Immigration Immigration petition properly rejected

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The U.S. Citizenship and Immigration Services, or USCIS, application of the law that was in effect when an Alien Relative petition brought by an immigrant and his wife was adjudicated, rather than the statute that was in effect when the petition was filed, was not arbitrary treatment and not in error.

Background

Curtis Dewayne Moore and his wife, Patricia Grant-Moore, appeal from the district court’s dismissal of their complaint alleging USCIS unlawfully rejected the Form I-130 petition for Alien Relative that Mr. Moore filed on behalf of his wife. The Moores alleged USCIS erred by denying the I-130 petition according to an amended version of 8 U.S.C. § 1154 that was in effect when the petition was adjudicated rather than using the version of that statute in effect when the petition was filed.

The district court dismissed the Moores’ complaint after concluding it lacked jurisdiction to consider the claim under the Immigration and Nationality Act, or INA.

Jurisdiction

We agree with the Moores that the INA does not prevent the district court from reviewing their claim. First, although § 1252(a)(2)(B)(i) strips federal courts of jurisdiction to consider “any judgment regarding the granting of relief” sought under specific statutes, § 1154—which governs I-130 petitions—is not one of the statutes listed. As such, clause (i) does not deprive district courts of jurisdiction to consider USCIS handling of an I-130 petition.

Second, the district court is not deprived of jurisdiction under § 1252(a)(2)(B)(ii), which states courts cannot review “decision[s] or action[s]” Congress has specified are “in the discretion of” USCIS. However, Congress did not designate to USCIS’s discretion the decision of which version of § 1154 would apply to I-130 petitions pending at the time the amendments were adopted.

In sum, we conclude that the district court erred in dismissing the complaint for lack of jurisdiction. The APA authorized the Moores’ claim and § 1252(a)(2)(B) did not strip the court of jurisdiction to determine whether I-130 petitions pending at the time the Adam Walsh Act amended § 1154 should be processed by USCIS under the former or  amended version of the statute. The district court thus had jurisdiction to consider that threshold question and so do we.

Merits

In the district court, USCIS also asserted that the Moores’ complaint failed to state a claim because USCIS correctly used the amended version of § 1154 when adjudicating pending I-130 petitions such as Mr. Moore’s. Given that this is a question of statutory interpretation and because both parties fully briefed this substantive legal issue on appeal, we will proceed to consider that issue rather than remanding for the district court’s consideration in the first instance.

The Moores’ textual argument against applying the Adam Walsh Act’s amendments to I-130 petitions pending at the time of their adoption fails. Nothing in the text of the amendments indicates that Congress did not intend for them to apply to pending I-130 petitions. We also reject the Moores’ assertion that applying the amended version of § 1154 to pending I-130 petitions would have an impermissible retroactive effect.

The Moores’ remaining arguments also lack merit. It was not “arbitrary treatment”—i.e., an equal protection violation—for USCIS to apply then-applicable law to pending I-130 petitions. Absent evidence of an invidious motive giving rise to the delay—which has not been alleged here—that different laws applied to different petitions depending on the time each was decided cannot give rise to an equal protection violation.

Affirmed.

Moore v. Frazier (Lawyers Weekly No. 001-182-19, 22 pp.) (G. Steven Agee, J.) Case No. 18-2441. Oct. 31, 2019. From E.D.N.C. (Louise Flanagan, J.) William Randall Stroud for Appellants, Lori B. Warlick for Appellees.