Bait It v. McAleenan, 19 CV 906

410 F.Supp.3d 874

Frederick Velasco BAIT IT, Plaintiff,

v.Kevin MCALEENAN,^* et al., Defendants.

No. 19 CV 906

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

Signed September 23, 2019

Matthew Scott Kriezelman, Kriezelman Burton & Associates LLC, Chicago, IL, for Plaintiff.

Craig Arthur Oswald, AUSA, United States Attorney's Office, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

Manish S. Shah, United States District Judge

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, "during the marriage," the alien "has been battered or has been the subject of extreme cruelty perpetrated by the alien's spouse." Id. §§ 1154(a)(1)(A)(iii)(I)(aa), (bb).

The parties dispute the meaning of the clause "has resided with the alien's spouse or intended spouse." The government contends that the statute requires the self-petitioner and the abuser-spouse to have lived together while they were married. Bait It argues that she need only show that she lived with her abuser at some undefined time. I agree with Bait It.

Statutory interpretation begins with the text of the statute. United States v. All Funds on Deposit with R.J. O'Brien & Assocs. , 783 F.3d 607, 622 (7th Cir. 2015) ; Univ. of Chicago v. United States , 547 F.3d 773, 776 (7th Cir. 2008). Courts "must presume that a legislature says in a statute what it means and means in a statute what it says there." United States v. Rosenbohm , 564 F.3d 820, 823 (7th Cir. 2009) (quoting Conn. Nat'l Bank v. Germain , 503 U.S. 249, 253–54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) ). If the language of a statute is "clear and unambiguous," it "must ordinarily be regarded as conclusive," absent any "clearly expressed legislative intent to the contrary." Id. (quoting United States v. Turkette , 452 U.S. 576, 580, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981) ); see also All Funds , 783 F.3d at 622 ("When a statute is unambiguous, our inquiry starts and stops at the text.").

The government argues that the term "spouse" in the phrase "has resided with the alien's spouse or intended spouse" demonstrates Congress's intent to require that the self-petitioner and her spouse lived together while they were spouses. I disagree. The word "spouse" is a descriptor used throughout to refer to the U.S. citizen-abuser. The label identifies the person but does not demand that the person have that legal status at every moment in time referring to that person. For example, a section of the statute uses "spouse" to refer to the U.S. citizen-abuser even if the spouse is deceased or if the couple is divorced. 8 U.S.C. §§ 1154 (a)(1)(A)(iii)(II)(aa)(CC)(aaa), (ccc) (noting that a self-petitioner is eligible if the "spouse died within the past 2 years," or self-petitioner can demonstrate a connection "between the legal termination of the marriage" and abuse "by the United States citizen spouse"). This is consistent with ordinary usage. For example, one could say, "She lived with her spouse before they were married," and the word "spouse" would identify the person at issue without any misapprehension by the reader or audience.

"Spouse" is a label that does not require the status to be contemporaneous with the action described in the sentence. This reading fits the other grammatical choice Congress made in the section. Congress's "choice of verb tense" informs "a statute's temporal reach." Carr v. United States , 560 U.S. 438, 447–49, 130 S.Ct. 2229, 176 L.Ed.2d 1152 (2010) (relying on Congress's use of the present tense instead of the past or present-perfect tense to conclude that a statute should be given a "forward-looking construction"); see also Gundy v. United States , ––– U.S. ––––, 139 S. Ct. 2116, 2127, 204 L.Ed.2d 522 (2019) (relying on use of past-tense verb in statute); Mont v. United States , ––– U.S. ––––, 139 S. Ct. 1826, 1838, 204 L.Ed.2d 94 (2019) (same, present tense); United States v. Wilson , 503 U.S. 329, 333, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992) ("Congress' use of a verb tense is significant in construing statutes.").

Here, Congress used the present-perfect tense—has resided—to describe the residency requirement for a self-petitioner and her spouse. Present-perfect tense denotes "an action having been completed at some indefinite time in the past," and signifies "imprecision of time." Bryan A. Garner, Garner's Modern English Usage 896–97 (4th Ed. 2016); see also Padilla-Romero v. Holder , 611 F.3d 1011, 1013 (9th Cir. 2010) ("As a purely grammatical matter, the use of the present perfect tense ‘has been’ ... can connote ... an event occurring at an indefinite past time (‘she has been to Rome’)); Dobrova v....