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Skalka v. Kelly

United States District Court, District of Columbia

March 31, 2017

AARON SKALKA, et al, Plaintiffs,
JOHN F. KELLY[1], Secretary, U.S. Department of Homeland Security, et al., Defendants.


          RICHARD J. LEON, United States District Judge.

         Plaintiffs Aaron & Emma Skalka, Evan & Jennifer Lee, Ryan & Jessica Scheel, and Robert & Heather Ayers are four American couples who want to adopt orphaned children from the country of Nepal. Plaintiff Frank Adoption Center is an organization that seeks to facilitate those adoptions. These plaintiffs ("the couples" and "FAC") have brought suit against the various components of the U.S. Government who are in charge of enforcing the immigration policy that normally allows adoptive parents of orphaned children to apply for visas on their behalf.[2] They are challenging a 2010 policy, still in place today, that instructs U.S. immigration officials to stop investigating and processing orphan adoptions in Nepal due to unreliability or corruption they have encountered in dealing with the Nepalese system. They allege in their Complaint that the statute conferring power on the Secretary of State to issue visas to the relatives of U.S. citizens actually compels the agencies involved to complete an individualized investigation into each case, and therefore prohibits the indefinite delay that is the current policy of the Government toward orphan adoptions in Nepal. First Am. Compl. ¶ 24 [Dkt. #11] (citing 8 U.S.C. § 1154(b)). They seek either injunctive relief under the Administrative Procedure Act or a writ of mandamus instructing the Department of State and U.S. Citizen and Immigration Services ("USCIS") to investigate and process their adoption petitions. First Am. Compl. ¶¶ 62-76.

         Currently before the Court is defendants' Motion to Dismiss for failure to state a claim upon which relief can be granted [Dkt. #12].[3] For the reasons stated below, the Court GRANTS defendants' Motion to Dismiss the Complaint.


         Congress gave the Department of State the authority to grant visas to orphaned children in foreign countries when parents who intend to adopt them file an application on their behalf. The application, known as an 1-600 petition, requests that the orphaned child be classified as an "immediate relative" and granted a visa to permanently reside in the United States. 8 U.S.C. § 1154(a)(1)(A)(i). Parents who want to adopt from Nepal first apply to USCIS for a determination that they are fit to adopt. They then apply to the Nepalese government, which matches them with what it considers to be an orphan, issuing a "referral letter" naming the child. In order to qualify the matched child for a U.S. visa, the parents make their 1-600 petition with the U.S. Embassy in Nepal. The goal of the 1-600 petition, as it relates to this case, is to determine whether the child meets the statutory definition of an "orphan." The statutory definition requires either that

(a) the child has no parents because each parent has either died or disappeared, or has abandoned, deserted, been separated from, or lost to the child; or that
(b) the child has a sole or surviving parent who is incapable of providing the proper care and has irrevocably released the child for emigration and adoption.

See 8 U.S.C. § 1101(b)(1)(F). A child is "abandoned" if the birth parent has

willfully forsaken all parental rights, obligations, and claims to the child, as well as all control over and possession of the child, without intending to transfer, or without transferring, these rights to any specific person(s).

8 C.F.R. § 204.3(b) (first prong of definition of abandonment). The 1-600 petition triggers a consular officer to conduct what is called an 1-604 investigation into the veracity of the child being orphaned (i.e., verifying documentation, researching the child's age, hometown, etc.). By regulation, a consular officer must complete this investigation "in every orphan case, " and "[d]epending on the circumstances surrounding the case, the 1-604 investigation shall include, but shall not necessarily be limited to, document checks, telephonic checks, interview(s) with the natural parent(s), and/or a field investigation.'" 8 C.F.R. § 204.3(k)(1). The timing of such an investigation is not specified except that it must be completed "before a[n 1-600] petition is adjudicated." Id. If the consular officer conducts a favorable 1-604 investigation, he may approve the 1-600 petition and the adoptive parents may apply for and obtain a visa for the child. If the officer determines the application is "not clearly approvable" based on his investigation, he refers it to the USCIS office in the jurisdiction. 8 C.F.R. § 204.3(k)(2). The 1-604 investigation form declares that if there are "allegations or indications of fraud, child buying or other non-bona fide intent" the consular officer must "attach report and results of anti-fraud investigation to Form 1-604 when complete." The USCIS office then reviews those findings and makes a final determination on the 1-600 petition after providing the parents with notice and an opportunity to present contrary evidence.

         Because the consular officers in Nepal were having continuous difficulty verifying reports of abandonment in the country, State and DHS jointly decided to suspend the processing of all 1-600 applications for which Nepal is the home country and "abandonment" is the reason for considering the child orphaned. See First Am. Compl. ¶ 36 (investigations "routinely hindered by the unavailability of officials, " and "[p]olice and orphanage officials" refused to cooperate); see also First Am. Compl., Ex. 6 [Dkt. #11-6]; id. Ex. 2 [Dkt. #11-2]. Essentially, those types of applications are automatically deemed "not clearly approvable" in the 1-604 investigation phase, and automatically forwarded to the USCIS office in Nepal, which automatically issues a letter to the parents that the case is "administratively closed" until the suspension is lifted. The suspension went into effect in August 2010. A U.S. delegation revisited the policy in November 2014, but decided the systemic issues with false or unverifiable reports in Nepal warranted keeping the suspension in place. Id. Ex. 3, at 4[4] [Dkt. #11-3].

         Plaintiffs in this case are two American couples who have filed 1-600 petitions (the Skalkas and the Lees), two couples who are not as far along in the process (the Scheels and the Ayers, see First Am. Compl. ¶¶ 58-59), and the Frank Adoption Center, which has attempted to facilitate adoptions from Nepal for Americans like these couples, see Id. ¶¶ 60-61. The Skalkas filed their 1-600 petition in June 2015 received notice in November 2015 that their petition was subject to the suspension. Id. ¶¶ 52-56. The Lees filed their 1-600 petition in March 2016 and had not received a response as of April 2016. Id. ¶ 57.[5] Plaintiffs filed suit claiming the suspension is unlawful because there is a non-discretionary duty to process 1-600 visa applications and to conduct 1-604 investigations into the actual facts of an orphan case. They base this argument on the regulatory scheme explained above and the statutory mandate to process and investigate petitions that claim an alien is an immediate relative. The statute states:

[a]fter an investigation of the facts [by USCIS and/or DOS] in each case . . . the Attorney General shall, if he determines that the facts stated in the petition are true and that the alien on behalf of whom the petition is made is an immediate relative specified in section 1151(b) of this title, . . . approve the petition and forward one copy thereof to the Department of State. The Secretary ...

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