MEMORANDUM OPINION AND ORDER
AMIT
P. MEHTA UNITED STATES DISTRICT JUDGE
I.
INTRODUCTION
On
January 12, 2017, Defendant U.S. Citizenship and Immigration
Services (“USCIS”) revoked Plaintiff Marvin
Yovany Cabrera Cabrera's previously approved Form I-360
visa petition for special immigrant juvenile status. USCIS
determined that Plaintiff was not eligible for special
immigrant juvenile status because he filed his Petition
on the day of his 21st birthday, instead
of before his 21st birthday, as required
by the agency's regulations. Plaintiff brings this action
challenging the revocation of his I-360 Petition under the
Administrative Procedure Act (“APA”), 5 U.S.C.
§§ 701 et seq., and the Equal Protection and Due
Process Clauses of the United States Constitution.
Defendants
move to dismiss Plaintiff's Complaint both for lack of
subject matter jurisdiction and for failure to state a claim.
As to subject matter jurisdiction, Defendants argue that this
court lacks the power to review agency decisions revoking
I-360 Petitions because such actions are discretionary and
specifically excluded by statute from judicial review. As for
failure to state a claim, Defendants maintain that Plaintiff
has not adduced facts that render it plausible that the
agency's action was arbitrary and capricious. Defendants
also point out that the court lacks jurisdiction as to
Plaintiff's constitutional claims, which must be raised
directly with the D.C. Circuit.
The
court grants Defendants' Motion to Dismiss in part and
denies it in part. The court lacks jurisdiction over
Plaintiff's APA claim insofar as he alleges that the
revocation of his Petition was arbitrary and capricious
because the agency unreasonably delayed in taking such
action. The court, however, has jurisdiction to review
Plaintiff's challenge to the reasonableness of
USCIS's regulations on filing petitions seeking special
immigrant juvenile status and the implementation of those
regulations. Finally, with respect to Plaintiff's
constitutional claims, the court defers to Plaintiff as to
whether those claims should be transferred now or later to
the D.C. Circuit for review.
II.
BACKGROUND
A.
Legal Background
Section
204(a)(1)(G) of the Immigration and Naturalization Act
(“INA”) allows persons qualifying for Special
Immigrant Juvenile (“SIJ”) status to obtain a
residency visa and eventually seek lawful permanent
residence. See 8 U.S.C. § 1154(a)(1)(G)(ii).
Section 101(a)(27)(J) of the INA defines an SIJ as:
(J) an
immigrant who is present in the United States-
(i) who has been declared dependent on a juvenile court
located in the United States or whom such a court has legally
committed to, or placed under the custody of, an agency or
department of a State, or an individual or entity appointed
by a State or juvenile court located in the United States,
and whose reunification with 1 or both of the immigrant's
parents is not viable due to abuse, neglect, abandonment, or
a similar basis found under State law;
(ii) for whom it has been determined in administrative or
judicial proceedings that it would not be in the alien's
best interest to be returned to the alien's or
parent's previous country of nationality or country of
last habitual residence; and
(iii) in whose case the Secretary of Homeland Security
consents to the grant of special immigrant juvenile status,
except that-
(I) no juvenile court has jurisdiction to determine the
custody status or placement of an alien in the custody of the
Secretary of Health and Human Services unless the Secretary
of Health and Human Services specifically consents to such
jurisdiction; and
(II) no natural parent or prior adoptive parent of any alien
provided special immigrant status under this subparagraph
shall thereafter, by virtue of such parentage, be accorded
any right, privilege, or status under this chapter;
8 U.S.C. § 1101(a)(27)(J). Essentially, the statute
requires that anyone seeking SIJ status must have first been
the subject of a local juvenile court order indicating that
(1) he is a dependent of that court, (2) that reunification
with one or both parents is not viable “due to abuse,
neglect, abandonment, or a similar basis, ” and (3)
that return to his home country is not in his best interest.
Satisfying
the INA's definition of Special Immigrant Juvenile does
not, however, by itself make one eligible for residency
status. USCIS Regulations impose additional requirements.
Those Regulations provide:
An
alien is eligible for classification as a special immigrant
under section 101(a)(27)(J) of the Act if the alien:
(1) Is under twenty-one years of age;
(2) Is unmarried;
(3) Has been declared dependent upon a juvenile court located
in the United States in accordance with state law governing
such declarations of dependency, while the alien was in the
United States and under the jurisdiction of the court;
(4) Has been deemed eligible by the juvenile court for
long-term foster care;
(5) Continues to be dependent upon the juvenile court and
eligible for long-term foster care, such declaration,
dependency or eligibility not having been ...