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Khalil v. Napolitano

United States District Court, D. New Jersey

October 23, 2013

SAMIA SELIM KHALIL, et al., Plaintiffs,
v.
JANET NAPOLITANO, et al., Defendants

Page 485

LAW OFFICES OF DAVID E. PIVER, By: Monica Singh, Esq., Wayne, PA, Counsel for Plaintiffs.

DEPARTMENT OF JUSTICE, OFFICE OF IMMIGRATION LITIGATION, By: Patricia E. Bruckner, Esq., Washington, D.C., Counsel for Defendants.

OPINION

Page 486

HONORABLE Joseph E. Irenas, Senior United States District Judge.

Pending before the Court is the Defendants' Motion to Dismiss, or in the alternative, Motion for Summary Judgment. Also pending before the Court is the Plaintiffs' Cross Motion for Summary Judgment. For the reasons set forth below, the Defendants' Motion to Dismiss will be granted, and therefore the Plaintiffs' Cross Motion will be denied as moot.

I.

The parties agree on the relevant facts. Plaintiff Samuel Girgis Hanna (" Hanna" ) was born on April 18, 1992. (Defs.' Statement of Material Facts at ¶ 1.) According to the Complaint, Hanna is an Egyptian native, and a citizen of Egypt. (Compl. ¶ 4.)

At some point after his birth, Hanna came to the United States.[1] On January 18, 2008, Plaintiff Samia Salim Khalil (" Khalil" ) and her husband, William Ishak Khalil, filed an adoption complaint with the New Jersey Superior Court, initiating proceedings to adopt Hanna as their child. (Defs.' Statement of Material Facts at ¶ 2; Compl. ¶ 13.) On April 11, 2008, the Superior Court held a preliminary hearing, at which point the parental rights of Hanna's birth parents were terminated and Hanna was placed in private placement adoption with Khalil and her husband. (Compl. Ex. 9.) Following the preliminary hearing and consistent with the statutory adoption scheme, Child and Home Study Associates began preparing a report concerning the placement of Hanna with Khalil and her husband, per N.J.S.A. 9:3-48(c)(4)(d).[2] (Compl. Ex. 9 at ¶ 2.) On April 18, 2008, a week after the preliminary hearing, Hanna turned sixteen years old. The Superior Court issued a Final Judgment of Adoption on October 14, 2008, making Khalil and her husband the parents of Hanna. ( Id. at ¶ 4.) The Final Judgment indicated tat Child and Home Study Associates filed a report with the Superior Court (though not provided by the Plaintiffs) focusing on the placement of Hanna with Khalil and her husband, per the statutory requirements of N.J.S.A. 9:3-48(d). (Compl. Ex. 9 at ¶ 2.) As directed in the Final Judgment of Adoption, the Superior Court ordered the finalized adoption be effected nunc pro tunc as of the preliminary hearing on April 11, 2008, which retroactively finalized Hanna's adoption before his sixteenth birthday. (Compl. Ex. 9 at ¶ 5.)

Khalil is a naturalized U.S. citizen, attaining citizenship on November 14, 2007. (Compl. Ex. 10.) Prior to initiating the adoption process, Hanna was Khalil's nephew. (Pls.' Br. at 27.) On June 7, 2010, after the finalized adoption, Khalil filed a Form I-130, Petition for Alien Relative, with U.S. Citizenship and Immigration Services (USCIS), which sought to classify Hanna as Khalil's unmarried son of a U.S. citizen in order to obtain an immigrant visa under 8 U.S.C. § 1153(a)(1). (Defs.' Statement of Material Facts at ¶ 6; Pls.' Statement of Material

Page 487

Facts at ¶ 6.) On April 14, 2011, USCIS denied Khalil's petition, summarizing the Board of Immigration Appeals's (BIA) prior decisions considering nunc pro tunc adoptions and explaining that " [Hanna] was over the age of sixteen when the adoption took place, [therefore Hanna] could not, at one time, qualify as a child pursuant to [8 U.S.C. § 1101(b)(1)(E)]. Therefore, [Hanna] cannot be classified as [Khalil's] son or daughter for immigration purposes pursuant to [8 U.S.C. § 1153(a)(1)]." (Compl. Ex. 4 at 2.)

Khalil took a timely appeal of USCIS's denial to the BIA, which affirmed USCIS's denial on February 27, 2012. (Compl. Ex. 1.) In its decision, the BIA reviewed the fact that the Superior Court finalized Hanna's adoption effective nunc pro tunc before Hanna turned sixteen, but noted that because the adoption was not finalized until after Hanna actually turned sixteen, USCIS properly denied the visa petition under § 1153(a)(1) because Hanna could not be construed as Khalil's child under § 1101(b)(1)(E). ( Id. at 1.)

On June 25, 2012, the Plaintiffs filed this lawsuit against Janet Napolitano, the then-Secretary of Homeland Security.[3] The Plaintiffs also named two additional Defendants: Alejandro Mayorkas, Director of USCIS, and Nieves Cardinale, Field Office Director of USCIS in Mount Laurel, New Jersey, who actually ...


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