United States District Court, N.D. Illinois, Eastern Division
JUNG EUN LEE, SOUNG YOUL CHO, and BULTASA BUDDHIST TEMPLE OF CHICAGO, Plaintiffs,
JEH JOHNSON, Secretary, U.S. Department of Homeland Security; LORETTA LYNCH, U.S. Attorney General; LEON RODRIGUEZ, Director, U.S Citizenship and Immigration Services, Defendants.
MEMORANDUM OPINION AND ORDER
Z. LEE United States District Judge.
years of delay and various administrative snafus, the United
States Citizenship and Immigration Services (USCIS) granted
Plaintiff Jung Eun Lee's I-360 visa petition on September
20, 2013. On March 29, 2016, however, USCIS revoked
its approval on the basis that Lee could not establish that
she had two years of continuous work experience immediately
prior to the filing of the petition. Lee argued that she was
unable to meet this requirement because of the delays and
errors committed by USCIS itself, rather than any fault on
her part. Instead of addressing the substance of this
argument, the USCIS considered Lee's argument to be an
admission that she did not qualify for I-360 visa status.
her husband, Soung Youl Cho, now seek administrative review
of this revocation, as well as other actions taken by USCIS.
Defendants have moved to dismiss the complaint pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
Plaintiffs' factual allegations, if true, indicate that
they were the unwitting victims of a labyrinthine immigration
process and agency carelessness; however, for the reasons
provided herein, the Court lacks subject matter jurisdiction
to hear this case. Accordingly, Defendants' motion to
dismiss for lack of jurisdiction is granted.
and Factual Background
factual allegations do not portray USCIS in a favorable
light. On November 29, 2005, Cho was admitted into the United
States as a nonimmigrant student on an F-1 visa, and Lee was
admitted as his spouse on an F-2 visa. See 8 C.F.R.
§ 214.2(f)(1), (3). After they came to the United
States, the Bultasa Buddhist Temple of Chicago sought to
obtain an R-1 visa for Lee, so that she could serve as the
Temple's organist as a nonimmigrant religious worker.
See Id. §§ 214.2(r)(1), 248.3(a). To do
so, the Temple applied to change Lee's status from a
nonimmigrant spouse of a nonimmigrant student to a
nonimmigrant religious worker by filing an I-129 petition on
March 17, 2006. See Am. Compl. Ex. 3; id.
§§ 214.2(r)(1), 248.3(a).
I-129 petition was assigned to the USCIS's California
Service Center (CSC). 2d Am. Compl. Ex. 4. Despite
Plaintiffs' submission of a premium processing request
(and associated fee) in March 2006, the petition remained
pending for over three and a half years. Id., Ex.
20, at 1. During that period of time, Plaintiffs did not seek
mandamus relief under 28 U.S.C. § 1361 or relief under
the Administrative Procedures Act, 5 U.S.C. § 555(b).
October 19, 2009, Tim Babinski, a CSC representative, sent an
email to Judd Azulay, the Temple's immigration attorney,
asking whether the Temple was still interested in pursuing
the I-129 petition. Id., Ex. 5. Babinski continued,
“If so, we were going to approve the petition for the
requested dates of 6/1/6 to 5/31/09 and allow you to file an
extension for the remaining period of eligibility (2 years
6/1/9 to 5/31/11).” See id., Ex. 5. (The
maximum duration of an R-1 visa is five years. 8 C.F.R.
§ 214.2(r).) Under this scenario, Lee would have had
lawful status for a continuous period from June 1, 2006, to
May 31, 2011. See id.
finally approved the Temple's 2006 I-129 petition on
October 22, 2009. Id., Ex. 6. According to the
notice of approval, Lee's R-1 visa was valid from June 1,
2006, to May 31, 2009. Id. Therefore, on the face of
the approval notice, Lee's R-1 visa had expired five
month before the I-129 was ever approved. Id.
she received the notice of approval, Lee tried to obtain a
Social Security number so that she could begin working for
the Temple. Id., Ex. 24, at 2. But the Social
Security Office refused her application because the approval
notice stated that her R-1 visa had expired. Id.
December 17, 2009, the Temple filed an I-129 petition to
extend Lee's visa through May 31, 2011. Id., Ex.
1 at 1. However, rather than approving the extension from
June 1, 2009, to May 31, 2011-as Babinski promised-the CSC
approved the extension starting from May 11, 2010, to October
22, 2011, thus creating a gap period from June 1, 2009 to May
10, 2010. Compare id., Ex. 6, with id., Ex.
7, at 2.
able to secure a Social Security number in May 2010.
Id., Ex. 24, at 3. The Temple added her to the
payroll in July 2010. Id.
November 23, 2010, the Temple filed an I-360 petition on
Lee's behalf seeking a classification as a special
immigrant religious worker. See 8 C.F.R. §
204.5(a); 8 U.S.C. §§ 1101(a)(27)(C)(ii)(II),
1153(b)(4). In support of the petition, the Temple's
counsel asserted that Lee had worked for the Temple since
October 22, 2009. 2d Am. Compl., Ex. 8, at 3. The CSC denied
the I-360 petition on March 28, 2011. 2d Am. Compl., Ex. 8.
denial, the CSC explained that, because Lee had worked for
the Temple during a period when she did not have a valid visa
(remember, the gap period was from June 1, 2009, to May 10,
2010), the Temple had failed to establish that Lee had been
working continuously “in lawful immigration
status” for a two year period prior to the filing of
the I-360 petition. Id.; see 8 C.F.R.
§ 204.5(m)(4), (11). The Temple appealed the denial, and
the Administrative Appeals Office dismissed the appeal on
August 13, 2012. 2d Am. Compl., Ex. 10.
further review, the CSC reopened the Temple's I-360
petition on September 4, 2012, to obtain additional evidence.
Id., Ex. 11. The CSC, however, again denied the
I-360 petition on May 13, 2013, for the same reason as