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.
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 ...