United States District Court, W.D. New York
DECISION AND ORDER
Elizabeth A. Wolford, States District Judge
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.
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.
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.
following facts are undisputed and drawn from the
parties' Rule 56 Statements of Fact unless otherwise
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. (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).
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).
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).
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).
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).
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).
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).
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
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. (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).
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).
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).
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).
I. MOTION FOR SUMMARY JUDGMENT
Standard of Review
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.
Immigration and Nationality Act Statutory Background
Immigration and Nationality Act (the "INA")
(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. §
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,  spouses, or parents of United
States citizens, see 8 U.S.C. §§
1151(b)(2)(A)(i),  1152(a)(2),  1153(a),  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).
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 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.
Administrative Procedure Act Statutory Background
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
[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)).
USCIS Violated Plaintiffs Constitutional Right to Due
Plaintiffs Form 1-130 Petition is Entitled to ...