Qui v. Barr

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

-----------------------------------------------x

PETER CONIGLIO; MINXUAN QUI

a.k.a. MINXUAN QIU, MEMORANDUM AND ORDER

Plaintiffs, Case No. 1:20-cv-1342-FB

-against-

MERRICK GARLAND, in his official

capacity as Attorney General of the

United States; ALEJANDRO

MAYORKAS, in his official capacity as

Secretary of the Department of

Homeland Security; TRACY RENAUD,

in her official capacity as Acting

Director of United States Citizenship and

Immigration Services.

Appearances: F or the Defendants:

For the Plaintiffs JACQUELINE M. KASULIS

THEODORE N. COX Acting United States Attorney

325 Broadway Eastern District of New York

Suite 201 By: PAULINA STAMATELOS

New York, NY 10007 Assistant United States Attorney

271-A Cadman Plaza East

Brooklyn, New York 11201

BLOCK, Senior District Judge:

Plaintiffs Peter Coniglio, a United States citizen, and Minxuan Qiu, his

stepson,1 allege that Defendant United States Citizenship and Immigration Services

1 Plaintiffs advise the Court that “Minxuan Qui’s” surname is properly spelled

“Qiu.” The Court will refer to Qiu using the correct spelling but notes that the

administrative record uses the incorrect spelling.

(USCIS) unlawfully revoked its approval of a Form I-130 Petition for Alien

Relative (“the Form I-130” or “the Petition”) which Coniglio had filed on Qiu’s

behalf. Had USCIS not withdrawn its approval, Qiu would have been eligible to

apply for an immigrant visa and, eventually, a green card and citizenship.

Qiu and Coniglio state claims under the Administrative Procedure Act

(APA), Declaratory Judgment Act (DJA), and the Fifth Amendment of the United

States Constitution. All three causes of actions rely on their claims that USCIS (1)

revoked Qiu’s classification as an “immediate relative” based upon an

impermissible construction of 8 U.S.C. § 1101(b)(1)(B) that excludes children who

turn 18 on the date of their parents’ marriage; (2) failed to consider their argument

that Second Circuit and Board of Immigration Appeals (BIA) precedent mandate a

“lenient” construction of that statute; and (3) disobeyed a BIA remand order that

required consideration of their arguments. See 8 U.S.C. § 1101(b)(1)(B) (defining

“child” to include “an unmarried person under twenty-one years of age who is. . . a

stepchild, whether or not born out of wedlock, provided the child had not reached

the age of 18 years at the time the marriage creating the status of stepchild

occurred”).

The Government moves to dismiss Qiu and Coniglio’s claims for lack of

subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and

failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). In the

alternative, it asks the Court to enter summary judgment in their favor. The

Government’s motions are denied, and the Court, sua sponte, enters judgment in

favor of Qiu and Coniglio.

I.

Minxuan Qiu was born at 4:15 PM on October 7, 1996 in Chengdu, China.

He and his mother, Tao Coniglio (née Min), are citizens of the People’s Republic

of China.

On October 7, 2014, Qiu’s mother married his stepfather, Peter Coniglio.

They were married in Brooklyn, New York, at approximately 11:25 AM, Eastern

Daylight Time. Thus, the marriage occurred at 11:25 PM, China Standard Time.

On or about March 20, 2015, Coniglio filed a Form I-130 to classify Qiu as

an “immediate relative.” See 8 U.S.C. § 1151(b)(2)(A)(i) (defining “immediate

relative” to include children); see also 8 U.S.C. § 1101(b)(1)(B) (defining “child”

to include “a stepchild, whether or not born out of wedlock, provided the child had

not reached the age of eighteen years at the time the marriage creating the status of

stepchild occurred”). USCIS approved the petition in September of 2015 and

forwarded it to the United States consulate in Guangzhou, China. See 8 U.S.C. §

1154(b) (if the Attorney General or, after 2002, the Secretary of Homeland

Security “determines that the facts stated in the petition are true and that the [alien

beneficiary] is an immediate relative, . . . [he shall] approve the petition and

forward one copy thereof to the Department of State”).

The Guangzhou consulate received the petition sometime between

September of 2015 and December of 2016 and scheduled a “personal interview” at

some point during that period. After the interview, a consular official concluded

that “the statements made by the beneficiary [Qiu] under oath during the personal

interview with a consular officer constitute good and sufficient cause to conclude

that the step-parent relationship between the beneficiary and petitioner [Coniglio]

was not established before the beneficiary turned 18.” A.R. 94.2 The consulate

therefore declined to issue an immigrant visa and “returned the. . . petition with a

recommendation that it be reconsidered and [its approval] revoked.” Id.

On April 10, 2018—almost two years after receiving the consulate’s

recommendation—USCIS issued a Notice of Intent to Revoke (NOIR) its approval

of the petition. Qiu and Coniglio submitted a timely response to the notice, but

USCIS failed to acknowledge their evidence and brief. See A.R. 62-79 (Coniglio’s

letter response dated May 7, 2018 and enclosed exhibits); cf. A.R. 80 (“Decision”

letter dated June 6, 2018 from USCIS inaccurately stating that “[the] petitioner has

failed to respond to our notice of intended revocation or to provide any additional

2 The abbreviation “A.R.” refers to the “Administrative Record.”

evidence in support of the petition”). It therefore formally revoked its prior

approval.

Coniglio appealed USCIS’s decision to the BIA. Now represented by

counsel, Qiu and Coniglio raised two issues on appeal. First, they argued that

USCIS’s strict interpretation of 8 U.S.C. § 1101(b)(1)(B) as requiring a marriage to

occur before a beneficiary’s eighteenth birthday was inconsistent with binding

Second Circuit and BIA precedent. Second, they argued that USCIS erred as a

matter of fact and law when it found that Qiu and Coniglio had failed to respond to

the NOIR.

The BIA vacated USCIS’s revocation and remanded the case for further

proceedings. In its remand order, the BIA noted that “the petitioner has raised

arguments on appeal” and emphasized Qiu and Coniglio’s argument that, “under

Duarte-Ceri v. Holder, the [Second Circuit] Court [of Appeals] rejected the notion

that a child turned 18 at the stroke of midnight” and instead endorsed a lenient

construction of the immigration law which “will. . .preserve a right or prevent a

forfeiture.” A.R. 23 (quoting 630 F.3d 83 (2d Cir. 2010)). It further stated that “the

Director’s decision does not address these arguments and incorrectly found that the

petitioner did not respond to the NOIR.” Id. It concluded that a remand was

warranted to “provide the Director with an opportunity to consider the petitioner’s

response to the NOIR and the petitioner’s arguments on appeal.” Id.

On January 29, 2020, USCIS issued a second “Decision” letter to revoke

Qiu’s status. A.R. 2-4 (full decision letter). The three page decision consists of (1)

a one-page review of the procedural history, (2) a paragraph listing the evidence

Qiu and Coniglio previously submitted, (3) a half page of verbatim quotations from

the Immigration and Nationality Act and its implementing regulations, (4) a

paragraph reiterating USCIS’s position that Qiu and Coniglio’s “step-relationship

is not valid for immigration purposes” because “[at] the time of the marriage, [Qiu]

was not under the age of 18 years,” and (5) a required notice of Qiu and Coniglio’s

right to appeal. Id. The document includes no discussion of Qiu and Coniglio’s

legal arguments, although it does state that USCIS issued its NOIR “after a review

of the entire record.” Id.

Because Qiu and Coniglio did not appeal this decision, it become final on

February 28, 2020. Id. (noting that USCIS decisions become final after 30 days).

This action followed.

II.

A. Rule 12(b)(1)

“A case is properly dismissed for lack of subject matter jurisdiction under

Rule 12(b)(1) when the district court lacks statutory or constitutional power to

adjudicate it.” Hui Fen Zhu v. McAleenan, 501 F. Supp. 3d 139, 140 (E.D.N.Y.

2020) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). The

plaintiff must show, by a preponderance of the evidence, that subject matter

jurisdiction exists. Id. “In reviewing a 12(b)(1) motion to dismiss, the court must

accept as true all material factual allegations in the complaint, but the court is not

to draw inferences from the complaint favorable to [the party asserting

jurisdiction].” Tiraco v. New York State Bd. of Elections, 963 F. Supp. 2d 184, 190

(E.D.N.Y. 2013) (quoting J.S. ex. rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110

(2d Cir. 2004)). The Court may also refer to evidence outside the pleadings,

including the administrative record. Markarova, 201 F.3d at 113.

“Subject matter jurisdiction is a threshold issue and, thus, when a party

moves to dismiss under. . . Rule 12(b)(1) and 12(b)(6), the . . . court must address

the 12(b)(1) motion first.” Saleh v. Holder, 84 F. Supp. 3d 135, 138 (E.D.N.Y.

2014) (internal citations omitted).

B. Rule 12(b)(6)

“To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible

when “the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id.

(citing Twombly, 550 U.S. at 556).

C. Rule 56

On a motion for summary judgment, the Court must “resolv[e] all

ambiguities and draw all permissible factual inferences in favor of the party against

whom summary judgment is sought.” Sloley v. VanBramer, 945 F.3d 30, 36 (2d

Cir. 2019) (citing Burg v. Gosselin, 591 F.3d 95, 97 (2d Cir. 2010)). Summary

judgment is appropriate only if “there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

“In an APA case, the Court relies on the administrative record for the

material facts to determine if [an] agency’s decision exceeds the agency’s statutory

authority or is arbitrary and capricious or an abuse of discretion.” Am. Steamship

Owners Mut. Prot. and Indem. Ass’n., Inc. v. United States, 489 F. Supp. 3d 106,

128 (E.D.N.Y. 2020) (citing Miller v. United Welfare Fund, 72 F.3d 1066, 1071

(2d Cir. 1995)).

III. Subject Matter Jurisdiction

Qiu and Coniglio argue that the APA, DJA, and 28 U.S.C. § 1331 (the

“Federal Question Statute”) permit the Court to review USCIS’s decision to revoke

its prior approval of the Petition. The Government does not dispute that the APA

permits review of final agency action, nor does it contest Qiu and Coniglio’s claim

that USCIS’s revocation decision was such an action. See Gov. Br. at 31 (arguing

that the “[the] APA provides the exclusive means for asserting claims for

declaratory and injunctive relief from grievances caused by agency action with

respect to regulatory measures of the sort at issue here”). Rather, the Government

argues that USCIS’s revocation decision was a discretionary act that 8 U.S.C. §

1252(a)(2)(B)(ii) shields from judicial review. In the alternative, the Government

argues that the Doctrine of Consular Nonreviewability deprives the Court of

jurisdiction.

The Second Circuit instructs that a court “determining whether a suit can be

brought under the APA” must “begin with the strong presumption that Congress

intends judicial review of administrative action.” Sharkey v. Quarantillo, 541 F.3d

75, 84 (2d Cir. 2008) (quoting Bowen v. Mich. Academy of Family Physicians, 476

U.S. 667, 670 (1986)). Although the Court is bound to enforce bars to jurisdiction,

“the statutory limitations on judicial review of agency action should be interpreted

narrowly in light of the APA’s strong presumption in favor of judicial review.” Id.

A. 8 U.S.C. § 1252(a)(2)(B)(ii) Does Not Preclude Limited Judicial Review

of Revocation Decisions Under 8 U.S.C. § 1155

1. Revocation Under 8 U.S.C. § 1155 May Involve Non-Discretionary or

“Purely Legal” Decisions

With these principles in mind, the Court turns to the Government’s claim

that the Court lacks jurisdiction. The Government’s argument arises at the

intersection of two statutes: 8 U.S.C. § 1155 and 8 U.S.C. § 1252(a)(2)(B)(ii). The

former provides that “[the] Secretary of Homeland Security may, at any time, for

what he deems to be good and sufficient cause, revoke the approval of any petition

approved by him,” while the latter precludes judicial review of “any. . . decision or

action of the Attorney General or Secretary of Homeland Security the authority for

which is specified under this subchapter to be in the discretion of the Attorney

General or Secretary of Homeland Security.” The Government contends that, when

read together, §§ 1155 and 1252(a)(2)(B)(ii) establish that the Court lacks

jurisdiction to consider the “quintessential[ly] discretionary decision” to revoke

approval of a petitioner’s application for an immigration benefit. Gov. Br. at 18

(quoting Hui Fen Zhu, 501 F. Supp. 3d at 141). See also Polifet v. Cuccinelli, 955

F.3d 377, 382-83 (4th Cir. 2020) (barring judicial review of USCIS decision to

revoke prior approval of a Form I-130 and holding that § 1155 confers discretion

on USCIS).

By invoking the discretionary language of 8 U.S.C. § 1155, the Government

prevents the Court from establishing jurisdiction by straightforward application of

the Second Circuit’s holding in Ruiz v. Mukasey. 552 F.3d 269, 276 (2d Cir. 2009)

(holding that Ҥ 1252(a)(2)(B)(ii). . . does not preclude judicial review of the

denial”—as opposed to the revocation—“of [a petitioner’s] I-130 petition”).

(emphasis added). Indeed, the Court agrees with the Government that §

1252(a)(2)(B)(ii) precludes review of a wide range of decisions involved in the

revocation of immigrant petitions, likely including decisions to initiate proceedings

and decisions regarding the weighing of evidence. See Hsieh v. Kiley, 569 F.2d

1179, 1182 (2d Cir. 1978) (“Whether the [Immigration and Nationality Service]

pursues [an investigation] further and, if so, whether it will institute proceedings to

rescind [a petitioner’s] status are matters solely within [its] discretion”). Such

“substantive discretionary decisions” are clearly within § 1155’s grant of discretion

to the Secretary of Homeland Security to “revoke the approval of any petition

approved” and decide “what he deems to be good and sufficient cause.” 8 U.S.C. §

1155. See also Mantena v. Johnson, 809 F.3d 721, 728 (2d Cir. 2015) (noting that

§ 1252(a)(2)(B)(ii) “strips jurisdiction over a substantive discretionary decision”).

However, the Second Circuit has long recognized that statutes which confer

discretion sometimes impose nondiscretionary requirements, and that district

courts retain jurisdiction to enforce compliance with those requirements. See

Mantena, 809 F.3d at 728 (“Regardless of whether [a] substantive revocation

decision is shielded from judicial review, no party has provided authority to

suggest that the procedure surrounding the substantive decision is similarly

shielded. We hold that it is not”). In fact, the Second Circuit has explicitly held that

§ 1155—the exact provision cited by the Government—incorporates a

nondiscretionary notice requirement which can be judicially enforced despite §

1252(a)(2)(B)(ii)’s jurisdiction-stripping provision. See Firstland Intern. Inc. v.

U.S. I.N.S., 377 F.3d 127 (2d Cir. 2004). Considering these holdings, the Court

cannot dismiss this case simply because § 1155 gives the Government a measure of

discretion. Instead, the Court must “seek to determine what decision [USCIS]

made” and decide whether that decision was discretionary or “nondiscretionary, or

purely legal.” Sharkey, 541 F.3d at 85; Sepulveda v. Gonzales, 407 F.3d 59, 62 (2d

Cir. 2005). Importantly, this inquiry does not ask “whether a decision was correct

or a proper exercise of discretion.” Sharkey, 541 F.3d at 85. Rather, it is an

application of the “familiar law that a federal court always has jurisdiction to

determine its own jurisdiction.” United States v. Ruiz, 536 U.S. 622, 628 (2002).

2. Qiu and Coniglio’s Challenges to Nondiscretionary and Purely Legal

Aspects of the Government’s Revocation Procedure are Reviewable

In light of the foregoing, the Court must determine (1) what decision(s)

USCIS made to effectuate the revocation of Qiu and Coniglio’s petition; (2)

whether those decisions were discretionary, “nondiscretionary or purely legal”; and

(3) if the decisions are neither wholly discretionary nor wholly nondiscretionary,

whether Qiu and Coniglio challenge nondiscretionary, “procedural” aspects of the

decisions.

a. USCIS Made Nondiscretionary and Purely Legal Decisions

As to the first, Second Circuit precedent recognizes that the adjudication of a

claim may incorporate multiple “decisions,” only some of which are

nondiscretionary and therefore reviewable. See Sepulveda, 407 F.3d at 63-64

(emphasizing that “the [immigration judge] contrasted his [nondiscretionary]

finding of statutory ineligibility. . . with his discretionary finding that [the

petitioner] lacked the good moral character required” and assuming jurisdiction to

review the former determination); Pizarro v. Holder, 326 F. App’x 37, 40 (2d Cir.

2009) (acknowledging jurisdictionally significant distinction between a BIA

decision to deny an application “because [the petitioner] was ineligible [for the

desired status]” and a BIA decision to “deny [an] application for adjustment of

status in the exercise of [the BIA’s] discretion”) (emphasis in original). To decide

what the relevant “decisions” are, the Court looks to USCIS’s written ruling.

Sepulveda, 407 F.3d at 63-64. To determine whether a petitioner challenges the

substance of that decision or the “procedure surrounding the substantive decision,”

the Court will “study the arguments asserted [in the petition]” and decide

“regardless of the rhetoric in the petition, whether it merely quarrels over the

correctness of factual findings or justification for the discretionary choices. . .or

whether it raises a. . . ‘question of law,’ in which case the court could exercise

discretion to review [that] particular issue.” Mantena, 809 F.3d at 728; Xiao Ji

Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006) (defining scope of

circuit court jurisdiction to review constitutional claims despite §

1252(a)(2)(B)(ii)’s jurisdictional bar).3

3 Although Xiao Ji Chen interprets § 1252(a)(2)(D)’s exception for appellate—not

trial court—jurisdiction, the Court believes that case’s exegesis of the phrase

The substance of the “decision” at the heart of this case appears on Page 3 of

the Administrative Record. It reads, in relevant part:

On November 5, 2019, USCIS received your response to the Notice of

Intent to Revoke. You submitted no new evidence to establish that the

step-relationship was created before [Qiu] reached the age of 18. The

record shows that [Qiu] was born on October 7, 1996. The marriage

that created the step-relationship occurred on October 7, 2014. At the

time of the marriage, the beneficiary was not under the age of 18

years. The step-relationship is [therefore] not valid for immigration

purposes.

A close reading of this paragraph reveals that it contains at least three separate

“decisions.” First, it finds that Qiu was born on October 7, 1996, and the marriage

occurred on October 7, 2014. Second, it determines, based upon these facts, that

Qiu had “was not under the age of 18 years” at the time of the marriage. Third, it

concludes that, because Qiu had “reached the age of 18. . . [the] step-relationship is

not valid for immigration purposes.”

The first “decision”—the factual one—indisputably falls outside of the

scope of the Court’s review. Cf. Xiao Ji Chen, 471 F.3d at 329. The Court could

not, for example, entertain an argument that revocation was improper based upon

allegations that Qiu was born on November 6, 1997. By contrast, the second

“question of law” applies in principle to the phrase “purely legal” as used in

Sepulveda. Compare Xiao Ji Chen, 471 F.3d at 329 with Sepulveda, 407 F.3d at

63. In any event, common sense dictates that careful “study [of] the arguments

asserted” is a valid way to ascertain whether a petitioner challenges a “purely

legal” decision. Xiao Ji Chen, 471 F.3d at 329.

“decision”—that Qiu “was not under the age of 18 years”—implicates a question

of law. Second Circuit and BIA precedent suggest that a petitioner’s age is a mixed

question of fact and law, provided that the petitioner’s age is dispositive of his

entitlement to a statutory benefit. See e.g., Duarte-Ceri, 630 F.3d at 88, 91

(applying the Rule of Lenity to statutory age requirements and deciding “on

assumed facts” that a petitioner was “under the age of 18” for purposes of

entitlement to a statutory benefit); Matter of L-M and C-Y-C, 4 I&N Dec. 617

(B.I.A. 1952) (applying Rule of Lenity and holding that immigrant petitioners were

“under 16” as a matter of law); see also Joaquin-Porras v. Gonzales, 435 F.3d 172,

178 (2d Cir. 2006) (noting that “interpretation of [a] one-year deadline . . . is a

question of law”). Put another way, precedent suggests that determining someone’s

age for purposes of statutory entitlements is a two-step process. First, the Court or

agency assesses the question of “biological fact.” Duarte-Ceri, 630 F.3d at 88.

Second, the decisionmaker applies the statute which contains the age requirement

or bar, a process that requires him to interpret the statute and apply any relevant

interpretive canons, like the Rule of Lenity. See id. (applying the Rule of Lenity to

choose between “two plausible readings” of a statutory bar based upon age).4 The

4 It is jurisdictionally irrelevant that Duarte-Ceri and Matter of L-M and C-Y-C

involved claims of entitlement to citizenship rather than to classification as an

immediate relative. These cases are cited above not for their substantive holdings,

but rather as models of an analytical process.

second step is a “purely legal” act of statutory interpretation that is subject to

judicial review. See Cuthill v. Blinken, 990 F.3d 272, 279 (2d Cir. 2021)

(explaining, in immigration case, that “[the] term ‘age’ standing in isolation

normally means biological age. But the word ‘age’ in the [Child Status Protection

Act] does not exist in a vacuum. Rather, it is part of an interlocking set of statutory

provisions”); Nielsen v. AECOM Tech. Corp., 762 F.3d 214, 218 (2d Cir. 2014) (a

“district court’s interpretation of a statute [is] a pure question of law”); see also

Richards v. Napolitano, 642 F. Supp. 2d 118, 123 (E.D.N.Y. 2009) (holding that

the meaning of the terms “immediate relative and spouse as they appear in the

[INA]” is a “purely legal question”).

Finally, USCIS’s “decision” that Qiu and Coniglio’s “step-relationship is not

valid for immigration purposes” is also reviewable. USCIS’s analysis makes clear

its view that the “validity” of Qiu and Coniglio’s relationship for immigration

purposes hinges on the question of whether Qiu had “reached the age of 18” at the

time of his mother’s marriage. See A.R. 3. Because the underlying facts are

undisputed (and, in any event, unreviewable), the question of Qiu’s age is

functionally “purely legal.” As such, both it and the validity determination that

flows from it can be decided based upon “meaningful standards” embodied in

statutory rules and circuit precedents (like Duarte-Ceri) without the need for

USCIS to exercise discretion. Cuthill, 990 F.3d at 279 (age determination requires

interpretation of “interlocking statutory provisions”); cf. Vela-Estrada v. Lynch,

817 F.3d 69, 71 (2d Cir. 2016) (“An administrative action is committed to agency

discretion where the governing law is drawn so that a court would have no

meaningful standard against which to judge the agency’s exercise of discretion”).

Put another way, because the validity of Qiu’s step relationship hinges on

the determinate, nondiscretionary, and legal question of his age, USCIS’s

evaluation of that relationship is a “nondiscretionary decision regarding an alien’s

eligibility” for an immigration benefit analogous to the nondiscretionary, legal

determination that an alien “made a fraudulent or willful misrepresentation” or

“lacked good moral character.” Sepulveda, 407 F.3d at 63-64 (court had

jurisdiction to review holding that an alien “could not establish good moral

character as a matter of law”); Chen v. Coven, 672 F. App’x 136, 137 (2d Cir.

2017) (court had jurisdiction to review THE legal conclusion that an alien “made a

fraudulent or willful misrepresentation”). Like those determinations, the

determination of Qiu’s age requires USCIS to apply law to facts and arrive at a

legally correct result, not to exercise its discretion or weigh statutory or judicially

created factors.

b. Qiu and Coniglio’s Claims Challenge Nondiscretionary Aspects of

USCIS’s Procedures

The nature of Qiu and Coniglio’s claims strengthens the Court’s conviction

that USCIS’s actions are subject to judicial review. Xiao Ji Chen, 471 F.3d at 329.

As previously explained, Qiu and Coniglio challenge (1) USCIS’s construction of

a statute, 8 U.S.C. § 1101(b)(1)(B); (2) its alleged failure to follow circuit and BIA

precedent; and (3) its alleged noncompliance with a BIA remand order.

The first of these arguments is a statutory construction argument. As such, it

raises a “purely legal” question over which the Court has jurisdiction. AECOM

Tech. Corp., 762 F.3d at 218; Richards, 642 F. Supp. 2d at 123.

The second alleges that USCIS failed to follow binding agency and circuit

precedent. It is well settled that an agency may be reversed for failing to follow its

own precedent unless it provides a rational explanation. See, e.g., Aris v. Mukasey,

517 F.3d 595, 600 (2d Cir. 2008); Johnson v. Ashcroft, 378 F.3d 164, 171-72 (2d

Cir. 2004). Likewise, agencies are bound to follow circuit precedent, and their

failure to do so may result in invalidation of agency action and the issuance of

injunctions. See, e.g., Reich v. Contractors Welding of Western N.Y., Inc., 996 F.2d

1409, 1413 (2d Cir. 1993) (emphasizing that “[the] fact that the [Department of

Labor’s Occupational Safety and Health Review] Commission has nationwide

jurisdiction does not free it from the confines of Second Circuit precedent” and

emphasizing that an agency can be reversed for “fail[ing] to give adequate weight

to. . . precedent”); Stieberger v. Bowen, 801 F.2d 29, 35-3 (2d Cir. 1986)

(“Whether and to what extent adherence to the standards of relevant circuit law

may be enforced by placing administrative adjudicators under an injunction is a

serious issue. . . . We are not prepared to say [such] an injunction is beyond the

equitable power of a district court”). The “decision” to follow relevant circuit

precedent is not discretionary.

Finally, the claim that USCIS fails to comply with the BIA remand order

amounts to a claim that the agency did not follow its own regulations. See 8 C.F.R.

1003.1(g) (2021) (“Except as [BIA] decisions may be modified or overruled. . .

decisions of the [BIA]. . . are binding on all officers and employees of DHS”).

“Under deeply rooted principles of administrative law, not to mention common

sense, government agencies are generally required to follow their own

regulations.” Fed. Defs. Of N.Y., Inc. v. Fed. Bureau of Prisons, 954 F.3d 118, 130

(2d Cir 2020) (internal citations omitted). “When agencies fail to do so, the APA

(as developed by case law) gives aggrieved parties a cause of action to enforce

compliance.” Id. (internal citations omitted).

For all these reasons, the Court holds that 8 U.S.C. § 1252(a)(2)(B)(ii)’s

jurisdictional bar does not preclude judicial review of Qiu and Coniglio’s claims.

B. The Doctrine of Consular Nonreviewability Limits the Relief Available

But Does Not Deprive the Court of Jurisdiction

1. Consular Nonreviewability Generally

The Government next argues that the Doctrine of Consular Nonreviewability

prevents review of Qiu and Coniglio’s claims. The Doctrine of Consular

Nonreviewability (occasionally, “the Doctrine”) is “the principle that a consular

officer’s decision to deny a visa is immune from judicial review.” Am. Acad. of

Religion v. Napolitano, 573 F.3d 115, 123 (2d Cir. 2009); see also Hsieh, 569 F.2d

at 1181 (“It is settled that the judiciary will not interfere in the visa-issuing

process”). The Second Circuit has refused to apply the Doctrine when a petitioner

raises claims under the First Amendment, implying that there is an exception for at

least some constitutional claims. Am. Acad. of Religion, 573 F.3d at 123-25. But

otherwise, the Doctrine’s reach is broad and precludes review of factual and legal

errors. See London v. Phelps, 22 F.2d 288, 290 (2d Cir. 1927) (“Whether the

consul has acted reasonably or unreasonably is not for us to determine.

Unjustifiable refusal to vise a passport. . . is beyond the jurisdiction of the court”);

see also Salem v. Mukasey, 683 F. Supp. 2d 289, 290 (W.D.N.Y. 2010) (non-

reviewability of visa determination precludes issuance of writ of mandamus to

compel reconsideration of consular decision); Yu Chu Hom v. Goldbeck, No. 08-

CV-3159 (SLT), 2010 WL 2265054, at *2 (E.D.N.Y. May 28, 2010) (claim that

consular official’s visa denial was “clearly erroneous” is unreviewable); but see

Fiallo v. Levi, 406 F. Supp. 162, 165 (E.D.N.Y. 1975) (“We will not extend

consular nonreviewablility, insofar as the rule has been recognized, beyond the

actual grant or denial of a visa”).

Finally, several district courts have held that the Doctrine also precludes

consideration of petitions which try “to circumvent the precedent of consular

nonreviewability by arguing that they do not seek review of consular decisions, but

rather the bases for the decisions.” Dong v. Ridge, No. 02-Civ. 7178(HB), 2005

WL 1994090, at *3 (S.D.N.Y. Aug. 18, 2005); see also Grullon v. Kissinger, 417

F. Supp. 337 (E.D.N.Y. 1976); Al Makaaseb Gen. Trading Co. v. Christopher, No.

94 Civ. 1179, 1995 WL 110117, at *1 (S.D.N.Y. Mar. 13, 1995). These decisions

are nonbinding, non-precedential, and not particularly recent, so the Court need

consider them only if their analyses are persuasive. Nonetheless, the Court

acknowledges that some of its sister courts consider whether a petitioner’s

arguments attempt to “circumvent the precedent of consular nonreviewability.”

2. Qiu and Coniglio Do Not Challenge Consular Decisions Directly or As

Reframed

A review of Qiu and Coniglio’s complaint shows that it does not directly

challenge a consular officer’s decision. The Secretary of State is not a party to this

action, and only USCIS’s interpretation of statutes and compliance with procedure

is under scrutiny. Nonetheless, the Government contends that the Doctrine applies

because “USCIS. . .revoked Plaintiffs’ application on the same grounds as the

consular decision.” Gov. Br. at 20. Thus, it asserts that Qiu and Coniglio’s claims

are a “reframed” challenge to a consular decision like the ones rejected in Dong,

Grullon and Al Makaaseb.

This argument is unpersuasive for two reasons. First, an agency decision to

rule based upon another agency’s interpretation is still a “decision” subject to

judicial review. See, e.g., Cuthill, 990 F.3d at 285-86 (declining to give deference

to a BIA decision “in which the BIA adopted the same interpretation as the

Department of State”). See also A.R. 22 (acknowledging, in BIA remand order,

that USCIS’s revocation of Qiu and Coniglio’s I-130 is a “decision”). USCIS is

free to align its interpretation of the immigration law with its colleagues in Foggy

Bottom; however, its choice to do so in no way exempts it from judicial review. If

anything, the Second Circuit has implied that an agency’s decision to adopt another

agency’s interpretation uncritically should be subject to more scrutiny, not less.

Cuthill, 990 F.3d at 285-86 (expressing doubt that, but declining to decide whether,

Chevron deference applies when the BIA adopts the State Department’s reading of

a regulation).

Second, the Supreme Court recognizes that the Department of State (DoS)

and the Department Homeland Security (DHS), which houses USCIS, play discrete

and legally distinct roles in the process of approving immediate relative petitions

and issuing visas to beneficiaries like Qiu. See Scialabba v. Cuellar de Osorio, 573

U.S. 41, 46-50 (2014) (describing the visa issuance process). Using its authority

under 8 U.S.C. § 1154, DHS performs the initial work in the process, first

determining whether a “necessary familial relationship” exists, and then

“approving [the petition] if it is found to meet all requirements.” Id. at 47; 8 U.S.C.

§ 1154(a) (setting out petition procedure for immediate relatives). USCIS’s

approval documents its finding that “a necessary familial relationship exists,” and

thus that the petitioner is eligible to apply for a visa. See U.S Citizenship and

Immigration Services, “I-130, Petition for Alien Relative,”

https://www.uscis.gov/i-130 (last accessed Aug. 7, 2021). This is a very modest

benefit. For a beneficiary like Qui, USCIS’s “approval results not in getting a visa

then and there,” but simply in a determination that the beneficiary may proceed

with the visa application process. Id.; see also U.S. Dep’t of State, “Immigrant

Visa Process,” https://travel.state.gov/content/travel/en/us-visas/immigrate/the-

immigrant-visa-process/step-10-prepare-for-the-interview/step-12-after-the-

interview.html (last accessed Aug 7, 2021) (showing USCIS approval as the first

step of a ten-step process).

If USCIS approves the petition, it is sent to the relevant consulate for

processing with DoS. The beneficiary then files a second application with the

consulate, submits additional documentation, pays a fee, and attends a consular

interview. Id. Once all this is done, DoS uses its authority under 8 U.S.C. § 1201 to

makes its own determination regarding the beneficiary’s eligibility for a visa. Id.; 8

U.S.C. § 1201-02 (governing issuance of visas). Importantly, the plain language of

8 U.S.C. § 1201 confers discretion on consular officials to issue or decline to issue

a visa. 8 U.S.C. § 1201(a) (“Under conditions hereinafter described, a consular

officer may issue. . . a visa [which] shall specify. . . the preference [and] immediate

relative status”). Consequently, this decision is exempt from judicial scrutiny under

the Doctrine. Phelps, 22 F.2d at 290.

In light of the preceding analysis, the Court holds that USCIS’s decision to

approve and forward a petition is legally distinct from a consulate’s decision to

vise a passport, and that the Doctrine of Consular Nonreviewability shields only

the latter decision from judicial review. The two processes—USCIS petition

approval and consular visa issuance—are authorized by different statutory

subsections and accomplished by personnel attached to distinct agencies that are

not even housed in the same Executive department. Compare 8 U.S.C. § 1154 with

8 U.S.C. § 1201. As illustrated in the Administrative Record, the employees of

those agencies appear to acknowledge their separate jurisdictions and discrete

functions.5 Thus, while a consular official’s “[u]njustifiable refusal to vise a

5 For instance, the consulate’s memorandum to USCIS “recommend[ed]” that

USCIS revoke its prior approval; it did not purport to compel USCIS to revoke its

approval based on the consulate’s analysis. A.R. 94. Likewise, USCIS did not

behave as if it were bound by the consulate’s determination by, for example,

passport. . . is beyond the jurisdiction of the court,” USCIS’s independent decision

to permit a visa application to move forward is not. Cf. Phelps, 22 F.2d at 290; see

also Fiallo, 406 F. Supp. at 165 (consular nonreviewability does “not extend. .

.beyond the actual grant or denial of a visa”).

Notwithstanding the Government’s arguments, this conclusion is consistent

with the holdings of Dong, Grullon and Al Makaaseb. Read together, those cases

stand for two principles. First, a Court may not effectively “direct the issuance of a

visa” by way of a “preliminary declaration of [a petitioner’s] immigrant status.”

Dong, 2005 WL 1994090, at *3 (citing Grullon, 417 F. Supp. at 339). Second, a

Court may not “make an end run around” a consul’s decision by “challenging its

foundation,” because judicial “scrutiny of the predicate for the [consular] decision

necessarily causes the court to interfere with the process of the decision which it

has been precluded from reviewing.” Al Makaaseb, 1995 WL 110117, at *3

(holding that the Court lacked jurisdiction to direct issuance of a visa based on the

plaintiff’s improper inclusion on a DoS issued “lookout list”). The first of these

advising Qiu and Coniglio that the consulate’s denial terminated their petition as a

matter of law. Cf. A.R. 2-4. Instead, it launched its own quasi-judicial

administrative process that culminated in a formal, reviewable decision containing

independent (albeit limited) analysis. Id. The BIA acknowledged as much when it

reviewed that decision to determine whether USCIS—not DoS or the Guangzhou

consulate—had shown “good and sufficient cause to revoke a previously approved

petition.” A.R. 22

principles is inapplicable because the Court is not required to “declare” Qiu’s

immigration status in order to grant him relief. Although Qiu does request a

declaration that Qiu is a “child” under 8 U.S.C. § 1101(b)(1)(B), the complaint

seeks alternative relief in the form of an order setting aside USCIS’s interpretation

of a statutory term and remanding this case to allow USCIS to consider Qiu and

Coniglio’s legal arguments. Compl. at 37. Moreover, it is unclear that “child” is an

immigration status, given that the term “immigration status” usually refers to a

“status” that confers a right to reside in this country, like Lawful Permanent

Resident status. Cf. U.S Citizenship and Immigration Services, “I-130, Petition for

Alien Relative,” https://www.uscis.gov/i-130 (last accessed Aug. 7, 2021) (“the

filing or approval of a [Form I-130] petition does not give your relative any

immigration status”). The Court holds that it can provide relief without making a

“declaration” of Qiu’s immigration status.

Likewise, the Court can rule in this case without “scrutin[izing] the

predicate” of a consular decision. Cf. Al Makaaseb, 1995 WL 110117, at *3. As

explained above, it is DHS’s—not the consulate’s—decision which is under

review. A ruling for Qiu and Coniglio would have no binding effect on DoS, which

remains free to refuse Coniglio a visa on any basis whatsoever, including one

inconsistent with the terms of this Order. See Dong, 2005 WL 1994090, at *5

(holding that a consul’s action “[w]hile reprehensible. . . cannot be a basis for

judicial review”). However, USCIS officials are not consular officials, and the

Court is deeply “reluctan[t] to insulate entirely the actions of any public official

from judicial scrutiny.” Fiallo, 406 F. Supp. at 165. The predicates of USCIS’s

decision to revoke Qiu and Coniglio’s petition are therefore subject to judicial

scrutiny.

In light of the foregoing, the Court holds that the Doctrine of Consular

Nonreviewability does not divest it of jurisdiction to hear this case. However,

consistent with Dong, Grullon and Al Makaaseb, it acknowledges that the Doctrine

may limit the scope of relief it can provide by depriving it of the power to compel

the Guangzhou consulate to recognize Qiu’s status as a “child” for purposes of the

INA.6 See Compl. at 37 (requesting that the Court “declare. . .Qiu to be a ‘child’

6 Because the Complaint does not ask the Court to reverse a consular decision or

compel action by DoS, the Court need not decide the thorny question of whether

the Doctrine of Consular Nonreviewablility permits consulates to disregard a

court’s interpretation of a statute. Cf. Chevron, U.S.A., Inc. v. Nat. Resources Def.

Council, 467 U.S. 837, 843 n.9 (1984) (“The judiciary is the final authority on

issues of statutory construction”). Without venturing an answer, the Court notes

that the source of the interpretation (e.g., district, circuit or Supreme Court) may be

relevant, and that an interpretation’s status as “law of the case” for a given

applicant might also be considered. See, e.g., Matter of Jauregui, 15 I&N. Dec.

485 (BIA 1975) (applying “law of the case” doctrine in immigration proceeding).

The Court further notes that the question of whether a consulate must comply with

a judicial interpretation is analytically distinct from the question of whether the

Court may enforce compliance with its interpretation. Because some courts hold

that the Doctrine permits consulates to deny visas based on manifest error, it may

be that consulates are required to follow judicial interpretations of statutes, but that

for purposes of the INA”). This limitation does not prevent the Court from setting

aside USCIS’s decision and its interpretation of the INA if either is found to be

arbitrary, capricious or contrary to law. See 5 U.S.C. § 706. Likewise, the Doctrine

does not bar entry of a declaratory judgment that Qiu qualifies as a “child for

purposes of the INA” since “declaratory relief is proper” whenever “the judgment

will serve a useful purpose in clarifying and settling the legal relations in issue” or

“when it will terminate and afford relief from the uncertainty, insecurity and

controversy giving rise to the proceedings.” Maryland Cas. Co. v. Rosen, 445 F.2d

1012, 1014 (2d Cir. 1971). Regardless of whether DoS can be compelled to follow

the Court’s judgment, “a declaratory judgment would alleviate the uncertainty over

the legality of USCIS’s actions and conclusions.” Richards, 642 F. Supp. 2d at 133

(declaring that alien qualified as an “immediate relative” under the INA). As a

practical matter, entry of a reasoned declaratory judgment in Qiu’s favor may

persuade consular officials that they erred, thereby enhancing Qiu’s chances of

obtaining a visa. It would also serve the “useful purpose” of reinforcing that the

judiciary—not DoS—is “the final authority on issues of statutory construction.”

Chevron, U.S.A., Inc. v. Nat. Resources Def. Council, 467 U.S. 837, 843 n.9

(1984).

paradoxically, no court may reverse them when they shirk their obligations. Cf.

e.g., Phelps, 22 F.2d at 290; Yu Chu Hom, 2010 WL 2265054, at *2.

IV. Merits

As previously stated, Qiu and Coniglio present three theories of relief. First,

they contend that USCIS’s revocation is “not in accordance with law” because its

“application of [8 U.S.C. § 1101(b)(1)(B)] is based on an impermissible

construction of the statute which is not in accordance with the law of the agency

and the circuit,” specifically Duarte-Ceri and Matter of L-M and C-Y-C. Compl. at

15 (citing 630 F.3d at 83 and 4 I&N Dec. at 617). Second, they argue that the

decision was arbitrary and capricious because “USCIS did not acknowledge the

statutory arguments made by Plaintiffs, much less consider them or provide any

analysis as instructed by the BIA.” Compl. at 11. Finally, they contend that

USCIS’s failure to explain its decision or comply with the BIA’s remand order

deprived them of an opportunity to be “heard in a meaningful manner” and thus, of

due process. Id. at 36. Because the Court grants Qiu and Coniglio all relief sought

on their APA claims, it does not reach their due process theory.

Qiu and Coniglio’s theories implicate two burdens of proof. The plaintiff

bears the burden of establishing that agency action is arbitrary, capricious or

otherwise unlawful. Miezgiel v. Holder, 33 F. Supp. 3d 184, 189 (E.D.N.Y. 2014);

see also Sierra Club v. U.S. Army Corps of Engineers, 712 F.2d 1043, 1051 (2d

Cir. 1985) (absent argument from a plaintiff, agency action is “presumed to be

valid”). However, “where [US]CIS reverses course, and denies a visa to an

applicant based on the same factual record on which it had previously granted a

visa, the agency has a burden to justify its change of position.” Noroozi v.

Napolitano, 905 F. Supp. 2d 535, 542 (S.D.N.Y. 2012) (citing Glara Fashion, Inc.

v. Holder, No. 11 Civ. 889, 2012 WL 352309, at *7 (S.D.N.Y. Feb. 3, 2012)). The

Court harmonizes these superficially conflicting burdens by holding that Qiu and

Coniglio have the burden on their first theory, since USCIS’s interpretation of its

governing statute is “presumptively valid.” Sierra Club, 712 F.2d at 1051; see

generally Chevron, 467 U.S. at 843 (“if [a] statute is silent with respect to a

specific issue, the question for the court is whether the agency’s answer is based on

a permissible construction of the statute”). However, the Government has the

burden to refute their second theory because it amounts to a claim that USCIS has

not met its burden to “justify its change in position” with respect to Qiu and

Coniglio’s petition.7 Noroozi, 905 F. Supp. 2d at 542.

1. USCIS’s Construction of 8 U.S.C. § 1101(b)(1)(B) Is “Not In

Accordance With Law”

7 The Government argues that Qiu and Coniglio must also bear the burden on their

second claim for relief because “Plaintiffs bear the burden of establishing that [a]

beneficiary qualifies for [a] benefit sought under the immigration laws.” Gov. Br.

at 24 (citing Matter of Ho, 19 I&N Dec. 582, 582-83 (BIA 1988)). But Qiu and

Coniglio are not applying for a benefit in the first instance. Rather, the Government

concedes—and in fact emphasizes—that Qiu and Coniglio challenge USCIS’s

revocation of a petition it previously approved. Cf. id. at 19 (arguing, elsewhere in

the Government’s Brief, that “USCIS applied its discretion to revoke the I-130

Petition”) (emphasis added). It is therefore incumbent on the Government to justify

USCIS’s change in position.

Qiu and Coniglio’s principal argument is that USCIS erred by failing to

apply the holdings and reasoning of Duarte-Ceri and Matter of L-M and C-Y-C.

630 F.3d at 83; 4 I&N. Dec. at 617. Both cases addressed ambiguous temporal

language in citizenship statutes and their application to petitioners born on the

same day as a key event. Duarte-Ceri interpreted the phrase “under the age of

eighteen years,” as it appeared in former 8 U.S.C. § 1432(a), which listed the

conditions required for the alien child of a U.S. citizen to derive citizenship. 630

F.3d at 87 (citing 8 U.S.C. § 1432 (repealed 2000)). Matter of L-M and C-Y-C

interpreted the phrase “by the time he reaches the age of sixteen years,” as it

appeared in former INA § 201, which governed revocation of derived citizenship.

4 I&N. Dec. at 618 (citing former INA § 201(g) (1940)). Both courts ruled for

petitioners, holding that a petitioner should not lose citizenship or the chance to

obtain it based upon ambiguity. Duarte-Ceri, 630 F.3d at 88; Matter of L-M and C-

Y-C, 4 I&N Dec. at 622.

Qiu and Coniglio contend that Duarte-Ceri and Matter of L-M and C-Y-C

endorsed a rule of “lenient construction” which USCIS was required to observe

when interpreting the phrase, “had not reached the age of eighteen years at the time

[of] the marriage,” in 8 U.S.C. § 1101(b)(1)(B). They argue that USCIS acted

unlawfully by failing to apply this rule, and that application of the rule results in a

finding that Qiu “had not reached the age of eighteen years” at the time of his

mother’s marriage.

a. Precedent, Legislative Intent, and Unlawful Agency Action

The APA requires the Court to “hold unlawful and set aside agency action

that is arbitrary, capricious. . . or otherwise not in accordance with the law.” 5

U.S.C. § 706(2)(A). A court assessing the lawfulness of agency action “is not

limited to determining whether an agency’s decision was reasonable in light of the

law as it existed at the time of the decision; instead, the APA requires a court to

determine whether a decision is in ‘accordance with the law’ as it exists at the time

of review.” New York v. U.S. Dep’t of Health and Hum. Servs., 414 F. Supp. 3d

475, 535 (S.D.N.Y. 2019) (quoting Georgetown Univ. Hosp. v. Bowen, 698 F.

Supp. 290, 297 (D.D.C. 1987), aff’d, 862 F.2d 323 (D.C. Cir. 1988)).

In light of binding Second Circuit law requiring agencies to adhere to circuit

precedent, the Court construes the phrase “law as it exists at the time of review” to

encompass relevant circuit court decisions that construct or interpret statutory

terms. Id. at 536 (citing Second Circuit law interpreting statutes as part of inquiry

into agency compliance with law); see also Contractors Welding of Western N.Y.,

Inc., 996 F.2d at 1413 (mandating agency compliance with circuit precedent);

Stieberger, 801 F.2d at 35-6 (same). Put another way, because circuit courts are the

final authorities on statutory construction or interpretation issues on which the

Supreme Court has not spoken, they may say definitively what the governing

statute “means” and what the import, if any, of its legislative history is. Chevron,

467 U.S. at 843 n.9 (judiciary is final authority on statutory interpretation); see

also Chisholm v. Defense Logistics Agency, 656 F.2d 42, 47 (3d Cir. 1981)

(“[W]hen an administrative agency acts as a quasi-judicial body, it fulfills the same

function as a court, [i.e.] seeking to make a determination which is consistent with

the public interest as reflected in the governing statute”). Accordingly, an agency is

required to apply circuit precedent that speaks directly to the provision it interprets

and is also prohibited from interpreting a statute inconsistently with circuit

precedent that speaks to the interpretation, construction or “purpose” of a broader

statutory scheme. Id.

The requirement that agencies accept circuit courts’ interpretations of

statutes and make determinations “consistent with the public interest as reflected in

the governing statute” is not in tension with the Chevron deference rule. As the

Second Circuit reaffirmed in Cuthill, Chevron deference does not apply where “the

intent of Congress is clear.” Cuthill, 990 F.3d at 286 (citing Chevron, 467 U.S. at

842). Where a geographically relevant circuit court has spoken conclusively to the

purpose or congressional intent behind a statutory provision or scheme, an agency

must apply the circuit court’s statement of clear congressional intent. Id.

b. USCIS Failed to Give Effect to “Clear Congressional Intent” As

Revealed Through Binding Circuit Precedent

Qiu and Coniglio do not and cannot argue that a mechanical application of

Duarte-Ceri and Matter of L-M and C-Y-C secures the result they seek. On the

contrary, they acknowledge that both cases arise “in the context of citizenship,”

and that those cases did not interpret the phrase “had not reached the age of

eighteen years,” in 8 U.S.C. § 1101(b)(1)(B). See Compl. at 17. Nonetheless, they

argue that “because [8 U.S.C. § 1101(b)(1)(B)] contains nearly identical language

to the various citizenship statutes interpreted in Duarte, the. . . princip[les] of

statutory construction [relied upon in Duarte] apply with equal force in the present

matter.” Id. at 21 The Court agrees.

As previously explained, in Duarte-Ceri, the Second Circuit interpreted the

phrase “under the age of eighteen years” in a statute governing derivative

citizenship. 630 F.2d at 87. The Circuit held that the phrase was “ambiguous”

because it was “susceptible to more than one meaning” and could refer either “to

an applicant who has not yet reached the eighteenth anniversary of his birth” or to

one who “had not yet lived in the world for eighteen years.” Id. at 88. Faced with

this ambiguity, the Court did not attempt a scientific determination of “biological

fact,” nor did it give pride of place to “everyday language.” Id. at 88-9. Rather, it

embraced the principle that “whenever it becomes important to the ends of justice,

. . . the law will look into fractions of the day” and immigration law’s

“longstanding presumption to construe any lingering ambiguities in favor of the

petitioner” to hold that a child remained “under the age of eighteen” for the

entirety of his birthday. Id.

Importantly for this Court’s purposes, the Second Circuit emphasized that its

holding “implements the underlying intention of our immigration laws [including

the INA] regarding the preservation of the family unit,” and that “it is consistent

with Congress’s remedial purposes. . . to interpret the [1952 Revised INA’s]

ambiguity with leniency, and we should interpret the statute here in a manner that

will keep families intact.” Id. at 90 (quoting H.R. Rep. No. 82-1365, at *1680

(1952)). The Second Circuit went on to hold that Congress’s choice to use

ambiguous language was an intentionally extended invitation for the courts to

impose lenity, explaining that it “cannot simply dismiss the difference in language”

between the phrase “under the age of eighteen years” and a series of

“unambiguous age-related phras[es] elsewhere in the INA,” including “before the

child attains his eighteenth birthday,. . .prior to the child’s eighteenth birthday, . .

.no later than [one’s] twenty-fifth birthday. . .[and] person who has not attained his

eighteenth birthday.” Id. at 90 (difference between various phrases was not

“inadvertent or immaterial”); see also Nat’l Fed. of Indep. Businesses v. Sebelius,

567 U.S. 519, 544 (2012) (“Where Congress uses certain language in one part of a

statute and different language in another, it is generally presumed that Congress

acts intentionally”). In so holding, the Second Circuit clearly established that

ambiguity in the INA should be construed to favor petitioners’ rights and provided

several examples to help courts and agencies determine when the INA’s language

is ambiguous. Duarte-Ceri, 630 F.2d at 90.

Like the phrase “under the age of eighteen years,” the phrase we interpret

(“had not reached the age of eighteen years”) is also ambiguous. Id. at 88; 8 U.S.C.

§ 1101(b)(1)(B). The Government’s contention that “there is nothing ambiguous

about the [phrase]” is conclusory, unpersuasive, and contrary to dicta in Duarte-

Ceri. Cf. Gov. Br. at 27. In Duarte-Ceri, the Second Circuit explained that the

phrase “before the child reaches his eighteenth birthday” would be “unambiguous”

because “the entirety of [a date] was [the petitioner’s birthday]—from 12:01 a.m.

until 11:59 p.m.” 630 F.2d at 90. In so doing, the Second Circuit made clear that

the word “birthday” was responsible for eliminating ambiguity in an otherwise

polysemic statute. Without that word, the Court is left to ponder the meaning of the

term “age,” which the Duarte-Ceri court properly found to be ambiguous. Id. at 88.

Because the phrase “had not reached the age of eighteen years” is

ambiguous, USCIS could not have applied it to the facts of this case without first

interpreting it. The record reflects that USCIS interpreted silently, with no

reference to the “principles of statutory construction” articulated in Duarte-Ceri,

which required it to consider whether its interpretation “operates to destroy an

important right,” to “construe any lingering ambiguities in favor of the petitioner,”

and most importantly, to interpret 8 U.S.C. § 1101(b)(1)(B) in a way that

“implements the underlying intention of our immigration laws [including the INA]

regarding the preservation of the family unit.” Id. at 90 (quoting H.R. Rep. No. 82-

1365, at *1680 (1952)); Chisholm, 656 F.2d at 47; see also INS v. Errico, 385 U.S.

214, 220 (1966) (“Congress felt that, in many circumstances, it was more

important to unite families and preserve family ties than it was to enforce [the

immigration laws] strictly”); Cuthill, 990 F.3d at 284 (noting, in analysis of related

statutory provision, that Congress wished to “address[] the predicament of aliens,

who, through no fault of their own, lose the opportunity to obtain an immediate

relative visa” (quotations and citations omitted)); Nwozuzu v. Holder, 726 F.3d

323, 332 (2d Cir. 2013) (preserving family unity is the “prevailing purpose” of the

INA). As a result, USCIS embraced an interpretation that destroys Qiu’s statutory

right to apply for a visa as an immediate relative, construes textual ambiguities

against Qiu and Coniglio, and separates a family to satisfy a rule of bureaucratic

convenience. Cf. Duarte-Ceri, 630 F.3d at 88 (“The legal fiction that a day is

indivisible is a rule of convenience that is satisfactory only as long as it does not

operate to destroy an important right”).

Unable to show that USCIS complied with any of the foregoing

requirements, the Government instead argues that Duarte-Ceri does not apply

because it involved a claim of citizenship. Gov. Br. at 28. This argument is

unconvincing. Although Duarte-Ceri did emphasize that citizenship is a “precious

right” that should not be taken away based upon “an ambiguity,” the Court holds

that the principles it articulates apply by analogy to Qiu’s situation. Duarte-Ceri,

630 F.3d at 88, 91. Like the petitioner in Duarte-Ceri, Qiu will be separated from

his mother and stepfather for the foreseeable future unless he is allowed to seek

entry as an immediate relative. Id. at 89; see also A.R. 62-64 (letter from Coniglio

attesting to his inability to visit Qiu in China because of his health conditions). And

he cannot seek entry without USCIS’s approval. Like the right to derivative

citizenship, the “right to rejoin [one’s] immediate family. . . ranks high among the

interests of the individual.” Landon v. Plasencia, 459 U.S. 21, 34 (1982) (internal

citations omitted). Administrative convenience and ambiguity do not justify

Government interference with it.

For the foregoing reasons, USCIS’s interpretation contravenes the principles

of statutory construction clearly established in Duarte-Ceri and the broader

immigration law. It is likewise inconsistent with the statutory purpose of the INA

as articulated by the Second Circuit Court of Appeals. USCIS’s interpretation and

analysis are therefore contrary to law. 5 U.S.C. § 706(2)(A).

B. Failure to Acknowledge Arguments

Because USCIS’s interpretation is substantively unlawful, the Court need

not dwell on the question of whether it was also procedurally irregular.

Nonetheless, the Court holds, in the alternative, that USCIS’s failure to respond to

Qiu and Coniglio’s statutory arguments was arbitrary and capricious. Although this

case involves a USCIS decision, the Second Circuit’s analysis of the BIA’s

decision in Zhao v. U.S. Department of Justice is instructive. 265 F.3d 83 (2d Cir.

2001). In Zhao, the Second Circuit wrote, “by addressing the issue of petitioner’s

new evidence in only two sentences, the [BIA] created controversy and confusion.

Failure to explain a decision adequately provides a ground for reversal.” Id. at 96-7

(citing Anderson v. McElroy, 953 F.2d 803, 806 (2d Cir. 1992)). Here, USCIS

created “controversy and confusion” by limiting its engagement with Qiu and

Coniglio’s arguments to the cursory statement that it “has reviewed the entire

record.” A.R. 2.

Moreover, as the preceding section makes clear, USCIS’s failure to consider

Qiu and Coniglio’s statutory analysis caused it to overlook an important—and in

fact, dispositive—aspect of the problem it faced and to rely upon an interpretation

that runs counter to legislative intent. Thus, USCIS’s failure to consider Qiu and

Coniglio’s arguments led it to “rel[y] on factors which Congress has not intended it

to consider [and] entirely fail[] to consider an important aspect of the problem”

before it. Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Ins. Co., 463

U.S. 29, 43 (1983) (defining “arbitrary and capricious”).

USCIS’s failure to consider Qiu and Coniglio’s statutory construction

arguments renders its decision arbitrary and capricious. 5 U.S.C. § 706(2)(A).

CONCLUSION

For the foregoing reasons, the Government’s motions to dismiss and for

summary judgment are DENIED.

Because the parties identify no factual disputes, the Court, sua sponte,

ENTERS partial judgment in favor of Qiu and Coniglio on their First and Second

Claims for Relief. Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986). The Court

GRANTS Qiu and Coniglio the following relief:8

8 The Court’s ordinary power to enter summary judgment sua sponte enables it to

enter declaratory and injunctive judgments, provided the conditions for entry of

summary judgment are met. See Garanti Finansal Kiralama A.S. v. Aqua Marine

Trading, Inc., 697 F.3d 59, 66 (2d Cir. 2012) (“An action brought under the DJA

is, in most respects, just like any other civil action. . . . The incidents of pleading,

process, discovery, trial, and judgment are the same”) (internal citations omitted);

cf. First Financial Ins. Co. v. Allstate Interior Demolition Corp., 193 F.3d 109,

114-15 (2d Cir. 1999) (vacating sua sponte grant of declaratory judgment where

the losing party had not had an opportunity to be heard); see also Starter Corp. v.

Converse, Inc., 170 F.3d 286, 298-99 (2d Cir. 1999) (affirming sua sponte grant of

injunctive relief along with entry of declaratory judgment). Based upon the

Government’s filing of a motion for summary judgment and its repeated assertions

that this case may be decided on the Administrative Record—see, e.g., Gov. Br. at

16-17, 23-25—the Court finds that the Government had an adequate opportunity to

develop the record as well as notice that judgment could be entered against it. See

First, the Court SETS ASIDE USCIS’s decision to revoke its prior approval

of Qiu and Coniglio’s Form I-130 petition pursuant to 5 U.S.C. § 706(2)(A).

Second, the Court DECLARES USCIS’s interpretation of the phrase “had

not reached the age of 18 years” in 8 U.S.C. § 1101(b)(1)(B) to be contrary

to law and ENJOINS USCIS from adjudicating Qiu and Coniglio’s petition

based upon its unlawful interpretation.

Third, the Court DECLARES Qiu to be a “child” within the meaning of 8

U.S.C. § 1101(b)(1)(B).

Fourth, the Court ORDERS USCIS to reinstate the I-130 Petition unless

the reversal of USCIS’s revocation results in automatic reinstatement of the

same.

The terms of the preceding Order do not bind the United States Department of

State, its Foreign Service, or any consular employee.9

SO ORDERED.

_/S/ Frederic Block_________

FREDERIC BLOCK

Senior United States District Judge

Brooklyn, New York

August 17, 2021

First Financial Ins., Co., 193 F.3d at 115 (“[When] a summary judgment motion

has in fact been made. . . the parties are then on notice that the ultimate issues are

before the court”).

9 My outstanding law clerk, Jacob Bennett, deserves recognition, under my

supervision, for his meticulous research, cogent analysis, and his draft of this

opinion.