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Medina Tovar v. Zuchowski

United States District Court, D. Oregon

December 15, 2017

MARIA DEL CARMEN MEDINA TOVAR and ADRIAN ALONSO MARTINEZ, Plaintiffs,
v.
LAURA B. ZUCHOWSKI, Director, Vermont Service Center, United States Citizenship and Immigration Services; JOHN F. KELLY, Secretary, Department of Homeland Security;[1] and JEFFERSON B. SESSIONS, III, United States Attorney General, Defendants.

          PHILIP JAMES SMITH NICOLE HOPE NELSON Nelson Smith LLP, Attorneys for Plaintiffs

          BILLY J. WILLIAMS United States Attorney

          ADRIAN L. BROWN Assistant United States Attorney, Attorneys for Defendants

          OPINION AND ORDER

          ANNA J. BROWN, United States Senior District Judge

         This matter comes before the Court on the Motion (#12) for Summary Judgment filed by Defendants Laura B. Zuchowski, John F. Kelly, and Jefferson B. Sessions III and the Motion (#15) for Summary Judgment filed by Plaintiffs Maria del Carmen Medina Tovar and Adrian Alonso Martinez.

         For the reasons that follow, the Court GRANTS Defendants' Motion for Summary Judgment and DENIES Plaintiffs' Motion for Summary Judgment. Accordingly, the Court DISMISSES this matter with prejudice.

         BACKGROUND

         I. U Visa Status

         Congress created a nonimmigrant visa status (referred to as U visa status) as part of the Victims of Trafficking and Violence Protection Action of 2000, Title V, Pub. L. No. 106-386, 114 Stat. 1464, 1518-37 (titled Battered Immigrant Women Protection Act of 2000). This U visa status is for noncitizen victims of a crime who have suffered substantial mental or physical abuse and who assist law enforcement in the investigation or prosecution of the criminal activity. Section 1513 of the legislation provides:

The purpose of this section is to create a new nonimmigrant visa classification that will strengthen the ability of law enforcement agencies to detect, investigate, and prosecute cases of domestic violence, sexual assault, trafficking of aliens, and other crimes described in section 101(a)(15)(U)(iii) of the Immigration and Nationality Act committed against aliens, while offering protection to victims of such offenses in keeping with humanitarian interests of the United States.

114 Stat. at 1533. This legislation was codified as part of the Immigration and Nationality Act (INA), United States Code, Title 8. The U visa statutory provision is found at 8 U.S.C. § 1101(a)(15)(U)(I) (also referred to as the U-1 nonimmigrant visa statute). The United States Citizenship and Immigration Services (the Agency) promulgates regulations related to U visa status.

         To obtain U visa status a noncitizen victim files a petition (Form I-918) with the Agency. 8 C.F.R. § 214.14(c)(1). The noncitizen bears the burden to establish eligibility for U visa status. 8 C.F.R. § 214.14(c)(4).

         After U visa status is approved by the Agency, that status is valid for four years. 8 C.F.R. § 214.14(g). After maintaining U visa status for three years, the holder may apply for lawful permanent-resident status. 8 U.S.C. § 1255(m); 8 C.F.R. § 245.14(k).

         8 U.S.C. §1101(a)(15)(U)(ii) also permits a noncitizen victim who is 21 years of age or older and is the holder of a U visa to petition for derivative U visa status on behalf of a spouse and/or children who are “accompanying, or following to join” the victim.

         The following regulations are also applicable to this dispute:

         8 C.F.R. § 214.14(f)(1) provides: “An alien who has petitioned for or has been granted U-1 nonimmigrant status (i.e., principal alien) may petition for the admission of a qualifying family member . . . if accompanying or following to join such principal alien.”

         8 C.F.R. § 214.14(f)(4) provides: “The relationship between the U-1 principal alien and the qualifying family member must exist at the time Form I-918 was filed, and the relationship must continue to exist at the time Form I-918, Supplement A is adjudicated, and at the time of the qualifying family member's subsequent admission to the United States.” Exceptions apply when the person applying is under 21 and has an unmarried sibling under 18 or for children of the person submitting the petition. See 8 C.F.R. § 214.14(f)(4)(I) and (ii).

         II. Facts

         The following material facts are taken from the parties' submissions in support of their Motions and are undisputed unless otherwise noted.

         Plaintiff Medina Tovar was born in Mexico in 1992 and came to the United States when she was six years old. In 2004 she was the victim of a serious crime and suffered substantial physical and mental abuse at the age of 12 while living with her family in Seaside, Oregon.

         On June 14, 2013, Medina Tovar filed a petition (Form I-918) with the Agency to obtain U visa status because she had been the victim of a crime and she had cooperated in the investigation. On February 26, 2014, the Agency advised Media Tovar that she “appeared” to be eligible for U visa status, but the statutory cap for such visas had been met for that fiscal year. Medina Tovar, therefore, was placed on a waiting list for approval. Medina Tovar was not married at the time that she applied for U visa status.

         On September 21, 2015, Medina Tovar married Plaintiff Alonso Martinez in Hillsboro, Oregon. Alonso ...


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