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Yeboah v. United States Department of Justice Immigration and Naturalization Service

September 29, 2003

JULIAN YEBOAH, APPELLANT
v.
UNITED STATES DEPARTMENT OF JUSTICE IMMIGRATION AND NATURALIZATION SERVICE; CHARLES W. ZEMSKI, DISTRICT DIRECTOR, UNITED STATES DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE; KENNETH J. ELWOOD



Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No.01-cv-03337) District Judge: Honorable Franklin S. VanAntwerpen

Before: Roth, Greenberg, Circuit Judges and Ward *fn1 District Judge

The opinion of the court was delivered by: Roth, Circuit Judge

PRECEDENTIAL

Argued October 18, 2002

OPINION OF THE COURT

We address two issues in this appeal. First, did the District Court have subject matter jurisdiction to review the denial of Julian Yeboah's request for consent to a dependency hearing for special immigrant juvenile (SIJ) status. Second, if it did have jurisdiction, was the Attorney General's denial of consent for a hearing arbitrary and capricious or an abuse of discretion under the Immigration and Naturalization Act, 8 U.S.C. § 1101, et seq. as amended (INA). We hold, in light of our decision in M.B. v. Quarantillo, 301 F.3d 109 (3d Cir. 2002), that the District Court did have jurisdiction. In addition, we conclude that the Attorney General did not abuse his discretion or act arbitrarily or capriciously in denying Julian's request. Accordingly, we will affirm the grant of summary judgment to the Immigration and Naturalization Service (INS) by the District Court.

I. Facts

Julian (Kofi) Yeboah seeks SIJ status pursuant to 8 U.S.C. § 1101(a)(27)(J) (2002), which allows an alien juvenile to remain in the United States in long-term foster care if a state juvenile court declares the juvenile dependent due to abuse, neglect, or abandonment. Julian arrived at John F. Kennedy Airport in New York from the Republic of Ghana on March 4, 2000. He was 10 years old and unaccompanied, with no travel documents and only $1.25 in his pocket. Upon arrival in the United States, the INS took Julian into custody, where he remains. Julian's father and brother are in Ghana. His mother abandoned the family when Julian was a small child. The remaining facts are not clear. Julian alleges that a friend of his father placed him on the airplane to come to the United States. However, a Minister from the Ghanian Embassy, who interviewed Julian, testified that Julian's father, Thomas Yeboah, placed Julian on the plane. Julian claims that he has no family in the United States, but an anonymous woman, believed to be Julian's aunt, telephoned the Ghanaian Embassy after Julian's arrival, fearful that he had not arrived. Julian states that he was abused and abandoned, but the medical reports, read together, are inconclusive.

The parties dispute the nature of Julian's relationship with his father. Dr. Marc A. Forman, a child psychologist, conducted a 90 minute interview with Julian. In his written report, prepared on Julian's behalf, Dr. Forman notes that Julian stated he came to the United States to escape his abusive father. In view of Julian's stuttering, nervous ticks in both eyes, bed wetting, depressed affect, and anxiety and sleep disturbance, Dr. Forman diagnosed Julian with Posttraumatic Stress Disorder stemming from physical abuse and "being sent out of the country... as an unaccompanied minor." Dr. Forman believed that Julian risked developing a "serious mental illness" if he were forced to return to Ghana and recommended that Julian remain in the United States in foster care. The report documented that Julian "thought his father had broken one of his fingers, or maybe his arm, but he couldn't remember which side."

The INS, however, concluded that Julian was not abused, based upon a separate medical examination at which Julian apparently was not asked about, and failed to mention, accidents or injuries during the previous year. X-rays and a CAT scan revealed no physical signs of past abuse. In addition, the INS District Director presented the comments of the staff at Berks County Youth Center that Julian did not exhibit depression or dysfunctional behaviors and was social, active, and "relatively happy." The INS did not offer the testimony of a competing child psychologist.

The INS believes that Julian's father placed him on the airplane in an attempt to secure United States citizenship for the boy, possibly as part of an unworkable long-term scheme to make the father and brother eligible for United States citizenship.*fn2 Julian's father originally told the INS that he wanted his son to return to Ghana. After Julian's first request for an SIJ hearing was denied, the father sent a declaration that he does not want Julian to come back. Julian has been in telephone contact with his father on 15 occasions between February and September 2001 and twice between December 2001 and January 2002.

The INS District Director, acting on behalf of the United States Attorney General, denied consent to an SIJ proceeding. Julian brought suit against the INS under the Administrative Procedure Act, 5 U.S.C. § 701, et seq. (APA) in the District Court for the Eastern District of Pennsylvania, arguing that the District Director's decision was arbitrary and capricious or an abuse of discretion. The government moved to dismiss the action under Fed. R. Civ. Pro. 12(b)(1), on the ground that the District Court lacked subject matter jurisdiction to review the decision of the Attorney General. The District Court held that the decision of the Attorney General was subject to judicial review and denied the government's motion to dismiss. Yeboah v. INS, No. 01-CV-3337, 2001 U.S. Dist. LEXIS 17360 *1, 17 (E.D. Pa. Oct. 26, 2001).

Both parties moved for Summary Judgment. The District Court remanded the matter to the INS District Director for reconsideration in light of the newly received declaration by Julian's father that he did not want Julian to return to Ghana. The INS again rejected Julian's petition on the basis that Julian was seeking SIJ status for the improper purpose of obtaining permanent resident status, rather than seeking relief from abuse, abandonment, or neglect. The District Director concluded:

Julian has failed to establish that he suffered abuse, abandonment, or neglect in Ghana. Thus, the Service has concluded that Julian is not seeking SIJ status for the purpose of obtaining relief from abuse, abandonment and neglect, but rather is ...


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