GIORDANO et al v. HOLDER et al
OPINION. Signed by Judge Claire C. Cecchi on 5/12/17. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT Of NEW JERSEY
ANSING GIORDANO (A204154494),
Civil Action No.: 2:15-1270-CCC
ERIC HOLDER, JR., Attorney General of the
United States, and UNITED STATES
CITIZENSHIP & IMMIGRATION SERVICES
CECCHI, District Judge.
This matter comes before the Court by way of motion by Plaintiffs Thomas Giordano and
Evelyn Ansing Giordano (“Plaintiffs”) for leave to file an amended complaint. ECF No. 29.
Defendants Eric Holder, Jr., Attorney General of the United States and United States Citizenship
and Immigration Services (“USCIS” and collectively, “Defendants”) oppose the motion. ECF No.
31. The Court decides the motion without oral argument pursuant to Rule 78 of the federal Rules
of Civil Procedure. for the reasons set forth below, Plaintiffs’ motion is granted.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Thomas Giordano (“Mr. Giordano”) is a U.S. citizen. Amended Complaint, ECF
No. 6 (“Compi.) ¶ 2. On November 6, 1996, Mr. Giordano was convicted of a sex offense against
a minor (“1996 conviction”). See Defs. Mot. to Dismiss, Ex. A, ECF No. 9-4 at 2.
On May 13, 2012, Mr. Giordano married Plaintiff Evelyn Ansing Giordano (“Ms.
Giordano”), a citizen of the Philippines. Compi.
2, 6. On or about August 10, 2012, Mr.
Giordano filed with USCIS a Form 1-130 Petition for Alien Relative (“1-130”) on behalf of Ms.
Giordano to have her legally admitted to the United States. See Compl.
At the same time,
Ms. Giordano filed a Form 1-485 Application to Register Permanent Residence or Adjust Status
USCIS denied both petitions on June 10, 2013. See Defs. Mot. to Dismiss Ex. A. at 1.
USCIS denied Mr. Giordano’s 1-130 petition because, under the Adam Walsh Act (“AWA”), Pub.
L. No. 109-248, 120 Stat. 587 (2006), a U.S. citizen convicted of a “specified offense against a
minor” is prohibited from filing a visa petition on behalf of a family member unless USCIS, “in
its sole and unreviewable discretion,” determines the petitioner poses “no risk” to the family
USCIS found Mr. Giordano’s 1996 conviction
qualified as a “specified offense against a minor” under the AWA and Mr. Giordano failed to
demonstrate “beyond any reasonable doubt” that he posed “no risk” to Ms. Giordano. See Defs.
Mot. to Dismiss Ex. A. at 2-5.
Mr. Giordano appealed USCIS’s decision to the Board of Immigration Appeals (“BIA”).
See Compi. Ex. A at 1. On May 7, 2015, the BIA affirmed USCIS’s decision and dismissed Mr.
Giordano’s appeal because Mr. Giordano did not dispute that he had been convicted of a specified
offense against a minor and the BIA lacked jurisdiction to review USCIS’s discretionary “no risk”
determination. See Id. at 1-2.
Plaintiffs filed a petition for a writ of mandamus on February 18, 2015. ECF No. 1. On
May 18, 2015, after the BIA issued its decision, Plaintiffs filed an Amended Complaint seeking
declaratory and injunctive relief. ECF No. 6. Plaintiffs assert claims challenging the application
and implementation of the AWA, alleging that it is unconstitutional for reasons including, inter
alia, that it “violates substantive and procedural due process,” and “imposes a constitutionally
excessive penalty upon a United States citizen,” in violation of the Fifth and Eighth Amendments
of the U.S. Constitution.” See Compi.
On July 17, 2015, Defendants moved to dismiss Plaintiffs’ Complaint in its entirety
pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). ECF No. 9. On October 5,
2015, Plaintiffs opposed the motion and moved for summary judgment on Counts I through V.
ECF No. 15. Plaintiffs also agreed to withdraw Count VI “[iJn the interests ofjudicial economy,”
Id. at 7, and asked this Court to “defer decision” on Count VII, id. at 33.
On September 16, 2016, Defendants filed a Notice of Supplemental Authority with this
Court, advising the Court of a published decision from the Eighth Circuit, Bremer v. Johnson, No.
15-1 163, 2016 WL 4473244 (8th Cir. Aug. 25, 2016), addressing issues in this area. ECF No. 27.
On October 27, 2016, Plaintiffs filed a Motion for Leave to Amend the Complaint. ECF No. 29.
Plaintiffs seek to add a claim concerning whether “the AWA requirement of a ‘no risk
determination’ for a petitioner convicted of a specified offense applies only to petitions that the
defendants have not accepted for filing.” See Id. Defendants oppose the motion. ECF No. 31.
Pursuant to Federal Rule of Civil Procedure 1 5(a)(2) “a party may amend its pleading only
with the opposing party’s written consent or the court’s leave. The court should freely give leave
when justice so requires.” The decision to grant leave to amend is left within the discretion of the
district court. Toll Bros., Inc. v. Twp. ofReadington, 555 F.3d 131, 144 n.lO (3d Cir. 2009). The
Third Circuit has shown a strong liberality in allowing amendments under Rule 15 in order to
ensure that claims will be decided on the merits rather than on technicalities. Dole v. Arco
Chemical Co., 921 F.2d 484, 487 (3d Cir. 1990). Pursuant to the factors set out in Fornan v. Davis,
leave to amend must be granted in the absence of(1) undue delay; (2) bad faith or dilatory motive;
(3) undue prejudice to the opposing party; and (4) ftitility of amendment. Grayson v. Mayview
State Hosp., 293 F.3d 103, 10$ (3d Cir. 2002) (citing Foman v. Davis, 371 U.S. 17$, 182 (1962)).
Defendants oppose Plaintiffs’ motion on the grounds of undue delay and futility, and the Court
will address each in turn.
Defendants argue the Court should deny Plaintiffs’ motion for leave to amend because of
undue delay. ECF No. 31 at 2. Defendants argue Plaintiffs “had several opportunities to move to
amend [the] Complaint,” and failed to do so. Id. Defendants explain Plaintiffs had the opportunity
but failed to raise the additional claim in the first Amended Complaint, in any responsive
pleadings, in the motion for summary judgement, and during oral arguments. Id. Plaintiffs argue
“this amendment was sought after the first authority came down recognizing that such a claim was
not jurisdictionally barred.” ECF No. 33 at 1.
“Delay alone.. is an insufficient ground to deny an amendment, unless the delay unduly
prejudices the non-moving party.” Cornell & Co., Inc. v. Occupational Safety & Health Review
Comm ‘n, 573 f.2d $20, $23 (3d Cir. 197$). Here, the Court finds Plaintiffs’ motion for leave to
amend does not present undue delay. Despite Defendants’ contentions that Plaintiffs could have
requested leave to amend at an earlier point, Plaintiffs were engaged in dispositive motion practice,
addressed to the prior pleading. Therefore, Plaintiffs did not unduly delay the amendment given
the procedural posture. Moreover, Plaintiffs’ argument on the application for amendment appears
premised on the contention that the decision in Bremer v. Johnson, No. 15-1163, 2016 WL
4473244 (8th Cir. Aug. 25, 2016), was the first to find that Plaintiffs’ proposed amendment was
not jurisdictionally barred, and Plaintiffs filed the instant motion for leave to amend two months
afier the decision was issued. See ECF No. 29. Accordingly, the Court finds Plaintiffs’ motion
does not unduly prejudice the Defendants and does not present undue delay.
Futility “means that the complaint, as amended, would fail to state a claim upon which
relief could be granted.” Burtch v. Mulberg Factors, Inc., 662 F.3d 212, 231 (3d Cir. 2011)
(quoting Great Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 175 (3d Cir.
2010)). Given the liberal standard for the amendment of pleadings, “courts place a heavy burden
on opponents who wish to declare a proposed amendment futile.” Pharmaceutical Sales and
Consulting Corp. v. I WS. Delavau Co., Inc., 106 F. Supp. 2d 761, 764 (D.N.J. 2000) (citations
omitted). Although tracking Rule 12(b)(6), Rule 15 futility does not contemplate substantive
motion practice on the merits of the claims:
If a proposed amendment is not clearly futile, then denial of leave to amend is
improper. This does not require the parties to engage in the equivalent of
substantive motion practice upon the proposed new claim or defense; [it] does
require, however, that the newly asserted defense appear to be sufficiently wellgrounded in fact or law that it is not a frivolous pursuit.
Harrison Beverage Co. v. Dribeck Importers, Inc., 133 F.R.D. 463, 468 (D.N.J. 1990) (citations
omitted); see also 6 Wright, Miller & Kane Federal Practice and Procedure,
1487 (2d ed. 1990).
Effectively, this means that to be futile, the proposed amendment must be “frivolous or advance a
claim or defense that is legally insufficient on its face
Marlowe Patent Holdings v. Dice
Elecs. LLC, 293 F.R.D. 688, 695 (D.N.J. 1993).
The Adam Walsh Act (“AWA”) provides that “any citizen of the United States claiming
that an alien is entitled to classification [as]
an immediate relative
the Attorney General for such classification.” $ U.S.C.
mayfile a petition with
1 154(a)(1)(A)(i) (emphasis added).
Subsection 11 54(a)( 1 )(A)(viii)(I) precludes application of that clause “to a citizen of the United
States who has been convicted of a specified offense against a minor, unless the Secretary of
determines that the citizen poses no risk to the alien with respect to whom
the petition described in clause (i) is filed.” In essence, the subsection provides that a citizen
convicted of a specified offense against a minor may not file a petition for classification of an
immediate alien relative unless the Secretary of Homeland Security determines that the citizen
poses no risk to the alien.
Plaintiffs’ amendment claims:
the AWA requirement of a “no risk determination” for a petitioner convicted of a specified
offense applies only to petitions that the defendants have not accepted for filing. In his
case the defendants accepted Mr. Giordano’s petition for filing and took his fee payment
for the 1-130. Under these circumstances the AWA does not apply.
See ECF No. 29.
Defendants argue Plaintiffs’ amendment is futile because Plaintiffs’
interpretation would require USCIS to engage in “front-desking,” the practice of rejecting an
application on its face from a cursory determination, which the Supreme Court has called into
question and which prevents USCIS “from granting [Plaintiffs’] procedural due process, both at
the administrative and judicial level. ECF No. 31 at 6.
Here, the Court finds Plaintiffs’ proposed amendment is not clearly futile, as it does not
appear to be legally insufficient on its face. This dispute raises questions of pleading and statutory
interpretation that exceed the limited analysis that applies to a Rule 15 motion to amend.
Accordingly, Plaintiffs’ motion for leave to amend is granted.
For the reasons set forth above, Plaintiffs’ motion for leave to amend is granted.
appropriate Order accompanies this Opinion.
CLAIRE C. CECCHI, U.S.D.J.
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