United States District Court, E.D. Michigan, Southern Division
MANUALE H. SAKOO, Plaintiff,
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Defendant.
Steven Whalen Mag. Judge
ORDER: (1) GRANTING PLAINTIFF'S MOTION FOR
EXTENSION OF TIME TO FILE RESPONSE [ECF NO. 14] AND (2)
GRANTING DEFENDANT'S MOTION TO DISMISS [ECF
VICTORIA A. ROBERTS UNITED STATES DISTRICT JUDGE.
P. Keka (“Keka”) filed a visa petition on behalf
of her son, Manuale H. Sakoo (“Sakoo”). Keka died
while the application was pending and before Sakoo relocated
to the U.S. The United States Citizenship and Immigration
Services (“USCIS”) subsequently revoked the visa
petition. Sakoo brings this suit to obtain an immigrant visa
despite the death of his petitioner-mother. Sakoo sues under
8 U.S.C. § 1153(a)(3)(C)(i).
filed a Motion to Dismiss. Sakoo filed an untimely responsive
pleading, which the Court allowed and reviewed.
Court finds it has no jurisdiction and that Sakoo fails to
state a plausible claim. The Court GRANTS
February 17, 2006, Keka filed a Form I-130 visa petition on
behalf of her son, Sakoo, a resident and citizen of Germany.
Keka classified Sakoo as a “married son of a U.S.
citizen” (Preference Category F3). In November 2007,
USCIS approved her visa petition and forwarded it to the
Department of State's National Visa Center to await visa
entering the United States, a beneficiary must wait for
assignment of a visa number. See 8 C.F.R. §
204.2(d)(3). Beneficiaries might wait years before a visa
becomes available; the demand for family-preference visas
exceeds the supply. See Scialabba v. Cuellar de
Osorio, 573 U.S. 41, 48 (2014). Every month, the
Department of State sets a cutoff date for each family
preference category, indicating that visas are available for
beneficiaries with priority dates earlier than the cut-off.
See 8 CFR § 245.1(g)(1); 22 CFR §
42.51(b); Scialabba, 573 U.S. at 41.
each preference category, visas are distributed on a
first-come, first-serve basis and are available in order of
priority date. Scialabba, 573 U.S. at 48.
When Keka filed the petition in February 2006, no visas were
available for individuals in Sakoo's preference category,
F3 (married son of a U.S. citizen). The October 2007 visa
bulletin listed the cut-off date for F3 applicants from
Germany as February 15, 2000. Sakoo's priority date was
February 17, 2006, the date Keka filed the petition.
September 27, 2017, Keka died. Upon her death, USCIS revoked
Sakoo's visa petition. Sakoo filed this action against
USCIS, alleging the Government abused its discretion when it
automatically revoked the visa petition when Keka died.
STANDARD OF REVIEW
brings its motion under Fed.R.Civ.P. 12(b)(1) - claiming that
the Court lacks subject matter jurisdiction to review
USCIS' decision - and Fed.R.Civ.P. 12(b)(6) - arguing
Sakoo fails to state a claim.
Administrative Procedure Act (APA)
Court reviews the Secretary's decision in accordance with
the standard of review set forth in the Administrative
Procedure Act (APA). 42 U.S.C. § 1395oo(f)(1);
Thomas Jefferson Univ. v. Shalala, 512 U.S. 504,
512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994). Under the APA,
the Court can set aside an agency decision if it is
“arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law, ” or
“unsupported by substantial evidence in a case ...
otherwise reviewed on the record of an agency hearing
provided by statute.” 5 U.S.C. § 706(2)(A), (E).
scope of review is narrow, and a Court must not substitute
its judgment for that of the agency. Motor Veh. Mfrs.
Ass'n v. State Farm Mutual Ins. Co.,463 ...