ILW.COM - the immigration portal Immigration Daily

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers

Home Page

Advanced search


Immigration Daily

Archives

Processing times

Immigration forms

Discussion board

Resources

Blogs

Twitter feed

Immigrant Nation

Attorney2Attorney

CLE Workshops

Immigration books

Advertise on ILW

VIP Network

EB-5

Chinese Immig. Daily

About ILW.COM

Connect to us

Make us Homepage

Questions/Comments


SUBSCRIBE

Immigration Daily

 

Chinese Immig. Daily



The leading
immigration law
publisher - over
50000 pages of free
information!

Copyright
©1995-
ILW.COM,
American
Immigration LLC.

Immigration Daily: the news source for
legal professionals. Free! Join 35000+ readers
Enter your email address here:



< Back to current issue of Immigration Daily

Discussing District Court Standards In Reviewing USCIS Denials Of Certain Applications & Petitions

by Joseph Whalen

U.S. District Judge Ann D. Montgomery in the United States District Court for the District of Minnesota recently penned a well-written Memorandum Opinion and Order in Civil Case No. 11-2447, which was issued March 20, 2012[1] . It is worth reading merely for the clear discussion of the standards that she employed in rendering this decision even if you (like me) have absolutely no interest (personal or otherwise) in the outcome of this particular case.

Here is an excerpt from Alliance Home Health Care and Nursing Services, LLC et al v. Melville et al:

III. DISCUSSION
    A. Standard of Review
    1. Summary Judgment

Federal Rule of Civil Procedure 56(a) provides that summary judgment shall be granted if "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); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing Fed. R. Civ. P. 56(c)).3 On a motion for summary judgment, the court views the evidence in the light most favorable to the nonmoving party. Ludwig, 54 F.3d at 470. The nonmoving party, however, may not "rest on mere allegations or denials, but must demonstrate on the record the existence of specific facts which create a genuine issue for trial." Krenik v. Cnty. of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995).

2. Motion to Dismiss

A motion to dismiss a complaint for failure to state a claim is governed by Rule 12 of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 12(b)(6). In considering a Rule 12(b)(6) motion, the court views the pleadings in the light most favorable to the nonmoving party and treats the alleged facts as true. See Ossman v. Diana Corp., 825 F. Supp. 870, 879-80 (D. Minn. 1993). Conclusions of law made by the nonmoving party, however, are not "blindly accept[ed]." _________________________________________________________

    3 The summary judgment standard was previously located in Rule 56(c).
[page 5]

Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990). A Rule 12(b)(6) motion to dismiss is granted when the factual allegations, even assumed to be true, do not entitle that party to relief. See, e.g., Taxi Connection v. Dakota, Minn. & E. R.R. Corp., 513 F.3d 823, 826-27 (8th Cir. 2008).

Pleadings must "contain a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). Rule 8(a) has been interpreted to mean that a pleading must allege "enough facts to state a claim of relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). To satisfy the standard of facial plausibility, a claim must "plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). This plausibility determination is "context-specific" and "requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950. However, "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but not 'shown'-'that the pleader is entitled to relief.'" Id. (quoting Fed. R. Civ. P. 8(a)(2)).

3. Review of USCIS Decision

The standard of review for an agency decision under the Administrative Procedure Act ("APA") is whether the agency action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); United States v. Bean, 537 U.S. 71, 77 (2002). "The scope of review under the 'arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983). The agency must articulate

[page 6]

a "rational connection between the facts found and the choice made." Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc. 419 U.S. 281, 286-87 (1974) (citation omitted).

B. USCIS Decision

Plaintiffs argue no material facts are in dispute, that USCIS applied a higher standard of evidence than preponderance of the evidence, and that Defendants' denial of the I-129 and I-539 applications was "unlawful, oppressive and an arbitrary and capricious abuse of power." Pls.' Mem. in Supp. of Mot. for Summ. J. [Docket No. 13] 15-16. Defendants aver that Plaintiffs fail to state a claim upon which relief can be granted, and that no genuine issue exists because the agency's decision was based on a rational consideration of relevant factors, and that the decision was not in clear error. See Mem. in Supp. of Defs.' Mot. [Docket No. 8]. These arguments are discussed below."

* * * * *

As stated above, the actual decision in this particular case is of no interest to this writer or of any value to the point of this article however, the challenge to that USCIS H1-B denial was dismissed. Basically the petitioner tried to pass off a bookkeeper as an accountant. They claimed that this small in-home healthcare provider needed a specialized accountant. They only have 49 employees and 250 to 300 "clients" at any one time for whom they provide care. Payroll and billing for so few employees (most of whom are probably part-time workers) and so few clients (most of whom probably merely requiring a small amount of assistance perhaps with bathing, light housekeeping/cooking, and shopping or getting to doctors' appointments) sure does not seem to me like it would even require a full-time bookkeeper let alone a "specialty occupation" variety of accountant. Enough said on that.

As for Judge Montgomery's discussion in which she explained the standards, I find it very informative and thankfully succinct. In that we are still waiting for USCIS to issue its overdue Notice of Proposed Rulemaking (NPRM) on its much anticipated AAO reforms, we need to look to wherever information is to be found. AAO would not be wasting its time looking at some of these well-written and well-reasoned District Court decisions. It is interesting to me that this Court also found value in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)[2] . Practitioners representing clients should anticipate assessments of the evidence it presents under these same standards and prepare cases accordingly from the very beginning. It may be the official District Court rules under discussion above but the actual adjudications by the USCIS adjudicators and then the AAO Appeals Officers will be performed in almost identical fashion for practical purposes. Yes, the USCIS Officers will be primarily looking at classification specific 8 CFR sections with some narrow INA references (especially where actual terms are defined by the statute) but the mechanics of the benefit adjudication should closely mirror what Judge Montgomery did. While she primarily looked at the descriptions of the evidence submitted as described in the competing briefs, it is also possible that, depending on how much of the administrative record was included; she may have reexamined (copies of) the exact same evidence that USCIS already examined, in order to reach her conclusions. A solidly supported petition or application need only convince the first Officer who reviews it. Questionable petitioners, beneficiaries and/or positions, or merely poorly prepared submissions will likely have to be appealed after denial and further supplemented and thereby eventually have to overcome specific objections and ultimately convince additional Officers or a Judge. Poor initial case preparation is a road best not travelled at all.

Another District of Minnesota Judge has also been a great source of well-written explanations of various standards of review. Judge Patrick J. Schiltz, like Judge Ann D. Montgomery, has explained jurisdictional issues in a manner that is also quite clear, concise and highly instructive.

Here is an excerpt from Ali v. Frazier, 575 F. Supp. 2d 1084 - Dist. Court, Minnesota 2008[3] , in which Judge Schiltz also cites Bell Atlantic, but instead for the purpose of finding APA and mandamus subject matter jurisdiction in a long delayed naturalization application (N-400).

"In evaluating a motion to dismiss, this Court must accept as true the complaint's factual allegations and then determine whether those allegations show that the plaintiff is entitled to relief. Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir.2008). The plaintiff must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007). But even under this standard, "detailed factual allegations" are not necessary to survive a motion to dismiss. Id. at 1964; see also Limestone Dev. Corp. v. Village of Lemont, 520 F.3d 797, 803 (7th Cir.2008) ("Bell Atlantic must not be overread.")."

In the above excerpt the language as to one being "entitled to relief" was a reference to a mandamus order rather than to naturalization which was not the point at issue before the Judge at that time. He was deciding whether he had the authority to "compel" the government agency or officer to "perform a duty owed" to the petitioner (N-400 applicant) to "make a decision". In other words, the Judge found jurisdiction to order USCIS to proceed with the adjudication having found that it had "failed to act" and compelled it to do so now.

5 USC §1361. Action to compel an officer of the United States to perform his duty

The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff. (Added Pub. L. 87-748, §1(a), Oct. 5, 1962, 76 Stat. 744.)

I have previously written about Judge Schiltz' excellent work in clarifying a subject which is ancillary to this matter but is also within the area of naturalization law, specifically the adjudication of issues arising post naturalization. In a case seeking to change a date of birth on a naturalization certificate after the person had been naturalized for a number of years, this judge made an excellent study of the case law in adjudication of the form N-565, Application for Replacement Naturalization/Citizenship Document. That case was Hussain v. U.S. Citizenship & Immigration Servs., 541 F. Supp. 2d 1082 (D. Minn. 2008)[4] , AAO has been relying on this decision in its decisions on appeals of N-565s, I wrote about it in comments submitted to DHS in connection to the "Retrospective Regulatory Review", and eventually, USCIS repealed outdated regulations on this subject matter in the USCIS Transformation Rule, Increment I, 76 FR 53764-53806 (Aug. 29, 2011) as follows:

"In addition, several expired and obsolete naturalization-related regulatory provisions have been removed, including 8 CFR: 312.3(a) (standardized citizenship testing), 329.5 (natives of the Philippines with active duty service during World War II), 332.2 (establishment of photographic studios), 334.16-334.18 (naturalization petitions), 335.11-335.13 (naturalization petitions), 338.11 and 338.12 (naturalization court processes), 339.2(c) (reports relating to petitions filed prior to October 1, 1991), and 340.1 (reopening of a naturalization application by a district director pursuant to section 340(h) of the Act)." At p. 53769 [Emphasis added.]

The specific, problematic, outdated regulation at 8 CFR § 334.16(b) was repealed. USCIS is actively working on a long overdue AAO rule. This and numerous other subjects may be included in that overdue rule. See "Administrative Appeals Office: Procedural Reforms To Improve Efficiency", 1615-AB98[5] for further details.

8 CFR § 334.16 Amendment of petition for naturalization.
* * * * *

(b) After final action on petition. Whenever an application is made to the court to amend a petition for naturalization after final action thereon has been taken by the court, a copy of the application shall be served upon the district director having administrative jurisdiction over the territory in which the court is located, in the manner and within the time provided by the rules of court in which application is made. No objection shall be made to the amendment of a petition for naturalization after the petitioner for naturalization has been admitted to citizenship if the motion or application is to correct a clerical error arising from oversight or omission. A representative of the Service may appear at the hearing upon such application and be heard in favor of or in opposition thereto. When the court orders the petition amended, the clerk of court shall transmit a copy of the order to the district director for inclusion in the Service file.

[22 FR 9819, Dec. 6, 1957, as amended at 32 FR 9635, July 4, 1967; 45 FR 10313, Feb. 15, 1980; 56 FR 50496, Oct. 7, 1991]

Petitions To Amend Certificates Of Naturalization:

Various applicants have taken USCIS to court seeking orders to amend their certificate of naturalization as to their dates of birth. As examples, see: Hussain v. U.S. Citizenship & Immigration Servs., 541 F. Supp. 2d 1082 (D. Minn. 2008); Kouanchao v. U.S. Citizenship & Immigration Servs., 358 F. Supp. 2d 837, 840 (D. Minn. 2005); In re Yu Hong Ting, 446 F. Supp. 203, 204 (S.D.N.Y. 1978); In re Konsh, 188 F. Supp. 136, 138 (E.D.N.Y. 1960). Hussain in particular is very well-written and could be used as a guide to re-writing the regulations.

Specific Court Criticism Of The Regulations:

Hussain was decided by United States District Judge Patrick J. Schiltz on March 27, 2008, in Minnesota. He performed a painstaking analysis on the topic and was rather critical of the regulations. The whole decision is worth reading but here are just a few excerpts.

In discussing 8 CFR § 334.16(b), Judge Schiltz wrote:

"This regulation specifies certain procedural requirements, but it provides virtually nosubstantive guidance to a court that is asked to order USCIS to issue an amended certificate of naturalization. Indeed, the regulation does not even directly address certificates of naturalization, but instead discusses the process for amending petitions for naturalization, including those petitions that have already been granted. Because amending an already-granted petition for naturalization seems like an oddly indirect way to go about obtaining an amended certificate of naturalization, the Court asked the parties if they had been able to identify any reason for this procedure. Both parties admitted that they had not……"

"First, the parties agree that Hussain is not seeking a review of USCIS's decision to deny his application for an amended certificate. ...."

"Thus, both parties agree that USCIS lacks the power to make the change that Hussain seeks - and that, as a result, the Court owes no deference to USCIS's decision[6] to deny Hussain's application for an amended certificate.

Second, as noted, the regulation under which Hussain seeks relief - 8 C.F.R. § 334.16(b) -on its face gives courts the power to amend petitions for naturalization, but not the power to amend certificates of naturalization. The government concedes[7] , however, that § 334.16(b) implicitly gives the Court the power to order USCIS to issue Hussain an amended certificate of naturalization." [Emphasis added.]

Judicial Need For Regulatory Guidance:

Following an exhaustive legal and factual analysis of numerous cases from around the country and spanning decades, Judge Schiltz drew some very insightful conclusions. USCIS would be well served to take advantage of the detailed work done already.

Judge Schiltz concludes his analysis thusly:

"In sum, each of the relevant cases involves unique facts - facts reflecting the unique paths to citizenship taken by the various petitioners. As a result, distilling a set of abstract legal principles from these decisions is difficult. ....

In general, though, it appears that courts have granted petitions to amend when:

(1) there is clear and convincing evidence[8] that the birth date on the certificate of naturalization is wrong;

(2) there is little or no evidence that the petitioner acted fraudulently or in bad faith either when he or she initially provided the incorrect birth date to immigration authorities or when he or she later sought to amend the certificate of naturalization; and

(3) there is reliable evidence supporting the birth date that the petitioner now alleges is correct." [Emphasis added with formatting edited slightly.]

The foregoing excerpts of analyses, synthesis, and comments are examples of the guidance and wisdom to be found within the various well-written District Court decisions under various provisions of the INA and other relevant statutes controlling reviews thereof. In preparing any case for submission to USCIS, I believe that it is wise and prudent to aim for success under the review standards discussed above. I can't stress enough just how critical proper case preparation and presentation is towards the achieving the desired routine of timely adjudication decisions plus the added bonus of an increase in favorable initial decisions. While the ultimate approval and denial rates would not likely change, the number of favorable outcomes achieved in the initial process would likely increase and a proportional commensurate volume of administrative appeals and motions should decrease. Well, at least that's one man's opinion. Best wishes and good luck!


Footnotes


1http://docs.justia.com/cases/federal/district-courts/minnesota/mndce/0:2011cv02447/121882/21/0.pdf?ts=1332333960
2Thts same U.S. Supreme Court case was recently relied upon in Gene's Machines, Inc., et al. v. DHS, et al., Civil Action No. V-11-4 (S.D. TX-Victoria Div., March 28, 2012) which I wrote about in my essay at: http://www.slideshare.net/BigJoe5/among-other-things-part-ii-heightened-pleading-standard
3http://scholar.google.com/scholar_case?case=1085793417976949399&q=Ali+v.+Frazier,+575+F.Supp.2d+1084&hl=en&as_sdt=2,33&as_vis=1
4http://www.leagle.com/xmlResult.aspx?xmldoc=20081623541FSupp2d1082_11519.xml&docbase=CSLWAR3-2007-CURR
5http://www.regulations.gov/#!documentDetail;D=DHS-2012-0005-0001
68 CFR § 334.16(b) "... A representative of the Service may appear at the hearing upon such application and be heard in favor of or in opposition thereto…." If USCIS objects, it may institute revocation proceedings per INA § 340 before reaching the N-565 Court Proceeding or may request a continuance at this point to begin revocation.
7Such concessions make clear that the Government realizes that the regulations are inadequate and out of date.
8Footnote in original: Few courts have actually used the phrase "clear and convincing evidence," but that, in reality, is the standard of proof that most courts seem to have applied. In almost every case in which a petition has been granted - whether the court purported to apply the unequivocal evidence standard (which seems to be just another name for the clear-and-convincing evidence standard), the good-cause standard, or something else. it appears that the petitioner in fact presented clear and convincing evidence that the birth date on his or her certificate was incorrect.


About The Author

Joseph P. Whalen Is not an attorney. He is a former government employee who is familiar with the INA. His education is in Anthroplogy with a concentration in Archaeology and has both a BA (from SUNY Buffalo) and an MA (from San Francisco State University) in Anthroplogogy. He previously worked as an Archaeologist for the U.S. Forest Service before becoming an Adjudicator with INS which became USCIS.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


Immigration Daily: the news source for
legal professionals. Free! Join 35000+ readers
Enter your email address here: