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Paet v. Medina-Maltes

United States District Court, Seventh Circuit

September 24, 2013

RODOLFO PAET, ET AL., Plaintiffs,
v.
MARTHA MEDINA-MALTES, Chicago District Director, United States Citizenship and Immigration Services, ET AL., Defendants.

MEMORANDUM OPINION AND ORDER

ROBERT M. DOW, Jr., District Judge.

Plaintiffs' complaint challenges the United States Citizenship and Immigration Services' ("USCIS") denial of their applications for adjustment of status to that of lawful permanent residents ("LPR"). Defendants have moved to dismiss [26], arguing that Plaintiffs' claims turn on one legal question: whether an applicant who has used a family-based immigrant visa petition to obtain LPR status once before can receive the benefit of the first petition's priority date when he or she applies for LPR status a second time. Although Plaintiffs frame the question slightly differently-as "whether, as a matter of law, Plaintiff Rodolfo Paet is the beneficiary of a petition for classification under section 1154 of this title that was filed with the Attorney General on or before April 30, 2001', notwithstanding the fact that he gained permanent residency with the petition filed on his behalf in 1972"-the analysis remains the same.

USCIS determined that the earlier petition could not be used a second time. Having reviewed the pertinent statutes and relevant authorities, the Court concludes the USCIS's interpretation was not arbitrary or capricious and in fact squares with most, if not all, of the available authority. Therefore, for the reasons set forth below, the Court grants Defendants' motion to dismiss [26]. The Court denies as moot Plaintiffs' motion for summary judgment [30] and Defendants' motion to continue or stay consideration of Plaintiffs' motion for summary judgment [35].

I. Background

Plaintiffs Rodolfo, Alma, Joanna, Ryan, and Pamela Paet are a family of five from the Philippines. Rodolfo and Alma are husband and wife, and Pamela (DOB 11/13/93), Joanna (DOB 1/24/87), and Ryan (DOB 3/4/89) are their children. The Paets are citizens and nationals of the Philippines. All of the children are over the age of 18. On October 25, 1972, Primitiva Paet, Rodolfo's mother, filed an I-130 Petition for Alien Relative ("I-130 petition") on behalf of Rodolfo to classify him as an unmarried son of a lawful permanent resident. The petition was granted, and, on July 11, 1973, Rodolfo was admitted to the United States as a "lawful permanent resident" ("LPR"). In 1983, Rodolfo returned to the Philippines to attend college, and in 1996, he formally abandoned his LPR status. Eight years later, all of the Paets were admitted to the United States as temporary visitors. Rodolfo, Joanna, and Ryan last entered the U.S. on April 3, 2004, and Alma and Pamela last entered on May 17, 2004. Since their arrival, the Paets have attempted to acquire LPR status through two different avenues: Alma's employment and Rodolfo's mother.

A. Alma's Employment-Based Visa Petitions

Just after the Paets arrived in the United States as temporary visitors, Alma accepted an offer of employment and her employer filed an I-140 Immigrant Petition for an Alien Worker ("I-140 petition") on her behalf. The first application was filed on June 23, 2004, and was denied on September 16, 2004, at which point the Paets fell out of lawful visitor status. USCIS eventually granted an I-140 petition filed on Alma's behalf by her employer (Swann Special Care Center), and on February 11, 2005, Alma filed an I-485 Application to Register Permanent Residence or Adjust Status ("I-485 application") based on the approved I-140 petition. Each of Alma's family members-her husband and then minor children-filed I-485 applications as derivatives. In July 2008, USCIS denied Alma's I-485 application because she had accrued more than 180 days of unauthorized employment. Further, USCIS determined that her unauthorized employment could not be excused under 8 U.S.C. § 1255(i) because she was not the beneficiary of an I-130 petition filed before 2001. As a result of this denial, USCIS also denied the derivative I-485 applications of Rodolfo, Pamela, Joanna, and Ryan because they were dependent upon the approval of Alma's I-485 application.

B. Rodolfo's Second Family-Based Visa Petition

Independently, in October 2005, Rodolfo's mother, now a United States citizen, filed a second I-130 petition on behalf of Rodolfo to classify him as the married son of a United States citizen. The second I-130 application was pending for almost six years before it was finally approved on May 11, 2011. The second I-130 application was given the same priority date (October 25, 1972) as Primitiva's original petition for her son.

Based on the approval, on July 2, 2011, Rodolfo filed a second I-485 application seeking adjustment of status. Each of his family members also filed I-485 applications as derivatives. On November 29, 2011, USCIS denied Rodolfo's second I-485 application. In its denial, USCIS determined that Rodolfo had not maintained lawful status since his arrival in 2004 and that he did not qualify for an exemption from this ground of ineligibility under 8 U.S.C. § 1255(i) because he did not have an unused I-130 petition filed for him prior to the sunset date of January 14, 1998. USCIS denied Alma and Pamela's I-485 applications because they were dependent upon the approval of Rodolfo's I-485 application. Further, USCIS denied Joanna and Ryan's I-485 applications not only on the basis of their father's denial, but also because they could no longer be considered children (unmarried and under the age of 21) for immigration purposes.

On May 5, 2012, the Paets filed this lawsuit. Shortly thereafter, on August 6, 2012, USCIS re-opened the approval of Rodolfo's second I-130 petition and its corresponding I-485 application denials. USCIS issued a new I-130 reflecting the priority date as the date on which the second I-130 petition was filed (October 13, 2005). USCIS gave the Paets an opportunity to submit additional information, and on November 2, 2012, the Paets requested that the approved I-140 for Alma be substituted for the I-130 and the petition be converted to the EB-3 category for employment-based immigration. However, on November 16, 2012, USCIS denied all of the Paets' I-485 applications on the grounds that a visa was not immediately available to them at the time that they filed their applications for adjustment of status. USCIS again determined that Rodolfo was ineligible to adjust his status because he had unlawful presence that could not be excused under 8 U.S.C. § 1255(i) because there was no extant, unused I-130 petition filed on his behalf prior to 2001. USCIS also refused to hold the applications in abeyance until such time as a visa became available. According to USCIS, the Paets were ineligible to adjust status even when a visa would become available in the future. USCIS also refused to convert the petition to the employment-based category.

C. Procedural History

Plaintiffs filed their second amended complaint on December 19, 2012. On January 9, 2013, Defendants moved to dismiss. On February 19, 2013, Plaintiffs filed their response to the motion to dismiss and also moved for summary judgment. Plaintiffs' summary judgment motion is, in ...


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