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Lee v. Johnson

United States District Court, N.D. Illinois, Eastern Division

March 15, 2017

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.


          JOHN Z. LEE United States District Judge.

         After 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.[1] 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.

         Lee and 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.

         Procedural and Factual Background

         The 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).[2]

         The 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).

         On 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.

         The CSC 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.

         Once 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.

         On 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.

         Lee was 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.

         On 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.

         In its 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.

         After 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 before, ...

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