Fingerson v. Department of Homeland Security et al

Filing 16

MEMORANDUM AND OPINION by Senior Judge Thomas B. Russell on 7/26/2016; re 13 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Department of Homeland Security, Leon Rodriguez, Larry B. Kammerer ; a separate order and judgment shall enter.cc:counsel (KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:14-CV-00782-TBR
BRIAN E. FINGERSON,

Plaintiff,

v.
DEPARTMENT OF HOMELAND SECURITY, et al.,

Defendants.

MEMORANDUM OPINION
Brian E. Fingerson filed this action against the U.S. Department of Homeland
Security and U.S. Citizenship and Immigration Services,1 challenging USCIS’s denial of
the Form I-130, Petition for Alien Relative, he filed on behalf of Banele Gumede, his
putative adopted son. USCIS erred, Fingerson argues, because the regulation upon which
it relied to deny his petition, 8 C.F.R. § 204.2(d)(2)(vii), conflicts with 8 U.S.C. §
1101(b)(1).

He seeks declaratory and injunctive relief under the Administrative

Procedure Act, 5 U.S.C. § 702. Pursuant to Federal Rule of Civil Procedure 12(b)(6), the
Department asks the Court to dismiss Fingerson’s suit in its entirety. Because USCIS’s
regulations reasonably construe 8 U.S.C. § 1101(b)(1), the Department’s Motion to
Dismiss, R. 13, is GRANTED.
I.
A.
Banele Gumede is a native and citizen of South Africa.

R. 1 at 2–3, ¶ 4

(Complaint). In July 2009, at the age of fifteen, Gumede entered the United States on a

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In detail, Brian E. Fingerson sued the following persons in their official capacities: Jeh Johnson,
Secretary of the U.S. Department of Homeland Security; Leon Rodriguez, Director of U.S. Citizenship and
Immigration Services; and Larry B. Kammerer, Director of the USCIS Field Office in Louisville,
Kentucky. R. 1 at 3–4, ¶¶ 5–7 (Complaint).

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nonimmigrant student visa. Id. at 2–4, ¶¶ 4, 8. The Fingersons served as Gumede’s host
family and legal guardians. Id. at 4–5, ¶ 10. Gumede was to remain in the United States
for one year before returning home to South Africa. Id. at 5, ¶ 11.
Sometime in 2010, however, Gumede learned that his mother’s health had
seriously deteriorated. Id. at 5–6, ¶ 12.2 According to Brian E. Fingerson, Gumede’s
mother asked that the Fingerson family care for Gumede because none of his relatives in
South Africa were suitable guardians. Id., ¶¶ 12–13. To that end, Fingerson claims,
Gumede’s mother relinquished her parental rights. Id. at 6, ¶ 13. On September 23,
2010, a Kentucky court entered a putative adoption order. Id.
Subsequently, in August 2011, Fingerson filed a Form I-130, Petition for Alien
Relative, on Gumede’s behalf listing Gumede as his adopted son. Id., ¶ 14. In February
2012, U.S. Citizenship and Immigration Services issued a Notice of Intent to Deny the
Petition. Id. at 7, ¶ 16. USCIS determined that because Gumede was a South African
citizen, his adoption must comply with the Hague Convention on Protection of Children
and Cooperation in Respect of Intercountry Adoption and its implementing legislation.
See R. 1-4 at 4–5 (USCIS Decision).3 Concluding that Fingerson had not done so,
USCIS denied the petition in March 2013. Id. at 5; see also R. 1 at 7–8, ¶¶ 17–18. The
Board of Immigration Appeals affirmed. See R. 1-5 at 2–3 (BIA Decision); see also R. 1
at 8, ¶ 19.

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Gumede never knew his father. Id. at 5–6, ¶ 12.

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In reviewing the Department’s motion to dismiss, the Court may consider not only the complaint,
but also any attached exhibits, provided those exhibits are central to the claims contained in the complaint.
See Kreipke v. Wayne State Univ., 807 F.3d 768, 774 (6th Cir. 2015), petition for cert. filed, No. 15-1419
(U.S. May 19, 2016).

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B.
On November 24, 2014, Fingerson filed this action against the Department and
USCIS, challenging USCIS’s denial of the Form I-130, Petition for Alien Relative, he
filed on behalf of Gumede. R. 1 at 1–4, ¶¶ 1, 5–7. He seeks declaratory and injunctive
relief under the Administrative Procedure Act, 5 U.S.C. § 702. Id. at 1–2, ¶ 1. Pursuant
to Federal Rule of Civil Procedure 12(b)(6), the Department asks the Court to dismiss
Fingerson’s suit in its entirety. See R. 13 at 1 (Motion to Dismiss).
II.
A complaint must contain “a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). In order to survive a motion to
dismiss under Civil Rule 12(b)(6), a party must “plead enough ‘factual matter’ to raise a
‘plausible’ inference of wrongdoing.” 16630 Southfield Ltd. P’ship v. Flagstar Bank,
F.S.B., 727 F.3d 502, 504 (6th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). A claim becomes plausible “when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
(2007)). Should the well-pleaded facts support no “more than the mere possibility of
misconduct,” then dismissal is warranted. Id. at 679. The Court may grant a motion to
dismiss “only if, after drawing all reasonable inferences from the allegations in the
complaint in favor of the plaintiff, the complaint still fails to allege a plausible theory of
relief.” Garceau v. City of Flint, 572 F. App’x 369, 371 (6th Cir. 2014) (citing Iqbal, 556
U.S. at 677–79).

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III.
Ultimately, Fingerson challenges USCIS’s determination that he must petition to
classify Gumede as his “child” under 8 U.S.C. § 1101(b)(1)(G) rather than 8 U.S.C. §
1101(b)(1)(E). See R. 14 at 3–6 (Response); see also R. 1 at 16–17, ¶¶ 34–37. To
understand the nuances of Fingerson’s argument, though, it is necessary to briefly discuss
the nation’s immigration law scheme.
A.
The Immigration and Nationality Act affords preferential immigration status to an
alien who is an “immediate relative” of a United States citizen. See 8 U.S.C. § 1154(b).
The Act allows a United States citizen to petition to confer status as an immediate
relative to his or her “child.” See id. § 1154(a)(1)(A)(i) (right to petition); see also id. §
1151(b)(2)(A)(i) (definition of “immediate relative”). Until 1999, the Immigration and
Nationality Act contained only two definitions of “child” related to adopted children.
First, section 101(b)(1)(E) defined “child” as a person “adopted while under the age of
sixteen years if the child has been in legal custody of, and has resided with, the adopting
parent or parents for at least two years.”

Id. § 1101(b)(1)(E)(i).

Second, section

101(b)(1)(F) broadened the definition of “child” by eliminating the custody and residency
requirement if the child qualified as an “orphan” under the Act. Id. § 1101(b)(1)(F)(i).
In 2000, however, the Senate acceded to the Convention on Protection of Children
and Cooperation in Respect of Intercountry Adoption, opened for signature May 29,
1993, S. Treaty Doc. No. 105-51 (1998), 1870 U.N.T.S. 182 (entered into force May 1,
1995). See S. Res. of Advice and Consent, 106th Cong., 146 Cong. Rec. S8866–67
(daily ed. Sept. 20, 2000). The Convention proposes to establish “safeguards” and a

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“system of cooperation” and mutual “recognition” for intercountry adoptions—all with
an eye towards preventing “the abduction, the sale of, or traffic in children.” Convention
on Protection of Children and Cooperation in Respect of Intercountry Adoption, art. 1, ¶
1. By its terms, the Convention applies
where a child habitually resident in one Contracting State (“the State of
origin”) has been, is being, or is to be moved to another Contracting State
(“the receiving State”) either after his or her adoption in the State of origin
by spouses of a person habitually resident in the receiving State, or for the
purposes of such an adoption in the receiving State or in the State of
origin.
Id. art. 2, ¶ 1.4 The Convention mandates that signatories establish basic requirements for
all intercountry adoptions, such as ascertaining that the child is adoptable, that the child’s
parents or guardians voluntarily consented to the adoption, and that the prospective
adoptive parents are suitable guardians. Id. arts. 4–5. In addition, it requires each
signatory to designate a “central authority” responsible for certifying that an intercountry
adoption satisfies the Convention’s requirements. Id. arts. 6, 15–21.
While the Convention is a binding international agreement, it is not selfexecuting. See S. Res. of Advice and Consent; see also S. Exec. Doc. No. 106-14, at 10–
11 (2000). “That is, the Convention creates obligations only for State Parties and ‘does
not by itself give rise to domestically enforceable federal law’ absent ‘implementing
legislation passed by Congress.’” Bond v. United States, ––– U.S. ––––, ––––, 134 S. Ct.
2077, 2084 (2014) (plurality) (quoting Medellin v. Texas, 552 U.S. 491, 505 n.2 (2008)).

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The Senate Committee on Foreign Relations summarized this provision as follows: “[The
Convention] covers cases in which (1) a child habitually resident in one Contracting State (‘the State of
origin’) goes to another Contracting State (‘the receiving State’) either after adoption in the State of origin
by a habitual resident of the receiving State or before adoption in the receiving State, and (2) a permanent
parent-child relationship is created.” S. Exec. Doc. No. 106-14, at 3 (2000).

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Instead, it leaves the “details of its implementation up to each Contracting State.” S.
Treaty Doc. No. 105-51, at iii.
To implement the United States’ treaty obligations, Congress passed the
Intercountry Adoption Act of 2000, Pub. L. No. 106-279, 114 Stat. 825. See 42 U.S.C. §
14901(b)(1).

Section 302(a) of that Act added a third definition of “child” to the

Immigration and Nationality Act. Tracking the language of article 2 of the Convention, it
defined “child” as a person
younger than 16 years of age at the time a petition is filed on the child’s
behalf to accord a classification as an immediate relative under [8 U.S.C. §
1151(b)], who has been adopted in a foreign state that is a party to the
Convention on Protection of Children and Co-operation in Respect of
Intercountry Adoption, . . . or who is emigrating from such a foreign state
to be adopted in the United States.
8 U.S.C. § 1101(b)(1)(G)(i).5 However, Congress said that most of the Act (including the
addition of the third definition of child) would not take effect until the Convention
entered into force in the United States. 42 U.S.C. § 14901 note. The Convention would
not enter into force, in turn, until the U.S. Department of State and USCIS promulgated
all necessary implementing regulations. See S. Res. of Advice and Consent.
In 2007, USCIS promulgated an interim rule to implement the provisions of the
Intercountry Adoption Act. See Classification of Aliens as Children of United States
Citizens Based on Intercountry Adoptions Under the Hague Convention, 72 Fed. Reg.
56,832 (Oct. 4, 2007) (codified at 8 C.F.R. pts. 103, 204, 213a, 299, and 322). The
Convention itself took effect on April 1, 2008. See Deposit of Instrument of Ratification
by the United States of the Hague Convention on Protection of Children and Co5

In 2010, Congress passed the International Adoption Simplification Act, Pub. L. No. 111-287, §
3, 124 Stat. 3058, 3058–59 (2010) (codified at 8 U.S.C. § 1101(b)(1)(G)(i)–(iii)), which amended the
definition to its current form.

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operation in Respect of Intercountry Adoption, 72 Fed. Reg. 71,730 (Dec. 18, 2007). The
interim rule explains the relationship between the longstanding definition of child
codified at 8 U.S.C. § 1101(b)(1)(E) and the new definition of child codified at 8 U.S.C.
§ 1101(b)(1)(G). See Classification of Aliens as Children of United States Citizens
Based on Intercountry Adoptions Under the Hague Convention, 72 Fed. Reg. at 56,832–
35.
To be classified as the “child” of a United States citizen under § 1101(b)(1)(E),
the child must meet certain age, custody, and residence requirements. See 8 C.F.R. §
204.2(d)(2)(vii). A child is ineligible for classification under § 1101(b)(1)(E), however,
if he was habitually resident in a Convention country prior to the adoption. See id. §
204.2(d)(2)(vii)(F). Instead, the adopting parents must petition to classify the child as a
“Convention adoptee” under § 1101(b)(1)(G).

See id.

A child is eligible for

classification as a Convention adoptee when the child is habitually resident in a
Convention country, and the adopting parents are habitually resident in the United States.
See id. § 204.300(a); see also id. § 204.301 (defining Convention adoptee and
Convention adoption). Although subject to a limited exception,6 a child is deemed “to be
habitually resident in the country of the child’s citizenship” and will “not be considered
to be habitually resident in any country to which the child travels temporarily.” Id. §
204.303(b); see also id. § 204.303(a)(1) (presuming a United States citizen “to be
habitually resident in the United States” if he or she has a domicile in the United States).

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“If the child’s actual residence is outside the country of the child’s citizenship, the child will be
deemed habitually resident in that other country, rather than in the country of citizenship, if the Central
Authority . . . has determined that the child’s status in that country is sufficiently stable for that country
properly to exercise jurisdiction over the child’s adoption or custody. This determination must be made by
the Central Authority itself . . . .” 8 C.F.R. § 204.303(b).

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B.
Keeping that statutory and regulatory background in mind, the Court turns to the
merits. Fingerson challenges USCIS’s determination that he must petition to classify
Gumede as his “child” under 8 U.S.C. § 1101(b)(1)(G) rather than 8 U.S.C. §
1101(b)(1)(E). His argument goes something like this: Under the plain language of §
1101(b)(1)(G), Gumede was not “emigrating from [a Convention country] to be adopted
in the United States” at the time he arrived here on a nonimmigrant student visa.7 The
only proper classification for Gumede, then, is as a “child” under § 1101(b)(1)(E), the
longstanding and general definition. USCIS’s regulations make Gumede ineligible for
classification under § 1101(b)(1)(E), though, because he was habitually resident in a
Convention country prior to arriving in the United States.

See 8 C.F.R. §

204.2(d)(2)(vii)(F). Fingerson argues that those regulations impermissibly broaden the
reach of § 1101(b)(1)(G) to aliens, such as Gumede, who, although emigrating from a
Convention country, arrived in the United States for purposes unrelated to adoption. See
R. 14 at 3–6; R. 1 at 13–17, ¶¶ 28–37.
Though not without some appeal, the Court finds Fingerson’s argument
unpersuasive. To determine if an administrative agency’s regulation is valid, this Court
applies the familiar two-step analysis announced in Chevron U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984). See Garfias-Rodriguez v. Holder,
702 F.3d 504, 525 (9th Cir. 2012) (en banc) (citing Mejia v. Gonzales, 499 F.3d 991, 996
(9th Cir. 2007)); Chem. Mfrs. Ass’n v. EPA, 919 F.2d 158, 162–65 (D.C. Cir. 1990);
Econo Inn Corp. v. Rosenberg, 145 F. Supp. 3d 708, 712 (E.D. Mich. 2015); see also
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It is undisputed that Gumede was not “adopted in a foreign state,” as that phrase is used in 8
U.S.C. § 1101(b)(1)(G).

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Encino Motorcars, LLC v. Navarro, ––– U.S. ––––, ––––, 2016 WL 3369424, at *6
(2016).8 The Court first looks to “the statute upon which the regulation is based.”
Hachem v. Holder, 656 F.3d 430, 438 (6th Cir. 2011). “If ‘Congress has directly spoken
to the precise question at issue,’ then that is the end of the inquiry,” and the expressed
intent of Congress controls. Id. (quoting Chevron, 467 U.S. at 842–43). “However, ‘if
the statute is silent or ambiguous with respect to the specific issue,’” the Court must
“decide ‘whether the agency’s answer is based on a permissible construction of the
statute.” Id. (quoting Chevron, 467 U.S. at 843). “[J]udicial deference to the Executive
Branch is especially appropriate in the immigration context where officials ‘exercise
especially sensitive political functions that implicate questions of foreign relations.’”
Robert v. Reno, 25 F. App’x 378, 382 (6th Cir. 2002) (alteration in original) (quoting INS
v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999)).
Here, Congress has not spoken directly as to whether a child from a Convention
country who enters the United States as a nonimmigrant may be eligible for classification
under § 1101(b)(1)(E) instead of § 1101(b)(1)(G). It appears as if Congress had not
directly contemplated such a situation.

The Court’s extensive examination of the

language and history behind the Intercountry Adoption Act underscores that conclusion.
Therefore, the Court finds § 1101(b)(1) to be ambiguous.
The question becomes, then, whether USCIS’s interpretation is based on a
permissible construction of § 1101(b)(1). “A review of the legislative history as well as
the language of the provision at issue is the chief method” by which the Court approaches
Chevron’s second step. All. for Cmty. Media v. FCC, 529 F.3d 763, 778 (6th Cir. 2008)
8

Fingerson concedes that Chevron sets forth the controlling standard to determine the validity of
USCIS’s regulations. See R. 1 at 14, ¶ 29.

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(citing Difford v. Sec’y of Health & Human Servs., 910 F.2d 1316, 1318 (6th Cir. 1990)).
Having done just that, it appears as though USCIS’s construction of § 1101(b)(1)(E) and
§ 1101(b)(1)(G) is reasonable.
In the words of Congress, the Convention “is designed to establish a[n]
international legal framework for ensuring that intercountry adoptions follow standard
procedures and provide sufficient protections to adoptive parents and children.” S. Rep.
No. 106-276, at 1–2 (2000). It creates “a mechanism for the cooperation of signatory
countries in the areas of international adoption,” and “ensures the recognition of
adoptions undertaken and certified through the Convention provisions.” S. Exec. Doc.
No. 106-14, at 2. By tying (though not without exception) the scope of § 1101(b)(1)(G)
to the adoptive child’s status as a foreign national rather than to his temporary geographic
location, see 8 C.F.R. § 204.303(b), USCIS’s regulations, including 8 C.F.R. §
204.2(d)(2)(vii), promote Congress’s goals in at least two ways. First, such an approach
avoids the potential foreign relations consequences if a citizen were to adopt a foreign
national temporarily in the United States without the country of origin’s consent. See
Classification of Aliens as Children of United States Citizens Based on Intercountry
Adoptions Under the Hague Convention, 72 Fed. Reg. at 56,848–49; R. 15 at 2 (Reply).
Second, USCIS’s interpretation encourages uniform application and guards against
possible avoidance of the Convention’s safeguards by looking to the child’s citizenship
rather than to the happenstance of child’s temporary location. See Classification of
Aliens as Children of United States Citizens Based on Intercountry Adoptions Under the
Hague Convention, 72 Fed. Reg. at 56,840; R. 13-1 at 6 (Memorandum in Support).

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USCIS’s interpretation of § 1101(b)(1)(E) and § 1101(b)(1)(G) is not beyond the pale of
reason.
C.
In summary, the Court finds § 1101(b)(1) to be ambiguous: Congress has not
spoken directly as to whether a child from a Convention country who enters the United
States as a nonimmigrant may be eligible for classification under § 1101(b)(1)(E) instead
of § 1101(b)(1)(G). USCIS’s regulations not only provide an answer to that question, but
also provide a reasonable one. Therefore, USCIS committed no error by relying on 8
C.F.R. § 204.2(d)(2)(vii) to deny Fingerson’s Form I-130, Petition for Alien Relative.
Having made this determination, the Court is not unsympathetic to Fingerson’s
argument or desired result. On the face of the pleadings, it certainly appears that denial
of his petition avoids the good faith intent of Gumede, his family, and the Fingersons.
Nevertheless, the Court feels it is legally compelled to reach the result it has.
VI.
The Department of Homeland Security’s Motion to Dismiss, R. 13, is
GRANTED. An appropriate order shall issue separate from this Memorandum Opinion.
Date:

July 26, 2016

cc:

Counsel of Record

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