The opinion of the court was delivered by: VAUGHN R. WALKER
Plaintiff challenges the Immigration and Nationalization Service's ("INS") revocation of immigrant visa petitions that she filed on behalf of her natural siblings. Plaintiff Mary Pui Ching Gee emigrated from Hong Kong in 1968 under an immigration provision that permitted orphans to enter the United States for adoption by U.S. citizens. Plaintiff became a naturalized American citizen in 1974.
When plaintiff immigrated to the United States in 1968, she left behind five biological siblings. Three of these siblings now reside in the United States; two are American citizens and one is a lawful permanent resident. These siblings emigrated from Hong Kong under a provision of the Immigration and Naturalization Act ("the Act") that gives an immigration preference to brothers and sisters of United States citizens. The other of plaintiff's siblings, Pui Pik Wong and Pui Kei Wong, have unsuccessfully petitioned the INS for immigrant visas. Plaintiff argues the INS erred denying these visas, because it incorrectly denied the siblings the same family based preference classification under 8 USC § 1153(a)(4). Plaintiff has filed this action, asking the court to order the INS to confer this status on plaintiff's siblings. Complaint P IV(2).
Plaintiff filed immigrant visa petitions for her siblings on November 25, 1980. The petitions were approved by the INS Officer-in-Charge in Hong Kong on December 31, 1980. Administrative Record at 117. Over ten years later,
on February 13, 1991, the Officer-in-Charge wrote to plaintiff, informing her that her siblings were not entitled to the family based preference classification. Because plaintiff was adopted, the INS argued that the
adoption nullified the relationship between [her] and the beneficiaries ([her] natural brother and sister) for immigration purposes.
Therefore, [plaintiff] and the beneficiaries [did] not qualify as "children" of a common parent. Accordingly, the beneficiaries [were] ineligible to be classified as [her] brother and sister for immigration purposes.
Administrative Record at 115. (citing Matter of Kong, 17 I. & N. Dec. 151 (BIA 1979)).
On January 12, 1993, the INS Officer-in-Charge reviewed the files and stated, "It is the opinion of this office that the sibling relationships * * * are maintained regardless of any adoptions." Administrative Record at 26. The officer asked plaintiff to file new visa petitions and later approved them. See Defendant's Memorandum at 4, PP 9, 10. Plaintiff then withdrew the motion for reconsideration, assuming the dispute was over. See Chow Declaration, attachment at 2 (Cravener Memorandum, October 24, 1994).
On September 16, 1993, however, a consular officer refused to issue a visa for plaintiff's brother and sister, stating that plaintiff
was adopted out of [her siblings'] family and subsequently immigrated to the U.S. through the adopted family. The adoption severed the family tie for immigration purposes. [The] petition has been returned to the INS for review and possible revocation.
Visa Refusal Sheet, Sept. 16, 1993, attached to Plaintiff's Reply Brief. On October 11, 1994, plaintiff filed in Hong Kong a motion for reconsideration of this decision. The Hong Kong consulate refused to accept the motion for reconsideration, stating that "the petitions had been revalidated * * * and forwarded on to the U.S. Consulate in Hong Kong and the Consulate had never sent the petitions back to the INS for revocation." Varnals Declaration at 2. The petitions have since been returned to the INS for revocation and the motion for reconsideration has been filed. Id. at 3. No action has yet been taken by the INS on this motion for reconsideration. Id.
On September 29, 1993, the Board of Immigration Appeals held in a different case, Matter of Li, that an adopted child "is precluded from successfully petitioning for visa preference classification on behalf of [her] natural sibling." 20 I & N Dec , Interim Decision 3207 (BIA 1993). The INS has not since specifically applied this decision to the instant case, but it is only a matter of time. All INS and consular officials are required to follow BIA decisions. 8 CFR § 3.1(g) ("Decisions of the [BIA] shall be binding on all officers and employees of the [Immigration and Naturalization] Service or Immigration Judges in the administration of the [Immigration and Nationality] Act."); Administrative Record at 121 ("The [INS] general counsel's legal opinion must be considered binding in view of INS's exclusive authority to revoke petitions.").
In this action plaintiff requests that this court issue a declaratory judgment holding that the revocation of the visa petitions violates the Act. Plaintiff also asks this court to order defendants to give plaintiff's siblings "fourth family-based preference classification" and to reimburse plaintiff for attorney fees and costs incurred bringing this action. Complaint PP IV(1) - IV(4).
Plaintiff has filed a motion for summary judgment asking for judgment as a matter of law. In a November 3 order, the court concluded that the doctrines of mootness and ripeness did not defeat plaintiff's claim for relief. The court ordered the parties to submit supplemental briefs addressing the merits of plaintiff's claim. Having reviewed the ...