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Chen v. Rodriguez

United States District Court, District of Columbia

August 5, 2016

LUNBING CHEN, Plaintiff,
LEON RODRIGUEZ, et al. Defendants.



         In September 2015, Plaintiff Lunbing Chen filed the instant action against Jeh Johnson, Secretary of the United States Department of Homeland Security (“DHS”), Leon Rodriguez, Director of United States Citizenship and Immigration Services (“USCIS”), a component of DHS, and Sarah Taylor, Director of USCIS’s Washington District Office (collectively, “Defendants”). (Compl. ¶¶ 13-14).

         Plaintiff is presently subject to an of deportation, though that order has been withheld since January 2006 pursuant to 8 U.S.C. § 1231(b)(3). This case concerns an application for adjustment of status that Plaintiff filed with USCIS in December 2013. USCIS administratively closed Plaintiff’s adjustment application in March 2014 on the basis that it lacked jurisdiction to adjudicate it. Plaintiff subsequently filed two separate motions for reconsideration, both of which were denied. Shortly after the second motion for reconsideration was denied, Plaintiff filed this case.

         Plaintiff alleges that USCIS’s administrative closure of his adjustment application and subsequent denial of his motions for reconsideration violated the Administrative Procedure Act. (Id. ¶ 10). He requests, among other things, that this court (i) accept jurisdiction over this case;

(ii) review USCIS’s administrative closure of his adjustment application and denial of his motions for reconsideration; (iii) declare that he is an “arriving alien” eligible for adjustment under § 245(i) of the Immigration and Nationality Act (the “INA”); (iv) enjoin USCIS from refusing to assume jurisdiction over his adjustment application; and (v) order USCIS to approve his adjustment application. (Id. at 10-11).

         Defendants have moved to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), and for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Upon consideration of Defendants’ motion and the parties’ briefs in support thereof and in opposition thereto, and for the reasons set forth below, the motion is hereby GRANTED AS CONCEDED insofar as it seeks dismissal for lack of subject matter jurisdiction, and is hereby DENIED AS MOOT insofar as it seeks dismissal for failure to state a claim.[1]


         Plaintiff is a citizen of the People’s Republic of China. (Compl. Ex. A; Mot. Ex. 1 at 2). On January 2, 1992, Plaintiff was stopped by officials of the Immigration and Naturalization Service (“INS”)[2] in Honolulu, Hawaii. (Mot. Ex. 1 at 1). Through an interpreter, Plaintiff provided an INS official with a sworn statement in which he stated that he had come to the United States “to stay here for good” because “the U.S. government takes good care of its citizens, ” and because he would “have more future in the U.S.A.” (Id. at 3). Plaintiff stated that he planned on contacting his uncle to find work, and provided phone numbers with Washington, D.C. area codes for his uncle’s home and business. (Id. at 3-4).

         Plaintiff first stated that he did not have any travel documents, did not “apply for any kind of document at all, ” and did not have a passport to leave China. (Id. at 4). When he was asked again whether he had a passport to come to the United States, Plaintiff stated that he had bought a fake Chinese passport “in the street” for “500.00 Chinese currency.” (Id. at 4-5). Plaintiff stated that he did not know who sold him the passport, and that “it was just somebody in the street.” (Id. at 4). He further stated that, after arriving at the airport in China, he asked someone else to purchase his plane ticket for him, then “boarded the plane with the fake passport and the ticket” before “tear[ing] off the passport while [he] was on the plane . . . because it was fake” and of “no use.” (Id. at 5).[3]

         Plaintiff was then informed that, because he was an immigrant without a visa or other travel documents, and was not exempt from the requirement of having such travel documents, he was not admissible to the United States. (Id.). He was offered the choice of withdrawing his application for admission and returning to China, or having a hearing with an Immigration Judge. (Id.). Plaintiff elected to have a hearing with an Immigration Judge. (Id. at 6). He was then paroled into the United States, with orders to appear at an INS office in Honolulu the following day, January 3, 1992, for a deferred inspection. (Compl. Ex. A). He did not appear as ordered. (Compl. Ex. K at 1) (“USCIS records reveal that you were paroled solely for the purposes of deferred inspection. However, review of the file reveals that you failed to appear for deferred inspection.”).

         Plaintiff eventually filed an application for asylum, claiming that he would be persecuted if he returned to China. (Mot. Ex. 2 at 2). In January 1993, while his asylum application was pending, INS filed an Order to Show Cause (the “OSC”), thereby initiating deportation proceedings. (Compl. Ex. B). During an October 1993 hearing in Immigration Court, the OSC was amended to reflect the fact that Plaintiff was originally “admitted based upon [his] presenting fraudulent documents, ” which rendered him “excludable by law and subject to deportation” at the time of his entry on January 2, 1992. (Id. at 1-2). The Immigration Judge specifically noted that Plaintiff, through his counsel, had “admitted the truthfulness of the factual allegations contained in [the OSC], as amended, and conceded deportability predicated on the charge.” (Mot. Ex. 2 at 1). The Immigration Judge therefore denied Plaintiff’s asylum application, denied his request for a withholding of deportation, and granted him the option of voluntarily departing the country by December 31, 1993. (Id. at 7). The Immigration Judge also ordered that, in the event that Plaintiff did not timely depart the United States, he would be ordered deported back to China. (Id. at 7-8). Plaintiff appealed the Immigration Judge’s denial of his asylum application to the Board of Immigration Appeals, which subsequently remanded the case to the Immigration Judge for further consideration of Plaintiff’s persecution claim. (Mot. Ex. 3 at 2).

         In March 2001, while the deportation proceedings were ongoing, Plaintiff’s employer filed an Application for Employment Certification on his behalf, which the United States Department of Labor approved in February 2002. (Compl. Ex. E). In April 2002, Plaintiff’s employer filed an Immigrant Petition for Alien Worker (“Form I-140”) on his behalf, seeking to classify him as a skilled worker under the INA. (Mot. Ex. 4). The Form I-140 was approved by USCIS in December 2002. (Id.). In September 2004, Plaintiff submitted an Application to Adjust Status (“Form I-485”) to the Immigration Court based on his approved Form I-140. (Mot. Exs. 5-6).

         In January 2006, the Immigration Judge again denied Plaintiff’s asylum application, but this time granted his request for withholding of deportation pursuant to 8 U.S.C. § 1231(b)(3), which provides that an alien may not be removed to a country if it is determined “that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” (Compl. Ex. C).

         In September 2010, Plaintiff’s daughter - a naturalized U.S. citizen - filed a Petition for Alien Relative (“Form I-130”) on Plaintiff’s behalf, seeking to classify Plaintiff as the parent of a U.S. citizen. (Compl. Ex. D). The Form I-130 was subsequently approved. (Id.). Plaintiff then filed a second Form I-485 - this time with USCIS, and this time based on his approved Form I-130 - again seeking adjustment of status under section 245(i) of the INA, 8 U.S.C. § 1255(i). (Compl. ¶ 2).

         On September 1, 2011, Plaintiff’s first Form I-485, which he had filed with the Immigration Court, was marked “terminated 9/1/2011. Acquired through other means.” (Mot. Ex. 6 at 1). USCIS then denied Plaintiff’s second Form I-485 on the ground that he ...

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