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Zacharevskaja v. Chertoff

September 28, 2006


The opinion of the court was delivered by: Judge Virginia M. Kendall


Barbara Zacharevskaja ("Plaintiff") has appealed to this court under the Administrative Procedures Act for review of a decision by the Administrative Appeals Office ("AAO") of the Citizenship and Immigration Services ("CIS"). The AAO affirmed the CIS' denial of Plaintiff's self-petition for immediate relative immigrant status. Plaintiff moved for summary judgment that the AAO decision should be reversed because the AAO incorrectly construed the statutory definition of "stepchild" in 8 U.S.C. § 1154(a)(1)(A)(iv) and 8 U.S.C. § 1101(b)(1). Defendants Michael Chertoff, Eduardo Aguirre, Robert Weimann, and Paul Novak (together "Defendants") have cross-moved for summary judgment that the AAO decision should be upheld as a proper interpretation of the underlying statute. Because this Court gives deference to an agency's reasonable interpretation of statutory language that the agency is authorized to interpret, the decision of the AAO is affirmed and Defendants' Motion for Summary Judgment is granted. The Court takes specific note of Defendants' subsequently-filed position that Plaintiff may be afforded relief through separate proceedings before the Immigration Court.


Plaintiff is a citizen and a native of Lithuania. Defendants' Submission of the Certified Administrative Record at 76 (hereafter "R. __"). She entered the United States on July 2, 1990, at the age of seven, in the company of her thirty-seven year old mother, Lioutsia Zacharevskaja ("Lioutsia"). R. 77, 93. The mother and daughter entered the United States at the invitation of Waclaw Zawadski ("Waclaw"), who responded to a letter from the mother seeking help for her daughter's asthma condition. R. 76-77, 87. Shortly after arrival, Lioutsia married Waclaw, then seventy-four years old. R. 93. The initial petition with the Immigration and Naturalization Service ("INS") for Lioutsia, filed by Waclaw, listed Plaintiff as "stepdaughter." R. 94-96. Waclaw registered Plaintiff on his health insurance and took her to a doctor for treatment of her asthma condition. R. 87.

Lioutsia, Waclaw, and Plaintiff lived in a four-unit building at 1040 N. Winchester St. in Chicago, IL. R. 87. According to Plaintiff, she had a strained relationship with both her mother and Waclaw. R. 47-52. Cook County records indicate that Waclaw received several citations for unsanitary conditions at the property and for building code violations, including rats, trash, pigeons, and general unkempt conditions and debris. R. 141- 44. In January 1992, when Plaintiff was nine years old, Lioutsia and Waclaw were arrested for neglect of Plaintiff after authorities found her alone in an unsanitary apartment. R. 138. Approximately one year after the arrest for neglect, Plaintiff moved in with her neighbor, Michelle Whiting, who was appointed Plaintiff's guardian in 1994. R. 134, 175. After living with Ms. Whiting, Plaintiff moved in with Kay Jasiula in the Jefferson Park neighborhood. R. 52, 175. After 1994, Plaintiff did not live with her mother or with Waclaw. R. 52. In December 1999, Lioutsia and Waclaw divorced. R. 97.

Procedural History

When she was nineteen years old, Plaintiff filed an I-360 self-petition for a visa in late 2002, seeking classification as an immediate relative who had been abused by a U.S. citizen or permanent resident step-parent. R. 31-39. On September 4, 2003, the CIS denied Plaintiff's petition on the grounds that she could not show that she met the requirement that she "is the child of a citizen or lawful permanent resident of the United States." R. 34. The letter denying Plaintiff's petition stated that "in instances where the United States citizen or lawful permanent resident parent is the step-parent, the rule requires the self-petitioning child's parent to be legally married to the abuser within 2 years of the date of the filing of the petition." Id.

On October 3, 2003, Plaintiff appealed the denial of the I-360 to the AAO. R. 2. Plaintiff argued, among other things, that the 2000 revisions to the Violence Against Women Act ("VAWA"), 8 U.S.C. § 1101 et. seq., invalidated the decision by the immigration officer at CIS. See R. 5-29. The AAO denied Plaintiff's appeal on May 26, 2004. See R. 173-76. In denying the petition, the AAO withdrew the CIS determination that a self-petitioning child must file the petition within two years of the divorce, but affirmed the CIS denial of petition on grounds that Plaintiff could not show any continuing familial relationship with Waclaw. Id.

Plaintiff filed suit in the district Court on July 9, 2004. After an initial review of the dispositive pleadings filed by the parties, the district court judge struck all motions and requested that the parties provide the Court with proof that jurisdiction in this district was proper, and with each party's position as to any alternate grounds provided by the AAO for denying the visa petition. The parties rebriefed the dispositive motions in this case, including jurisdictional arguments.

Limited Jurisdiction Exists to Review Statutory Interpretation

This Court has the duty to consider subject matter jurisdiction sua sponte in every case, whether disputed by the parties or not. Fed. R. Civ. P. 12(h)(3). Plaintiff seeks review of the AAO's decision via the Administrative Procedures Act and federal question jurisdiction, 28 U.S.C. § 1331.

Agency actions are generally reviewable under federal question jurisdiction pursuant to 28 U.S.C. § 1331. Califano v. Sanders, 430 U.S. 99, 105. Except where federal statutes specifically preclude review, 28 U.S.C. § 1331 "confer[s] jurisdiction on federal courts to review agency action, regardless of whether the APA of its own force may serve as a jurisdictional predicate."Id. at 105; see also Reno v. Catholic Soc. Serv., Inc., 509 U.S. 43, 56-57 (1993) (discussing the relationship between § 1331 and the APA). Defendants concede that this Court has jurisdiction to review pure questions of legal interpretation stemming from a final administrative agency action. Def. Br. at 4-5.

In this case, Plaintiff is disputing the AAO's interpretation of "stepchild" as used in sections 1154(a)(1)(A)(iv) and definition section 1101(b)(1) of the Immigration and Nationality Act, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 8 U.S.C. §1101 et seq. (hereafter "IIRIRA"). Since IIRIRA contains a specific section stripping jurisdiction, the Court cannot address the question of statutory interpretation if that section applies to Plaintiff's case. See Califano, 430 U.S. at 104 (noting that review of agency action under § 1331 is limited by jurisdiction-precluding statutes); see also See Spencer Enterprises, Inc. v. U.S., 345 F.3d 683, 687-88 (9th Cir. 2003) (addressing the effect of jurisdiction-stripping provision in IIRIRA on district court review of visa petitions).

A. The statutory limitation on judicial review under IIRIRA does not apply Section § 1252(a)(2)(B) of IIRIRA strips the federal courts of jurisdiction to review immigration decisions specified to be within the discretion of the Attorney General. Defendants agree with Plaintiff that in this particular case, § 1252(a)(2)(B) does not divest this Court of jurisdiction to review the AAO's construction of the term "stepchild." Def. Br. at 4-5, citing Cuellar-Lopez v. Gonzalez, 427 F.3d 492 (7th Cir. 2005).

Title 8 U.S.C. § 1252(a)(2)(B) covers judicial review of removal orders and specifically outlines the matters not subject to judicial review by federal courts. § 1252(a)(2)(B) states:

Notwithstanding any other provision of law (statutory or non-statutory). . . and regardless of whether the judgment, decision, or action is made in removal proceedings, no ...

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