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Naik v. Renaud

United States District Court, D. New Jersey

May 22, 2013

NEIL A. NAIK, Plaintiff,
v.
DANIEL RENAUD, Director, Vermont Service Center of United States Citizenship & Immigration Services, and UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES, Defendants

Opinion changed to " FOR PUBLICATION" June 6, 2013.

Page 465

For NEAL A. NAIK, Plaintiff: THOMAS E. MOSELEY, LEAD ATTORNEY, LAW OFFICE OF TOM MOSELEY, NEWARK, NJ.

For DANIEL RENAUD, Director, Vermont Service Center of United States Citizenship & Immigration Services, UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES, Defendants: LANA LUNSKAYA VAHAB, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, OFFICE OF IMMIGRATION LITIGATION, CIVIL DIVISION, WASHINGTON, DC; GEOFFREY FORNEY, United States Department of Justice, OIL - District Court Section, Washington, DC.

OPINION

Page 466

JOEL A. PISANO, United States District Judge.

This is an immigration matter concerning Plaintiff Neil A. Naik (" Plaintiff" )'s Petition for Alien Relative (" I-130 petition" ), which he filed on behalf of his wife. Defendant Daniel Renaud is the Director of the Vermont Service Center (" VSC" ), which is part of United States Citizenship & Immigration Services (" USCIS" ) (collectively " Defendants" ). Defendants denied Plaintiff's I-130 petition because the Adam Walsh Act (" AWA" ) prohibits Defendants from granting the I-130 petition of a United States citizen convicted of a specified offense against a minor unless the Secretary of Homeland Security determines that the citizen poses no risk to the alien. Subsequently, Plaintiff appealed this decision to the Board of Immigration Appeals (" BIA" ), which remanded the I-130 petition to Defendants to obtain more information. As a result, Defendants sent Plaintiff a Notice of Intent to Deny (" NOID" ) his petition and requested additional information. Prior to responding to the NOID, Plaintiff filed a Complaint in this Court, challenging Defendants' denial of his I-130

Page 467

petition and requesting that the Court approve the I-130 petition. Presently before the Court is Defendants' Motion to Dismiss for lack of jurisdiction and for failure to state a claim [docket # 4]. This Court decides the Motion without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons discussed below, Defendants' Motion is granted.

I. BACKGROUND[1]

Plaintiff is a United States citizen residing in New Jersey. On November 14, 2003, he was convicted of endangering the welfare of a minor pursuant to N.J.S.A. § 2C:24-4(a) and was subsequently sentenced to two days incarceration, three years probation, and community supervision for life. At some point thereafter, Plaintiff married Jyosna Naik, a native and citizen of India. On March 15, 2009, he filed an I-130 petition on behalf of his wife to initiate her immigration to the United States.

Defendants are responsible for adjudicating Plaintiff's I-130 petition. On December 10, 2010, Defendants denied Plaintiff's I-130 petition based on the application of the AWA to Plaintiff's 2003 conviction. [2] On January 5, 2011, Plaintiff appealed this decision to the BIA, which considered the question of " whether approval of the visa petition filed on behalf of" Jyosna Naik " is barred by" the AWA. Compl. ¶ 8; Compl., Ex. A; docket #4-2, Ex. 1. On October 14, 2011, the BIA remanded the case to Defendants for " further development of the record." Compl. ¶ 8, Ex. A. Specifically, the BIA asked the parties to respond to the following questions:

(1) Whether the government has the burden of proving that the petitioner's conviction is for a " specified offense" against a minor under section 111 of the AWA?
(2) Whether the categorical and modified categorical approaches should be used in making the foregoing determination?
(3) If the petitioner was found to have been convicted of a " specified offense" against a minor, is there a rebuttable presumption that the petitioner will pose a risk to the principal beneficiary or a derivative beneficiary? Further, what is the basis for this presumption and does it apply only to visa petitions where the principal beneficiary or a derivative beneficiary is a minor?
(4) If the petitioner is found to have been convicted of a " specific offense" against a minor, whether and under what authority, the government applies a " beyond a reasonable doubt" standard in determining --as a matter of discretion-- if the ...

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