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Brown v. Department of Homeland Security

United States District Court, W.D. Washington, Seattle

March 7, 2018

ELENA BROWN and DANIIL FEDORUK, Plaintiffs,
v.
DEPARTMENT OF HOMELAND SECURITY, et al.[1], Defendants.

          ORDER

          Richard A. Jones, United States District Judge.

         This matter comes before the Court on the parties' motions for summary judgment. Dkt. ## 15, 16. Both motions are opposed. Dkt. ## 16, 17. For the reasons that follow, the Court GRANTS Plaintiffs' Motion (Dkt. # 15) and DENIES Defendants' Motion (Dkt. # 16).

         I. BACKGROUND

         Plaintiffs Elena Brown and Daniil Fedoruk bring this action pursuant to § 10(b) of the Administrative Procedures Act (“APA”), 5 U.S.C. § 702, et seq., seeking review of Defendant U.S. Citizenship and Immigration Services' (“USCIS”) decision denying Brown's petition to classify Fedoruk, the beneficiary, as an immediate relative child under 8 U.S.C. §§ 1101(b)(1) and 1151(b)(2)(A)(i).

         A. Factual Background

         Fedoruk, a native of Russia, was born on June 17, 1993[2]. Dkt. # 11 at 248-50. Fedoruk's biological parents are Konstantin Fedoruk and Nataliya Fedoruk. Id. Nataliya Fedoruk is also know as Natalia Robinson. Id. at 211. Brown is the paternal aunt of Fedoruk. Id. at 237.

         On June 27, 2007, Fedoruk's biological father consented to the adoption of his son in a document intended to be filed in King County Superior Court. On August 24, 2007, Fedoruk and his biological mother completed and signed a B1/B2 visa application for Fedoruk. Id. at 285-86. The visa application states that Fedoruk intended to visit his grandparents and Brown in Kent, Washington for a period of one month. Id. On September 26, 2007, Fedoruk was issued a B1/B2 visa. Id. at 247.

         On April 16, 2008, Fedoruk's biological mother signed a “Consent of Temporary Guardian, ” giving temporary guardianship of Fedoruk to Brown for the period of April 1, 2008 to April 1, 2011. Id. at 66-68. The “Consent of Temporary Guardian” indicates that all expenses related to Fedoruk's upbringing were to be paid for by Brown. Id. Two days later, Fedoruk was admitted to the United States with an authorized period of stay as a non-immigrant visitor until October 17, 2008. Id. at 247. He was 14 years old at that time. Id. Brown agreed to the terms of the “Consent of Temporary Guardian” and signed the document on April 19, 2008, the day after Fedoruk arrived in the United States. Id. On July 3, 2008, Fedoruk's biological mother consented to the adoption of her son in a document intended to be filed in King County Superior Court. Id. at 47-53.

         On July 16, 2008, Brown filed a petition to adopt Fedoruk in the King County Superior Court. He was 15 years old when the petition was filed. Id. at 78-85. On September 10, 2008, the King County Family Court received an anonymous call alleging that the adoption of “Danny or Daniel” by “Yelena or Elena Brown” was fraudulent and that “the child came to visit his aunt and now he is not returning back to his mother.” Id. at 63. The caller also stated that “the aunt” was going to forge the mother's name and phone number and that the child's birth father may be cooperating with this fraudulent adoption. Id. The King County Family Court then attempted to contact Fedoruk's biological mother but was unable to confirm her consent to the adoption. Id. Plaintiffs allege that Fedoruk's biological mother suffers from mental illness and attempted to “sabotage” his adoption and refused to speak with the adoption case worker as a result of this illness. Plaintiffs further allege that Fedoruk's biological mother stopped having any contact with either Plaintiff in 2009. Dkt. # 15.

         On March 16, 2011, Brown filed a Petition for Termination of Parent-Child Relationship in the Superior Court of Washington. Id. at 82-85. The petition alleges that Fedoruk's biological mother would not consent to the adoption but also would not provide Fedoruk with any support as his mother. Id. On April 25, 2011, when Fedoruk was 17 years old, the Washington Superior Court entered an order terminating Fedoruk's biological mother's parental rights. Id. at 91-92. On August 30, 2011, Brown moved that the Washington Superior Court “enter the adoption decree nunc pro tunc as of one day prior to the adoptee's 16th birthday (June 16, 2009) so that [Brown] may be allowed to file an immigration petition for him as [her] adopted son.” Id. at 80. On September 2, 2011, a Commissioner of the Superior Court of the State of Washington issued a Decree of Adoption, granting Brown's petition to adopt Fedoruk. On the date the adoption was finalized, Fedoruk was 18 years old. Id. at 75-76. On the final page of the Decree, the Commissioner added a handwritten notation “Nunc Pro Tunc June 16, 2009, ” which is the day before Fedoruk turned 16 years of age. Id.

         B. Procedural Background

         On October 11, 2011, Brown filed a Form I-130, Petition for Alien Relative, on behalf of Fedoruk. Id. at 242-284. On November 19, 2012, USCIS denied the petition because Fedoruk did not qualify as a child because he was not under the age of 16 years old when the adoption was finalized. Id. at 200-201. On December 14, 2012, Brown appealed the decision to the Board of Immigration Appeals (“BIA”). Id. at 177. The BIA then dismissed the appeal. Id. at 119.

         On August 4, 2014, Plaintiffs filed a case in this District, seeking review of the USCIS and the BIA's decisions. See Brown v. DHS, 2:14-cv-1184-JCC (W.D. Wash.). The parties then agreed that the USCIS would seek remand of the petition from the BIA in order to supplement the record before the USCIS and voluntarily dismissed the case. Id. On February 26, 2015, the USCIS filed a motion with BIA to re-open and remand Fedoruk's Form I-130 proceedings to the USCIS for further processing. Id. at 105-116. The USCIS then sent Brown a Request for Evidence (“RFE”) regarding Fedoruk's adoption. Id. at 95-99. On October 7, 2015, the USCIS issued a Notice of Intent to Deny (“NOID”) the petition and gave Brown the opportunity to respond to a newly issued decision from the BIA, Matter of Huang, 26 I. & N. Dec. 627 (BIA 2015) (“Huang”). Id. 32-22.

         After receiving Brown's response, the USCIS denied her petition on February II, 2016, and sought certification of the decision from the BIA. Id. at 19-26. On September 29, 2016, the BIA adopted and affirmed the USCIS decision. Id. at 1-9. On October 29, 2016, Plaintiffs filed this action, seeking review of the denial of Brown's petition. Dkt. # 1. Plaintiffs argue that the BIA improperly applied the decision in H ...


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