Immigration policy in the United States has a long and tendentious history shot through with unapologetic racism, which makes it particularly difficult to discuss with any sense of decorum or even basic reality. Trump was barely five minutes into the announcement that he was seeking the presidency when he launched into a reality-challenged attack on Mexicans,

Hey dick. When Trump gets that wall built. How about you move to the other side of it. That way you won't have to deal with us American "racists".

Most indians aren't like you though chief wet pants.

The thing is, I could see it when there was a Bush and Obama... been trying to tell both forums.

I learned much about racism from people in Ohio.

We're not all like that.

This is obviously a travesty of justice. Obviously the minor imperfection in the record should have simply been corrected by judicial notice, and that be that.

The government's tack here is similar to what the Democrats have done with Kavanaugh - do something so blatantly unfair that it provokes a reaction.

We can have a wall and tight immigration policies, but we will not if the courts and government administrators behave like this.

Obviously the girl gets to stay. The appellate court will so rule.

Immigrant Girl Will Be Deported Because Adoptive Father Missed Deadline While Serving in Afghanistan

Hyebin Schreiber is NOT AN IMMIGRANT. She is present in the United States on a STUDENT VISA. She is not eligible for an I-130 Immigrant Visa. She is not eligible to be classified as a "legimated" child as she is not the blood relative of petitioner adoptive father.

She entered the United States on 15 Dec 2012 at age 15.

The age cutoff to to classify a person as an adopted "child" for immigration purposes is 16 years under a provision of the INA, 8 U.S.C. § 1101(b)(1)(E).

The BIA also determined that Hyebin could not be categorized as a child under § 1101(b)(1)(C)'s legitimation provision because her adoption was finalized after she already had turned 16.

The BIA concluded that it did not have jurisdiction to rule on the constitutionality of the laws it administers.

Lt. Col. Patrick Schrieber v. James McCament, et al, 2:17-cv-02371-DDC-JPO, Doc 32 (29 Sep 2018), at 1-4:

MEMORANDUM AND ORDER

Plaintiff Lt. Col. Patrick Schreiber seeks review under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, of a decision by the United States Citizenship and Immigration Services (“USCIS”) denying Mr. Schreiber’s I-130 immigrant visa petition. Plaintiff has filed an “Opening Brief” (Doc. 21) that asks the court to reverse the decision denying his visa petition. Plaintiff asks the court to deem the agency’s decision as arbitrary, capricious, and an abuse of discretion. He also asks the court to deem the decision a violation of the United States Constitution, the plain language of the governing statute, and the agency’s own policies. After reviewing the administrative record and considering both parties’ arguments, the court affirms the USCIS’s decision. The court explains why, below.

I. Background

The parties do not dispute the facts of this case, and the court summarizes those facts presented in the parties’ briefing.

Plaintiff and his wife, Soo Jin Schreiber, are both United States citizens. Mrs. Schreiber’s¹ brother’s daughter, Hyebin, was born in South Korea in 1997. Hyebin arrived in the United States on December 15, 2012, when she was 15 years old, on a student visa. She lived with plaintiff and his wife from that point forward and attended school in Lansing, Kansas. Plaintiff and his wife adopted Hyebin, and the District Court of Leavenworth County, Kansas, issued a decree of adoption on November 17, 2014. That Court concluded that Hyebin’s biological parents “freely and voluntarily” had consented to the adoption. Doc. 16 at 55. Hyebin received her Kansas birth certificate on December 14, 2017. And the United States Department of Defense issued Hyebin a military identification card.

Plaintiff alleges that USCIS officials told him that, because Hyebin was a citizen based on the adoption, he needed to file a Form N-600—an Application for a Certificate of Citizenship. Plaintiff filed the form pro se. The USCIS’s Kansas City Field Office denied plaintiff’s application. Plaintiff alleges that USCIS officials then directed him to file a visa petition for Hyebin—an I-130 Petition for Alien Relative. Plaintiff’s I-130 visa petition asked that Hyebin be classified as an immediate relative—specifically, as a “legitimated” child—under the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101(b)(1)(C).² Doc. 16 at 137–38, 122–26 (plaintiff’s arguments for classifying Hyebin as an immediate relative appear in his Memorandum of Law in Support of I-130 Petition for Legitimated Child Under INA

101(b)(1)(C)). USCIS issued a Notice of Intent to Deny plaintiff’s visa petition because Hyebin was more than 16 years old when plaintiff and his wife adopted her. The age cutoff to classify a person as an adopted “child” for immigration purposes is 16 years under a different provision of the INA, 8 U.S.C. § 1101(b)(1)(E).³ Plaintiff responded to USCIS’s Notice, arguing that Hyebin should be classified as a child under the legitimation category in § 1101(b)(1)(C), instead of under the adoption category in § 1101(b)(1)(E).

USCIS denied plaintiff’s I-130 visa petition. Plaintiff argues that USCIS made the decision “without any analysis or consideration as to the applicability of § 1101(b)(1)(C)” to the petition. Doc. 21 at 10. Plaintiff then timely appealed USCIS’s decision to the Board of Immigration Appeals (“BIA”). He again argued that Hyebin should be classified as a “legitimated” child under § 1101(b)(1)(C).

The BIA dismissed plaintiff’s appeal. The BIA concluded that the adoption provision categorizing a person as a “child” in § 1101(b)(1)(E) could not apply to Hyebin because her adoption was finalized after she already had turned 16. The BIA also determined that Hyebin could not be categorized as a child under § 1101(b)(1)(C)’s legitimation provision because plaintiff had not established that Hyebin is his biological child. The BIA cited Matter of Bueno, 21 I. & N. Dec. 1029 (BIA 1997), where the BIA held that, “to qualify as the legitimated child of the petitioner under section 101(b)(1)(C) of the [Immigration and Nationality Act], the beneficiary must be the biological child of the petitioner.” Doc. 16 at 68. The BIA noted plaintiff did not argue that he is Hyebin’s biological father. The BIA also explained that it had considered the amicus curiae’s arguments.4 Specifically, they had argued that Kansas law recognized adoption as an avenue to establish paternity, but the BIA did not use those arguments as grounds for its decision. Finally, the BIA concluded that it did not have jurisdiction to “rule on the constitutionality of the laws it administers.” Id. (citing Matter of Fuentes-Campos, 21 I. & N. Dec. 905, 912 (BIA 1997)).

Plaintiff now argues that the BIA “denied the appeal without any real analysis.” Doc. 21 at 10 (referencing the BIA’s “short” and “terse[]” four-paragraph opinion). Plaintiff also asserts that neither USCIS nor the BIA has alleged that plaintiff’s visa petition or family relationships are fraudulent. Instead, plaintiff contends in this appeal that he has “no category under which to petition for [the citizenship of] his daughter.” Doc. 21 at 10–11.

- - - - - - - - - - - - - - - - - - - -

LT. COL. PATRICK SCHREIBER,... by on Scribd

We're not all like that.

I know. I went to school with about 5 guys from Ohio and 4 of them were fairly judgmental when it came to race. I'm still friends with them and they've come around over time.

In 2013, Army Lt. Col. Patrick Schreiber and his wife put off officially adopting their teenaged daughter, Hyebin, who was born in the Republic of Korea. The reason? He was about to deploy to Afghanistan for a year. When he returned, they put through the paperwork, adopted her, and then started working on her citizenship. But Hyebin had turned 17 in the interim, which is a problem:

But heaven forbid fed.gov grant an extension for a soon-to-be graduate with a degree in chemical engineering to live with her adoptive parents in the USA.

Although Donald Trump, his administration, and the Republican Party are openly hostile to legal immigration, one hopes that these particular circumstances might breach the wall around their hearts and cause them to rethink not just this case, but others as well.

Oh...I seriously doubt that.

I learned much about racism from people in Ohio.

Kasich Crackas of Ohio

It's not simply a matter of enforcing the law. It's also a matter of being able to sustain a legal regime.

Decisions like this create a very foul taste, one that we needn't taste, because the judge could have easily fixed this and we never would have had to think about it. Well, now we're thinking about it.

Keep on making bad decisions like this, and people like me will shift allegiance against the tough immigration laws, and then those who want tough immigration laws will have lost the war.

Unless you have a strong political majority, controversial things must not be taken to an absolute extreme "on the law".

There is no strong political majority for harsh immigration laws. There is a tenuous majority for them. That majority will be temporary if the majority does not wield its authority judicially.

People like me, Independents, see both sides, and we've come down - lightly - on the side of Trump and Co. The government needs to exercise discretion in its handling of these things. This is a very heavy-handed decision, with a very bad consequences, for an upright, honorable military family - this Colonel and his family are precisely the sort of people that the law is supposed to make allowances for.

If the law will not be enforced with discretion and care - and here it is not - then people like me will get angry enough at the abuse that we will shift sides, and we'll have more open borders and less enforcement again.

And that, in turn, will cement a Democrat majority that will never be overcome.

So, folks who don't want that need to tread lightly.

This decision was atrocious. The judge failed to do his job. The appellate court will, it is hoped, manufacture a way for the girl to stay.

He was late filing the paperwork.

Bullshit from a bullshit website. Read the applicable law and the court opinion.

Bullshit meets reality of court opinion. The plain meaning of the statute required that plaintiff be the biological father. Schreiber was not the biological father.

Filing the paperwork on a different date would not have made him the biological father. Read the court opinion. You are citing something not decided by the court.

There was a failed claim of citizenship by adoption which required that the child be "under the age of sixteen years if the child has been in the legal custody of, and has resided with, the adopting parent or parents for at least two years." The adoption did not take place until Hyebin was over 17 years old. Hyebin was beyond the age of becoming a U.S. citizen through adoption at the time the adoption was finalized. That paperwork could not possibly be filed before the adoption was finalized.

To comply with the requirements of 8 U.S.C. 1101(b)(1)(E), Hyebin who arrived on December 15, 2012 at age 15 would have had to reside with the petitioner for two years. and petitioner would have had to file before Hyebin turned 16. It's impossible.

8 U.S.C. 1101(b)(1)(E)

(b) As used in subchapters I and II—

(1) The term "child" means an unmarried person under twenty-one years of age who is—

[...]

(E)(i) a child adopted while under the age of sixteen years if the child has been in the legal custody of, and has resided with, the adopting parent or parents for at least two years or if the child has been battered or subject to extreme cruelty by the adopting parent or by a family member of the adopting parent residing in the same household: Provided, That no natural parent of any such adopted child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter; or (ii) subject to the same proviso as in clause (i), a child who: (I) is a natural sibling of a child described in clause (i) or subparagraph (F)(i); (II) was adopted by the adoptive parent or parents of the sibling described in such clause or subparagraph; and (III) is otherwise described in clause (i), except that the child was adopted while under the age of 18 years;

- - - - - - - - - - - - - - - - - - - -

The issue before the court was legitimation under 8 U.S.C. 1101(b)(1)(C). This applies to legitimating a blood relative of the petitioner.

8 U.S.C. 1101(b)(1)(C)

2016 US Code
Title 8 - Aliens and Nationality
Chapter 12 - Immigration and Nationality
Subchapter I - General Provisions
Sec. 1101 - Definitions

§1101. Definitions

[...]

(b) As used in subchapters I and II—

(1) The term "child" means an unmarried person under twenty-one years of age who is—

[...]

(C) a child legitimated under the law of the child's residence or domicile, or under the law of the father's residence or domicile, whether in or outside the United States, if such legitimation takes place before the child reaches the age of eighteen years and the child is in the legal custody of the legitimating parent or parents at the time of such legitimation;

The issue before the court was the legitimation of Hyebin under 8 U.S.C. § 1101(b)(1)(C) whose plain text meaning the court held to be unambiguous, and to require a biological connection between a visa petitioner and his beneficiary. There is no biological connection between petitioner LCOL Schrieber and Hyebin.

Lt. Col. Patrick Schrieber v. James McCament, et al, 2:17-cv-02371-DDC-JPO, Doc 32 (29 Sep 2018), MEMORANDUM and ORDER, at 26:

On June 5, 2017, the BIA denied plaintiff’s visa petition because: (1) Hyebin “had already reached the age of 16 at the time of adoption”; and (2) the BIA’s decision in Matter of Bueno, 21 I. & N. Dec. 1029 (BIA 1997), which required that the plaintiff be the biological parent of the child in question, controlled the agency’s decision.

Lt. Col. Patrick Schrieber v. James McCament, et al, 2:17-cv-02371-DDC-JPO, Doc 32 (29 Sep 2018), MEMORANDUM and ORDER, at 28-29

IV. Conclusion

For the reasons explained, the court affirms the decisions by USCIS and the BIA in plaintiff’s case and denies plaintiff’s request to reverse the agency’s decision. The court concludes that the provision in question, 8 U.S.C. § 1101(b)(1)(C), is not ambiguous. The statute’s plain meaning requires a biological connection between a visa petitioner and his beneficiary for purposes of § 1101(b)(1)(C). The court also concludes that the agency interpreted the statute in accordance with its plain meaning. Finally, the court determines that it cannot consider the plaintiff’s constitutional challenges to the agency’s interpretation of § 1101(b)(1)(C).

IT IS THEREFORE ORDERED THAT defendant’s request in his Opening Brief (Doc. 21) to overturn the United States Citizenship and Immigration Services’ and Board of Immigration Appeals’ determinations in his case is denied.

IT IS SO ORDERED.

Dated this 28th day of September, 2018, at Kansas City, Kansas.

s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge

This decision was atrocious. The judge failed to do his job. The appellate court will, it is hoped, manufacture a way for the girl to stay.

The decision was directly according to the unambiguous plain text of the law which required the petitioner to be the biological father of the child.

Congress can change the law if they choose. Perhaps one of those old fashioned private petitions to congress might still work. The Court has nothing to work with.

The decision was directly according to the unambiguous plain text of the law which required the petitioner to be the biological father of the child. Congress can change the law if they choose. Perhaps one of those old fashioned private petitions to congress might still work. The Court has nothing to work with.

This is why the court has equitable powers, to soften the law to produce the just result.