Eda Ak v. Garland

1

EDA AK, CEM SUMERER and OLANDO ESPINAL, Plaintiffs, v. MERRICK GARLAND, Attorney General, et al., Defendants.

No. 5:21-cv-4507

United States District Court, E.D. Pennsylvania

August 2, 2022

OPINION

JOSEPH F. LEESON, JR., United States District Judge.

Defendants' Motion for Summary Judgment, ECF No. 22 - Denied

Plaintiffs' Motion for Summary Judgment, ECF No. 24 - Granted

I. INTRODUCTION

This matter involves an I-130 petition filed by Plaintiff Orlando Espinal, which seeks preference status for his wife Plaintiff Eda Ak and her son, Plaintiff Cem Sumerer. United States Citizenship and Immigration Services (USCIS) denied Espinal's petition, a decision that was affirmed by the Board of Immigration Appeals (BIA). Plaintiffs assert that the denial was arbitrary, capricious, and in violation of the law. Following the filing of the administrative record Plaintiffs and Defendants filed cross-motions for summary judgment.

Following a review of the administrative record in light of the guiding legal principles, this Court concludes that USCIS violated the Administrative Procedures Act (APA).

Accordingly, Plaintiffs' motion for summary judgment is granted, and Defendants' motion for summary judgment is denied.

II. FACTUAL AND PROCEDURAL BACKGROUND

Ak and her son, Sumerer, are citizens of Turkey. See Pls. Stmt. Undis. Facts ¶ 2 (“PSUF”), ECF No. 24-2; Defs. Resp. Undis. Facts ¶ 2 (“DRUF”), ECF No. 26-1. Espinal is a United States Citizen. See PSUF ¶ 2; DRUF ¶ 2. In 2009, Ak and Sumerer entered the United States on non-immigrant visas. See PSUF ¶ 3; DRUF ¶ 3. On May 20, 2010, a wedding ceremony for Ak and Espinal was held in Pennsylvania. See PSUF ¶ 4; DRUF ¶ 4. Plaintiffs filed their first I-130 petition on January 23, 2011. See PSUF ¶ 5; DRUF ¶ 5. Plaintiffs were interviewed in connection with this petition, and an investigation was conducted by the office of Fraud Detection and National Security (FDNS). See PSUF ¶¶ 6-7; DRUF ¶¶ 6-7. On April 30, 2012, USCIS issued a “Notice of Intent to Deny” (NOID) to Plaintiffs. See PSUF ¶ 8; DRUF ¶ 8. Plaintiffs responded to the NOID with additional evidence of the bona fides of their marriage. See PSUF ¶ 8; DRUF ¶ 8. On March 25, 2013, USCIS denied the Plaintiffs' first I-130 petition.

On April 22, 2013, Plaintiffs filed a second I-130 petition, which is the operative petition in the instant matter. See PSUF ¶ 9; DRUF ¶ 9. Three years later, on March 30, 2016, USCIS issued a Request for Evidence to Plaintiffs in relation to the petition. See PSUF ¶ 10; DRUF ¶ 10. Among other evidence sought, the Request for Evidence also directed Plaintiffs to file form I-601, an Application for Waiver of Ground of Inadmissibility. See PSUF ¶ 10; DRUF ¶ 10.^[1]Plaintiffs responded to the Request for Evidence by filing the Form I-601 and providing additional evidence of the bona fides of their marriage. See PSUF ¶ 11; DRUF ¶ 11.

Three years later, on March 6, 2019, USCIS issued a NOID for the operative petition. See PSUF ¶ 12; DRUF ¶ 12. Plaintiffs responded to the NOID with additional evidence on April 5, 2019. See PSUF ¶ 12; DRUF ¶ 12. On May 16, 2019, USCIS denied the operative petition. See PSUF ¶ 13; DRUF ¶ 13. Plaintiffs appealed the decision to the Board of Immigration Appeals (BIA), and the appeal was ultimately denied on July 30, 2020. See PSUF ¶ 13; DRUF ¶ 13.

On October 14, 2021, Plaintiffs filed suit before the Court, seeking this Court's review of the BIA's denial of their appeal. See Compl., ECF No. 1. In particular, Plaintiffs assert that the BIA's decision was arbitrary and capricious, or otherwise violated the Fifth Amendment. See Id. Following the filing of the administrative record, see ECF Nos. 13, 14, 15, and 16,^[2] the parties filed cross-motions for summary judgment. See Defs. Mot., ECF No. 22; Pls. Mot., ECF No. 24. After a series of responses, the motions are ready for review. See Pls. Resp., ECF No. 25; Defs. Resp., ECF No. 26.

III. LEGAL STANDARDS

A. Review of Agency Decision on Motion for Summary Judgment - Review of Applicable Law

“Although ‘summary judgment is the proper mechanism for deciding, as a matter of law, whether an agency's action is supported by the administrative record' the district court is acting as an appellate tribunal, and ‘the usual summary judgment standard does not apply.'” See Zizi v. Bausman, 306 F.Supp.3d 697, 702 (E.D. Pa. 2018) (quoting Dorley v. Cardinale, 119 F.Supp.3d. 345, 351 (E.D. Pa. 2015)).

Rather, “[u]nder the APA, a district court may only set aside agency action if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'” See id. (quoting 5 U.S.C. § 706(2)(a)).

Under the first group of factors, in determining whether the agency's action was arbitrary, capricious, or an abuse of discretion, the court must “look[] at the reasoning the agency employed in coming to its decision.” See id. (citing Mirjan v. Atty. Gen. of United States, 494 Fed.Appx. 248, 250 (3d Cir. 2012)). In particular, an action is “arbitrary and capricious where ‘the evidence not only supports a contrary conclusion but compels it.'” See id. (quoting Yitang Sheng v. Atty. Gen. of United States, 365 Fed.Appx. 408, 410 (3d Cir. 2010)). A court may reverse the agency decision “only where the administrative action is irrational or not based on relevant factors.” See id. (quoting NVE, Inc. v. Dep't of Health & Hum. Servs., 436 F.3d 182, 190 (3d Cir. 2006)). A decision is irrational or based on irrelevant factors where “the agency relied on factors outside those Congress intended for consideration, completely failed to consider an important aspect of the problem, or provided an explanation that is contrary to, or implausible in light of, the evidence.” See id. (quoting NVE, Inc., 436 F.3d at 190).

Under the final factor, in determining whether the agency's action was otherwise not in accordance with the law, the court must determine whether the agency's decision, even if “well-reasoned, violate[s] other statutory or regulatory strictures.” See id.

The district court should base its review on “the administrative record already in existence, not some new record made initially in the reviewing court.” See id. (quoting Camp v. Pitts, 411 U.S. 138, 142 (1973)). Moreover, a district court “may not substitute its judgment for that of the agency.” See id. (citing Judulang v. Holder, 565 U.S. 42, 52 (2011)). Rather, the court must only determine whether the agency has articulated a “satisfactory explanation for its action including a rational connection between the facts found and the choice made ....” See id. (quoting CBS Corp. v. FCC, 663 F.3d 122, 137 (3d Cir. 2011)).

B. Spousal Eligibility for Lawful Permanent Residency through Form I-130 -Review of Applicable Law

“A United States citizen may apply for her alien spouse to obtain lawful permanent residence by filing an I-130 Petition with USCIS.”^[3] See Young v. Bausman, Civ. A. No. 191870, 2020 WL 996423, at *5 (E.D. Pa. Mar. 2, 2020) (citing 8 C.F.R. §§ 204.1(a)(1), 204.2(a)). However, such a petition cannot be approved if

the alien has previously been accorded, or has sought to be accorded, an immediate relative or preference status as the spouse of a citizen of the United States . . . by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws, or [ ] the Attorney General has determined that the alien has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws.

See id. (alterations in original) (quoting 8 U.S.C. § 1154(c)).

In the event USCIS “discovers evidence supporting marriage fraud, it will issue a [NOID], inform the petitioner of its reasons for denial, and allow the petitioner to present rebuttal evidence.” See id. (quoting Keita v. Barr, No. CV 19-980, 2019 WL 5551425, at *5 (E.D. Pa. Oct. 28, 2019)). Once a NOID is issued, the burden of proof shifts to the petitioner “to establish that the prior marriage was not entered into for the purpose of evading immigration laws.” See id. (quoting Keita, 2019 WL 5551425, at *5). USCIS may ultimately deny an I-130 petition “where there is substantial and probative evidence of marriage fraud.” See id.

“Substantial evidence is more than scintilla, but . . . something less than a preponderance of the evidence.” See id. (quoting Salvador v. Sessions, No. CV 18-01608, 2019 WL 1545182, at *3 (E.D. Pa. Apr. 9, 2019)).

C. Unreasonable Delay in Agency Action - Review of Applicable Law

The Administrative Procedures Act (APA) provides that USCIS, among other agencies, must act “within a reasonable time” to “conclude a matter presented to it.” See 5 U.S.C. § 555(b). “To determine the reasonableness of a delay under the APA, courts consider the six factors articulated in Telecommunications Research and Action Center v. FCC (“TRAC”), 750 F.2d 70 (D.C. Cir. 1984).” See Daraji v. Monica, No. 07-1749, 2008 WL 183643, at *5 (E.D. Pa. Jan. 18, 2008) (citing TRAC, 750 F.2d 70). These factors include:

(1) the time agencies take to make decisions must be governed by a rule of reason;

(2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by delay; and (6) the court need not find any impropriety lurking behind agency lassitude in

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