Lee v. Miller

658 F.Supp.3d 951

Jacklyn Hyonk LEE and Jongbum Pak, Plaintiffs, v. Richard MILLER, Portland Field Office Director,U.S. Citizenship and Immigration Services;Alejandro Mayorkas, Secretary, Department of Homeland Security;and Merrick B. Garland, U.S. Attorney General, Defendants.

Case No. 3:21-cv-94-SI

United States District Court, D. Oregon

Signed February 21, 2023

Samuel W. Asbury, Immigration Solutions inc., PO Box 553, Fairview, OR 97024. Of Attorney for Plaintiffs.

Natalie K. Wight, United States Attorney, and Alison Milne, Assistant United States Attorney, United States Attorney's Office, 1000 SW Third Ave., Portland, OR 97204. Of Attorneys for Defendants.

OPINION AND ORDER

Michael H. Simon, District Judge.

Plaintiffs Jacklyn Hyonk Lee (Lee) and her husband Jongbum Pak (Pak) (collectively, Plaintiffs) bring this lawsuit alleging that Defendants, who are U.S. government officials, violated the Administrative Procedure Act (APA) and Plaintiffs' due process rights under the Fifth Amendment. Plaintiffs' claims arise out of the denial by U.S. Citizenship and Immigration Services (USCIS) of Lee's I-130 immigrant petition on behalf of Pak and affirmance of that decision by the Board of Immigration Appeals (BIA). Plaintiffs also challenge the denial by USCIS of Pak's I-485 application for permanent residency. Defendants move for summary judgment on all claims, arguing that the government's conduct was neither arbitrary nor capricious and did not violate Plaintiffs' due process rights. For the reasons discussed below, the Court grants Defendants' motion.

STANDARDS

A. Summary Judgment

A party is entitled to summary judgment if the "movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party has the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The court must view the evidence in the light most favorable to the non-movant and draw all reasonable inferences in the non-movant's favor. Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). Although "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment," the "mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation and quotation marks omitted).

In an action reviewing the merits under the APA, however, the Court does not ask whether there is a genuine dispute as to any material fact. Rather, "the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." Occidental Eng'g Co. v. INS, 753 F.2d 766, 769 (9th Cir. 1985). In an APA-review case, "summary judgment is an appropriate mechanism for deciding the legal question of whether the agency could reasonably have found the facts as it did." Id. at 770.

B. Administrative Procedure Act

The Administrative Procedure Act (APA) provides for judicial review of final agency action. 5 U.S.C. §§ 701-706. Under the APA, a court must "hold unlawful and set aside agency action . . . found to be—arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," or "without observance of procedure required by law." 5 U.S.C. § 706(2). "An agency must 'examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.' " Gill v. U.S. Dep't of Justice, 913 F.3d 1179, 1187 (9th Cir. 2019) (quoting Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). Agency action is "arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfrs., 463 U.S. at 43, 103 S.Ct. 2856; see also Gill, 913 F.3d at 1187. The basis for the agency's decision must come from the record. Gill, 913 F.3d at 1187.

A reviewing court's inquiry must be "thorough," but "the standard of review is highly deferential; the agency's decision is entitled to a presumption of regularity, and [the court] may not substitute [its] judgment for that of the agency." San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014) (quotation marks and citation omitted). Although a court's review is deferential, the court "must engage in a careful, searching review to ensure that the agency has made a rational analysis and decision on the record before it." Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 524 F.3d 917, 927 (9th Cir. 2008); see also Brower v. Evans, 257 F.3d 1058, 1067 (9th Cir. 2001) ("The presumption of agency expertise can be rebutted when its decisions, while relying on scientific expertise, are not reasoned."). A court "must not 'rubber-stamp' . . . administrative decisions that [it] deem[s] inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute." Ocean Advocates v. U.S. Army Corps of Eng'rs, 402 F.3d 846, 859 (9th Cir. 2005) (first alteration in original, remaining alterations added). A court may, however, "uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned." Gill, 913 F.3d at 1187-88 (quoting Motor Vehicle Mfrs., 463 U.S. at 43, 103 S.Ct. 2856).

BACKGROUND

Pak, a citizen of South Korea, was the beneficiary of an I-130 petition with his first wife in 2011 (2011 Petition). USCIS denied the 2011 Petition because it determined there was insufficient evidence establishing the bona fides of marriage. In the adjudication of the 2011 Petition, however, USCIS stopped short of making an affirmative finding that Pak's first marriage was for the purpose of evading immigration laws, i.e., that it was fraudulent.

Pak and Lee have been married since September 9, 2014. Lee, a United States citizen, filed the instant I-130 petition (the Instant Petition) on behalf of Pak in December 2016. In the adjudication of the Instant Petition, USCIS found Plaintiffs' current marriage to be bona fide. Nevertheless, USCIS denied the Instant Petition. The agency based its denial on a finding, made for the first time in the 2018 adjudication of the Instant Petition, that Pak's first marriage was fraudulent because he entered his first marriage for the purpose of evading immigration laws. This finding makes Pak ineligible to be a beneficiary of an immigration petition under 8 U.S.C. § 1154(c) (Immigration and Nationality Act (INA) § 204(c)), which is sometimes called the "marriage fraud bar."¹

Plaintiffs appealed the denial of the Instant Petition to the BIA. Plaintiffs argued that because USCIS had not made an affirmative finding of marriage fraud in adjudicating Pak's 2011 Petition, it was an error for the agency to apply the INA § 204(c) marriage fraud bar to Pak in the adjudication of the Instant Petition. The BIA upheld USCIS' denial of the Instant Petition and dismissed Plaintiffs' appeal. Matter of Pak, 28 I. & N. Dec. 113 (BIA 2020).

On January 22, 2021, Plaintiffs filed this lawsuit. Plaintiffs challenge the denial of the Instant Petition and Pak's I-485 application and allege five claims against Defendants, three under the APA and two under the Due Process Clause of the Fifth Amendment. Plaintiffs' first three claims are based on USCIS' failure to provide the derogatory evidence on which it relied for its determination that Pak's first marriage was fraudulent. Plaintiff brings two of these claims under the APA and one claim under the Due Process Clause. Plaintiffs' fourth and fifth claims challenge USCIS' application of the marriage fraud bar in INA § 204(c) in an adjudication of a second I-130 petition when the agency previously made no affirmative finding of fraud. Plaintiff brings one claim under the Due Process Cause and one claim under the APA.

On June 23, 2021, five months after Plaintiffs filed this action, USCIS asked the BIA to reopen administrative review of the Instant Petition and remand the matter to USCIS for re-adjudication.² If the BIA granted the request, "USCIS [would] provide Plaintiffs the evidence Defendants relied on in concluding that Plaintiff Pak's first marriage was fraudulent; allow Plaintiffs to submit any rebuttal evidence; and re-adjudicate the I-130 Petition." ECF 38 at 2. Upon filing the request to remand with the BIA, Defendants moved to stay the proceedings before this Court to allow the agency to re-adjudicate the Instant Petition.

On June 29, 2021, Plaintiffs opposed Defendants' request for remand before the BIA, even though the request would have provided Plaintiffs with the evidence relied on by USCIS in concluding that Pak's first marriage was fraudulent and allow Plaintiffs to submit rebuttal evidence. Plaintiffs argued that remand would waste time and resources because the important issue was Plaintiffs' contention that Defendants were improperly applying INA § 204(c) to the Instant Petition when no finding of fraud previously had been made on Pak's 2011 Petition. On the same day, Plaintiffs objected to this Court staying this case...