KHALIL et al v. NAPOLITANO et al

Filing 27

OPINION. Signed by Judge Joseph E. Irenas on 10/23/2013. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

SAMIA SELIM KHALIL, et al.,
Plaintiffs,
HONORABLE JOSEPH E. IRENAS
v.
CIVIL ACTION NO. 12-3817
(JEI/KMW)

JANET NAPOLITANO, et al.,

OPINION

Defendants.

APPEARANCES:
LAW OFFICES OF DAVID E. PIVER
By: Monica Singh, Esq.
150 Strafford Avenue, Suite 115
Wayne, PA 19087
Counsel for Plaintiffs.
DEPARTMENT OF JUSTICE
OFFICE OF IMMIGRATION LITIGATION
By: Patricia E. Bruckner, Esq.
P.O. Box 868, Ben Franklin Station
Washington, D.C. 20044
Counsel for Defendants.

Irenas, Senior District Judge:
Pending before the Court is the Defendants’ Motion to
Dismiss, or in the alternative, Motion for Summary Judgment.
Also pending before the Court is the Plaintiffs’ Cross Motion
for Summary Judgment.

For the reasons set forth below, the

Defendants’ Motion to Dismiss will be granted, and therefore the
Plaintiffs’ Cross Motion will be denied as moot.

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I.
The parties agree on the relevant facts.

Plaintiff Samuel

Girgis Hanna (“Hanna”) was born on April 18, 1992.
Statement of Material Facts at ¶ 1.)

(Defs.’

According to the

Complaint, Hanna is an Egyptian native, and a citizen of Egypt.
(Compl. ¶ 4.)
At some point after his birth, Hanna came to the United
States. 1

On January 18, 2008, Plaintiff Samia Salim Khalil

(“Khalil”) and her husband, William Ishak Khalil, filed an
adoption complaint with the New Jersey Superior Court,
initiating proceedings to adopt Hanna as their child.
Statement of Material Facts at ¶ 2; Compl. ¶ 13.)

(Defs.’

On April 11,

2008, the Superior Court held a preliminary hearing, at which
point the parental rights of Hanna’s birth parents were
terminated and Hanna was placed in private placement adoption
with Khalil and her husband.

(Compl. Ex. 9.)

Following the

preliminary hearing and consistent with the statutory adoption
scheme, Child and Home Study Associates began preparing a report
concerning the placement of Hanna with Khalil and her husband,
per N.J.S.A. 9:3-48(c)(4)(d). 2

(Compl. Ex. 9 at ¶ 2.)

On April

1 Neither the Plaintiffs nor Defendants provided information about Hanna’s
place of birth or when Hanna entered the United States. However, these facts
do not bear on deciding the Motions currently pending before the Court.
2 Based on the Order Fixing Day for Hearing, it appears that Child and Home
Study Associates was first appointed on January 18, 2008 to conduct an
investigation and written report pursuant to N.J.S.A. 9:3-48(a)(2),
evaluating the status of Hanna’s birth parents. (Compl. Ex. 8.)

2

18, 2008, a week after the preliminary hearing, Hanna turned
sixteen years old.

The Superior Court issued a Final Judgment

of Adoption on October 14, 2008, making Khalil and her husband
the parents of Hanna.

(Id. at ¶ 4.)

The Final Judgment

indicated that Child and Home Study Associates filed a report
with the Superior Court (though not provided by the Plaintiffs)
focusing on the placement of Hanna with Khalil and her husband,
per the statutory requirements of N.J.S.A. 9:3-48(d).
Ex. 9 at ¶ 2.)

(Compl.

As directed in the Final Judgment of Adoption,

the Superior Court ordered the finalized adoption be effected
nunc pro tunc as of the preliminary hearing on April 11, 2008,
which retroactively finalized Hanna’s adoption before his
sixteenth birthday.

(Compl. Ex. 9 at ¶ 5.)

Khalil is a naturalized US citizen, attaining citizenship
on November 14, 2007.

(Compl. Ex. 10.)

Prior to initiating the

adoption process, Hanna was Khalil’s nephew.

(Pls.’ Br. at 27.)

On June 7, 2010, after the finalized adoption, Khalil filed a
Form I-130, Petition for Alien Relative, with U.S. Citizenship
and Immigration Services (USCIS), which sought to classify Hanna
as Khalil’s unmarried son of a US citizen in order to obtain an
immigrant visa under 8 U.S.C. § 1153(a)(1).

(Defs.’ Statement

of Material Facts at ¶ 6; Pls.’ Statement of Material Facts at ¶
6.)

On April 14, 2011, USCIS denied Khalil’s petition,

summarizing the Board of Immigration Appeals’s (BIA) prior
3

decisions considering nunc pro tunc adoptions and explaining
that “[Hanna] was over the age of sixteen when the adoption took
place, [therefore Hanna] could not, at one time, qualify as a
child pursuant to [8 U.S.C. § 1101(b)(1)(E)].

Therefore,

[Hanna] cannot be classified as [Khalil’s] son or daughter for
immigration purposes pursuant to [8 U.S.C. § 1153(a)(1)].”
(Compl. Ex. 4 at 2.)
Khalil took a timely appeal of USCIS’s denial to the BIA,
which affirmed USCIS’s denial on February 27, 2012.
1.)

(Compl. Ex.

In its decision, the BIA reviewed the fact that the

Superior Court finalized Hanna’s adoption effective nunc pro
tunc before Hanna turned sixteen, but noted that because the
adoption was not finalized until after Hanna actually turned
sixteen, USCIS properly denied the visa petition under §
1153(a)(1) because Hanna could not be construed as Khalil’s
child under § 1101(b)(1)(E).

(Id. at 1.)

On June 25, 2012, the Plaintiffs filed this lawsuit against
Janet Napolitano, the then-Secretary of Homeland Security. 3

The

Plaintiffs also named two additional Defendants: Alejandro
Mayorkas, Director of USCIS, and Nieves Cardinale, Field Office
Director of USCIS in Mount Laurel, New Jersey, who actually

3

USCIS is an agency within the Department of Homeland Security. 6 U.S.C. §
271. The BIA is a component of the Department of Justice. 8 C.F.R. §
1003.1(a)(1).

4

rendered the decision on the Plaintiffs’ USCIS petition.
(Compl. ¶¶ 5-7.)
The Plaintiffs allege two causes of action against the
Defendants regarding USCIS’s denial of the I-130 petition, both
under the Administrative Procedures Act (APA), 5 U.S.C. §§ 551
et seq.

First, that the Defendants have unlawfully withheld

agency action in violation of 5 U.S.C. § 706(1), and second,
that the Defendants have acted in an arbitrary and capricious
manner or otherwise in violation of 5 U.S.C. § 706(2).

(Compl.

¶¶ 19-22.)
On January 22, 2013, the Defendants filed a Motion to
Dismiss, or in the alternative, Motion for Summary Judgment.
(Dkt. no. 12.)

On February, 19, 2013, the Plaintiffs filed a

Cross Motion for Summary Judgment.

(Dkt. no. 19.)

The Court

considers these Motions together and accordingly grants the
Defendants’ Motion to Dismiss, rendering the Plaintiffs’ Cross
Motion for Summary Judgment moot.

II.
A defendant may move to dismiss a claim for lack of
subject-matter jurisdiction pursuant to the Federal Rules of
Civil Procedure.

Fed. R. Civ. P. 12(b)(1).

In reviewing a

motion under Rule 12(b)(1), the Court must first determine
whether the moving party presents a facial or factual challenge
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to subject-matter jurisdiction.

In re Schering Plough Corp.

Intron/Temodar Consumer Class Action, 678 F.3d 235, 243 (3d Cir.
2012) (citing Mortensen v. First Fed. Sav. & Loan Ass’n, 549
F.2d 884, 891 (3d Cir. 1977)).

When reviewing a facial

challenge, which “contests the sufficiency of the pleadings, the
court must only consider the allegations of the complaint and
documents referenced therein and attached thereto, in the light
most favorable to the plaintiff.”

In re Schering Plough, 678

F.3d at 243 (quoting Gould Elecs. Inc. v. United States, 220
F.2d 169, 176 (3d Cir. 2000)).

Because subject-matter

jurisdiction involves a court’s power to hear a case, the
parties cannot forfeit or waive it, and courts “have an
independent obligation to determine whether subject-matter
jurisdiction exists, even in the absence of a challenge from any
party.”

Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006) (citing

Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999)).

If a

court concludes that it does not have subject-matter
jurisdiction over the action, the court is required to dismiss
the action.

Fed. R. Civ. P. 12(h)(3).

Similarly, a defendant may move to dismiss a claim under
Rule 12(b)(6) for failure to state a claim.

To survive a motion

to dismiss, a complaint must allege facts that raise a right to
relief above the speculative level.

Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007); see also Fed. R. Civ. P.
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8(a)(2).

When considering a Rule 12(b)(6) motion, the reviewing

court must accept as true all allegations in the complaint and
view them in the light most favorable to the plaintiff.
Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir.
2008).

In reviewing the allegations, a court is not required to

accept sweeping legal conclusions cast in the form of factual
allegations, unwarranted inferences, or unsupported conclusions.
Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.
1997).

The complaint must state sufficient facts to show that

the legal allegations are not simply possible, but plausible.
Phillips, 515 F.3d at 234.

“A claim has facial plausibility

when the [non-movant] pleads factual content that allows the
court to draw the reasonable inference that the [moving party]
is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009).

III.
The Plaintiffs have sufficiently alleged facts to withstand
the Defendants’ facial challenge to subject-matter jurisdiction,
however, the Plaintiffs have failed to meet their burden to
state a claim under Rule 12(b)(6).
turn.

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Each of these is analyzed in

A.
The Defendants initially argue that this Court lacks
subject-matter jurisdiction because the BIA is not named as a
Defendant in this case.

Because the Plaintiffs did not need to

name the BIA as a Defendant, and the named Defendants do not
deprive this Court of subject-matter jurisdiction under the APA,
the Plaintiffs have satisfied their burden and subject-matter
jurisdiction is proper in this Court.
The APA sets out the manner in which plaintiffs may seek
judicial review of agency proceedings.

5 U.S.C. § 703.

Unless

a “special statutory review proceeding” exists, a plaintiff may
bring its claim in any court of “competent jurisdiction.

Id.

When seeking judicial review under the APA, the United States,
the agency by its official title, or an appropriate officer may
be named as defendants.

Id.

Under the terms of the APA, a final agency action may be
reviewed by the federal courts.

5 U.S.C. § 704.

Final actions

may not be “preliminary, procedural, or intermediate” actions or
rulings.

Id.

Agency action is considered final “whether or not

there has been presented or determined an application for a
declaratory, for any form of reconsideration, or, unless the
agency otherwise requires by rule and provides that the action
meanwhile is inoperative, for an appeal to a superior agency
authority.”

Id.

Unfavorable decisions in matters before USCIS
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“may be appealed,” to the BIA, but administrative exhaustion of
an adverse determination of an I-130 petition is not required
for judicial review if the petition is otherwise final under the
APA.

8 C.F.R. § 103.3(a)(1)(ii).

Finally, the district courts

may review the final determinations of visa denials when they
are alleged to have violated the terms of the APA.

See Kosak v.

Aguirre, 518 F.3d 210, 212 (3d Cir. 2008) (reviewing BIA’s
interpretation of 8 U.S.C. § 1153(a)(4)).
The Defendants argue that the Plaintiffs’ failure to name
(1) the United States, (2) the Department of Justice or the BIA,
or (3) the appropriate officers within the DOJ or BIA, destroys
subject-matter jurisdiction in this Court.
10.)

(Defs.’ Br. at 9-

However, the Plaintiffs’ Complaint indicates that they

seek a declaratory judgment and judicial determination of the
USCIS proceedings, which became final on April 14, 2011 when
USCIS issued a decision on Khalil’s I-130. 4

(Compl. ¶ 23.)

In

seeking relief from this final judgment, the Plaintiffs named
the requisite agency officials at USCIS under the APA: Defendant
Napolitano was the then-Secretary of Homeland Security,
Defendant Mayorkas is Director of USCIS, and Defendant Cardinale
is Director of the USCIS Mount Laurel Field Office.

4

(Compl. ¶¶

The Court is aware that the Plaintiffs also request review of the BIA’s
final adjudication. (See Compl. ¶ 24.) However, as USCIS actually issued
the denial of Khalil’s I-130, the relief that the Plaintiffs seek from this
Court does not actually implicate the adjudication made by the BIA.

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5-8.)

Because the Plaintiffs seek a declaratory judgment and

judicial determination of USCIS actions, they have named proper
defendants under the APA and therefore subject-matter
jurisdiction in this Court is proper under 28 U.S.C. § 1331. 5

5 Despite reaching this conclusion, which is in accordance with the Third
Circuit’s decision in Kosak, the Court is skeptical that subject-matter
jurisdiction is properly vested in this Court. In particular, the Court is
concerned that judicial review of legal questions and claims (relating to BIA
determinations) are specifically delegated to the courts of appeals under the
plain language of the Immigration and Naturalization Act (INA).
Specifically,
Nothing in [8 U.S.C. §§ 1252(a)(2)(B) or (C)], or in
any other provision of this chapter (other than this
section) which limits or eliminates judicial review,
shall be construed as precluding review of
constitutional claims or questions of law raised upon
a petition for review filed with an appropriate court
of appeals in accordance with this section.
8 U.S.C. § 1252(a)(2)(D). Moreover, § 1252(a)(5) explains that a petition
for review, “filed with an appropriate court of appeals in accordance with
this section shall be the sole and exclusive means for judicial review” when
challenging an order of removal under this chapter of the INA. The Third
Circuit did not address this concern in Kosak, where it affirmed the district
court’s decision on the plaintiff’s claim that the BIA’s interpretation of 8
U.S.C. § 1153(a)(4) was not arbitrary or capricious under the APA. See Kosak
v. Aguirre, 518 F.3d 210, 212 (3d Cir. 2008). However, the INA’s limitation
on judicial review has been applied to 8 U.S.C. § 1153(b)(2)(A), which grants
a preference to immigrants seeking visas who hold advanced degrees or are of
“exceptional ability.” Zhu v. Gonzales, 411 F.3d 292, 293 (D.C. Cir. 2005).
In Zhu, the district court (affirmed on appeal) held that judicial review of
the visa at issue was precluded by 8 U.S.C. § 1252(a)(2)(B)(ii) because §
1153(b) required the executive branch to use its discretion in waiving a
requirement that the Secretary of Labor file a declaration that there were
not sufficient American workers in the field that the plaintiffs sought to
work in. Zhu, 411 F.3d at 294. Here, Khalil seeks review of Hanna’s visa
determination, filed under a companion provision, 8 U.S.C. § 1153(a)(1). The
I-130 petition required USCIS to determine whether Hanna’s nunc pro tunc
adoption properly brought Hanna within the INA’s definition of a child as
part of its acceptance or denial of the I-130. 8 C.F.R. § 204.2(d)(2)(vii).
This is a question of law, and raises a review similar to the discretionary
function described in Zhu, and therefore might bring Khalil’s petition under
the terms of 8 U.S.C. § 1252. In light of the fact that the Third Circuit
reviewed a similar lawsuit brought under the APA in Kosak and did not address
jurisdictional issues, this Court does not find that subject-matter
jurisdiction is lacking. However, the Court has some question given the
jurisdictional provisions discussed here.

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B.
Because the Defendants’ have adopted a reasonable
interpretation of “child” under 8 U.S.C. § 1101(b)(1)(E), this
Court must grant the Defendants’ Motion to Dismiss for failure
to state a claim.
Any review of agency action is subject to the two-part test
articulated by the Supreme Court in Chevron v. Natural Res. Def.
Council, 467 U.S. 837 (1984).
353, 366 (3d Cir. 2010).

In re Avandia Mktg., 685 F.3d

When reviewing such action, first the

court must determine whether congressional intent is clear, and
if so, must abide by that intention regardless of any agency
regulations.

Id.

If the intention is unclear, where the

statute is “silent or ambiguous with respect to the specific
issue, the question for the court is whether the agency’s answer
is based on a permissible construction of the statute.”
(quoting Chevron, 467 U.S. at 843).

Id.

Courts are to defer to the

agency’s regulations unless they are “arbitrary, capricious, or
manifestly contrary to the statute.”

In re Avandia Mktg., 685

F.3d at 366 (quoting Chevron, 467 U.S. at 844).
An agency’s action may be construed as arbitrary or
capricious if the agency relied on factors that Congress did not
intend for it to rely upon, “entirely failed to consider an
important aspect of the problem,” provided an explanation for
its action in contravention with the weight of the evidence
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before it, or is “so implausible” that it could not be
attributed to an agency with expertise in the matter.

Motor

Vehicle Mfrs. Ass’n of the United States, Inc. v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); see also CBS Corp.
v. FCC, 663 F.3d 122, 137 (3d Cir. 2011).
Even if the Court were to accept that the statute were
ambiguous, the Defendants’ interpretation of 8 U.S.C. §
1101(b)(1)(E) is reasonable.

At issue here is whether USCIS and

BIA’s exclusion of nunc pro tunc adoptions, finalized after the
beneficiary turns sixteen but given retroactive effect before
the beneficiary’s sixteenth birthday, comports with 8 U.S.C. §
1101(b)(1)(E), which defines a “child” throughout the INA as “a
child adopted while under the age of sixteen years.”
at 8.)

(Pls. Br.

If USCIS and BIA’s rejection of nunc pro tunc adoptions

under this provision is arbitrary or capricious, then Hanna’s
adoption should be recognized and Hanna would be considered an
“unmarried son[]” of a US Citizen, entitling him to the visa
preference in 8 U.S.C. § 1153(a)(1).
Under the circumstances of Khalil’s petition, the
Defendants acted reasonably in prohibiting the recognition of
Hanna’s nunc pro tunc adoption and denying the visa preference
under 8 U.S.C. § 1153(a)(1).

Both USCIS and the BIA cited to

two prior BIA precedential decisions considering nunc pro tunc
adoptions, Matter of Cariaga, 15 I.&N. Dec. 716 (BIA 1976), and
12

Matter of Driago, 18 I.&N. Dec. 223 (BIA 1982).
16; Compl. Ex. 1, 4.)

(Defs.’ Br. at

In Cariaga, the BIA strictly interpreted

the adoption age restriction under § 1101(b)(1)(E) and did not
recognize a nunc pro tunc adoption after determining that
Congress “fear[ed] that fraudulent adoptions would provide a
means of evading the [immigration] quota restrictions.”
Cariaga, 15 I.&N. Dec. at 717.

In Driago, the BIA rejected a

nunc pro tunc adoption because “[i]t was Congress’ intent that
the age restriction in [8 U.S.C. § 1101(b)(1)(E)] be construed
strictly.”

Driago, 18 I.&N. Dec. at 224.

Here, both USCIS and

the BIA did not act according to other intentions that Congress
did not expect or in some arbitrary fashion; rather, the BIA
determined Congress’s intention was to avoid fraud and
interpreted the statute strictly in order to do so. 6
Furthermore, the circumstances of Hanna’s nunc pro tunc
adoption do not indicate that the Defendants acted in an
arbitrary and capricious fashion.

The Final Judgment of

Adoption indicates that Child and Home Study Services filed a
report of its investigation into Hanna’s adoption, prior to the
entry of the Final Judgment.

(Compl. Ex. 9, at ¶ 2.)

This

investigation, according to the statutory requirements, was to

6

The Eleventh Circuit has reached the same conclusion, holding that the BIA’s
rejection of nunc pro tunc adoptions effectuates Congress’s intention to
avoid fraudulent adoptions, and is a reasonable interpretation of the
statute. Mathews v. USCIS, 458 Fed. Appx. 831, 833 (11th Cir. 2012) (per
curiam).

13

supervise and evaluate the continued placement of Hanna with
Khalil after the preliminary hearing but before the Final
Judgment, per N.J.S.A. 9:3-48(d).

This requirement could have

been waived at the preliminary hearing in light of Hanna and
Khalil’s niece-nephew relationship.

N.J.S.A. 9:3-48(c)(4)(d).

However, the facts do not indicate that the Superior Court
waived this requirement, and therefore Child and Home Study
Services continued its investigation, observing and evaluating
Hanna’s placement pursuant to N.J.S.A. 9:3-48(d).

Thus, between

April 11, 2008, and October 14, 2008, Hanna’s adoption process
was ongoing, at least pending the completion of the continued
evaluation of Khalil and her husband, Hanna’s adoptive parents.
The rejection of a retroactive effective date, while continued
investigation into Hanna’s adoptive parents was ongoing, is in
line with Congress’s intention to prevent fraud in the
application of the immigration laws.
In sum, the rejection of Hanna’s nunc pro tunc adoption
follows a reasonable interpretation of the immigration laws in
accordance with congressional intent, and therefore the
Defendants have not acted in an arbitrary or capricious fashion
in violation of the APA.

Because the Plaintiffs have failed to

demonstrate that they are entitled to relief under the APA, the
Defendants’ Motion to Dismiss must be granted.

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IV.
Based on the foregoing, the Court will grant Defendants’
Motion to Dismiss for failure to state a claim.

This renders

the Plaintiffs’ Cross Motion for Summary Judgment moot, and
requires dismissal of the case.

An appropriate Order will be

issued accompanying this Opinion.

Date: 10-23-13
/s/ Joseph E. Irenas
Joseph E. Irenas, S.U.S.D.J.

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