The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Through the present action, Plaintiff Pardamandeep Kaur Boyal ("Plaintiff") seeks redress from this Court based on the claim that Defendants Secretary of the Department of Homeland Security Janet Napolitano, Acting Chief of the United States Administrative Appeals Office ("AAO") John F. Grissom, Acting Deputy Director of the United States Citizenship and Immigration Services Michael Aytes, and United States Attorney General Eric H. Holder (collectively, "Defendants") have violated her constitutional rights by depriving her of her marital union with her husband, Sukhjinder Singh ("Petitioner").
Plaintiff alleges that Defendants' denial of Petitioner's waiver 2 for unlawful presence was based on the erroneous determination that Petitioner was in the country unlawfully for the period of more 4 than one year.
Presently before the Court are the parties' cross Motions for Summary Judgment and Defendants' Motion to Dismiss pursuant to Federal Rules of Civil Procedure 56 and 12(b)(1). Plaintiff moves 8 for summary judgment of her claim that Petitioner was never 9 unlawfully present in the United States. (ECF No. 19.) Defendants move to dismiss for lack of jurisdiction or, in the alternative, seek summary judgment of Plaintiff's claim. (ECF No. 20.) Both parties have filed oppositions to those motions. For the reasons stated below, Plaintiff's motion is denied, Defendants' Motion for Summary Judgment is denied as moot, and Defendants' Motion to Dismiss is granted.
Petitioner is originally from India, and came to the United States to marry Pramil K. Singh, who is not a party to this action. Ms. Singh is a citizen of the United States, and took steps to confer upon Petitioner's permanent resident status as her lawful husband. On April 15, 2002, Ms. Singh, as Petitioner's citizen fiancee, filed a Petition for Alien Fiance on his behalf, which was approved by Defendants on July 18, 2002. Petitioner entered the country legally on the alien fiancee visa ("K1 visa") on March 7, 2003, and they were married on March 30, 2003 in compliance with federal immigration requirements for all K1 visa holders.
Shortly thereafter, Ms. Singh petitioned to register permanent 2 residence or adjust status. However, this union quickly 3 disintegrated ending in divorce. Six months after filing her 4 application to register permanent residence, Ms. Singh withdrew her 5 petition. On January 16, 2004 the couple divorced, and the 6 following month, Petitioner married Plaintiff, also a citizen of 7 the United States. Petitioner remained in the United States 8 throughout this period of time. 9
On April 9, 2004, Petitioner's previously withdrawn application to register permanent residence or adjust status was officially denied because he failed to appear at a hearing scheduled on the same day. On Petitioner's behalf, Plaintiff filed a Petition for Alien Relative on August 9, 2004, which was approved shortly thereafter. Petitioner departed the United States on May 10, 2005 in order to seek lawful admission to the United States as Plaintiff's spouse. In a somewhat confusing turn, Petitioner subsequently completed an Application for Waiver of Grounds of Inadmissibility, which he filed on December 23, 2005.*fn1
Petitioner's application was denied on July 17, 2006 by the Officer in Charge, on the grounds that Petitioner failed to establish extreme hardship to Plaintiff. The Officer in Charge further found that Petitioner accrued unlawful presence from April 9, 2004, when his application to adjust status filed and withdrawn by Ms. Singh was denied, through May 10, 2005. (Compl. Ex. A at3.)
Petitioner filed an appeal with the Administrative Appeals Office ("AAO"), which was dismissed on February 17, 2007. The AAO found 3 that based on Plaintiff's emotional and psychological problems, she 4 had demonstrated extreme hardship if separated from her husband, 5 but she had not demonstrated extreme hardship to her if she instead 6 moved to India to be with her husband. (Compl. Ex. A at 4.)
Ten days after the appeal was dismissed, Plaintiff filed a Motion to Reopen/Reconsider with the AAO and submitted additional 9 evidence to demonstrate hardship if she were to move to India. In this motion, Plaintiff argued that the AAO's decision was abuse of discretion because it was based on additional criteria not required by the INA or regulations. The additional criteria considered whether Plaintiff would suffer extreme hardship if she were to leave the United States to be with her husband, rather than a more general showing of extreme hardship to Plaintiff. (Compl. Ex. B at 7-8.) In her motion, Plaintiff also submitted new facts to demonstrate that she would meet the additional criteria if it were found to be within the AAO's discretion to consider. (Id. at 8--9.)
On September 2, 2009, the AAO granted Plaintiff's Motion to Reconsider, but dismissed the appeal because Plaintiff had failed to overcome the initial bases for denial. Plaintiff now contends that a waiver of grounds of inadmissibility should never have been required, as Defendants' initial determination that Petitioner was unlawfully present in the country for a period of over a year was erroneous, and hence Petitioner was never inadmissible to lawfully remain in the United States.
Plaintiff alleges she has exhausted all administrative remedies to 2 the extent possible, and seeks judicial intervention to require Defendants to vacate their September 2, 2009 decision denying Petitioner admission ...