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Sakoo v. United States Citizenship and Immigration Services

United States District Court, E.D. Michigan, Southern Division

December 16, 2019

MANUALE H. SAKOO, Plaintiff,
v.
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Defendant.

          R. 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 NO.13]

          VICTORIA A. ROBERTS UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Eveln 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).

         USCIS filed a Motion to Dismiss. Sakoo filed an untimely responsive pleading, which the Court allowed and reviewed.

         The Court finds it has no jurisdiction and that Sakoo fails to state a plausible claim. The Court GRANTS Defendant's motion.

         II. BACKGROUND

         On 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 availability.

         Before 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.

         Within 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.

         On 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.

         III. STANDARD OF REVIEW

         USCIS 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.

         A. Administrative Procedure Act (APA)

         The 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).

         The 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 ...


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