Otero v. Kelly

• Decision Date: 18 July 2017
• Docket Number: No. CIV 16-090-TUC-CKJ,CIV 16-090-TUC-CKJ
• Parties: Carmen Figueroa Otero and Alberto Otero, Plaintiffs, v. John F. Kelly, Secretary for the Department of Homeland Security, et al., Defendants.
• Court: U.S. District Court — District of Arizona

Carmen Figueroa Otero and Alberto Otero, Plaintiffs, v. John F. Kelly, Secretary for the Department of Homeland Security, et al., Defendants.

No. CIV 16-090-TUC-CKJ

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

July 18, 2017

ORDER

Pending before the Court is the Motion for Leave to Take Discovery (Doc. 49) filed by Carmen Figueroa Otero ("Otero") and Alberto Otero (collectively, "the Oteros"). A response (Doc. 51) and a reply (Doc. 53) have been filed. Also pending before the Court is the Motion to Supplement Administrative Record (Doc. 50) and the Motion for Extension of Time and for Status Conference (Doc. 52).

Factual and Procedural Background

On February 16, 2016, Otero filed a Complaint for Declaratory and Injunctive Relief against Jeh Johnson, Secretary for the Department of Homeland Security, Leon Rodriguez, Director for the United States Citizenship and Immigration Services ("CIS"), John Kramer ("Kramer"), District Court Director for the Phoenix CIS, and Julie Hashimoto, Director for the Tucson Field Office of CIS (collectively, "Defendants").¹ Otero alleges she believed in good faith she was a U.S. citizen until approximately May 2013. She further alleges she should be granted classification as an "immediate relative" of her husband, Alberto Otero, who is a U.S. citizen and resident of Marana, Arizona. An "immediate relative" of a U.S. citizen is instantly "eligible to receive an immigrant visa," as long as she can demonstrate she "was inspected and admitted or paroled into the United States." See INA § 201(b), 8 U.S.C. § 1151(b); INA § 245(a), 8 U.S.C. 1255(a).

The United States Department of Homeland Security ("DHS"), Citizenship and Immigration Services, Tucson Field Office ("TFO"), denied Otero's application on September 28, 2015, stating it was denying the application because Otero had not been "inspected and admitted or paroled into the United States," because she had used her improperly-issued U.S. passport to gain entry into the country as a U.S. citizen in May 2013.

Otero requested the matter be reopened or reconsidered on October 16, 2015. Defendants denied Otero's request on December 18, 2015. On June 15, 2016, Defendants issued a decision that states:

. . . USCIS moves to grant the Service Motion to Reopen under 8 CFR 103.5(a)(5) based on the failure to establish whether your false claim to United States citizenship was made knowingly. Thus, the following order is entered:

ORDER: It is ordered that the motion be granted and the I-485 application be returned to a pending status.

Motion for Leave to File Second Amended Complaint, Exhibit K (Doc. 18-12). Otero asserts Defendants had scheduled a re-interview of her for October 28, 2016. Otero asserts:

. . . Subjecting Ms. Figueroa Otero to another interview on the subject of whether she made a knowing false claim to citizenship would transform questioning into interrogation, and would change the nature of the administrative proceedings from non-adversarial to adversarial, which is prohibited. See, e.g., USCIS Adjudicator's Field Manual ("AFM"), Chapter 15.1(a) (2014) ("Interviews conducted by adjudication officers are non-adversarial in nature, as opposed to a court proceeding involving two attorneys where each advocates a particular position."); see also id., Chapter 15.4(a) ("Interview proceedings are not to be adversarial in nature. The purpose of the interview is to obtain the correct information in order to make thecorrect adjudication of the case, not to prove a particular point or to find a reason to deny the benefit sought. The purpose is to cover (and discover) all the pertinent information, both favorable and unfavorable to the applicant.)."

Proposed SAC (Doc. 34), p. 14 (emphasis removed).

On October 27, 2016, this Court granted Otero's request for a temporary restraining order (Docs. 29 and 31). On November 10, 2016, a Second Amended Complaint (Doc. 34) was filed. Plaintiff Alberto Otero was added to the action in the Second Amended Complaint. The Oteros again request preliminary and final injunctive relief and request this Court set aside USCIS' flawed findings of fact and conclusions of law and order the matter remanded to USCIS for readjudication of Otero's adjustment of status application consistent with the Court's findings and order. Alternatively, the Oteros request this Court to issue a judgment declaring that Defendants violated Otero's due process rights by failing to allow her to issue a brief in opposition to Defendants' motion to reopen her proceedings when such reopening may result in an adverse decision against Otero. The Oteros also request the Court retain jurisdiction during the adjudication of the adjustment of status application in order to ensure compliance with the Court's orders and award reasonable costs and attorneys' fees.

Pursuant to an agreement of the parties, the Court ordered the temporary restraining order be converted to a preliminary injunction on November 28, 2016.

On December 28, 2016, Defendants filed a Motion to Dismiss Second Amended Complaint (Doc. 38). A response (Doc. 40) and a reply (Doc. 49) have been filed.

On January 9, 2017, the Court ordered case management deadlines in this case. Included in the Order was a directive that "Plaintiff may file a motion for leave to take discovery after review of the administrative record." January 9, 2017, Order (Doc. 41).

On February 21, 2017, the Oteros filed a Motion for Discovery (Doc. 49). The Oteros assert that at a minimum, Officer Nelson should be subject to deposition. A response (Doc. 51) and a reply (Doc. 53) have been filed. Also on February 21, 2017, the Oteros filed an Unopposed Motion to Supplement Administrative Record (Doc. 50). The Court will grant this unopposed motion.

On March 9, 2017, the Oteros filed a Motion for Extension of Time to File DispositiveMotions and Request for Status Conference (Doc. 52).

Motion for Discovery

The Administrative Procedures Act ("APA") provides for judicial review of any "final agency action for which there is no other adequate remedy in a court." 5 U.S.C. § 704. A reviewing court "shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). In other words:

[An] agency's decision can be set aside if:

the agency has relied on factors which Congress did not intend 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.

Native Vill. of Point Hope v. Jewell, 740 F.3d 489, 495 (9th Cir. 2014) (citation omitted).

Review of agency action under the APA is generally limited to review of the administrative record. 5 U.S.C. § 706 ("In making . . . determinations, the court shall review the whole record or those parts of it cited by a party . . . "). "The reviewing court is to apply the appropriate APA standard of review . . . to the agency decision based on the record the agency presents to the reviewing court." Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985). "[T]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court." Id. (citation omitted). "The 'whole' administrative record . . . consists of all documents and materials directly or indirectly considered by agency decision-makers and includes evidence contrary to the agency's position." Thompson v. United States Dep't of Labor, 885 F.2d 551, 555 (9th Cir. 1989) (further internal quotation marks and citation omitted); Oropeza v. C.I.R., 402 F. App'x 221, 222 (9th Cir. 2010).

"It is widely recognized that agencies, in preparing and submitting administrative records that form the basis for judicial review, enjoy a presumption of regularity." James N. Saul, Overly Restrictive Administrative Records and the Frustration of Judicial Review, 38Envtl. L. 1301, 1311 (2008) (citing Bar MK Ranches v. Yuetter, 994 F.2d 735, 740 (10th Cir. 1993); see also McCrary v. Gutierrez, 495 F. Supp. 2d 1038, 1041 (N.D. Cal. 2007) ("An agency's designation and certification of the administrative record is treated like other administrative procedures, and thus entitled to a presumption of administrative regularity.").

However, the Ninth Circuit has determined that certain circumstances may justify expanding review beyond the record or permitting discovery. Animal Defense Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir. 1988). District courts may consider extra-record evidence in limited circumstances:

(1) if admission is necessary to determine "whether the agency has considered all relevant factors and has explained its decision,"

(2) if "the agency has relied on documents not in the record,"

(3) "when supplementing the record is necessary to explain technical terms or complex subject matter," or

(4) "when plaintiffs make a showing of agency bad faith."

Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005) (citation omitted). The exceptions from the general rule "are narrowly construed and applied." Id. Additionally, the burden is on the party seeking to introduce the extra record materials. San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971, 993 (9th Cir. 2014).

The Oteros assert extra-record information was considered by the agency in this case:

The most significant document in the administrative record that indicates extra-record information was considered by the agency is an email dated March 11, 2014. Doc. 43-2, p. 50. This document contains a limited portion¹ of an email exchange between a Supervisory Detention and Deportation Officer (SDDO), who works for Immigration and Customs Enforcement (ICE) in Phoenix, and a woman named Sherry L. Wheeler who works for the USCIS National Benefits

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