United States District Court, D. Colorado
BROOKE JACKSON, UNITED STATES DISTRICT JUDGE
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.
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).
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.
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.
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.
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.
STANDARD OF REVIEW
Administrative Procedure Act
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. See Adler v.
Wal-Mart Stores, Inc., 144 F.3d 664, 679
(10th Cir. 1998) (“Arguments inadequately
briefed in the opening brief are waived.”).
“[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
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).
Due Process Clause of ...