classify their niece, Sarah Elizabeth Ragob, as an immediate
relative. Presently before the Court is the Defendants' motion to dismiss
On February 23, 1998, the Plaintiffs filed a petition with the INS
seeking to classify their adopted daughter, Sarah Elizabeth Ragob
("Sarah"), as an immediate relative, thus allowing her to emigrate from
her home country of the Philippine Islands. On May 28, 1998, the INS
determined that Sarah was not eligible for designation as an immediate
relative pursuant to 8 U.S.C. § 1101 (b)(1)(f), because she was not
considered "orphaned" by her natural parents as that term is defined in
the immigration statute. On June 12, 1998, the Plaintiffs filed an appeal
with the Board of Immigration Appeals ("BIA"), and on November 14, 1998,
the BIA dismissed the appeal, holding that Sarah was not an orphan. The
Plaintiffs then commenced this declaratory judgment action, seeking a
declaration that Sarah is an orphan as defined by 8 U.S.C. § 1101
(b)(1)(f), and is therefore eligible for classification as an immediate
The Defendants now move to dismiss the Plaintiffs' complaint on two
grounds. First, the Defendants allege that a 1996 Congressional statute,
8 U.S.C. § 1252 (g) deprives this Court of subject matter
jurisdiction to hear the case. Second, the government contends that
decision of the INS on Sarah's status was not arbitrary or capricious.
The complaint alleges that Sarah was born on October 29, 1997 in the
Islands to a woman named Zanaida Creado Rogob, with the birth certificate
listing the father as "unknown." Plaintiff Ederlina Rogan, the sister of
Zanaida, was present at the birth and Sarah lived with her, away from
Zanaida for six months following the birth. Thereafter, the Plaintiffs
petitioned a Philippine court to adopt Sarah, and such petition was
granted, with the consent of Zanaida and without objection by the natural
father, on February 16, 1998. Sarah currently lives with her grandmother
in Leyte City, a 24 hour drive from Zanaida.
The post-investigation findings of the INS Officer in Charge in the
Philippines, which were part of the record before the BIA and attached as
an exhibit to the complaint, shed additional light on Sarah's situation.
The INS found that Sarah's natural father was a man named Arnel Sorilla,
and that he and Zanaida, although not legally married, live together as
husband and wife. Arnel is employed by a security and investigation
agency, and supports three other children with Zanaida in a lifestyle
considered "well-off" by local standards. Zanaida admitted to the
investigating officer that the decision to list the father as "unknown"
on the birth certificate was made by Plaintiff Ederlina, at the
suggestion of her lawyer to ease the immigration process.
The Defendants argue that this Court lacks subject matter jurisdiction
to decide this case by virtue of 8 U.S.C. § 1252. That section,
entitled "Judicial Review of Orders of Removal," contains sections
restricting judicial review of actions by the Attorney General. In this
regard, the Defendants point to § 1252(g), which states
Except as provided in this section and notwithstanding
any other provision of law, no court shall have
jurisdiction to hear any cause or claim by or on
behalf of any alien arising from the decision or
action by the Attorney General to commence
proceedings, adjudicate cases, or execute removal
orders against any alien under this chapter.
8 U.S.C. § 1252 (g).
Several courts have held that the revocation of subject matter
jurisdiction in 8 U.S.C. § 1252 (g) applies only to removal
proceedings, in which the INS attempts to deport or exclude an
inadmissible alien. Burger v. McElroy, 1999 WL 203353 at n. 4 (S.D.N.Y.
1999) citing Shanti, Inc. v. Reno, 36 F. Supp.2d 1151 (D.Minn. 1999) and
Dominance Industries v. INS, 1998 WL 874904 (N.D.Tex. 1998). This Court
finds the logic in these cases to be sound. The title and content of
§ 1252 repeatedly refer to removal proceedings, and the section makes
no mention of 8 U.S.C. § 1154, the procedure which the Plaintiffs
invoked to obtain immediate relative status for Sarah. Therefore, the
Court finds that § 1252(g) does not apply in cases such as this one,
where the relief requested is simply re-classification of a petitioner's
visa status, not removal or exclusion of an immigrant.
The Court now turns to the Defendants' second argument: that the
decision by the INS that Sarah was not an "orphan" was not an abuse of
discretion as a matter of law. An INS determination denying "immediate
relative" status is within the broad discretion of the INS and "courts
will not reverse its decision unless there has been an abuse of
discretion." Vazquez v. U.S. Immigration and Naturalization/Serv., 1990
WL 156158 (E.D.N.Y. 1990) citing Delgado v. Immigration and
Nataralization Serv., 473 F. Supp. 1343, 1348 (S.D.N.Y. 1979); see also
Sidhu v. Jenifer, 104 F.3d 361 (table), 1996 WL 733133 (6th Cir. 1996).
The court will not find an abuse of discretion unless the BIA's decision
was "made without a rational explanation, inexplicably departed from
established policies, or rested on an impermissible basis, such as an
invidious discrimination against a particular race or group." Douglas v.
INS, 28 F.3d 241, 243 (2d Cir. 1994). The Plaintiffs' complaint does not
dispute the facts as found by the
INS investigator in the Philippines regarding Sarah's family situation.
Therefore, if the BIA's decision is an "abuse of discretion," it must be
because the BIAs decision is a departure from established policies or a
mis-application of the INS regulations.
The INS determined that Sarah was not eligible for a re-classification
on the grounds that she was not an "orphan" as defined by the law. A
child becomes an "orphan" under 8 U.S.C. § 1101 (b)(1)(f)
because of the death or disappearance of, abandonment
or desertion by, or separation or loss from, both
parents or for whom the sole or surviving parent is
incapable of providing the proper care and has in
writing irrevocably released the child for emigration
The Plaintiffs argue that Sarah fells within this definition under both
the "abandoned" and "sole or surviving parent" categories.
A. Whether Sarah was "abandoned" by both parents
"Abandonment," as used in 8 U.S.C. § 1101 (b)(1)(f), occurs where
The parents have wilfully forsaken all parental
rights, obligations, and claims to the child . . .
without intending to transfer, or without
transferring, these rights to any specific person(s)
. . . A relinquishment or release by the parents to
the prospective adoptive parents or for a specific
adoption does not constitute abandonment. Similarly,
the relinquishment or release of the child by the
parents to a third party for custodial care in
anticipation of, or preparation for, adoption does not
constitute abandonment. . . .
8 C.F.R. § 204.3 (b).
Under the facts alleged in the complaint, the decision by the INS that
Sarah was not "abandoned," as that word is defined in the statute, was
not an abuse of discretion. Under the definition of "abandonment,"
Zanaida's relinquishment of parental rights in Sarah had to occur
independently of and prior to Ederlina's petition to adopt her. The
language of 8 C.F.R. § 204.3 (b) is clear: "release by the parents to
the prospective adoptive parents . . . does not constitute abandonment."
Accord Sidhu v. Jenifer, supra., 1996 WL 733133, 104 F.3d 361 ("since
even the Sidhu's concede that Gurpreet's adoption was orchestrated, the
Service did not misconstrue the facts in determining that Gurpreet was
not abandoned."). The Plaintiffs do not contend that Zanaida "abandoned"
Sarah before Ederlina petitioned for adoption; rather, the Plaintiffs
allege that Zanaida "consented" to the adoption, a consent that would
have been unnecessary if she had truly "abandoned" Sarah before that
time. Moreover, review of the order of the Philippine court indicates
that Ederlina filed her petition to adopt Sarah, with the consent of
Zanaida, a mere 15 days after Sarah was born, further casting doubt on
the proposition that Zanaida could have abandoned Sarah prior to that
On this basis, the Court finds that the BIA properly exercised its
discretion to find, under the facts presented, that Sarah was not
"abandoned" by her natural parents.
B. Whether Sarah was a child of a "sole parent" who was "incapable of
providing proper care.".
Nevertheless, the Plaintiffs could also demonstrate that Sarah was an
"orphan" under the statute by showing that "the sole or surviving parent
is incapable of providing the proper care and has in writing irrevocably
released the child for emigration and adoption." 8 U.S.C. § 1101
(i) Whether Zanaida is a "sole parent"
Under 8 U.S.C. § 1101 (b)(2), a child's natural father is not
considered a "parent" if the father has "disappeared or abandoned or
deserted the child. . . ." The INS regulations interpreting this
statutory section deviate from the above language somewhat, defining a
child as having a "sole parent" where "her father has
severed all parental ties, rights, duties, and obligations to the child.
. . ." 8 C.F.R. § 204.3 (b).
The record before the INS indicated that Sarah's biological father
shared the same house with her mother and Sarah's siblings, and was
providing ample financial support to all of them. In addition, Sarah's
mother informed the INS investigator that Sarah's father was listed as
"unknown" only to ease Sarah's adoption and emigration. Under these facts
as alleged in the complaint, the Court finds that Sarah's father has not
"disappeared," "abandoned," or "deserted" Sarah. The INS regulations do
not define what constitutes "severing all parental ties," but since the
statute uses the term "abandoned," the definition of "abandonment" in
8 C.F.R. § 204.3 (b) is helpful in interpreting it. The INS
definition of abandonment specifically excludes relinquishment of
parental rights made pursuant to consensual adoptions. 8 C.F.R. § 204.3
(b). It is logical to interpret the statutory use of the expression
"disappeared, abandoned, or deserted" consistently with the definition of
"abandoned" used in the INS regulations. Both definitions are means to
the same end, namely, determining whether the child is an "orphan."
Here, the Plaintiffs argue that Sarah's natural father's parental
rights were severed when Sarah was adopted without objection by him.
However, since the statute requires that Sarah's natural father "abandon"
her before she can be considered to have a "sole parent," and because
Sarah's parents turned her over to the Plaintiffs in anticipation of them
adopting her, the Plaintiffs cannot show that Sarah's father's
relinquishment of his parental rights amounted to "abandonment" under
8 U.S.C. § 1101 (b)(2).
Thus, Sarah's father has not "severed all parental rights" to her in
the manner contemplated by the statute. Therefore, the Plaintiffs cannot
rely upon the "sole parent" test to prove that Sarah is an "orphan" under
8 U.S.C. § 1101 (b)(1)(f).
(ii) Whether Zanaida is "incapable of providing proper care"
Even if Sarah's father's acts were sufficient to constitute
relinquishment of his parental rights in her, Sarah still fails to fit
the definition of "orphan" under the "sole parent" test in
8 U.S.C. § 1101 (b)(1)(f) since there is no evidence in the record
before the BIA that Sarah's mother is "incapable of providing proper
care" for Sarah. A sole parent is "incapable of providing proper care"
where the parent "is unable to provide for the child's basic needs,
consistent with the local standards." 8 C.F.R. § 204.3 (b). The
record before the BIA reflects that Sarah's mother, although unemployed,
enjoys an "above-average" standard of living because of Sarah's father's
employment. Nothing in the definition suggests that the child's "sole
parent" provide for the child's needs using only money earned by the
parent. Rather, the regulation merely seeks to inquire whether the child's
basic needs are being met without inquiring who is providing for them.
"Under this definition, because the record before the BIA shows that
Zanaida is capable of providing proper care," Sarah cannot be considered
an "orphan" under 8 U.S.C. § 1101 (b)(1)(f), even if Sarah's mother
otherwise meets the definition of "sole parent."
In sum, the Court finds that the decision made by the BIA is a
reasonable application of the immigration statute, INS regulations, and
past precedent to the facts before it. Further, the Plaintiffs' complaint
fails to allege any facts that, if taken as true, would demonstrate that
the BIA's decision was an abuse of discretion. The INS decision that
Sarah was not an "orphan" has a rational basis and was not an abuse of
discretion as a matter of law. Accordingly, the Government's motion to
dismiss the complaint is GRANTED and
the complaint is dismissed. directed to close the case.
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