United States District Court, W.D. Washington, Seattle
Richard A. Jones, United States District Judge.
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. #
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 native of Russia, was born on June 17, 1993. 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.
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.
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
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.
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.
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.
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”).
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 ...