Skalka v. Johnson

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

AARON SKALKA, et al., )
)
Plaintiffs, )
)
v. ) Civil Case No. 16-107 (RJL)
)
JOHN F. KELLYl, Secretary, U.S. )
Department of Homeland Security, et al., ) F I L E D
)
Defendants. ) MAR 311 2017
ClB|'k, U.S. msme & B
Courts for the D|strict 01 Co|umb|a

MEMORANDUM OPINION

(March$_l, 2017) [Dkt. # 12]

Plaintiffs Aaron & Emma Skalka, Evan & Jennifer Lee, Ryan & Jessica Scheel,
and Robert & Heather Ayers are four American couples Who Want to adopt orphaned
children from the country of Nepal. Plaintiff Frank Adoption Center is an organization
that seeks to facilitate those adoptions. These plaintiffs (“the couples” and “FAC”) have
brought suit against the various components of the U.S. Government Who are in charge of
enforcing the immigration policy that normally allows adoptive parents of orphaned
children to apply for visas on their behalf.2 They are challenging a 2010 policy, still in

place today, that instructs U.S. immigration officials to stop investigating and processing

l Pursuant to Federal Rule of Civil Procedure 25(d), the recently confirmed Secretary of the Department
of Homeland Security, John F. Kelly, “is automatically substituted as a party” for the outgoing Secretary,
Jeh C. Johnson, whom plaintiffs named in their Complaint.

2 That is, the Secretary of the Department of Homeland Security, the Director of U.S. Citizenship and
Immigration Services, and the Secretary of State.

orphan adoptions in Nepal due to unreliability or corruption they have encountered in
dealing with the Nepalese system. They allege in their Complaint that the statute
conferring power on the Secretary of State to issue visas to the relatives of U.S. citizens
actually compels the agencies involved to complete an individualized investigation into
each case, and therefore prohibits the indefinite delay that is the current policy of the
Government toward orphan adoptions in Nepal. First Am. Compl. il 24 [Dkt. #l l] (citing
8 U.S.C. § 1154(b)). They seek either injunctive relief under the Administrative
Procedure Act or a writ of mandamus instructing the Department of State and U.S.
Citizen and Immigration Services (“USCIS”) to investigate and process their adoption
petitions. First Am. Compl. 111 62-76.

Currently before the Court is defendants’ Motion to Dismiss for failure to state a
claim upon which relief can be granted [Dkt. #12].3 For the reasons stated below, the
Court GRANTS defendants’ Motion to Dismiss the Complaint.

BACKGROUND

Congress gave the Department of State the authority to grant visas to orphaned
children in foreign countries when parents who intend to adopt them file an application
on their behalf. The application, known as an I-6OO petition, requests that the orphaned

child be classified as an “immediate relative” and granted a visa to permanently reside in

3 Defendants also move to dismiss under Rule lZ(b)(l), arguing that FAC, the Ayers, and the Scheels do
not have standing to bring these claims. See Defs.’ MTD l3-l 7 [Dkt. #12] (challenging standing as to the
Scheels, the Ayers, and FAC only); see also Oral Arg. Tr. 29:13-17 [Dkt. #22]. Standing must usually be
addressed before a lZ(b)(6) claim. But because I will have to reach the merits of the lZ(b)(6) arguments
at least as to the Skalkas and the Lees, and because I ultimately hold that the claims, which are common
to all plaintiffs, are not claims upon which relief can be granted, I have no need to decide whether the
other plaintiffs also lack standing

the United States. 8 U.S.C. § 1154(a)(l)(A)(i). Parents who want to adopt from Nepal
first apply to USCIS for a determination that they are fit to adopt. They then apply to the
Nepalese government, which matches them with what it considers to be an orphan,
issuing a “referral letter” naming the child. In order to qualify the matched child for a
U.S. visa, the parents make their I-6()O petition with the U.S. Embassy in Nepal. The
goal of the I-6()() petition, as it relates to this case, is to determine whether the child meets
the statutory definition of an “orphan.” The statutory definition requires either that
(a) the child has no parents because each parent has either died or
disappeared, or has abandoned, deserted, been separated from, or
lost to the child; or that
(b) the child has a sole or surviving parent who is incapable of
providing the proper care and has irrevocably released the child
for emigration and adoption.
See 8 U.S.C. § llOl(b)(l)(F). A child is “abandoned” if the birth parent has
willfully forsaken all parental rights, obligations, and claims to the
child, as well as all control over and possession of the child, without
intending to transfer, or without transferring, these rights to any
specific person(s).
8 C.F.R. § 204.3(b) (first prong of definition of abandonment). The I-600 petition
triggers a consular officer to conduct what is called an l-604 investigation into the
veracity of the child being orphaned (i.e., verifying documentation, researching the
child’s age, hometown, etc.). By regulation, a consular officer must complete this

investigation “in every orphan case,” and “[d]epending on the circumstances surrounding

the case7 the l-6()4 investigation shall include, but shall not necessarily be limited to,

document checks, telephonic checks, interview(s) with the natural parent(s), and/or a
field investigation." 8 C.F.R. § 204.3(k)(l). The timing of such an investigation is not
specified except that it must be completed “before a[n I-600] petition is adjudicated.” Id.
If the consular officer conducts a favorable I-604 investigation, he may approve the I-600
petition and the adoptive parents may apply for and obtain a visa for the child. If the
officer determines the application is “not clearly approvable” based on his investigation,
he refers it to the USCIS office in the jurisdiction 8 C.F.R. § 204.3(k)(2). The I-6()4
investigation form declares that if there are “allegations or indications of fraud, child
buying or other non-bona fide intent” the consular officer must “attach report and results
of anti-fraud investigation to Form I-604 when complete.” The USCIS office then
reviews those findings and makes a final determination on the I-600 petition after
providing the parents with notice and an opportunity to present contrary evidence.
Because the consular officers in Nepal were having continuous difficulty verifying
reports of abandonment in the country, State and DHS jointly decided to suspend the
processing of all I-6OO applications for which Nepal is the home country and
“abandonment” is the reason for considering the child orphaned. See First Am. Compl.
jj 36 (investigations “routinely hindered by the unavailability of officials,” and “[p]olice
and orphanage officials” refused to cooperate); see also First Am. Compl., Ex. 6 [Dkt.
#11-6]; id. EX. 2 [Dkt. #11-2]. Essentially, those types of applications are automatically
deemed “not clearly approvable” in the I-604 investigation phase, and automatically
forwarded to the USCIS office in Nepal, which automatically issues a letter to the parents

that the case is “administratively closed” until the suspension is lifted. The suspension

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went into effect in August 2010. A U.S. delegation revisited the policy in November
2014, but decided the systemic issues with false or unverifiable reports in Nepal
warranted keeping the suspension in place. Ia’. Ex. 3, at 44 [Dkt. #11-3].

Plaintiffs in this case are two American couples who have filed 1-600 petitions (the
Skalkas and the Lees), two couples who are not as far along in the process (the Scheels
and the Ayers, see First Arn. Compl. 111[ 58-59), and the Frank Adoption Center, which
has attempted to facilitate adoptions from Nepal for Americans like these couples, see id.
1[11 60-61. The Skalkas filed their 1-600 petition in June 2015 received notice in
November 2015 that their petition was subject to the suspension. Id. 111 52-56. The Lees
filed their 1-600 petition in March 2016 and had not received a response as of April 2016.
Ia’. 11 57.5 Plaintiffs filed suit claiming the suspension is unlawful because there is a non-
discretionary duty to process I-600 visa applications and to conduct I-604 investigations
into the actual facts of an orphan case. They base this argument on the regulatory scheme
explained above and the statutory mandate to process and investigate petitions that claim
an alien is an immediate relative. The statute states:

[a]fter an investigation of the facts [by USCIS and/or DOS] in each
case . . . the Attorney General shall, if he determines that the facts
stated in the petition are true and that the alien on behalf of whom
the petition is made is an immediate relative specified in section

1151(b) of this title, . . . approve the petition and forward one copy
thereof to the Department of State. The Secretary of State shall then

4 This page number refers to the pagination that was applied automatically by the electronic case filing
system when the document was uploaded to this Court’s docket.

5 Plaintiffs provided an update on the status of the adoption requests for each couple at the oral argument
hearing on January 24, 2017 [Dkt. #22].

authorize the consular officer concerned to grant the preference
status.

8 U.S.C. § 1154(b).
STANDARD OF REVIEW

The immigration agencies move to dismiss plaintiffs’ First Amended Complaint
pursuant to Federal Rules of Civil Procedure l2(b)(6). When deciding a motion to
dismiss under Rule 12(b)(6), the Court must ascertain whether the complaint contains
“sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citations
omitted). Although the Court must read the complaint’s factual allegations in the light
most favorable to the plaintiff, Bell Atlantic Co v. Twombly, 550 U.S. 544, 555 (2007),
the Court is not required to accept legal conclusions cast in the form of factual assertions,
Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002), and a claim that is premised on
a faulty legal theory must be dismissed, “without regard to whether it is based on an
outlandish legal theory or on a close but ultimately unavailing one.” Nz'etzke v. Williams,
490 U.S. 319, 327 (1989). In agency review of cases such as this, it is proper for the
court to decide at the motion to dismiss stage whether plaintiffs have an actionable legal
theory as to the requirement they allege binds the agency. See e.g., People for the Ethl`cal
Treatment ofAnimals v. U.S. Dep't ongric., 797 F.3d 1087, 1092-93, 1099 (D.C. Cir.
2015). The Court may even look outside the four corners of the complaint when the
plaintiff pleads a specific theory for why the agency is bound, and attaches the relevant

documents Trua’eau v. Fea'. Trade Comm'n, 456 F.3d 178, 193 (D.C. Cir. 2006). At

bottom, the Court has been asked to resolve a purely legal question about the limits on
agency discretion, and it is appropriate for the Court to settle it at this stage. See
Marshall Cty. Healz‘h Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993) (“The
entire case on review is a question of law, and only a question of law. And because a
court can fully resolve any purely legal question on a motion to dismiss, there is no
inherent barrier to reaching the merits at the 12(b)(6) stage.”); see also Fed. R. Civ. P.
l2(d) (even if converted to a Rule 56 motion for summary judgment, neither side claims
there is other material “pertinent” to the legal questions resolved here).
ANALYSIS

Plaintiffs plead a discrete failure to act on their specific visa petitions.6 The
standard by which a court reviews this type of agency inaction is the same under both
§ 706(1) of the APA and the Mandamus Act, 28 U.S.C. § 1361. See Norton v. S. Utah
Wila’erness All., 542 U.S. 55, 63-64 (2004); In re Core Commc'ns, lnc., 531 F.3d 849,
855 (D.C. Cir. 2008). The law imposes a general, but nondiscretionary, duty upon an
administrative agency to pass upon a matter presented to it “within a reasonable time,” 5
U.S.C. § 555(b), and authorizes a reviewing court to “compel agency action unlawfully
withheld or unreasonably delayed,” ia’. § 706(1). Mashpee Wampanoag Tribal Councl'l,

Inc. v. Norton, 336 F.3d 1094, 1099 (D.C. Cir. 2003). The Court is empowered to redress

6 Plaintiffs also plead a legal theory that the suspension is an affirmative final agency action that the Court
should review under the “arbitrary, capricious,” or “not in accordance with law” standard of 5 U.S.C.

§ 706(2). I do not think the standard of review would be materially different if l construed the suspension
as an action under review rather than reviewing the inaction on plaintiffs’ petitions But in any event, the
relief plaintiffs seek here is an order compelling action on their petitions, which relief is available under

§ 706(1) but not § 706(2). The latter sub-section only permits a court “to hold unlawful and set aside”
agency action. Accordingly, I find that legal theory to be inapposite and I analyze this as an agency
inaction case.

agency action “unlawfully withheld” only where the law makes “a specific, unequivocal
command,” and the requirement is for a “precise, definite act about which an official
ha[s] no discretion whatever.” Norton, 542 U.S. at 63 (internal quotations, alterations,
and citations omitted). The touchstone is whether the action is one the agency is
“requl`rea' to take.” Ia’. at 64 (emphasis in original); see also People for the Ethz'cal
Treatment ofAm`mals v. U.S. Dep't ongrl`c., 797 F.3d 1087, 1097-99 (D.C. Cir. 2015).

If the agency does have a clear duty to act, and Congress has not prescribed a
deadline for the action, the question becomes whether the agency’s delay is unreasonable
In re Core Commc'ns, Inc., 531 F.3d at 855. The central question in evaluating a claim of
unreasonable delay is “whether the agency's delay is so egregious as to warrant
mandamus.” Am. Hosp. Ass'n v. Burwell, 812 F.3d 183, 189 (D.C. Cir. 2016) (quoting In
re Core Commc'ns, Inc., 531 F.3d at 855). Our Circuit has made it clear that each
“unreasonable delay” case “must be analyzed according to its own unique
circumstances.” Ia’. (quoting Al'r Lz`ne Pilots Ass’n v. Civil Aeronautics Ba’., 750 F.2d 81,
86 (D.C. Cir. 1984)). The factors a court should consider, though they are “hardly
ironclad,” were announced in Telecommunications Research & Action Center v. FCC
(“TRAC”), 750 F.2d 70 (D.C. Cir. 1984). They include: any indication of the speed with
which Congress expects the agency to proceed; the nature and extent of the interests
prejudiced by delay, with particular concern for matters of “human health and welfare”;
and the effect of expediting delayed action on agency activities of a competing or higher
priority. See TRAC, 750 F.2d at 80; see also Am. Hosp. Ass’n, 812 F.3d at 189.

Where the agency action sought is one of many similar adjudications that the

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agency must complete, the court should be even more cautious before intervening In re
Barr Laboralories, Inc., 930 F.2d 72 (1991), our Circuit Court refused to grant relief,
even though all the TRAC factors favored it, because “a judicial order putting [the
petitioner] at the head of the queue [would] simply move[ ] all others back one space and
produce[ ] no net gain.” Id. at 75; see also Mashpee, 336 F.3d at 1100-01. That is
because the plaintiff’s injury stemmed in part from a lack of resources, and that is “a
problem for the political branches to work out.” 930 F.2d at 75. The Circuit Court also
noted that “[t]he agency is in a unique_and authoritative_position to view its projects
as a whole, estimate the prospects for each, and allocate its resources in the optimal way.
Such budget flexibility as Congress has allowed the agency is not for us to hijack.” Ial. at
76.

None of these standards for assessing agency inaction, nor any of the cases
applying them, are a particularly good fit for a case like this one where the agency has
decided, for a considered policy reason, to suspend processing what it admits are required
adjudications on visa petitions. lndeed, the agencies promise to process the petitions as
soon as doing so would be reliable and efficient. This is the very type of prioritizing and
balancing of resources our Circuit Court acknowledged agencies are uniquely situated to
calculate. In the end, however, the dispositive question is whether the suspension is both
lawful and reasonable Unfortunately for the plaintiffs, it is both !

Neither of plaintiffs textual citations-to the statute at 8 U.S.C. § 1 154(b) and the
regulation at 8 C.F.R. § 204.3(k)-provide a sufficient legal basis for the Court to

conclude that the agencies are unjustified in suspending the visa petitions here until such

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time as the information from the Nepalese government is sufficiently reliable to satisfy
our agencies that the statutory requirements set by Congress are actually met. The use of
“shall” in the statute relates to the Secretary’s duty when, and z`f, the requirements of the
statute are met. And the regulatory requirement to conduct an abandonment investigation
merely prohibits issuing an orphan visa prior to an investigation taking place lt does not
require the agencies to undertake these investigations on a particular regularized basis In
other words, it does nothing to limit the inherent discretion that the agencies have to
manage the procedures for handling the large number of visa petitions they receive Cf.
Heckler v. Chaney, 470 U.S. 821, 831-32 (1985) (decision not reviewable when it
“involves a complicated balancing of a number of factors which are peculiarly within [the
agency's] expertise,” such as “the procedures it adopts for implementing [a] statute”).
l\/Ioreover, the regulations themselves prescribe careful procedures for ensuring the
accuracy of abandonment investigations Put simply, it cannot be said that the existing
regulations as a whole “require” the agencies to investigate an individual case to the point
of complete satisfaction when the officers have genuine doubt about the reliability of
their source To say the least, evaluating the reliability of the foreign govemment’s
information is critical to exercising their discretionary duty. As such, the agency action
here has not been unlawfully withheld.

The final, related, question is whether the delay in question is unreasonable
Applying the TRAC factors, I find that it is not. First, there is no deadline or timeframe
prescribed by Congress for these investigations To the contrary, Congress has given the

agencies wide discretion in the area of immigration processing See Arpaz'o v. Obama,

10

797 F.3d 11, 16 (D.C. Cir. 2015); Legal Assistance for Vielnamese Asylum Seekers v.
Dep’t ofState, 104 F.3d 1349, 1353 (D.C. Cir. 1997). Indeed, this is the very type of
agency action, like the one In re Barr, 930 F.2d 72, that if compelled would presumably
delay other adjudications The Court would be outside its limited role in these cases if it
required the agencies to invest the high degree of resources that would be necessary to
accurately investigate plaintiffs’ visa petitions, if possible, while others would suffer in
response

Next, 1 recognize that the nature of plaintiffs’ interests, and that of any orphans in
Nepal who would be adopted, is of the most sensitive kind and most certainly involves
“human health and welfare.” The agencies must therefore prioritize these cases
consistent with the sense of urgency one would expect when familial interests at stake
But the last TRAC factor surely has a mitigating effect on that sense of urgency here
Expediting the agencies’ delayed action in this situation would certainly have the effect
of harming the “competing or higher priority” of accuracy. To say the least, accurately
adjudicating whether a child has truly been abandoned by his or her parents is the first
priority for the agency in this situation. Compelling agency action otherwise would
insinuate the Court into the agencies’ judgment about whether they could accurately
adjudicate these cases That sort of judgment is at the very heart of the expertise that
should be exercised by a U.S. Govemment official who is intimately familiar with the
facts in Nepal and not a District Court judge who is ordering agency action in

Washington, D.C. Small wonder that every other country in the world appears to have

11

likewise suspended orphan adoptions in Nepal !7

Finally, I can’t help but note that although it has been more than six years since
the suspension went into effect, it has only been about two years since it was most
recently reviewed by a U.S. delegation to Nepal. lt has been even less time since the
couples Who are plaintiffs in this case submitted the petitions that should trigger
investigation First Am. Compl. 1111 36, 44, 52, 57; id. Ex. 3, at 4. In my review of the
comparable cases, a delay of this length does not typically require judicial intervention
Compare Del)ba v. Hez`nauer, 366 F. App’x 696 (8th Cir. 2010) (10 years to adjudicate a
permanent resident application not unreasonable); In re Cin of Vz'rginia Beach, 42 F.3d
881 (4th Cir. 1994) (four and a half years not unreasonable in an adjudication affecting
health and human welfare); Kokajko v. FERC, 837 F.2d 524 (1st Cir. 1988) (a five year
delay might be close to the unreasonable threshold because delay was “unexplained”).
Moreover, as long as the agencies are regularly revisiting the question whether they can
rely on Nepalese sources to provide accurate information, then they are not delaying
materially longer than necessary. The agencies have represented, and the Court has no
reason to doubt, that when the situation in Nepal is improved to the point of reliability,
the couples’ petitions will be reviewed with due haste. Accordingly, there is no plausible
cause of action at this time under either the APA or the Mandamus Act because the

agencies’ action has not been unlawfully withheld or unreasonably delayed

7 For a decision such as this, a Court would, at most, review for abuse of discretion to ensure the agencies
are not using the problems in Nepal as a pretext for unlawful or unreasonable delay. If l were to engage
in that sort of review for abuse of discretion in this case, it would be clear that this policy judgment is well
within the agencies’ discretion because it is undisputed that every other country has also suspended
orphan adoptions in Nepal. See First Am. Compl., Ex. 6, at 2.

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CONCLUSION
For all of the foregoing reasons, the Court GRANTS defendants’ Motion to
Dismiss the Complaint for failure to state a claim upon which relief can be granted. An

Order consistent with this decision accompanies this Memorandum Opinion.

RICHARD J. DEO
United States District Judge

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