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Bait It v. McAleenan

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

September 23, 2019

Frederick Velasco Bait It, Plaintiff,
Kevin McAleenan, [*] et al., Defendants.



         Plaintiff Frederick Velasco Bait It, a citizen of the Philippines, petitioned the Attorney General under the Immigration and Nationality Act for classification as the abused spouse of a U.S. citizen. Eligibility for that classification requires, among other things, that the self-petitioner “has resided with” her abuser-spouse. U.S. Citizenship and Immigration Services denied Bait It’s petition because she had not established that she lived with her spouse during their marriage. Bait It lived with her husband before, but not after, they were married. Bait It seeks a declaratory judgment that she only needed to have lived with her spouse at some point (whether before or after the marriage) to meet the relevant eligibility requirements in the statute. She also seeks an order compelling USCIS to approve her I-360 self-petition. Defendants move to dismiss for failure to state a claim. For the reasons discussed below, defendants’ motion to dismiss is denied.

         I. Legal Standards

         To survive a motion to dismiss under Rule 12(b)(6), a complaint must state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). On a 12(b)(6) motion, a court may only consider allegations in the complaint, documents attached to the complaint, documents that are both referred to in the complaint and central to its claims, and information that is subject to proper judicial notice. Reed v. Palmer, 906 F.3d 540, 548 (7th Cir. 2018) (quoting Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012)).

         II. Background

         On July 3, 2014, plaintiff Frederick Velasco Bait It, a Filipino citizen, moved to the United States as a K-1 fiancé of a U.S. citizen. [1] ¶ 13.[1] The couple lived together from July 3 to August 23, 2014. [11-1] at 28 (Exh. C, Nov. 30, 2018 USCIS Decision). In August, Bait It moved from Connecticut to Chicago to pursue a work opportunity. [11-1] at 28–29.[2] In September, Bait It’s fiancé traveled to Chicago, where the couple married. [1] ¶ 14; [11-1] at 28. Bait It’s husband returned to Connecticut the next day, and Bait It remained in Chicago to continue working. [11-1] at 28. The following February, Bait It filed an I-360 self-petition to classify herself as an abused spouse of a U.S. citizen. [1] ¶ 15. USCIS denied the petition, because Bait It failed to provide proof that she lived with her husband after they were married. [1] ¶ 17.[3] If USCIS had approved Bait It’s petition for an abused-spouse classification, she would have been able to seek permanent residence in the United States. [1] ¶ 12.

         III. Analysis

         Bait It alleges that the Department of Homeland Security and USCIS violated 8 U.S.C. § 1154 by incorrectly requiring her to have lived with her spouse after their marriage. [1] ¶¶ 20–21. She brings a claim under the Administrative Procedure Act seeking a declaratory judgment and to compel USCIS to approve her self-petition. [1] ¶¶ 1–3, 23, A–B (request for relief). Defendants move to dismiss Bait It’s complaint in its entirety for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). [8].

         A. Subject-Matter Jurisdiction

         A court must dismiss an action if it determines, at any time, that it lacks subject-matter jurisdiction, regardless of whether the parties contest it. Fed.R.Civ.P. 12(h)(3); Schaumburg Bank & Trust Co. v. Alsterda, 815 F.3d 306, 311–12 (7th Cir. 2016). Bait It asserts that the court has federal-question and declaratory-judgment jurisdiction through the APA and the INA. [1] ¶ 3.

         Under the APA, a person “suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. However, 8 U.S.C. § 1252(a)(2)(B)(ii) precludes judicial review of an agency’s immigration action that is “in the discretion of the Attorney General or the Secretary of Homeland Security.” See also Bultasa Buddhist Temple of Chicago v. Nielsen, 878 F.3d 570, 573 (7th Cir. 2017). In the context of petitions filed under 8 U.S.C. § 1154(a)(1)(A)(iii), like the one at issue here, the Attorney General has the “sole discretion” to consider evidence relating to a filed petition and to determine the weight and credibility of that evidence. Id. § 1154(a)(1)(J).

         But statutory-interpretation questions are nondiscretionary. Cuellar Lopez v. Gonzales, 427 F.3d 492, 493 (7th Cir. 2005); Morales-Morales v. Ashcroft, 384 F.3d 418, 423 (7th Cir. 2004). Since Bait It’s claim challenges a nondiscretionary question of statutory interpretation, the question at issue “falls outside § 1252(a)(2)(B)’s jurisdiction-stripping rule.” Morales-Morales, 384 F.3d at 423. This court has jurisdiction over the dispute.

         B. The Statutory-Interpretation Claim

         A noncitizen may petition the Attorney General for classification as an abused spouse of a U.S. citizen via an I-360 petition. 8 U.S.C. § 1154(a)(1)(A)(iii). As relevant here, the statute requires that the self-petitioner “is the spouse of a citizen of the United States”; “is a person of good moral character”; “is eligible to be classified as an immediate relative”; and “has resided with the alien’s spouse or intended spouse.” Id. §§ 1154(a)(1)(A)(iii)(II)(aa)(AA), (bb), (cc), (dd).[4] A self-petitioner who meets those eligibility requirements may seek classification as an abused spouse of a U.S. citizen if the self-petitioner entered into the marriage in good faith, and, if, ...

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