Boire v. Johnson et al

Filing 21

MEMORANDUM AND ORDER. (See Full Order.) Because it cannot now be determined that Plaintiff's complaint does not state a claim, IT IS HEREBY ORDERED that Defendants' motion to dismiss is DENIED. [Doc. 17 ] Signed by Magistrate Judge Thomas C. Mummert, III on 9/15/2015. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
AFOUSSATOU BOIRE,
Plaintiff,
vs.
JEH JOHNSON, Secretary, U.S. Dep't
of Homeland Security, et al.,
Defendants.

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Case No. 4:15cv0660 TCM

MEMORANDUM AND ORDER
This immigration dispute is before the Court1 on the opposed motion to dismiss filed
by defendants Jeh Johnson, Secretary of the United States Department of Homeland Security;
Loretta E. Lynch, Attorney General of the United States2; Leon Rodriguez, Director of the
United States Citizenship and Immigration Services (USCIS); Terri Robinson, Acting
District Director, USCIS Kansas District Office; and the United States of America
(hereinafter collectively referred to as "Defendants").
Background
Afoussatou Boire (Plaintiff) is a citizen of Mali. (Compl. ¶ 6.) In January 2000, when
she was nineteen years old, she entered the United States as a J-2 dependent of her father, Dr.
Soualika Boire, a J-1 nonimmigrant alien under 8 U.S.C. § 1101(a)(15)(J). (Id. ¶ 20.) In
September 2000, Dr. Boire returned to Mali. (Id. ¶ 22.) Plaintiff did not. (Id. ¶ 23.) Instead,

1

The case is before the undersigned United States Magistrate Judge by written consent of
the parties. See 28 U.S.C. § 636(c).
2

25(d).

Loretta E. Lynch is automatically substituted for Eric H. Holder. See Fed.R.Civ.P.

she changed to an F-1 student visa status, earning an Associate's degree in 2006, a Bachelor's
degree in 2008, and then a Master's degree in 2011. (Id. ¶ 23; Compl. Ex. J.) Each degree
is in nursing. (Id.) Between the Associate's degree and Bachelor's degree, Plaintiff's
employer, Barnes-Jewish Hospital, petitioned for I-140 status for her as an immigrant
worker. (Compl. ¶ 24.) The petition was granted. (Id.) Plaintiff then filed in September
2007 an I-485 application to adjust her status to that of a lawful permanent resident. (Id. ¶
25.) She was interviewed pursuant to this application in December 2013. (Id. ¶ 28.) In
March 2014, her application was denied on the grounds that under her J-2 status she was
obligated to, but did not, either return to Mali for two years or request and receive a waiver
of that requirement. (Id.)
On April 28, 2014, Plaintiff moved to reopen the decision. (Compl. Ex. B.) While
her motion was pending, the Republic of Mali notified the United States Department of State
that it had no objection to Plaintiff remaining the United States. (Compl. Ex. F.) Plaintiff
applied to the State Department for a waiver of the requirement she return to Mali. (Compl.
Ex. G.) The waiver was granted in September 2014. (Id.) The notice cautions in bold, allcapital letters that it does not grant any immigration status. (Id.)
Eight days before Plaintiff applied for the waiver, her motion to reopen was denied.
(Compl. Ex. B.)
Ten days after she was granted the waiver, Plaintiff moved to reopen and reconsider
the adverse decision on her I-485 application. (Compl Ex. C.) The motion was dismissed
as untimely. (Id.)

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Plaintiff then filed this action under the Administrative Procedure Act (APA), 5
U.S.C. §§ 702, 704, seeking review of the decision denying her I-485 application and a
judgment that the denial was arbitrary, capricious, and a violation of her due process rights.
She also requests an award of attorney's fees and costs.3
Defendants move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) on
the grounds that Plaintiff failed to comply with the requirement of her J-2 status that she
return to her home country for two years or request a waiver of that requirement before she
apply to adjust her status to that of a legal permanent resident.
Discussion
When ruling on a Rule 12(b)(6) motion to dismiss for failure to state a claim, the
Court must take as true the alleged facts and determine whether they are sufficient to raise
more than a speculative right to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56
(2007). The Court does not, however, accept as true any allegation that is a legal conclusion.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). And, when ruling on a Rule 12(b)(6) motion,
the Court "is limited to the material properly before it . . . , which may include public records
and materials embraced by the complaint." Noble Sys. Corp. v. Alorica Central, LLC, 543
F.3d 978, 983 (8th Cir. 2008).
"A person suffering legal wrong because of agency action, or adversely affected or
aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial
review thereof." 5 U.S.C. § 702. The APA provides for judicial review of "final agency

3

Defendants do not challenge this Court's jurisdiction to hear this matter.
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action for which there is no other remedy in a court." 5 U.S.C. § 704. Under the APA, "[t]he
reviewing court shall . . . hold unlawful and set aside agency action, findings, and
conclusions found to be . . . arbitrary, capricious, abuse of discretion, or otherwise not in
accordance with law . . . [or] without observance of procedure required by law." 5 U.S.C.
§§ 706(2)(A) and (D). An adverse agency action "would be arbitrary and capricious if the
agency has relied on factors which Congress has not intended it to consider, entirely failed
to consider an important aspect of the problem, offered an explanation for its decision that
runs counter to the evidence before the agency, or is so implausible that it could not be
ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfrs.
Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 44 (1983). And,
"Courts should be slow to overturn an administrative decision . . . [but] are not obliged to
stand aside and rubberstamp their affirmance of [such] decisions that they deem inconsistent
with a statutory mandate or that frustrate the congressional policy behind the statute." NLRB
v. Brown, 380 U.S. 278, 291 (1965) (quotations omitted).
The question before the Court is whether Plaintiff's claim that the denial of her request
to adjust her status based on her failure to return to Mali for two years or timely obtain a
waiver of that requirement may be held unlawful under the APA.
Plaintiff entered the United States as a nonimmigrant alien. Title 8 U.S.C.
§ 1101(a)(15)(J) defines as a nonimmigrant alien a person who
[has] a residence in a foreign country which he has no intention of abandoning
who is a bona fide student, scholar, trainee, teacher, professor, research
assistant, specialist, or leader in a field of specialized knowledge or skill, or
other person of similar description, who is coming temporarily to the United
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States as a participant in a program designated by the Director of the United
States Information Agency, for the purpose of teaching, instructing or
lecturing, studying, observing, conducting research, consulting, demonstrating
special skills, or receiving training and who, if he is coming to the United
States to participate in a program under which he will receive graduate medical
education or training, . . . and the alien spouse and minor children of any such
alien if accompanying him or following to join him[.]
A person admitted under this section is not eligible to apply for permanent residence until he
(i) has "resided and been physical present in the country of his nationality or his last
residence for an aggregate of at least two years following departure from the United States"
or (ii) has had the residency requirement waived by the Attorney General after the foreign
country of his nationality or last residence has stated in writing that it has no objection to
such waiver.4 8 U.S.C.A. § 1182(e).
4

Specifically, this section reads as follows:

(e) Educational visitor status; foreign residence requirement; waiver
No person admitted under section 1101(a)(15)(J) of this title or acquiring such
status after admission (i) whose participation in the program for which he came to
the United States was financed in whole or in part, directly or indirectly, by an
agency of the Government of the United States or by the government of the
country of his nationality or his last residence, (ii) who at the time of admission or
acquisition of status under section 1101(a)(15)(J) of this title was a national or
resident of a country which the Director of the United States Information Agency,
pursuant to regulations prescribed by him, had designated as clearly requiring the
services of persons engaged in the field of specialized knowledge or skill in which
the alien was engaged, or (iii) who came to the United States or acquired such
status in order to receive graduate medical education or training, shall be eligible
to apply for an immigrant visa, or for permanent residence, or for a nonimmigrant
visa under section 1101(a)(15)(H) or section 1101(a)(15)(L) of this title until it is
established that such person has resided and been physically present in the country
of his nationality or his last residence for an aggregate of at least two years
following departure from the United States: Provided, That upon the favorable
recommendation of the Director, pursuant to the request of an interested United
States Government agency (or, in the case of an alien described in clause (iii),
pursuant to the request of a State Department of Public Health, or its equivalent),
or of the Commissioner of Immigration and Naturalization after he has
-5-

When Congress enacted 8 U.S.C. § 1101(a)(15)(J) in 1961, the Senate version of the
bill included a sentence reading, "'To the extent that the spouse and minor children of the
person admitted under the new category (J) are issued a visa in that category, they, too, would
be subject to the 2-year residence abroad provision.'" Naomi Schorr & Stephen Yale-Loehr,
The Odyssey of the J-2: Forty-Three Years of Trying Not to Go Home Again, 18 Geo.
Immigr. L.J. 221, 237 (2004) (quoting S.Rep. No. 87-372 at 19 (1961)). This version was
not enacted. Id. Nine years later, Congress amended 8 U.S.C. § 1182(e) to read that its
requirements applied to a person entering on a J visa, or acquiring such status when already
in the United States, to "'participate in' certain exchange visitor programs." Id. at 240. See
also note 3, supra.
Subsequently, a regulation of the Department of State classified as a J-1 visa holder
an alien qualified under § 1101(a)(15)(J) and, among other things, accepted to participate in
an exchange visitor program. 22 C.F.R. § 41.62(a)(1). A J-2 visa holder is the spouse or

determined that departure from the United States would impose exceptional
hardship upon the alien's spouse or child (if such spouse or child is a citizen of the
United States or a lawfully resident alien), or that the alien cannot return to the
country of his nationality or last residence because he would be subject to
persecution on account of race, religion, or political opinion, the Attorney General
may waive the requirement of such two-year foreign residence abroad in the case
of any alien whose admission to the United States is found by the Attorney
General to be in the public interest except that in the case of a waiver requested by
a State Department of Public Health, or its equivalent, or in the case of a waiver
requested by an interested United States Government agency on behalf of an alien
described in clause (iii), the waiver shall be subject to the requirements of section
1184(l) of this title: And provided further, That, except in the case of an alien
described in clause (iii), the Attorney General may, upon the favorable
recommendation of the Director, waive such two-year foreign residence
requirement in any case in which the foreign country of the alien's nationality or
last residence has furnished the Director a statement in writing that it has no
objection to such waiver in the case of such alien.
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minor child of a J-1 visa holder. 22 C.F.R. § 41.62(b). See also 22 C.F.R. § 41.12 (listing
visa symbols of J-1 to be used for exchange visitor and of J-2 for spouse or child of J-1).
That spouse or minor child is subject to two-year requirement of § 1182(e). 22 C.F.R.
§ 41.62(c)(4). Additionally, a regulation of USCIS defines as ineligible for adjustment of
status to that of permanent resident "any alien who has or had the status of an exchange
visitor under [§ 1101(a)(15)(J)] and who is subject to the foreign residence requirement of
[§ 1182(e)], unless the alien has complied with the foreign residence requirement or has been
granted a waiver of that requirement, under that section." 8 C.F.R. § 245.1(c)(2). The
USCIS regulations further provide that, "A spouse or child admitted to the United States or
accorded status under [§ 1101(a)(15)(J)] to accompany or follow to join an exchange visitor
who is subject to the foreign residence requirement of [§ 1182(e)] is also subject to that
requirement." 8 C.F.R. § 212.7(c)(4).
Thus, the Department of State and USCIS have interpreted the foreign residence
requirement of § 1182(e) to apply to J-2 visa holders. Their interpretation of that statue is
entitled to deference "unless it is 'contrary to statutory language.'" Hernandez v. Holder,
760 F.3d 855, 858 (8th Cir. 2014) (quoting Chevron, U.S.A., Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837, 843-45 (1984)). It is not. By its terms, § 1182(e) applies to "any
person admitted under section 1101(a)(15)(J)." 8 U.S.C. § 1182(e). See Hernandez, 760
F.3d at 859 (starting point of an agency's "statutory interpretation is the language of the
statute itself").

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Any ambiguity created by § 1182(e)'s further qualification of the persons to whom it
applied, i.e., a person "whose participation in the program for which he came to the United
States was financed in whole or in part, directly or indirectly, by an agency of the
Government of the United States or by the government of the country of his nationality or
his last residence," has been reasonably construed by the Department of State and USCIS as
not excusing J-2 visa holders from the residence requirement. See Roberts v. Holder, 745
F.3d 928, 932 (8th Cir. 2014) (if text of statute is ambiguous and the applicable agency's
interpretation is reasonable, that construction must be accepted by the federal court).
The interpretation of § 1182(e) that it applies to J-2 visa holders has been upheld in
specific cases. For instance, in Sheku-Kamara v. Karn, 581 F.Supp. 582 (E.D. Pa. 1984),
the court rejected the argument of a wife and son of a J-1 visa holder that they were not
subject to the two-year residence requirement. The court cited four reasons. First, 8 C.F.R.
§ 212.7(c)(4) governed the matter. Id. at 583-84. Second, to find otherwise would "create

the anomalous result of putting [J-2 visa holders] . . . in a better position than [the J-1 visa
holder] who remain[ed] subject to the two year requirement." Id. 584. Third, finding that
J-2 visa holders are subject to the requirement "is consistent with one of the primary
objectives of the Exchange Visitor Program which is to facilitate the impartation of live
impressions of the United States and its culture to other societies." Id. 584-85. Fourth, if a
J-2 spouse and child are involved and are found not to be subject to the requirement, the J-1
visa holder "could possibly gain a back-door access to a waiver of the residence requirement
on the basis of hardship grounds." Id. 585 n.10.

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In rejecting the plaintiffs' argument, the court cited the decision of the Regional
Commissioner in Matter of Tabcum, 14 I.&N. Dec. 113 (B.I.A. 1972), dismissing a motion
to reconsider a denial of the alien's application for adjustment of status to that of a permanent
resident. The only question was whether the alien, admitted pursuant to a J-2 visa, was
subject to the two-year residence requirement. Id. at 114. He was. Similarly, in Matter of
Gatilao, 11 I.&N. Dec. 893 (B.I.A. 1966), a spouse of a J-1 visa holder was held to be
subject to the two-year residence requirement. Years later, in 1989 and 1990, the General
Counsel issued opinions concluding that J-2 visa holders must satisfy the residence
requirement even when the J-1 visa holder has done so. See Opinions 89-75, 90-17 (Defs.'
Ex. A, ECF no. 17-2.)
Just as the two-year residence requirement applies to Plaintiff, so must that portion
of § 1182(e) that authorizes the requirement to be waived by the Secretary of State if she
obtains a "no objection" letter from her home country. See 22 C.F.R. § 41.63(d)(1)
(providing for "[r]equests for waiver made on basis of statement from exchange visitor's
home-country that it has no objection to the waiver"). Plaintiff obtained both the "no
objection" letter from Mali and a waiver of the residence requirement. Defendants argue
both had to be obtained before Plaintiff applied for adjustment of status and neither was until
her application or her motion to reopen was denied. On this issue, the question whether
Defendants acted arbitrarily or capriciously or abused its discretion cannot be answered on
the face of Plaintiff's complaint.

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In the instant case, Plaintiff entered the United States as a J-2 visa holder in January
2000. Her father entered as a J-1 visa holder. It appears from the complaint that they may
have entered at different times because nine months after Plaintiff entered, her father
returned to Mali, having earned a Ph.D. in entomology. A regulation of the Department of
State, 22 C.F.R. § 41.62(d), requires that a consular officer notify the alien of two-year
foreign residence requirement before issuing an exchange visitor visa. Cf. Martinez v. Bell,
468 F.Supp. 719, 729 (S.D. N.Y. 1979) (finding aliens' ignorance of immigration
requirements did not excuse failure to timely comply with terms when "no consular or
immigration official had any . . . affirmative duty" to explain such terms). There is no
evidence this was done in Plaintiff's case. Cf. Al-Khayyal v. INS, 818 F.2d 827, 832 (11th
Cir. 1987) (rejecting alien's argument he should have been granted waiver of two-year
requirement when alien was informed in writing when issued J-1 visa that requirement would
apply to him and distinguishing case in which alien was told when applying for J-1 visa that
requirement would not apply to him); Hetzer v. INS, 420 F.2d 357, 360 (9th Cir. 1970)
(remanding J visa holder's application for status as a permanent resident to develop record
whether he relied on immigration official's misleading omission or information); Huck v.
Attorney General, 676 F.Supp. 10, 13 (D. C. 1987) (similar holding).
Plaintiff's J-2 status was changed to that of a F-1 student, and she remained in the
United States. There is no contention that she remained illegally. Indeed, the allegations of
the complaint describe a continuing effort to follow the immigration regulations of which she
aware. After becoming employed by Barnes-Jewish Hospital as an immigrant worker,

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Plaintiff applied in 2007 to adjust her status to that of a lawful permanent resident. Six years
later, she was interviewed. Four months later, her application was denied on the grounds
that she had failed to either return to Mali for two years or request and receive a waiver of
that requirement. The letter advising Plaintiff of the adverse decision also informed her of
her right to move to reopen or reconsider the decision. (See Pl.'s Ex. A at 2.) Plaintiff so
moved. She submitted a copy of Mali's "no objection" letter. Her motion to reopen was
denied because she did not also submit a waiver from the Secretary of State. Within ten days
of receiving this waiver, she moved to reopen or reconsider. This motion was dismissed as
untimely.
Under the standard governing Rule 12(b)(6) motions, the Court cannot conclude that
Plaintiff has failed to state a claim that Defendants abused their discretion when denying her
motion to reopen and reconsider the decision denying her application to adjust her status to
that or lawful permanent resident after she obtained a waiver of the two-year residence
requirement. For instance, in Matter of Gatilao, 11 I.&N. Dec. at 895, the government
argued that there was no error or denial of fairness in not staying removal proceedings of a
J-2 visa holder who was then in illegal status pending his application for a waiver of the
residence requirement because that application had not been filed until one month before the
hearing. It was held that the J-2 visa holder could reopen the proceedings to permit him to
apply for adjustment of status should the waiver be granted. Id. In Chang v. Reno, 986
F.Supp. 19 (D.C. 1997), the court denied the government's motion to dismiss or for summary
judgment a J-visa holder's challenge to denial of his application for permanent resident status

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made before alien applied for waiver of residence requirement and remanded to District
Director for further consideration. Although the issue on appeal was the subsequent denial
of the waiver itself, such need not have been addressed if the timing of the waiver was, as
Defendants now argue, dispositive.
Additionally, the allegation in Plaintiff's complaint that the applications to adjust
status of her mother and sister, both of who also entered the United States on J-2 visas, were
granted based only on a "no objection" letter and no waiver further highlights the existence
of a question whether that complaint has stated a claim that Defendants violated the APA
when denying her motion to reopen the decision on her application.5
Because it cannot now be determined that Plaintiff's complaint does not state a claim,
IT IS HEREBY ORDERED that Defendants' motion to dismiss is DENIED. [Doc.
17]

/s/Thomas C. Mummert, III
THOMAS C. MUMMERT, III
UNITED STATES MAGISTRATE JUDGE
Dated this 15th day of September, 2015.

5

Also, the Court notes that an appeal apparently lies from the denial of a waiver. See e.g.
Korvah v. Brown, 66 F.3d 809 (6th Cir. 1995); Singh v. Moyer, 867 F.2d 1035 (7th Cir. 1989)l
Al-Khayyal, 818 F.2d 827; Mukherjee v. INS, 793 F.2d 1006 (9th Cir. 1986); Nayak v. Vance,
463 F.Supp. 244 (D.S.C. 1978). Plaintiff was advised that there was no appeal from the denial of
her application to adjust her status. (See Pl.'s Ex. A.) Thus, although Plaintiff obtained a "no
objection" letter and a waiver, she apparently has less remedies to challenge her proposed
removal than does someone who did not obtain the necessary prerequisites.
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