United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
S. SHAH, UNITED STATES DISTRICT JUDGE
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.
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)).
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.  ¶ 13. 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. In September, Bait It’s
fiancé traveled to Chicago, where the couple married.
 ¶ 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.  ¶ 15. USCIS
denied the petition, because Bait It failed to provide proof
that she lived with her husband after they were married. 
¶ 17. 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.
 ¶ 12.
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. 
¶¶ 20–21. She brings a claim under the
Administrative Procedure Act seeking a declaratory judgment
and to compel USCIS to approve her self-petition. 
¶¶ 1–3, 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). .
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.  ¶ 3.
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).
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.
The Statutory-Interpretation Claim
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). 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, ...