The opinion of the court was delivered by: Sifton, Senior Judge.
MEMORANDUM OPINION AND ORDER
On April 22, 2009, plaintiff Grace Chadderton Richards commenced this action against defendants Janet Napolitano, Secretary of the United States Department of Homeland Security, John P. Torres, Acting Assistant Secretary of United States Immigration and Customs Enforcement, and Michael Aytes, Acting Deputy Director of United States Citizenship and Immigration Services ("USCIS"). Plaintiff claims that defendants' actions violated her statutory rights under the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. ("INA"), as well as the standards set forth in the Administrative Procedures Act, 5 U.S.C. § 701 et seq. ("APA"). Plaintiff seeks declaratory and injunctive relief as well as a writ of mandamus under the Mandamus Act, 28 U.S.C. § 1361, inter alia, enjoining USCIS from determining that plaintiff is no longer a "spouse" within the meaning of 8 U.S.C. § 1151(b)(2)(A)(i), and directing USCIS to reopen her I-130 petition and I-485 application and to adjudicate them on the merits. Plaintiff also seeks an award of costs and reasonable attorney's fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 et seq.
Presently before this Court are the parties' submissions in response to my Order dated April 27, 2009, directing them to show cause why the relief requested in plaintiff's petition should not be granted. For the reasons set forth below, plaintiff's requests for declaratory judgment, mandamus relief, and injunctive relief are granted in part and denied in part, and her request for costs and attorney's fees is denied without prejudice.
The following undisputed facts are drawn from plaintiff's Complaint and Petition for Writ of Mandamus ("Compl."). Plaintiff was born in Barbados in 1956. Compl. ¶ 11. She visited the United States numerous times under the terms of a multiple-entry, non-immigrant visitor's visa issued in 1995. Id. During a visit to the United States in 2000, plaintiff was introduced to Mr. Ricky Richards, a natural-born citizen of the United States, by Mr. Richard's cousin. Id. ¶ 12. They eventually began and maintained a long-distance romantic relationship for several years. Id.
Sometime after July 31, 2004, Mr. Richards proposed marriage to plaintiff. Id. ¶ 13. Plaintiff accepted and moved in with Mr. Richards and his mother in December of 2004. Id. On July 28, 2005, plaintiff and Mr. Richards married in Brooklyn, New York. Id. ¶ 12. Plaintiff continues to reside with Mr. Richard's mother. Id.
On January 25, 2006, Mr. Richards filed with the United States Citizenship and Immigration Services ("USCIS") an I-130 alien relative petition (the "I-130 petition") on plaintiff's behalf, and on the same day, plaintiff filed an I-485 application (the "I-485 application") to adjust her status to that of a lawful permanent resident. Id. ¶ 15. In connection with the I-130 petition and the I-485 application, an officer of USCIS conducted an interview of plaintiff and Mr. Richards on August 8, 2006. Id. ¶ 18. The couple appeared on the scheduled date, but no decision was made on either the I-130 petition or the I-485 application.*fn1 Id. At the conclusion of the interview, the USCIS officer marked plaintiff's passport "pending" and advised plaintiff and Mr. Richards that they would be notified of a decision by mail. Id.
On September 18, 2006, Mr. Richards died. Id. ¶ 19. At some point following Mr. Richards' death, USCIS directed plaintiff and Mr. Richards to appear for a second interview on July 9, 2007. Id. ¶ 20. Plaintiff retained counsel and appeared at the second interview, where she presented Mr. Richards' death certificate to agency officials. Id. ¶ 21. During the interview, the adjudicating officer explained to plaintiff that it was the agency's policy to deny I-130 petitions where the citizen spouse had died prior to the two-year anniversary of the marriage. Id. ¶ 22. At the conclusion of the interview, the officer advised plaintiff that she would receive a denial notice in the mail. Id.
By notice dated February 4, 2009, and by decision dated February 6, 2009 (the "Decision"), USCIS denied the I-130 petition without addressing whether the marriage was bona fide. Instead, USCIS stated that it "has no authority to approve an alien relative petition after the petitioner's death." Id. ¶ 24, see also id. Ex. A (copy of notice and attached decision). The agency relied on two cases decided by the Board of Immigration Appeals ("BIA") in concluding that it was "constrained to deny the petition." Id. Ex. A. Further, the Decision noted that even if no BIA precedent existed on the issue of a petitioner's death while a petition is pending, the INA required USCIS to deny the petition because following Mr. Richards' death, plaintiff no longer qualified as an "immediate relative" within the meaning of the INA as she ceased to be the "spouse" of a United States citizen at that time. Id.
There is no dispute that USCIS routinely grants I-130 petitions and I-485 applications filed on behalf of aliens who have been married to United States citizens for less than two years. Id. ¶ 26.
By Notice to Appear ("NTA") dated April 4, 2009, USCIS commenced removal proceedings against plaintiff. Id. ¶ 28; see also id. Ex. B (copy of NTA). A hearing in these proceedings has been scheduled for July 9, 2009.*fn2 Id. The NTA alleges, inter alia, that plaintiff "remained in the United States beyond January 30, 2005, without authorization from the [USCIS]," and charges plaintiff with being removable from the United States pursuant to section 237(a)(1)(B) of the INA, "in that after admission... [she] remained in the United States for a time longer than permitted, in violation of [the INA]." Id.; 8 U.S.C. § 1227(a)(1)(b). The Immigration Judge who will preside over the July 9, 2009 hearing has authority to order plaintiff's removal from the United States. Id. ¶ 34. However, the Immigration Judge lacks jurisdiction over the I-130 petition and lacks authority to compel USCIS to reconsider its denial of the I-130 petition or the I-485 application. Id. Plaintiff does not qualify for any form of relief from removal. Id. ¶ 35. Therefore, absent appropriate relief from this Court, the Immigration Judge would be compelled to order plaintiff's removal from the United States. Id.
Although the parties have not raised the issue, I note that this Court has subject matter jurisdiction under 28 U.S.C. § 1331, which grants courts general federal question jurisdiction, and Section 704 of the APA, 5 U.S.C. § 704, to review the meaning of the terms "immediate relative" and "spouse" as they appear in 8 U.S.C. § 1151(b)(2)(A)(i). Because these are purely legal questions which do not implicate agency discretion, the INA's jurisdictional bar, 8 U.S.C. § 1252(a)(2)(B)(ii), which precludes judicial review of most discretionary immigration decisions, does not apply in this case. See Arar v. Ashcroft, 414 F.Supp.2d 250, 267-73 (E.D.N.Y. 2006) (citing, inter alia, Sepulveda v. Gonzales, 407 F.3d 59 (2d Cir. 2005)). Further, for reasons stated more fully below, this Court has mandamus jurisdiction pursuant to 28 U.S.C. § 1361.
The APA empowers courts to "hold unlawful and set aside" not only agency actions and conclusions that are "arbitrary" or "capricious," but also agency actions and conclusions that are "otherwise not in accordance with law" or are "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right." 5 U.S.C. § 706(2)(A), (C). "When the agency action is based on an interpretation of its governing statute, [courts] must consider whether that interpretation is entitled to deference and, if so, how much." N.Y. Public Interest Research Group v. Whitman, 321 F.3d 316, 324 (2d Cir. 2003) (citing, inter alia, Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) (mandatory deference); Skidmore v. Swift & Co., 323 U.S. 134 (1944) (deference according to persuasiveness)). If "the statutory text is plain and unambiguous," however, the court "must apply the statute according to its terms." Carcieri v. Salazar, 129 S.Ct. 1058, 1063-64 (2009). In other words, no deference is due to an agency's interpretation that contravenes Congress' unambiguously expressed intent. Whitman, 321 F.3d at 324.
III. Statutory and Regulatory Background
A United States citizen who seeks to gain lawful permanent resident ("LPR") status for an alien family member must begin the process by filing an I-130 petition with USCIS on behalf of the alien family member, seeking classification of the alien as the citizen's "immediate relative." 8 U.S.C. §§ 1151(b)(2)(A)(i), 1154(a)(1)(A)(i); 8 C.F.R. § 204.1(a)(1). The INA defines "immediate relatives" as follows:
For purposes of this subsection, the term "immediate relatives" means the children, spouses, and parents of a citizen of the United States, except that, in the case of parents, such citizens shall be at least 21 years of age. In the case of an alien who was the spouse of a citizen of the United States for at least 2 years at the time of the citizen's death and was not legally separated from the citizen at the time of the citizen's death, the alien... shall be considered, for purposes of this subsection, to remain an immediate relative after the date of the citizen's death but only if the spouse files a petition under section 1154(a)(1)(A)(ii) of this title [an I-360 petition] within 2 years after such date and only until the date the spouse remarries.
8 U.S.C. § 1151(b)(2)(A)(i). If a United States citizen spouse dies without filing a petition on behalf of an alien spouse, an alien spouse "described in the second sentence of section 1151(b)(2)(A)(i)" -- i.e., "who was the spouse of a citizen of the United States for at least 2 years at the time of the citizen's death and was not legally separated from the citizen at the time of the citizen's death" -- may also file a petition for classification as an immediate relative on Form I-360. 8 U.S.C. § 1154(a)(1)(A)(ii); 8 C.F.R. §§ 204.1(a)(2), 204.2(b).
During the course of adjudicating an I-130 or an I-360 petition, USCIS must conduct an investigation to determine whether "the facts stated in the petition are true and... the alien in behalf of whom the petition is made is an immediate relative[.]" 8 U.S.C. § 1154(b). Approval of an I-130 or an I-360 petition turns on whether the marriage relationship was bona fide "at its inception." Matter of McKee, 17 I&N Dec. 332 (BIA 1980) (establishing that parties' intent at time of marriage controls whether marriage was bona fide); see also Huaracaya v. Mukasey, 550 F.3d 224, 231 (2d Cir. 2008) ("we agree with the government that marriage-based visa eligibility has always meant that a petitioner had to demonstrate that [the] marriage was bona fide"). If the facts stated in the petition are true and the alien qualifies as an "immediate relative," USCIS "shall" approve the petition. 8 U.S.C. § 1154(b).
Approval of an I-130 or I-360 petition classifies the alien "immediate relative" within a specific immigrant class, and permits the alien to apply for an immigrant visa if the alien is abroad, or to seek adjustment of status to that of a lawful ...