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Caplash v. Johnson

United States District Court, W.D. New York

January 18, 2017

JEH JOHNSON, Secretary, Department of Homeland Security, LEON RODRIGUEZ, Director, U.S. Citizenship & Immigration Service, MARK HAZUDA, Director, USCIS Nebraska Service Center, LORETTA LYNCH, Attorney General of the United States, Defendants.


          Elizabeth A. Wolford, States District Judge


         Over ten years ago, Plaintiff Jolly Manoj Caplash ("Plaintiff) filed a Form 1-130 family-based immigration petition on behalf of his brother with the United States Citizenship and Immigration Service ("USCIS"). Plaintiff later relocated and did not update his address with USCIS. As a result, he did not receive USCIS's request for evidence and notice of the denial of the petition until nearly three years after-the-fact. He filed two motions to reopen his petition, both of which were denied as untimely.

         Plaintiff brings this suit pursuant to the Administrative Procedure Act (the "APA"), 5 U.S.C. §§ 551-559, 701-706, against the Secretary of the Department of Homeland Security, the Director of USCIS, the Director of the USCIS Nebraska Service Center, and the Attorney General of the United States (collectively, "Defendants") and asks this Court to set aside Defendants' denial and subsequent refusals to reopen Plaintiffs Form 1-130 petition. Plaintiff contends that USCIS sent notices to an address that it knew was defunct, and thus he never had an opportunity to provide the additional information requested by USCIS. Defendants contend that Plaintiff failed to notify USCIS about his updated address, and thus they were under no obligation to take further steps to provide Plaintiff with reasonable notice before denying the Form 1-130 petition.

         Because Plaintiff was deprived of due process by Defendants' decision to deny his Form 1-130 petition, the Court grants Plaintiffs motion for summary judgment in part (Dkt. 18) and remands the case to USCIS with directions that Plaintiffs priority date be restored, Plaintiff be provided with a reasonable opportunity to provide the additional evidence requested by USCIS, and USCIS re-adjudicate Plaintiffs Form 1-130 petition in accordance with this Decision and Order.


         The following facts are undisputed and drawn from the parties' Rule 56 Statements of Fact unless otherwise noted.

         Plaintiff, born Manoj Kaplash, changed his name to Jolly Manoj Caplash upon his naturalization as a United States citizen on February 20, 2003. (Dkt. 18-2 ¶ 1; Dkt. 21-2 at 1). On or about March 10, 2004, while residing in Gaithersburg, Maryland, Plaintiff filed a Form 1-130 family-based immigration petition with USCIS on behalf of his brother, Rupinder Kaplash.[1] (Dkt. 18-2 ¶ 2; Dkt. 21-2 at 1). At the time, Plaintiff was not represented by counsel. (Dkt. 18-2 ¶ 3; Dkt. 21-2 at 1). On March 20, 2004, the USCIS Vermont Service Center confirmed receipt of the petition, as indicated by a Form 1-797 receipt notice sent to Plaintiffs home in Maryland. (Dkt. 18-2 ¶ 4; Dkt. 21-2 at 1).

         Plaintiff and Defendants dispute whether the Form 1-797 informed Plaintiff of the need to update USCIS regarding changes in his address. (Dkt. 18-2 ¶ 5; Dkt. 21-2 at 1-2). The form stated: "The above application or petition has been received. It normally takes 150 to 999 days from the date of this receipt for us to process this type of case. Please notify us immediately if any of the above information is incorrect." (Administrative Transcript (hereinafter "Tr.") 10, 181).

         Plaintiff relocated to Rochester, New York in July 2005, where he accepted a position as an oral and maxillofacial surgeon. (Dkt. 18-2 ¶ 6; Dkt. 21-2 at 2). He changed his address with the United States Postal Service (the "USPS"), believing that this action would sufficiently notify the federal government, including USCIS, of his new address. (Dkt. 18-2 ¶ 7; Dkt. 21-2 at 2). When Plaintiff filed the Form 1-130 petition in 2004, he knew that there was a substantial waiting period for family-based, fourth-preference immigrant visas and that it would probably take many years, even a decade, before such a visa would become available for his brother. (Dkt. 18-2 ¶ 8; Dkt. 21-2 at 2). Thus, he was not surprised when he did not receive communication from USCIS regarding the petition. (Dkt. 18-2 ¶ 8; Dkt. 21-2 at 2). Plaintiff filed federal tax returns each year, listing his current mailing address, and his oral surgery practice website listed his name, telephone number, office address, fax number, and email address. (Dkt. 18-2 ¶¶ 9-10; Dkt. 21-2 at 2).

         In March 2013, Plaintiff hired an immigration attorney to follow up with USCIS about the status of his Form 1-130 petition filed on behalf of his brother. (Dkt. 18-2 ¶ 11; Dkt. 21-2 at 2). As of April 2, 2013, USCIS's case status website indicated that Plaintiffs case was still under "Initial Review" and that USCIS had not made a decision. (Dkt. 18-2 ¶ 12; Dkt. 21-2 at 2). The site also stated: "On September 3, 2010, the post office returned the notice we last sent you on this case. . . . This may have serious effects on processing this case, " and included a phone number to call to update the address on file and have the notice resent. (Tr. 186).[2]

         Plaintiff, through his attorney, submitted a Form G-639 Freedom of Information Act ("FOIA") request on May 14, 2013, to learn more about the status of the case, requesting copies of materials relating to his 2004 Form 1-130 petition. (Dkt. 18-2 ¶ 14; Dkt. 21-2 at 2). On May 28, 2013, the USCIS National Records Center denied the FOIA request pursuant to 5 U.S.C. § 552(b)(6) by letter, stating that Plaintiffs request constituted an unwarranted invasion of his brother's personal privacy. (Dkt. 18-2 ¶ 15; Dkt. 21-2 at 2). On June 10, 2013, Plaintiff renewed his FOIA request by letter, stating that he was requesting copies only of records relating to the petition that he had filed himself and was not seeking to invade his brother's personal privacy. (Dkt. 18-2 ¶ 16; Dkt. 21-2 at 2). On June 19, 2013, the USCIS National Records Center denied Plaintiffs second FOIA request under 5 U.S.C. § 552(b)(6), stating that the FOIA request constituted an unwarranted invasion of Plaintiff s brother's privacy. (Dkt. 18-2 ¶ 17; Dkt. 21-2 at 2).

         After several unsuccessful attempts, Plaintiffs attorney was able to speak with a USCIS officer on July 16, 2013, regarding the 1-130 petition and to update the address on file and resolve any other issues. (Dkt. 18-2 ¶ 18; Dkt. 21-2 at 2). Following this call, an email notice from USCIS on July 19, 2013, provided Plaintiff with his first notice that USCIS had denied his Form 1-130 petition nearly three years earlier, on August 20, 2010. (Dkt. 18-2 ¶18; Dkt. 21-2 at 2).

         On August 7, 2013, Plaintiff filed a third FOIA request, including notarized letters from his brother and himself, authorizing the release of the case file. (Dkt. 18-2 ¶ 19; Dkt. 21-2 at 2). On August 9, 2013, already aware that USCIS had denied his petition but prior to receipt of the case file, Plaintiff filed a motion to reopen and reconsider the denial of his 1-130 petition. (Dkt. 18-2 ¶ 20; Dkt. 21-2 at 2; Tr. 176). In the motion, Plaintiff explained that he had not received any notices or correspondences in the case and, when he first learned through the USCIS website that a notice had been returned as undeliverable, he immediately took action to determine the nature of the returned notice and status of the case. (Dkt. 18-2 ¶ 20; Dkt. 21-2 at 2).

         On August 15, 2013, the USCIS National Records Center denied Plaintiffs third FOIA request by letter for lack of verification of identity in the form of a letter stating the full name, current address, and date and place of birth of the record's subject. (Dkt. 18-2 ¶ 21; Dkt. 21-2 at 2). On September 16, 2013, Plaintiff filed a fourth FOIA request with notarized statements and verifications of identity for himself and his brother. (Dkt. 18-2 ¶ 22; Dkt. 21-2 at 2). Finally, by letter dated November 29, 2013, the USCIS National Records Center granted Plaintiffs fourth FOIA request--over six months after Plaintiff first attempted to obtain information from USCIS-and produced an 18-page record, which stated that the record consisted of the best reproducible copies of all records responsive to Plaintiffs request, released in full. (Dkt. 18-2 ¶ 23; Dkt. 21-2 at 2).

         The FOIA case file included a July 17, 2009 notice from USCIS of the transfer of Plaintiffs case to the Nebraska Service Center; the notice had been mailed to Plaintiffs previous address in Maryland and returned to USCIS as undeliverable. (Dkt. 18-2 ¶ 24; Dkt. 21-2 at 2). The returned mail stated in handwriting, "Moved out at least 10 months ago (if he/she ever lived here)." (Dkt. 18-2 ¶ 24; Dkt. 21-2 at 2). The case file also included a June 24, 2010 Request for Evidence ("RFE") letter, which had also been mailed to Plaintiffs Maryland address and returned with a handwritten note stating, "moved years ago." (Dkt. 18-2 ¶ 25; Dkt. 21-2 at 2). This RFE letter in the case file indicated that the "documentation submitted is not sufficient to warrant favorable consideration of the petition" and instructed the reader to "see Attachment for Details, " though the letter in the case file contained no such attachment.[3] (Dkt. 18-2 ¶ 26; Dkt. 21- 2 at 2). The FOIA case file also included a letter from August 20, 2010-issued two months after the RFE letter-denying the 1-130 petition for failure to respond to the RFE, which was mailed to Plaintiffs Maryland address and returned with the handwritten note, "MOVED LONG AGO . . . AWAY." (Dkt. 18-2 ¶ 27; Dkt. 21-2 at 2).

         Plaintiff made three attempts to update his pending motion to reopen and reconsider to include the case file materials received through the FOIA request, by letters dated December 20, 2013, December 23, 2013, and January 13, 2014. (Dkt. 18-2 ¶ 28; Dkt. 21-2 at 2). USCIS denied Plaintiffs motion to reopen and reconsider his 1-130 petition by letter dated January 14, 2015, stating that the motion to reopen was untimely because it was not made within 30 days of the denial and because Plaintiff gave no excusable reason for the delay. (Dkt. 18-2 ¶ 29; Dkt. 21-2 at 2). Plaintiff filed a new motion to reopen on or about February 13, 2015, which included materials from the FOIA case file and noted that the RFE letter in the FOIA materials failed to specify any deficiency in the originally submitted evidence. (Dkt. 18-2 ¶ 30; Dkt. 21-2 at 2). USCIS denied this second motion on August 19, 2015, by letter. (Dkt. 18-2 ¶ 31; Dkt. 21-2 at 2).

         The administrative record shows no attempt by USCIS to locate Plaintiff before denying his petition, though it does show that USCIS updated its case status website with information about the mail returned from Plaintiffs Maryland address by at least April 2, 2013. (Dkt. 18-2 ¶¶ 12, 33; Dkt. 21-2 at 2; Tr. 186). Ultimately, USCIS denied Plaintiffs 1-130 petition based on his failure to respond to correspondence that USCIS knew he had never received. (Dkt. 18-2 ¶ 34; Dkt. 21-2 at 2).


         On December 29, 2015, Plaintiff commenced this proceeding. (Dkt. 1). The administrative record was filed on April 28, 2016 (Dkt. 14), and Plaintiff moved for summary judgment on June 9, 2016 (Dkt. 18). Defendants moved for summary judgment on July 7, 2016 (Dkt. 21), and Plaintiff and Defendants each responded on July 21, 2016, and July 28, 2016, respectively (Dkt. 22; Dkt. 23). Oral argument was held before the undersigned on October 28, 2016, and Plaintiff provided a supplemental submission on November 28, 2016 (Dkt. 26), with Defendants following suit on November 29, 2016 (Dkt. 27).



         A. Standard of Review

         Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be granted if the moving party establishes "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 Court should grant summary judgment if, after considering the evidence in the light most favorable to the nonmoving party, the court finds that no rational jury could find in favor of that party. See Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.'" Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (emphasis in original) (quoting Matsushita Elec, 475 U.S. at 586-87). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). Here, both parties agree that there is no dispute as to the material facts and that summary judgment is appropriate-but they disagree as to the legal conclusions that this Court should reach based on those undisputed material facts.

         B. Immigration and Nationality Act Statutory Background

         The Immigration and Nationality Act (the "INA") specifies:

(1) a worldwide limitation on the total number of family-sponsored immigrant visas issued each year, 8 U.S.C. § 1151(c); (2) preference categories for certain types of family members of citizens and [lawful permanent residents], id. § 1153(a); (3) numerical limitations on the number of family-sponsored immigrant visas in each family preference category, id.; and (4) a generally uniform limitation that natives of any single foreign state not constitute more than 7% of the visas granted to family-sponsored immigrants, id. § 1152(a)(2).

Li v. Renaud, 654 F.3d 376, 377 (2d Cir. 2011). While the numerical limitations relating to the country or worldwide number of visas granted per year do not apply to children under the age of 21, [4] spouses, or parents of United States citizens, see 8 U.S.C. §§ 1151(b)(2)(A)(i), [5] 1152(a)(2), [6] 1153(a), [7] they do apply to all other qualifying relatives. See 8 U.S.C. §§ 1151(a), 1151(c), 1152(a)(2), 1153(a). These other qualifying relatives are allocated into four preference groups: (1) unmarried sons and daughters of United States citizens; (2) spouses and unmarried sons and daughters of permanent resident aliens; (3) married sons and daughters of United States citizens; and (4) brothers and sisters of citizens. 8 U.S.C. § 1153(a)(1)-(4). These visas are subject to the worldwide limitations, per-country limitations, and to limitations on the total number of visas that will be issued in each preference category. Id.; 8 U.S.C. §§ 1151(a); 1152(a)(2).

         A family sponsor who is either a United States citizen or a lawful permanent resident may file a petition under 8 U.S.C. § 1154(a)(1) on behalf of an alien relative, and USCIS will assess the petition to determine whether the alien on behalf of whom the petition is made is eligible for preference. See 8 U.S.C. § 1154(a)(1). If so, USCIS "shall . . . approve the petition." 8 U.S.C. § 1154(b). This approval "does not automatically cause the agency to issue a visa or grant permanent lawful resident status to the beneficiary; instead, the beneficiary receives a place in line to wait for a visa." Li, 654 F.3d at 378. These visas are issued on a first-come-first-served basis within the preference groups based on the date that the petition was filed (the "priority date"). Id. It is not uncommon for immigrants from countries where family-sponsored petitions far exceed the numerical limitations, to wait a decade or more to receive a visa after USCIS grants the petition. Id.

         If a petition is denied due to abandonment, such a denial may not be appealed, but the petitioner may file a motion to reopen under 8 C.F.R. § 103.5. See 8 C.F.R. § 103.2(b)(15). Such a denial does not preclude the petitioner from filing a new benefit request with a new fee, but the priority date of the abandoned benefit request may not be applied to the new application. See Id. In other words, if a petition is deemed abandoned, the petitioner loses his place in line.

         C. Administrative Procedure Act Statutory Background

          The APA provides that "[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review, " 5 U.S.C. § 704, and gives standing to any "person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action." 5 U.S.C. §702.

[T]he reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. . . . The reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be-(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; [or] (B) contrary to constitutional right, power, privilege, or immunity. . . .

5 U.S.C. § 706(2)(A)-(B). "In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error." 5 U.S.C. § 706. "In reviewing an agency's disposition of constitutional issues, a district court need not defer to the agency's decision; in fact, it must engage in a de novo review." Sanders v. Szubin, 828 F.Supp.2d 542, 548 (E.D.N.Y. 2011) (citing Cablevision Sys. Corp. v. Fed. Commc'ns Comm'n, 570 F.3d 83, 91 (2d Cir. 2009)). However, when reviewing an action under the arbitrary and capricious standard of § 706(2)(A), "the review is deferential and, although a reviewing court 'must hold unlawful and set aside any agency action found to be arbitrary [and] capricious, . . .' the scope of this review is 'narrow, ' . . . and courts should not substitute their judgment for that of the agency under review." Id. (quoting Karpova v. Snow, 497 F.3d 262, 267 (2d Cir. 2007)) (citing Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).

         D. USCIS Violated Plaintiffs Constitutional Right to Due Process[8]

         1. Plaintiffs Form 1-130 Petition is Entitled to ...

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