In re 21st Birthday Denials of Special Immigrant Juvenile Status Applications By USCIS

637 F.Supp.3d 23

IN RE 21ST BIRTHDAY DENIALS OF SPECIAL IMMIGRANT JUVENILE STATUS APPLICATIONS BY USCIS.

Civil Action No. 22-CV-1926 (GRB)

Civil Action No. 22-CV-2319 (GRB)

United States District Court, E.D. New York

Signed October 28, 2022

For Plaintiffs: Bruno J. Bembi, Attorney at Law, P.O. Box 5248, Hempstead, NY 11551.

For Defendants: Megan J. Freismuth, AUSA, Vincent Lipari, AUSA, United States Attorney's Office, 610 Federal Plaza, Central Islip, NY 11722.

MEMORANDUM OF DECISION AND SHOW CAUSE ORDER

GARY R. BROWN, United States District Judge:

"[T]he Government should turn square corners in dealing with the people."

-Justice Holmes¹

Under U.S. law, when a state court determines that an immigrant under the age of 21 has been abused, neglected or abandoned by one or both parents making reunification with those parents impossible, that young immigrant may qualify for Special Immigrant Juvenile (SIJ) status, a Congressionally-enacted program that provides a path to residency and U.S. citizenship. In two actions before this Court, USCIS denied SIJ petitions, which otherwise appeared properly filed and complete, on the sole ground that the petitions were received by USCIS's Chicago office (where such petitions must be sent) on the applicant's 21st birthday, even though they were sent via overnight delivery substantially before that date, and USCIS does not permit filing such applications electronically or by hand delivery.

Denial of SIJ status and the path to residency and American citizenship under these circumstances is dystopian and cruel. While concerning, such wanton disregard of human decency does not render these claims meritorious. Rather, these claims are actionable under the Administrative Procedure Act because USCIS's decisions appear to have been arbitrary, capricious and, at times, unlawful.

Why? First, USCIS denied applications by those whom, like plaintiffs, had the great misfortune of having their applications arrive on their 21st birthdays, without considering the time of their birth, as demanded by controlling caselaw. Second, in calculating the timeliness of SIJ applications, USCIS failed to extend time when the due date fell on a federal holiday, contrary to binding regulation. Third, USCIS - a federal agency with more than 200 offices worldwide - prescribed that every SIJ application must be sent to its offices in Chicago. Fourth, these applications had to be sent by mail or overnight courier, as USCIS did not permit electronic or personal delivery. Fifth, rather than the date of acceptance by the United States Postal Service or overnight courier, USCIS regulations directed that the receipt of the documents by USCIS in Chicago governed whether the applications were timely. Sixth, USCIS failed to account for delivery time, even though its regulations provided for a three-day mailing period when it mails documents to applicants. Seventh, USCIS made no allowance for unavoidable delays attributable to significant weather events. Eighth, though it granted a sixty-day extension of many types of deadlines during the coronavirus pandemic, USCIS inexplicably excluded SIJ applications from this extension.

Any one of these eight reasons could well give rise to the inference that the agency had acted arbitrarily and capriciously - and in certain instances unlawfully - in denying SIJ applications. Taken together, these issues make that conclusion virtually inescapable, and there are indications that these practices are widespread. After moving to dismiss these cases on fallacious grounds shortly before an evidentiary hearing, the government filed stipulations of dismissal without disclosing the underlying settlement agreement, potentially violating the Department of Justice's policy against non-public settlements. Under these circumstances, strict compliance with that policy appears particularly crucial, and given the apparently prevalent nature of the unlawful practices described in this opinion, the Court must consider additional relief.

BACKGROUND

Aguinaga-Diaz v. Garland, et al. 22-CV-2319 (GRB)

On December 1, 2020, during the height of the pandemic, Angelina Raquel Aguinaga-Diaz filed a petition for guardianship and a motion seeking special findings from the Nassau County Family Court. DE 17 at 125-27. On January 26, 2021, that court found that Aguinaga-Diaz had been abandoned by her mother, and appointed a guardian. DE 17 at 125-27. Armed with these findings, plaintiff's counsel filed a Petition for Amerasian, Widow(er), or Special Immigrant, Form I-360 (hereinafter "I-360"), dated January 27, 2021. DE 17 at 81. Plaintiff's counsel submitted the application via overnight delivery through the U.S. Post Office on February 2, 2021, which according to official U.S. Postal tracking information, was scheduled for delivery on February 3, 2021. DE 17 at 57-58. Unfortunately for plaintiff, the Northeastern United States was hit by a weather event nicknamed "Winter Storm Orlena":

February did not arrive quietly this year. Instead, Winter Storm Orlena blanketed New York City with the largest single snow event it's seen in five years. According to the National Weather Service, 17.2 inches of snow was officially recorded Tuesday morning in New York's Central Park.²

As a result, the Postal Service delayed the delivery by one day, delivering the parcel on February 4, 2021, where it was "available for pickup" by 10:56 a.m. Central Standard Time (CST). DE 17 at 58. This was plaintiff's 21^st birthday. DE 17 at 6. Eventually, plaintiff's application was stamped "DENIED" with a date of February 8, 2022 (over a year after receipt), which denial was expunged by hand, but then stamped "DENIED" a second time on April 15, 2022:

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DE 17 at 12, 106.³ USCIS ultimately denied the application in a decision which, like the rest of the file, is riddled with errors by the agency, on the following grounds:

Based on the evidence you provided, as well as USCIS records, your date of birth is February 4, 2000. USCIS has reviewed the supporting documents in response to the NOID sent on October 5, 2021 by your attorney. USCIS recognizes that the receipt number MSC2190876361, with the priority date Feburary [sic] 4, 2021, was rejected erronously [sic], and USCIS will honor the priority date as being Feburary [sic] 4, 2021. However, after review of your Form I-360, it was still receipted [sic] on your actual birthday of February 4, 2021 therefore, even if we had not rejected, it would still be considered a late filing. It has been determined that you are still over the age of 21 at the time you filed your petition, therefore, you are ineligible for SIJ classification. 8 C.F.R. 204.11 (c)(1)

DE 17 at 101 ("Aguinaga-Diaz Decision"). That decision explicitly rests on two regulations quoted as follows:

8 C.F.R. 103.2(a)(7) Benefit requests submitted. (i) USCIS will consider a benefit request received and will record the receipt date as of the actual date of receipt at the location designated for filing such benefit request whether electronically or in paper format; and

8 C.F.R. 204.1 (b) Proper filing. A petition for an alien relative and a petition for Amerasian, widow(er), or special immigrant must be filed on the form prescribed by USCIS in accordance with the form instructions, and will be considered properly filed when the petition is filed in accordance with 8 C.F.R. 103.2. The filing date of a petition is the date it is properly filed and received by USCIS. That date will constitute the priority date.

Id. (emphasis added). In a sworn statement, Aguinaga-Diaz averred that, based upon information provided by her mother and father, she was born at approximately 1 p.m. (CST).⁴ DE 18 at 8. This evidence, requested by the Court, is the only record evidence concerning the time of her birth.

Chacon v. Garland, et al. 22-CV-1926 (GRB)

On March 22, 2017, a petition was filed in Nassau County Family Court on behalf of plaintiff, Jessica Fernanda Inga Chacon. DE 14 at 35. On May 18, 2017, that court granted a petition for guardianship and a motion seeking special findings, holding that plaintiff Chacon, a juvenile from Ecuador, had been abandoned by her father since birth, and appointing a guardian. DE 14 at 35-36. Plaintiff's counsel prepared an I-130 dated May 25, 2017. DE 14 at 60. Plaintiff's counsel submitted the application via FedEx overnight delivery on May 26, 2017, which due to the intercession of Memorial Day, was scheduled for delivery on Tuesday, May 30, 2017. DE 14 at 72.

In a decision dated January 11, 2019, USCIS rejected her application, stating as follows:

After review of your [I-360], Receipt No. MSC1791314343, with a receipt date of May 30, 2017, it appears that you were not under the age of 21 at the time of filing. USCIS records show that your package was mailed via FedEx, tracking number 786701940925, on May 26, 2017 and received by USCIS on May 30, 2017. Based on the evidence you provided as well as USCIS records, your date of birth is May 30, 1996; therefore, it has been determined that you were 21 years old at the time of filing your Form I-360.

DE 14 at 38 ("Chacon Decision"). As with the Aguinaga-Diaz Decision, the Chacon Decision explicitly relies upon and quotes the text of 8 C.F.R. 103.2(a)(7) and 8 C.F.R. 204.1(b), set forth above. The Chacon Decision also adds a three-page Attachment entitled "Applicable Law/Regulation," the purpose of which is not immediately apparent. DE 14 at 40-42. Yet that attachment cites and quotes the provisions of 8 C.F.R. 103.8, as follows:

(b) Effect of service by mail. Whenever a person has the right or is required to do some act within a prescribed period after the service of a notice upon him and the notice is served by mail, 3 days shall be added to the prescribed period. Service by mail is complete upon mailing.

DE 14 at 40.⁵

On January 11, 2019 and February 4, 2020, USCIS sounded the death knell for plaintiff Chacon's application, not through the clarion...