Akopyan v. Sessions

          ORDER

          R. BROOKE JACKSON, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the plaintiffs' motion for summary judgment [ECF No. 40]. Because the Local Rules of Practice of the District of Colorado do not permit motions for summary judgment in Administrative Procedure Act cases, D.C.COLO.LAPR 16.1(b), the parties have agreed to treat plaintiffs' motion for summary judgment as an opening brief. Plaintiffs are appealing from a September 10, 2015 decision of the Board of Immigration Appeals (“BIA”), affirming the February 9, 2015 decision of the United States Citizen and Immigration Services' to deny Plaintiff Simonyan's I-130 petition for alien relative filed on behalf of her spouse, Plaintiff Akopyan.

         I. BACKGROUND

         This case arises out of the United States Citizen and Immigration Services' (USCIS) denial of two I-130 Petitions for Alien Relatives filed for the benefit of Vachagan Akopyan. An I-130 petition is filed by a U.S. Citizen or lawful permanent resident (“LPR”) on behalf of an alien relative to permit that relative to adjust status and become a lawful permanent resident in the United States. USCIS initially adjudicates I-130 petitions. 8 U.S.C. § 1154; 8 C.F.R. § 204.1(a)(1), (b). If a USCIS officer determines the petition lacks sufficient evidence to grant, the officer will issue a Notice of Intent to Deny (“NOID”) that specifies “the type of evidence required . . . or the bases for the proposed denial sufficient to give the applicant or petitioner adequate notice and sufficient information to respond.” 8 C.F.R. §103.2(b)(8)(iv). If USCIS denies the petition, the officer notifies the petitioner of the reasons for the denial and of the right to appeal to the Board of Immigration Appeals (“BIA”). 8 C.F.R. §204.2(a)(3); 8 C.F.R. §§ 1003.1(b)(5), 1003.3(a)(2).

         In 2008, Chelsea Taylor, a United States citizen, filed an I-130 Petition for Alien Relative on behalf of plaintiff Mr. Akopyan, her husband at the time. ECF No. 35, Administrative Record [AR] at 226-27, 236-40. Three years later, in November 2011, Mr. Akopyan and Ms. Taylor divorced. At this point in time, USCIS had not rendered any decision on the I-130 petition filed in 2008. Then, in December 2011, Mr. Akopyan married Armenuhi Simonyan. Id. at 172. Ms. Simonyan filed an I-130 petition for Plaintiff Akopyan. Id. at 164-67. Two years later, in May 2013, USCIS interviewed Ms. Taylor by telephone regarding her terminated marriage to Mr. Akopyan. Id. at 321. Based on that interview, USCIS determined that the marriage between Ms. Taylor and Mr. Akopyan was for the sole purpose of circumventing immigration laws. Id. at 222-24. USCIS denied the petition Ms. Taylor filed five years prior, stating that the petition was denied both because the couple divorced and because they determined the existence of marriage fraud. Id. Mr. Akopyan was not notified of this denial, as attempts to mail the decision to him were unsuccessful. ECF No. 27 at 5.

         In December 2014, USCIS issued a Notice of Intent to Deny (NOID) letter to Ms. Simonyan regarding the I-130 petition she filed for her husband in 2012. Even where a valid marriage exists, USCIS will not approve an I-130 petition if fraud or attempted fraud by the alien beneficiary of the I-130 petition in a prior marriage is evident in the record. 8 U.S.C. §1154(c). USCIS's finding of fraud in the previous marriage between Mr. Akopyan and Ms. Taylor was the basis for denial of the I-130 petition filed by Ms. Simonyan for Mr. Akopyan in 2012. ECF No. 41 at 3.

         On January 7, 2014, plaintiffs responded to the Notice of Intent to Deny Ms. Simonyan's I-130 petition by submitting documents and photographs that intended to establish Mr. Akopyan did indeed reside with Ms. Taylor as her husband in Maine and in Colorado. AR at 81-161. In September 2014, USCIS then interviewed Ms. Taylor a second time. In this interview Ms. Taylor provided a written sworn statement answering questions about her marriage to Mr. Akopyan. Id. at 315-20. Based on this interview and an ICE investigation into a marriage fraud scheme orchestrated by Bozhidar Bakalov that uncovered documents tying Ms. Taylor and Mr. Akopyan to this scheme as “customers, ” USCIS issued another NOID to Ms. Simonyan on December 8, 2014. Id. at 76-80. This NOID provided 30 days for the petitioner to submit any further evidence to overcome the reasons for denial. Id. at 79. Plaintiffs sought extension of this deadline, and USCIS denied this request and issued a denial of the I-130 petition. Id. at 54-60. Plaintiffs then appealed this decision to the Board of Immigration Appeals (“BIA”). Id. at 40. The BIA affirmed USCIS's denial. Id. at 3-6.

         On November 20, 2017 plaintiffs filed their First Amended Complaint, ECF No. 27, the operative complaint here, asking for an order to set aside the BIA decision denying Plaintiffs' I-130 visa petition under the Administrative Procedures Act and a declaration that the decision violated the Due Process Clause of the Fifth Amendment. In January, Defendants submitted the complete administrative record. ECF No. 35. Plaintiffs filed a motion for summary judgment that the parties agreed to treat as an opening brief, ECF No. 40, and Defendants filed a response, ECF No. 41. Plaintiffs did not file a reply within the deadline. This issue has been fully briefed and is ripe for review.

         II. STANDARD OF REVIEW

         A. Administrative Procedure Act

         Under the APA, a reviewing court will “hold unlawful and set aside agency action, findings, and conclusions” that it finds to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). In addition to alleging that the denial of the 2008 and 2012 I-130 petitions were arbitrary and capricious, plaintiffs also challenge the denials under provisions of the APA that direct a reviewing court to set aside agency action “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;” 5 U.S.C. §706(2)(C), “without observance of procedure required by law;” 5 U.S.C. §706(2)(D); “unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or” 5 U.S.C. §706(2)(E), “unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court[, ]” 5 U.S.C. §706(2)(F). Beyond listing these provisions, plaintiffs make no argument as to how the I-130 denials violated 5 U.S.C. §706(2)(C), (E), or (F). ECF No. 27 at 11. Therefore, I will focus my analysis on whether the BIA's affirmance of USCIS's denial of the petitions was arbitrary and capricious or without observance of procedure required by law.^[1] See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10^th Cir. 1998) (“Arguments inadequately briefed in the opening brief are waived.”).

         Typically, “[a]n agency's action is entitled to a presumption of validity, and the burden is upon the petitioner to establish the action is arbitrary or capricious.” Sorenson Commc'ns, Inc. v. F.C.C., 567 F.3d 1215, 1221 (10th Cir. 2009). Once agency action is challenged as arbitrary or capricious, a district court reviews that action under the APA as if it were an appellate court. See Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1580 (10th Cir. 1994). As part of the appeal, the court “ascertain[s] whether the agency examined the relevant data and articulated a rational connection between the facts found and the decision made.” Id. at 1574 (citing Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Ins. Co., 463 U.S. 29, 43 (1983)). That is, the court “must determine whether the agency considered all relevant factors and whether there has been a clear error of judgment.” Id.

         A court will set aside agency action “if the agency relied on factors which Congress has not intended for 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.” Id. (citing State Farm, 463 U.S. at 43) (internal quotation marks omitted). Furthermore, “[b]ecause the arbitrary and capricious standard focuses on the rationality of an agency's decisionmaking process rather than on the rationality of the actual decision, it is well-established that an agency's action must be upheld, if at all, on the basis articulated by the agency itself.” Id. at 1575 (citing State Farm, 463 U.S. at 50) (internal quotation marks and brackets omitted).

         B. Due Process Clause of ...