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August 16, 2005.

DONG, LI QUI (A 70 886 440) AND, DONG, ZHI WEN (SON) Plaintiffs,

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 pertinent part:
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 United States.
(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 their claims.


  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). ...

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