The opinion of the court was delivered by: HAROLD BAER, Jr., District Judge[fn*] [fn*] Alissa Hazan, a summer 2005 intern in my Chambers, and currently a second year law student at New York University School of Law, provided substantial assistance in the researching and drafting of this opinion.
*fn1 Tom Ridge was succeeded by Michael Chertoff in February of
2005 as Secretary, Department of Homeland Security. Plaintiffs'
original complaint named the Attorney General as Defendant, but
on December 15, 2004, Plaintiffs filed an Amended Complaint that
replaced Tom Ridge as Defendant.
On September 9, 2002, Plaintiffs Dong, Li Qui ("Li Qui") and
Dong, Zhi Wen ("Zhi Wen") (collectively, "Plaintiffs"), filed the
instant action against Defendant, Tom Ridge, former Secretary of
the Department of Homeland Security (herein, "the Government"),
for a declaration that Zhi Wen is a "child" eligible for the
issuance of an asylee visa under the Child Status Protection Act.
Plaintiffs move for summary judgment and the Government
cross-moves to dismiss, or in the alternative, for summary
judgment in the Government's favor. For the following reasons,
the Government's motion to dismiss is GRANTED and Plaintiffs'
motion for summary judgment is DENIED.
On December 21, 1989, Li Qui, a forty-nine-year-old citizen of
China, entered the United States. (Certified Administrative
Record of Proceedings at p. 3) ("Record"). He applied to the
former Immigration and Naturalization Service ("INS")*fn2
for political asylum on May 12, 1993, and in his application
described the persecution he claimed to have suffered at the
hands of local government officials in China. Id. This
persecution was in reaction to the birth of his and his wife's second child, which violated the Chinese government's
birth control policy. Id. In his description of the inhumane
treatment he experienced, Li Qui explained that his wife had been
forced to have an abortion and he was threatened with
sterilization. Id. Li Qui claimed to have fled the country in
fear for his freedom and safety. Id.
On February 6, 1997, Li Qui was granted political asylum
pursuant to Section 208 of the Immigration and Nationality Act
("INA"), 8 U.S.C. § 1158. (Am. Compl. ¶ 2.) Shortly thereafter,
Li Qui began to file I-730 Refugee/Asylee Relative Petitions
("I-730") to attempt to have his wife and two children join him
in the United States. (Am. Compl. ¶ 7.) Li Qui filed six separate
petitions on behalf of his son, Zhi Wen, who was fifteen years
old at the time of the first petition. Id. Li Qui claims that
the first six I-730 petitions he filed on behalf of Zhi Wen were
denied due to mis-mailings, failures to properly file, and
ineffective assistance of counsel. On March 21, 2002,
approximately one month prior to Zhi Wen's twenty-first birthday,
the INS approved Li Qui's seventh I-730 petition, and sent it to
the American Consulate in Guangzhou, China. (Am. Compl. ¶ 8.) Li
Qui then flew to Guangzhou with the original approved petition to
attempt to obtain an interview and visa issuance prior to April
14, 2004, when Zhi Wen would turn twenty-one. (Am. Compl. ¶ 9.)
Unfortunately, the I-730 file had not reached the American
Consulate in Guangzhou by that date, and this was a problem
despite the Petitioner having flown to China with the approved
petition well in advance of his son's twenty-first birthday, and
Zhi Wen was not issued a visa. (Am. Compl. ¶ 10.) On September
12, 2002, Li Qui filed an eighth I-730 petition on behalf of Zhi
Wen. INS denied that petition on August 27, 2003, because by that
point Zhi Wen had already turned twenty-one and thus "aged out"
of eligibility as a relative of Li Qui. (Rec. at 34-40.)
On August 6, 2002, Congress passed the Child Status Protection
Act, Pub.L. No. 107-208, 116 Stat 927 (Aug. 6, 2002). Section 4
of the CSPA amends Section 208(b)(3) of the INA, and states in
An unmarried alien who seeks to accompany, or follow
to join, a parent granted asylum under this
subsection, and who was under 21 years of age on the
date on which such parent applied for asylum under
this section, shall continue to be classified as a
child for purposes of this paragraph . . . if the
alien attained 21 years of age after such application
was filed but while it was pending.
CSPA, Section 4, 116 Stat at 928.
The Bureau of Citizenship and Immigration Services ("BCIS")
(formerly INS) issued an internal memorandum ("BCIS Memo") on
July 23, 2003, to provide guidance for the implementation of the
CSPA. (Memorandum For Overseas District Directors, "Processing Derivative Refugees and Asylees under the Child Status Protection
Act" July 23, 2003.) The BCIS Memo states that a derivative is
eligible for "continued classification as a child" when:
[t]he Form I-730 from which the derivative is
benefiting was pending on August 6, 2002, and the
derivative was under the age of 21 at the time the
I-730 was filed . . . [and] Form? I-730 [is] to be
considered pending as of August 6, 2002, if [it] was
approved as of that date, but the beneficiaries had
not yet been issued documentation to travel to the
(BCIS Memo, p. 2) (emphasis in original.) Plaintiffs assert that
the BCIS Memo interprets "pending" to mean "that the I-730 was
received at an overseas district office, and security checks were
pending as of August 6, 2002, or that the I-730 had not been
revoked prior to August 6, 2002. (Am. Compl. ¶ 12.) Plaintiffs
further contend that Zhi Wen's seventh I-730 petition "has never
been revoked; it was filed when he was under twenty-one, and the
CSPA compels visa issuance absent any security issues." (Am.
Compl. ¶ 13.)
On September 9, 2002, Plaintiffs filed a Complaint with this
Court and on December 15, 2004, filed an Amended Complaint.
Plaintiffs requested that the Court: (1) declare Zhi Wen a child
under the CSPA eligible for issuance of an asylee visa; (2) issue
a writ of mandamus, compelling the Defendant to issue an asylee
visa to Zhi Wen; (3) grant attorney fees to Plaintiffs under the
Equal Access to Justice Act; and (4) grant such other relief as
it may deem necessary and proper. Plaintiffs then filed a motion
for summary judgment. In their reply memorandum in support of
this motion, Plaintiffs withdrew their request for an order to
compel the Government to issue a visa, and maintained only their
request for a declaration that Zhi Wen is a child under the CSPA,
as well as their request for attorneys fees. As such, the only
substantive issue for this Court to consider is Plaintiffs'
request for such a declaration.
On March 23, 2005, the Government filed a cross-motion to
dismiss the amended complaint or, in the alternative, for summary
judgment. The Government contends that the complaint should be
dismissed because this Court lacks subject matter jurisdiction to
review visa issuance decisions made by consulates. Furthermore,
the Government claims that Plaintiffs have failed to cite a
statute under which this Court would have jurisdiction to hear
A. Applicable Legal Standard
The Government moves to dismiss for lack of subject matter
jurisdiction in accordance with Rule 12(b)(1) of the Federal
Rules of Civil Procedure. Fed.R.Civ.P. 12(b)(1). This Court
must accept all of the facts alleged in the Complaint as true and
"draw all reasonable references in favor of the plaintiff." Raila v. United States, 355 F.3d 118, 119
(2d Cir. 2004). Under such a motion, "the plaintiff bears the
burden of proving by a preponderance of the evidence that
jurisdiction exists," Chayoon v. Chao, 355 F.3d 141, 143 (2d
Cir. 2004) (citing Garcia v. Akwesasne Hous. Auth.,
268 F.3d 76, 84 (2d Cir. 2001)), and jurisdiction must be "affirmatively"
demonstrated. APWU et. al. v. Potter, 343 F.3d 619, 623 (2d
Cir. 2003). ...