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Lin v. U.S. Department of Homeland Security

United States District Court, E.D. New York

March 1, 2017

YING LIN A # 077-281-342, Plaintiff,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY; JEH JOHNSON, in his official capacity as Secretary; U.S. CITIZENSHIP AND IMMIGRATION SERVICES; LEON RODRIGUEZ, in his official capacity as Director; PHYLLIS COVEN, in her official capacity as Director of the New York District Office, Defendants.

          MEMORANDUM & ORDER

          PAMELA K. CHEN, United States District Judge

         Plaintiff Ying Lin, a Chinese citizen, brings this action under the Administrative Procedure Act (“APA”), requesting that the Court review the U.S. Citizenship and Immigration Services's (“USCIS”) denial of Plaintiff's application to adjust her status to that of lawful permanent resident, and order USCIS to grant her application. Defendants have moved to dismiss the action under Federal Rule of Civil Procedure (“FRCP”) 12(b)(1) for lack of subject-matter jurisdiction, and alternatively under FRCP 12(b)(6) for failure to state a claim upon which relief can be granted. Because the Court lacks subject matter jurisdiction over this action, Defendants' motion to dismiss under FRCP 12(b)(1) is GRANTED.

         BACKGROUND

         I. FACTUAL BACKGROUND

         A. Plaintiff's Initial Entry into the United States

         On October 30, 1999, Plaintiff sought admission into the United States at Honolulu International Airport, using a fraudulent U.S. passport with the name “Siu Ling Wong.” (R246, R248-56.[1]) Immigration officers confiscated the passport and questioned Plaintiff, who gave a sworn statement. (R248-256.) When asked if she was making a claim to U.S. citizenship, she answered, “Yes, I used a U.S. passport so I am claiming to be a U.S. citizen, ” and when asked if her name was Siu Ling Wong, she answered, “I don't know.” (R 249.)

         B. Plaintiff's Removal Proceedings and Appeal

         Plaintiff was charged with inadmissibility, pursuant to Immigration and Nationality Act (“INA”) § 212(a)(6)(C)(i) (fraud) and INA § 212(a)(7)A)(i)(1) (entering without proper documentation), and was issued a Notice to Appear (“NTA”) before a New York Immigration Court. (R 246.) At a hearing before an immigration judge (“IJ”) on December 28, 1999, the IJ granted Plaintiff leave to file an application for asylum. (R 177-80; Dkt. 9, at 3.) After further proceedings, in which Plaintiff requested asylum based on having been required to appear for physical exams, and as well as on the basis of her Christian faith, she ultimately withdrew her asylum application. (R 9; 212-14; 22-23.) The IJ granted Plaintiff until March 13, 2001 to obtain documents for a voluntary departure, and ordered her to appear in Immigration Court for a removal proceeding on the morning of March 13, 2001. (R 225.)

         When Plaintiff failed to appear at her removal proceeding on March 13, 2001, the Immigration Judge ordered her removed in abstentia. (R 175, R 228-29.) Pursuant to 8 C.F.R. § 1241.1(e), the IJ's order constitutes a final order of removal.

         Plaintiff filed a pro se appeal of the removal order with the Board of Immigration Appeals (“BIA”), but the BIA dismissed it on November 4, 2002, holding that the BIA was precluded from considering an appeal of a removable order entered after the respondent failed to appear in Immigration Court. (R 233.)

         C. Plaintiff's Attempts to Adjust Her Immigration Status

         1. Plaintiff's Application for Adjustment-of-Status

         On April 11, 2001, Plaintiff married Mao Fan Lin, a U.S. citizen. (R 28.) The same month, Plaintiff filed an I-485 Application to Register Permanent Resident or Adjust Status (“Adjustment-of-Status Application”). (R 167-74.) In her Adjustment-of-Status Application, Plaintiff responded “no” to the question, “[h]ave you, by fraud or willful misrepresentation of a material fact, ever sought to procure, or procured, a visa, other documentation, entry into the U.S. or any immigration benefit?” (R 169.)

         On June 27, 2002, Mr. Lin filed a Form I-130 Petition for Alien Relative on behalf of Plaintiff. (R 360.) On October 17, 2002, USCIS approved the petition. (R 360.) On July 12, 2006, Plaintiff filed or re-filed an Adjustment-of-Status Application. (R 163.)[2]

         2. USCIS's Denial of Plaintiff's Application and Plaintiff's Appeals

         USCIS denied Plaintiff's Adjustment-of-Status Application on August 5, 2008, finding that she was statutorily ineligible for adjustment of status due to inadmissibility, pursuant to INA § 212(a)(6)(C)(ii) (false claim of United States citizenship). (R 163-64.) On August 12, 2008, Plaintiff filed a motion to reconsider the denial of her Adjustment-of-Status Application. (R 145, 158-62.) On June 5, 2013, USCIS adjudicated and denied Plaintiff's motion. (R 144-46.) The decision affirmed the previous decision stating that ...


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