Singh, et al. v. Cissna, et al., No. 1:2018cv00782 - Document 27 (E.D. Cal. 2018)
Court Description: ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS signed by Magistrate Judge Sheila K. Oberto on 9/30/2018. (Kusamura, W)
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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 GURKAMAL SINGH and ROSIE SANDHU, 13 Plaintiffs, 14 Case No. 1:18-cv-00782-SKO ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS v. 15 (Doc. 16) L. FRANCIS CISSNA, Director, United States Citizenship & Immigration Services; KIRSTJEN M. NIELSEN, Secretary, Department of Homeland Security; JEFF SESSIONS, Acting United States Attorney General, 16 17 18 19 Defendants. 20 _____________________________________/ 21 22 Plaintiffs Gurkamal Singh (“Singh”) and Rosie Sandhu (“Sandhu”) (collectively, 23 “Plaintiffs”) bring this action challenging the denial of a Petition for Alien Relative, USCIS Form 24 I-130 (“I-130”), filed by Plaintiff Sandhu on behalf of her husband, Plaintiff Singh. (See Doc. 1 25 (Compl.).) Pending before the Court is Defendants’ motion to dismiss pursuant to Federal Rule of 26 Civil Procedure 12(b)(6) (the “Motion”). (Doc. 16.) Plaintiffs oppose the Motion. (Doc. 18.) For 27 the reasons that follow, the Court hereby GRANTS IN PART and DENIES IN PART the Motion.1 28 1 The parties consented to the jurisdiction of a U.S. Magistrate Judge. (Docs. 13, 15.) 1 I. BACKGROUND 2 A. Factual Background 3 Plaintiff Singh is a citizen of India who entered the United States without inspection on or 4 about March 7, 1996, at or near Brownsville, Texas. (Compl. ¶ 7; Doc 1-2 (Compl. Ex. 1).) In 5 1997, Plaintiff Singh filed a petition for asylum, withholding of removal, and protection under the 6 Convention Against Torture (“CAT”). (Compl. ¶¶ 47–48, Ex. 1 at 4.) He was placed in removal 7 proceedings and issued a notice to appear before an immigration judge. (Id.) 8 In 2000, Plaintiff Singh, while living in Fresno, CA, met Evelyn Williams, a U.S. citizen 9 who lived in Buttonwillow, CA. (Compl. ¶ 55, Doc. 1-9 (Compl. Ex. 8) at 2; Doc 1-37 (Compl. Ex. 10 36) at 43–44.) On April 24, 2001, Plaintiff Singh married Ms. Williams in Las Vegas, NV. (Compl. 11 ¶ 53, Ex. 8.) On April 30, 2001, Ms. Williams filed an I-130 petition on behalf of Plaintiff Singh to 12 initiate the process for him to become a lawful permanent resident of the United States. (Compl. 13 Ex. 1 at 4.) In support of the petition, Ms. Williams and Plaintiff Singh submitted three copies of 14 wedding photographs and a copy of their marriage certificate. (Id.) 15 Plaintiff Singh and Ms. Williams were originally scheduled to appear for an interview in 16 support of their I-130 petition on July 24, 2002, but the interview was rescheduled “allegedly 17 because [Plaintiff Singh] required a Punjabi/English interpreter.” (Compl. Ex. 1 at 4.) On October 18 8, 2002, Plaintiff Singh and Ms. Williams appeared, without an interpreter, at the U.S. Immigration 19 and Naturalization Service (“INS”) office in San Francisco, CA, to provide sworn testimony and 20 supporting documentation in support of their I-130 petition. (Compl. ¶ 54, Ex. 1 at 4; Ex. 36.) The 21 interviews of Ms. Williams and Plaintiff Singh, which were conducted separately, were video 22 recorded. (Compl. ¶¶ 58, 66, 70 and Ex. 1 at 4.) 23 During the interview by immigration officer Yurgin (“Officer Yurgin”), Ms. Williams made 24 “statements about the false nature of her marriage” to Plaintiff Singh. (Compl. ¶ 10.) Attached to 25 Plaintiffs’ complaint is a document titled “United States Department of Justice, Immigration and 26 Naturalization Service, Record of Sworn Statement in Affidavit Form” executed on October 8, 2002, 27 purportedly signed by Ms. Williams and containing the following handwritten statement: 28 2 1 2 3 4 5 6 7 Oh my, I got a call from Peter Singh who asked me if I would be willing to get a so called husband. I said maybe and asked why. Later that day Peter and another man stopped by at my house and we talked a little more about what I needed in a man a housemate [sic]. This all took place the afternoon of the 4/23/01. When Kamel’s uncle agreed to pay my PG&E bill in the amount of $1800.00 I said OK. Then 4/24/01 we went to Las Vegas. Where we were married 4/25/01 [sic]. We never have had sex. He has never truly moved in with me. From time to time he calls or stops by my house. We talk more on the phone than in person. I married him because I needed a man around the house, because I was being harassed by my exhusband and my house was broken into. I just wanted a man there sometime. Also in the agreement he would be able to receive a greencard. If I would stay married to him [sic]. 8 (Compl. ¶¶ 66, 98 and Ex. 1 at 4–5; Doc. 1-41 (Compl. Ex. 40).) Following the interview, Ms. 9 Williams withdrew her I-130 petition on behalf of Plaintiff Singh, stating “This is a fake marriage. 10 And I am requesting to be out of this marriage.” (Compl. ¶ 80, Ex. 1 at 5.) 11 After the interview on October 8, 2002, Plaintiff Singh was placed into custody by USCIS 12 agents. He maintained that “he did not enter into a fraudulent marriage” with Ms. Williams. 13 (Compl. ¶ 71 and Ex. 1 at 5.) While in custody, Plaintiff Singh “initially refused to give Ms. 14 Williams money to return home” yet ultimately provided $250 for Ms. Williams’ use. (Id. ¶¶ 72– 15 73. See also Compl. Ex. 1 at 5.) 16 On June 17, 2003, an immigration judge denied Plaintiff Singh’s application for asylum, 17 withholding of removal, and protection and issued a removal order against Plaintiff Singh. (Compl. 18 ¶– 48, 123, Ex. 1 at 5.) Plaintiff Singh and Ms. Williams divorced on March 1, 2004. (Compl ¶ 53, 19 109, Ex. 8.) 20 Plaintiff Singh married Plaintiff Sandhu, a U.S. citizen, in Elkton, MD, on September 1, 21 2006. (Compl. ¶ 7, 110, Doc. 1-8 (Compl. Ex. 7).) Plaintiff Sandhu has filed a series of three 22 unsuccessful I-130 petitions on behalf of Plaintiff Singh. The first was filed on October 23, 2006, 23 and was denied by the U.S. Citizenship and Immigration Services (USCIS) in a decision dated 24 September 30, 2009. (Comp. ¶¶ 110–111, Ex. 1 at 17–29.) The second petition was filed on 25 September 23, 2011, and was denied by the Director of USCIS on January 6, 2014. (Compl. ¶ 112, 26 Ex. 1 at 11–16.) Plaintiff Sandhu appealed the denial to the Board of Immigration Appeals, which 27 dismissed the appeal on January 20, 2015. (Compl. 113, Doc. 1-3 (Compl. Ex. 2).) 28 On July 13, 2016, Plaintiff Sandhu filed her third I-130 petition on behalf Plaintiff Singh, 3 1 which forms the basis of this lawsuit. (Compl. ¶ 114, Doc. 1-4 (Compl. Ex. 3).) In support of the 2 third petition, Plaintiff Sandhu submitted: a marriage certificate; a divorce certificate; “sworn 3 affidavits”; “numerous utility bills”; “joint bank account and tax statements”; “family photos”; 4 Plaintiffs’ son’s birth certificate; the expert declaration of Alan Hirsch, Esq., and Mr. Hirsch’s 5 curriculum vitae, “in connection with his professional analysis of CIS interrogation of Ms. 6 Williams”; and a letter from Jeffrey Pearce, a private investigator, “documenting Ms. Williams’s 7 statements from when Mr. Pearce attempted to inquire or ask her about the bona fides of her prior 8 marriage” to Plaintiff Singh. (Compl. ¶¶ 66, 114, Ex. 1 at 6.) 9 In his declaration, Mr. Hirsch opined that Ms. Williams was “subject to the interrogation 10 tactics that contribute to false confessions by leading people to conclude that maintaining innocence 11 is futile whereas acknowledging guilt will be benign.” (Doc. 1-14 (Compl. Ex. 13) ¶ 12; see also 12 Compl. ¶ 64, Ex. 1 at 6.) Mr. Pearce’s letter, dated November 6, 2015, indicates he spoke with Ms. 13 Williams regarding Plaintiff Singh via telephone in February 2015. (See Doc. 1-15 (Compl. Ex. 14 14); see also Compl. ¶¶ 92–93, Ex. 1 at 7.) Mr. Pearce stated Ms. Williams 15 16 17 18 19 became extremely defensive and started using vulgar language. She [] repeatedly stated that she does not want to get involved anymore with this immigration case because she is afraid of going to jail and being afflicted with a $250,000.00 fine as threatened by immigration officers when she attended the I-130 interview several years ago with Gurkamal Singh. She was also told if she ever tried to change what the record shows she said at the time of the interview they would prosecute her and put in her jail for 10 years. 20 (Compl. Ex. 14 at 2; Compl. ¶¶ 92–93, Ex. 1 at 7.) Mr. Pearce also stated Ms. Williams said she is 21 “deathly afraid because she was warned and threatened about getting involved in this case over and 22 over again by those specific agents of U.S. Immigration and Customs Enforcement at the interview” 23 and “especially believes they can and will put her in jail because of her criminal history.” (Id.) Mr. 24 Pearce’s letter indicates that Ms. Williams “vividly remembers how afraid she was at the interview 25 and how much she cried and sobbed at the time she signed a statement she was compelled to write.” 26 (Id.) 27 On February 23, 2017, the U.S. Court of Appeals for the Ninth Circuit denied Plaintiff 28 Singh’s petition for review of the Board of Immigration Appeals’ order dismissing his appeal from 4 1 an immigration judge’s decision denying his application for asylum, withholding of removal, and 2 protection under the Convention Against Torture. Singh v. Sessions, 678 F. App’x 515 (9th Cir. 3 2017). On March 30, 2017, Plaintiff Singh filed an application for stay of deportation or removal 4 for twelve months beginning March 10, 2017. (Compl. ¶ 51, Doc. 1-20 (Compl. Ex. 19).) Plaintiff 5 Singh’s petition for rehearing or rehearing en banc was denied by the Ninth Circuit in October 2017. 6 (Compl. ¶ 50.) 7 On August 9, 2017, Plaintiffs personally appeared for an interview relating to their third I- 8 130 petition at the USCIS Philadelphia Field Office. (Compl. ¶ 27.) During the interview, Plaintiff 9 Singh was asked additional questions to obtain sworn testimony regarding his marital relationship 10 with Ms. Williams. (Compl. Ex. 1 at 7.) He testified that he could not remember if he or Ms. 11 Williams proposed because the decision to get married “just happened.” (Id.) 12 On October 19, 2017, the USCIS issued a Notice of Intent to Deny (“NOID”) Plaintiff 13 Sandhu’s I-130 petition. (Compl. ¶ 114, Ex. 1 at 7.) In response, Plaintiff Sandhu submitted 18 14 documents along with a 31-page letter from her attorney, which claimed that Ms. Williams was 15 subjected to abuse, intimidated, and coerced by Officer Yurgin at the time she said that her marriage 16 to Plaintiff Singh was a sham. (Id. See also Compl. ¶ 114.) 17 On March 13, 2018, the USCIS issued a Notice of Decision denying Plaintiff Sandhu’s third 18 I-130 petition, finding that, based on “the results of interviews,” which entailed “discrepant and 19 contradictory testimony,” the documentary evidence, and Evelyn Williams’ own admissions 20 regarding her participation in a marriage fraud scheme,” the petition is prohibited under Section 21 204(c) of the Immigration and Naturalization Act (“INA”), 8 U.S.C. § 1154(c), because “substantial 22 and probative evidence establish[ed] that [Plaintiff Singh] previously entered into a sham marriage” 23 with Ms. Williams “in an attempt to gain immigration benefits.” (Compl. ¶¶ 29, 66, 114, Ex. 1 at 24 4, 9.) The Notice of Decision indicated that USCIS records showed that, after Ms. Williams 25 executed her sworn statement and withdrawal, she stated to the immigration officials that the 26 previous interview was rescheduled because “she did not want to continue with the marriage fraud 27 scheme” and that Plaintiff Singh’s relatives “threatened her with harm if she did not go through 28 with” the scheme and “harassed her.” (Compl. Ex. 1 at 5.) It also noted that Ms. Williams’ I-130 5 1 petition on behalf of Plaintiff Singh was filed on “the sunset date of Section 245(i) of the [INA].”2 2 (Id. at 4.) 3 The USCIS rejected Plaintiff Sandhu’s argument that the October 8, 2002, interview of Ms. 4 Williams was an example of “questionable interrogation tactics,” and concluded that Plaintiff 5 Sandhu did not meet her evidentiary burden to “establish that [Plaintiff Singh] did not seek to obtain 6 benefits through a prior sham marriage.” (Compl. Ex. 1 at 8–9.) 7 B. Plaintiffs’ Complaint 8 Plaintiffs filed this action on June 6, 2018, against Defendants L. Francis Cissna, Director 9 of USCIS, Kirstjen M. Nielsen, Secretary of the Department of Homeland Security, and Jeff 10 Sessions, Acting Attorney General of the United States, in their official capacities (collectively, 11 “Defendants”), seeking a declaratory judgment that Plaintiff Singh is entitled to classification under 12 the INA as an “immediate relative” of a U.S. citizen and an order enjoining Defendants from 13 removing Plaintiff Singh from the United States until his claims have been heard or reviewed and 14 declaring their conduct unconstitutional. (See Doc. 1 at 58–59.) Plaintiffs assert the following 15 claims in the complaint: violation of Section 201(b) of the INA, 8 U.S.C. § 1151(b) (“Claim One”); 16 (2) violation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 (“Claim Two”); (3) 17 violation of Section 204(c) of the INA, 8 U.S.C. § 1154(c) (“Claim Three”); (4) violation of the Due 18 Process Clause of the Fifth Amendment and the Equal Protection Clause of the Fourteenth 19 Amendment to the U.S. Constitution, the latter pleaded as a claim under 42 U.S.C. § 1983 (“Claim 20 Four”); and (5) violation of procedural due process arising under the Due Process Clause of the Fifth 21 Amendment to the U.S. Constitution (“Claim Five”). (See Doc. 1.) 22 Plaintiffs challenge the USCIS’s decision to deny Plaintiff Sandhu’s third I-130 petition on 23 the grounds that it was arbitrary, capricious, an abuse of discretion, and contrary to law in violation 24 of the APA. (Compl. ¶¶ 1, 114.) With respect to Ms. Williams’ oral and written confessions, 25 Plaintiffs contend that the USCIS’s finding of marriage fraud should be set aside because Officer 26 Yurgin intimidated and coerced Ms. Williams into making the confession and, as such, it was the 27 28 2 Section 245(i) of the INA permits certain individuals who were otherwise ineligible for adjustment of status in the United States to pay a penalty fee for the convenience of adjusting status without leaving the United States, so long as the individual was a beneficiary of an immigrant visa petition filed on or before April 30, 2001. See 8 U.S.C. § 1255(i). 6 1 product of duress. (Id. ¶¶ 10, 25, 58, 63, 65, 99, 119, 152.) They allege that the video recording of 2 Ms. Williams’ interview “clearly demonstrates that [she] was under extreme duress at the time she 3 said the marriage was a sham,” and they criticize the USCIS’s “discarding” of Mr. Hirch’s 4 “independent evaluation” of the video recording in favor of their “prejudicial and biased” review. 5 (Id. ¶¶ 58, 75.) Plaintiffs posit that even if Ms. Williams did not make her statements under duress, 6 she was “already experiencing marital difficulties” with Plaintiff Singh, and the immigration officers 7 “offered her a way out, not only of her marriage, but also of any legal ramifications for the fraud 8 they had already convinced her had been established.” (Id. ¶ 79.) They also characterize Ms. 9 Williams’ post-October 8, 2002 interview statements to immigration officers as the result of 10 “Stockholm Syndrome,” and note other statements by Ms. Williams at the interview that they 11 contend indicate that Ms. Williams and Plaintiff Singh had a bona fide marriage. (Id. ¶ 100, 103.) 12 Plaintiffs explain that Plaintiff Singh initially refused to give Ms. Williams money to return home 13 because he wasn’t thinking too clearly and was “in total shock,” and also point to “additional 14 credible evidence” that was submitted to the USCIS that they contend demonstrate that Plaintiff 15 Singh did not commit marriage fraud. (Id. ¶ 26, 28.) 16 Plaintiffs also allege that the denial of their I-130 petitions by USCIS violated their 17 substantive and procedural rights under the Due Process Clause by, respectively, “den[ying] them 18 the fundamental right to preserve the integrity of their family” and not affording them “the 19 opportunity to confront and/or cross examine” Ms. Williams or Officer Yurgin. (Id. ¶¶ 138, 140– 20 47.) Plaintiffs further assert that the “statutory scheme” relating to I-130 petitions violates the Equal 21 Protection Clause of the Fourteenth Amendment because “it took USCIS a total processing time of 22 2772 days or 7 years, 8 months to adjudicate the three Singh-Sandhu visa petitions, and a total time 23 of 4237 days or 11 years, 7 months, and 13 days has elapsed in the process.” (Id. ¶ 139.) 24 C. Defendants’ Motion to Dismiss 25 Defendants contend that pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, 26 Plaintiffs’ complaint fails to state a claim. As to Claims One, Three, and Four, Defendants assert 27 that Plaintiffs fail to state a claim because there is no independent cause of action under Sections 28 201(b) and 204(c) of the INA (Claims One and Two) and there is no allegation in the complaint that 7 1 Defendants acted under color of state law to support a claim under either 42 U.S.C. § 1983 (“Section 2 1983”) or the Fourteenth Amendment (Claim Three). (See Doc. 16-1 at 8–9.) 3 Defendants further assert that Claim Two, violation of the APA, fails to state a claim because 4 Plaintiffs “fail to present any facts that allow the Court to draw the reasonable inference that 5 USCIS’s decision is arbitrary and capricious.” (Id. at 9–12.) Finally, Defendants contend that Claim 6 Five fails as a matter of law because the USCIS provided Plaintiffs all the procedural due process 7 to which they are entitled by law, and the Ninth Circuit’s decision in Ching v. Mayorkas, 725 F.3d 8 1149 (9th Cir. 2013), does not warrant the additional process of cross-examination of adverse 9 witnesses in this case. 10 In their opposition, Plaintiffs assert that their complaint includes “ample facts and evidence 11 to allow this Honorable Court to draw the reasonable inference that USCIS’s decision is arbitrary 12 and capricious” in violation of the APA and therefore Claim Two “must survive” the Motion. (Doc. 13 18 at 10). Plaintiffs include in their brief over 12 paragraphs from their complaint, verbatim, that 14 they contend not only demonstrate the sufficiency of their complaint to defeat the Motion but also 15 establish affirmatively their entitlement to relief under the APA. (Compare Compl. ¶¶ 66 n.29, 75, 16 76, 78, 79, 80, 81, 82, 83, 85, 86, 87, 152 with Doc. 18 at 6–9, 15.) 17 With respect to Claim Five, Plaintiffs further assert that the factors applied in Ching to 18 determine whether additional procedural due process is due “clearly cut in favor of” Plaintiffs. (Doc. 19 18 at 10.) Plaintiffs’ opposition does not address Defendants’ arguments directed to Claims One 20 and Three, based on violations of the INA, and Claim Four, violation of the Fourteenth Amendment 21 alleged under Section 1983. 22 D. Statutory and Regulatory Framework 23 Adjustment of status is governed by section 245 of the INA, 8 U.S.C. § 1255 (“Section 24 1255”). Section 1255(a) states that: 25 26 27 28 [t]he status of an alien who was inspected and admitted or paroled into the United States ... may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at 8 1 the time his application is filed. 2 8 U.S.C. § 1255(a). Although the text of Section 1255 expressly authorizes the Attorney General 3 to adjust status, that authority is now vested in the Secretary of Homeland Security by virtue of the 4 Homeland Security Act of 2002, 6 U.S.C. §§ 101 et seq. 6 U.S.C. § 271(b); see also Clark v. 5 Martinez, 543 U.S. 371, 375 n.5 (2005) (noting that authority formerly exercised by the Attorney 6 General and the INS under similar provision of the INA was transferred to the Secretary of 7 Homeland Security and divisions of that Department, including USCIS, by the Homeland Security 8 Act). Because of this transfer, the authority to adjudicate adjustment of status applications is now 9 vested in the Director of USCIS. Id.; 8 C.F.R. § 245.2(a) (granting USCIS jurisdiction to adjudicate 10 adjustment of status applications). Similarly, the authority to adjudicate I–130 visa petitions was 11 transferred from the INS (and the Attorney General) to the Director of USCIS. 6 U.S.C. § 271(b); 12 8 C.F.R. § 204.1 & 204.2. 13 The application for adjustment of status to that of lawful permanent resident is USCIS Form 14 I–485. 8 C.F.R. § 299.1. To be eligible for adjustment of status based on a family relationship to a 15 citizen or a lawful permanent resident, an applicant must have an approved immigrant visa petition, 16 the Petition for Alien Relative (Form I–130), in which the petitioner asks the USCIS to confirm the 17 family relationship. See 8 U.S.C. § 1255(a); 8 C.F.R. §§ 204.1(a)(1), 204.2. See 8 U.S.C. §§ 18 1154(a)(1)(A)(i) and (b); 8 C.F.R. § 204.1(a). In visa petition proceedings, such as the adjudication 19 of an I–130 by USCIS, the burden of proving eligibility for the benefit sought is on the petitioner. 8 20 U.S.C. § 1361. 21 A marriage entered into for the purpose of circumventing immigration laws is considered a 22 fraudulent or sham marriage and is not recognized as enabling an alien spouse to obtain immigration 23 benefits. Vasquez v. Holder, 602 F.3d 1003, 1014 n.11 (9th Cir. 2010) (citations omitted). Title 8 24 U.S.C. § 1154(c) provides in pertinent part: 25 26 27 28 [N]o petition shall be approved if (1) the alien has previously been accorded, or has sought to be accorded, an immediate relative or preference status as the spouse of a citizen of the United States or the spouse of an alien lawfully admitted for permanent residence, by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws, or (2) the Attorney General has determined that the alien has attempted or conspired to 9 1 enter into a marriage for the purpose of evading the immigration laws. 2 8 U.S.C. § 1154(c) (“Section 1154(c)”); see also 8 C.F.R. § 204.2(a)(1)(ii). Thus, where there is 3 “substantial and probative” evidence of such an attempt or conspiracy “contained in the alien’s file,” 4 the petition must be denied, “regardless of whether that alien received a benefit through the attempt 5 or conspiracy.” C.F.R. § 204.2(a) (1)(ii). Further, once an alien is found to have engaged in marriage 6 fraud, Section 1154(c) forecloses the possibility of any subsequent visa petition ever being approved 7 on behalf of the alien. Avitan v. Holder, No. C–10–03288 JCS, 2011 WL 499956, at *7 (N.D. Cal. 8 Feb. 8, 2011) (citing Ghaly v. Immigration & Naturalization Serv., 48 F.3d 1426, 1436 (7th Cir. 9 1995) (acknowledging that Section 1154(c) is a “harsh law” because, an alien “can never become a 10 citizen of the United States or even reside permanently in this country” once a finding has been 11 made that the alien entered or attempted to enter into a sham marriage)). A prior admission of 12 marriage fraud made in conjunction with a withdrawal of an earlier I–130 petition can be overcome 13 by new evidence. Matter of Laureano, 19 I & N. Dec. 1, at *3–4 (1983) (affirming denial of I–130 14 petition after earlier petition was withdrawn and petitioner admitted that the earlier petition was 15 based on a fraudulent marriage). However, a petitioner seeking adjustment of status under these 16 circumstances bears a “heavy burden” to establish that a marriage is legitimate. Id. at * 4. 17 II. ANALYSIS 18 A. Legal Standard Under Rule 12(b)(6) 19 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal 20 sufficiency of the claims alleged in the complaint. Ileto v. Glock, 349 F.3d 1191, 1199–1200 (9th 21 Cir. 2003). A complaint may be dismissed under Rule 12(b)(6) if the plaintiff fails to state a 22 cognizable legal theory, or has not alleged sufficient facts to support a cognizable legal theory. 23 Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013). 24 In adjudicating a Rule 12(b)(6) motion, a court “must accept as true all of the factual 25 allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, 26 legally conclusory statements, not supported by actual factual allegations, need not be accepted. 27 Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009); see also In re Gilead Scis. Secs. Litig., 536 F.3d 28 1049, 1055 (9th Cir. 2008). The complaint must proffer sufficient facts to state a claim for relief 10 1 that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 558-59 (2007). 2 “Plausibility,” as it is used in Twombly and Iqbal, does not refer to the likelihood that a pleader will 3 succeed in proving the allegations. Instead, a claim has facial plausibility when the plaintiff pleads 4 factual content that allows the court to draw the reasonable inference that the defendant is liable for 5 the misconduct alleged.” Iqbal, 556 U.S. at 678–79. “The plausibility standard is not akin to a 6 ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted 7 unlawfully.” Id. (quoting Twombly, 550 U.S. at 557). “In sum, for a complaint to survive a motion 8 to dismiss, the non-conclusory factual content, and reasonable inferences from that content, must be 9 plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 10 962, 969 (9th Cir. 2009) (quotations omitted). Where dismissal is warranted, it is generally without 11 prejudice, unless it is clear the complaint cannot be saved by any amendment. Sparling v. Daou, 12 411 F.3d 1006, 1013 (9th Cir. 2005). 13 Review is generally limited to the contents of the complaint, although the court can also 14 consider a document on which the complaint relies if the document is central to the claims asserted 15 in the complaint, and no party questions the authenticity of the document. See Sanders v. Brown, 16 504 F.3d 903, 910 (9th Cir. 2007); No. 84 Emp’r-Teamster Jt. Counsel Pension Tr. Fund v. Am. W. 17 Holding Corp., 320 F.3d 920, 925 n.2 (9th Cir. 2003). The Court may consider matters that are 18 properly the subject of judicial notice, Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005); Lee 19 v. City of L.A., 250 F.3d 668, 688-89 (9th Cir. 2001), and may also consider exhibits attached to the 20 complaint, see Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n.19 21 (9th Cir. 1989). 22 B. Claims One and Three Are Not Legally Cognizable 23 Defendants move to dismiss Claims One and Three, violations of Sections 201(b) and 204(c) 24 of the INA, on the basis that INA does not provide a mechanism for relief and that such claims must 25 instead be brought under the APA. (Doc. 16-1 at 8–9.) The Court agrees with Defendants. The 26 INA does not provide an independent cause of action in this context. See Huiwu Lai v. United 27 States, No. C17-1704-JCC, 2018 WL 1610189, at *4 (W.D. Wash. Apr. 3, 2018). See also 28 Cabaccang v. U.S. Citizenship & Immigration Servs., 627 F.3d 1313, 1315 (9th Cir. 2010). Accord 11 1 Jaskiewicz v. U.S. Dep’t of Homeland Sec., No. 06 Civ. 3770(DLC), 2006 WL 3431191, at *4 2 (S.D.N.Y. Nov. 29, 2006) (“[T]he INA does not itself create a cause of action or federally-protected 3 right.”); Sabhari v. Cangemi, No. CIV. 04-1104 ADM/JSM, 2005 WL 1387595, at *8 (D. Minn. 4 June 10, 2005) (“Although Plaintiffs’ Complaint lists violation of INA § 201(b) and the APA as two 5 separate causes of action, the APA serves as the vehicle for review of the alleged INA § 201(b) 6 violation.”). 7 Plaintiffs do not contend otherwise and, as such, concede this argument. See Pecover v. 8 Elec. Arts Inc., 633 F.Supp.2d 976, 984 (N.D. Cal. 2009) (“[P]laintiffs have effectively conceded, 9 by failing to address the issue in their opposition memorandum.”). Accordingly, the Court 10 GRANTS the Motion as to Claims One and Three. Because no amendment could cure this 11 deficiency, the dismissal is with prejudice. 12 C. 13 14 15 Claim Four States a Claim for Deprivation of Substantive Due Process but not Equal Protection 1. Section 1983 In Claim Four, Plaintiffs seek relief under Section 1983, asserting that they were deprived 16 of the “fundamental right to preserve the integrity of their family,” presumably pursuant to the Due 17 Process Clause of the Fifth Amendment, when the USCIS denied Plaintiff Sandhu’s I-130 petition. 18 (Compl. ¶¶ 137–38.) Plaintiffs further assert that the INA’s “statutory scheme . . . violates the 19 Equal Protection Clause of the Fourteenth Amendment because it took USCIS a total processing 20 time of 2772 days or 7 years, 8 months to adjudicate the three Singh-Sandhu visa petitions, and a 21 total time of 4237 days or 11 years, 7 months, and 13 days has elapsed in the process.” (Id. at ¶ 22 139.) 23 24 25 26 Section 1983 imposes liability on: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws . . . . 27 42 U.S.C. § 1983. “To establish a prima facie case under [Section] 1983, [a plaintiff] must establish 28 that: (1) the conduct complained of was committed by a person acting under color of state law; and 12 1 (2) the conduct violated a right secured by the Constitution and laws of the United States.” 2 Humphries v. County of L.A., 554 F.3d 1170, 1184 (9th Cir. 2009) (citing West v. Atkins, 487 U.S. 3 42, 48 (1988)). 4 Plaintiffs do not sufficiently allege Defendants were acting under color of state law. Ibrahim 5 v. Dep’t of Homeland Sec., 538 F.3d 1250, 1257 (9th Cir. 2008) (Section 1983 only provides a 6 remedy against persons acting under color of state law.) (emphasis added); Gorenc v. Salt River 7 Project Agricultural Improv. & Power Dist., 869 F.2d 503, 506 (9th Cir. 1989) (“Liability [under 8 Section 1983] attaches only to those wrongdoers ‘who carry a badge of authority of a State and 9 represent it in some capacity, whether they act in accordance with their authority or misuse it.’”) 10 (citation omitted). Plaintiffs do not allege any wrongdoing by employees of a state government or 11 any other persons acting under color of state law nor do they allege that any of the named Defendants 12 were agents of the state. Defendants are all federal officers sued in their official capacities. (See 13 Compl. ¶¶ 14–16.) “[B]y its very terms, § 1983 precludes liability in federal government actors.” 14 Morse v. N. Coast Opportunities, Inc., 118 F.3d 1338, 1343 (9th Cir.1997) (finding the plaintiff’s 15 complaint “invalid on its face in its reliance upon § 1983 as a cause of action against alleged federal 16 government actors”). See Daly–Murphy v. Winston, 820 F.2d 1470, 1477 (9th Cir.), amended, 837 17 F.2d 348 (9th Cir. 1987) (Federal action allegedly causing the deprivation of a federal right is 18 insufficient under Section 1983). In the absence of any state action, which Plaintiffs do not dispute, 19 Claim Four, to the extent it is asserted under Section 1983, is not cognizable. Accordingly, the 20 Court GRANTS the Motion as to Plaintiffs’ Section 1983 claim. 21 The Court shall construe the allegations of Claim Four, which reference the Due Process 22 Clause of the Fifth Amendment and the Equal Protection Clause of the Fourteenth Amendment, as 23 asserted under the Fifth Amendment because the Fourteenth Amendment does not apply to federal 24 actors. Bolling v. Sharpe, 347 U.S. 497, 498 (1954) (incorporating the Fourteenth Amendment 25 Equal Protection Clause against federal actors through Fifth Amendment Due Process Clause). See 26 also United States v. Navarro, 800 F.3d 1104, 1112 n.6 (9th Cir. 2015). 27 2. 28 Plaintiffs claim that the denial of their I-130 petition violated their substantive due process Substantive Due Process 13 1 rights by denying them “the fundamental right to preserve the integrity of their family.”3 (Compl. 2 ¶ 138.) The due process guarantees of the Fifth Amendment “include a substantive component, 3 which forbids the government to infringe certain ‘fundamental’ liberty interests at all, no matter 4 what process is provided, unless the infringement is narrowly tailored to serve a compelling state 5 interest.” Reno v. Flores, 507 U.S. 292, 301–02 (1993) (emphasis omitted). 6 It is well-settled that there is a liberty interest in living with one’s immediate family. See, 7 e.g., Ching, 725 F.3d at 1157 (“The right to live with and not be separated from one’s immediate 8 family is a right that ranks high among the interests of the individual and that cannot be taken away 9 without procedural due process.” (quotation omitted)). However, the Court has not identified any 10 case where this interest was deemed sufficient to prevent the enforcement of a legitimate 11 immigration law to remove a person at the cost of family separation. The Ninth Circuit recently 12 rejected the notion that immigration enforcement resulting in family separation inherently violates 13 a U.S. citizen’s constitutional rights. See Gebhardt v. Nielsen, 879 F.3d 980, 988 (9th Cir. 2018) 14 (holding that a U.S. citizen’s due process rights were not violated by denial of his non-citizen wife 15 and her children’s visa petitions based on his own sex offense because “the generic right to live with 16 family is ‘far removed’ from the specific right to reside in the United States with non-citizen family 17 members,” and holding that “a fundamental right to reside in the United States with [one’s] non18 citizen relatives” would “run[ ] headlong into Congress’ plenary power over immigration.”). See 19 also Morales-Izquierdo v. Dep’t of Homeland Sec., 600 F.3d 1076, 1091 (9th Cir. 2010) (holding 20 that “lawfully denying Morales adjustment of status does not violate any of his or his family’s 21 substantive rights protected by the Due Process Clause” even “when the impact of our immigration 22 laws is to scatter a family or to require some United States citizen children to move to another 23 country with their parent”), overruled in part on other grounds by Garfias-Rodriguez v. Holder, 702 24 F.3d 504 (9th Cir. 2012) (en banc). Cf. De Mercado v. Mukasey, 566 F.3d 810, 816 n.5 (9th Cir. 25 2009) (stating, in dicta, that “family unity” theory of due process in immigration context is 26 “implausible” because “no authority [has been identified] to suggest that the Constitution provides 27 28 The due process guarantees of the Fifth Amendment “include a substantive component, which forbids the government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” Reno v. Flores, 507 U.S. 292, 301–02 (1993) (emphasis omitted). 3 14 1 [alien petitioners] with a fundamental right to reside in the United States simply because other 2 members of their family are citizens or lawful permanent residents”). 3 The Court need not resolve this question now, however. See In re Snyder, 472 U.S. 634, 4 642 (1985) (“We avoid constitutional issues when resolution of such issues is not necessary for 5 disposition of a case.”). If the challenged action by the USCIS in denying the I-130 petition were 6 “otherwise illegitimate and unlawful,” then the deprivation of Plaintiffs’ liberty interests in family 7 integrity, even if typically insufficient to defeat the government’s interest in enforcing valid 8 immigration laws, “may be unlawful where it is not [] supported by a legitimate government 9 interest.” Ramos v. Nielsen, Case No. 18-cv-01554-EMC, 2018 WL 3730429, at *22 (N.D. Cal. 10 Aug. 6, 2018). Cf. Smith v. City of Fontana, 818 F.2d 1411, 1419-20 (9th Cir. 1987) (state had “no 11 legitimate interest in interfering with [protected] liberty interest [in familial relations] through the 12 use of excessive force by police officers”), overruled on other grounds by Hodgers-Durgin v. de la 13 Vina, 199 F.3d 1037, 1040 n.1 (9th Cir. 1999). Because Plaintiffs have adequately pleaded that 14 Defendants’ actions violate the Administrative Procedure Act (as discussed below), Plaintiffs’ 15 substantive due process claim is sufficiently plausible to proceed at least on that basis. The Motion 16 is DENIED as to that claim asserted in Claim Four. 17 3. 18 The Fourteenth Amendment provides that “[n]o state shall...deny to any person within its Equal Protection 19 jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV. The Amendment is 20 “essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne 21 v. Cleburne Living Ctr., 474 U.S. 432, 439 (1985). The Fifth Amendment, which applies to the 22 federal government, does not explicitly contain a similar provision. See U.S. Const. amend. V. 23 However, “[w]hile the Fifth Amendment contains no equal protection clause, it does forbid 24 discrimination that is so unjustifiable as to be violative of due process” and the “approach to Fifth 25 Amendment equal protection claims has always been precisely the same as to equal protection 26 claims under the Fourteenth Amendment.” Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975) 27 citations and internal quotation marks omitted; alteration in original)). See also United States v. 28 Windsor, 570 U.S. 744, 774 (2013) (“The liberty protected by the Fifth Amendment’s Due Process 15 1 Clause contains within it the prohibition against denying to any person the equal protection of the 2 laws.”); Buckley v. Valeo, 424 U.S. 1, 93 (1976) (“Equal protection analysis in the Fifth Amendment 3 area is the same as that under the Fourteenth Amendment.”). 4 In considering an equal protection challenge, the court “must first determine what 5 classification has been created” by the legislation at issue. Aleman v. Glickman, 217 F.3d 1191, 6 1195 (9th Cir. 2000); see also Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 589 (9th Cir. 2008). The 7 plaintiff must allege facts showing that the “law is applied in a discriminatory manner or imposes 8 different burdens on different classes of people.” Lazy Y Ranch, 546 F.3d at 589 (citation omitted). 9 Here, the basis of Plaintiffs’ equal protection challenge is unclear. Plaintiffs allege that “the 10 statutory scheme” applied to Plaintiffs because “it took USCIS a total processing time of 2772 days 11 or 7 years, 8 months to adjudicate the three Singh-Sandhu visa petitions, and a total time of 4237 12 days or 11 years, 7 months, and 13 days has elapsed in the process.” (Compl. ¶ 139.) It is not clear 13 how these allegations regarding the time it took to adjudicate the three I-130 petitions constitute an 14 equal protection challenge. Construing Plaintiffs’ claim in the light most favorable, they appear to 15 contend that Defendants violated their equal protection rights by taking longer to adjudicate the 16 petition of a potential visa beneficiary whom the USCIS suspected (or previously determined) had 17 engaged in marriage fraud than the petition of a potential visa beneficiary who had not. The plain 18 language of the INA does not make any distinction between such beneficiaries, nor have Plaintiffs 19 pleaded any facts showing that the INA is applied to such beneficiaries in a discriminatory manner 20 or imposes different burdens on them. See Lazy Y Ranch, 546 F.3d at 589. 21 Because of the lack of clarity regarding the legal basis for Plaintiffs’ equal protection claim, 22 the Court GRANTS the Motion with respect to this claim as asserted in Claim Four. See Catholic 23 Charities CYO v. Chertoff, 622 F. Supp. 2d 865, 889 (N.D. Cal. 2008) (dismissing equal protection 24 claim with leave to amend where the plaintiff failed to allege “that he/she/it is a victim of any 25 purposeful discrimination.”), aff’d sub nom. Catholic Charities CYO v. Napolitano, 368 F. App’x 26 750 (9th Cir. 2010). See also Cortes v. Sessions, Case No. 17-cv-1773-PJH, 2017 WL 4865563, at 27 *11–12 (N.D. Cal. Oct. 27, 2017). However, as set forth more fully below, the Court will permit 28 Plaintiffs to amend the complaint to attempt to state an equal protection claim against Defendants 16 1 under the Fifth Amendment. 2 D. Claims Two and Five are Sufficiently Pleaded 3 In Claim Two, Plaintiffs challenge the decision of USCIS denying Plaintiff Sandhu’s I–130 4 petition on the merits, alleging that Defendants violated of the Administrative Procedures Act. 5 (Compl. ¶¶ 131–33.) Plaintiffs allege in Claim Five that their rights to procedural due process under 6 the Fifth Amendment were violated because they were not given an opportunity to cross-examine 7 witnesses in connection with the adjudication of the third I-130 petition. The Court finds that Claims 8 Two and Five both state a claim upon which relief can be granted. 9 10 11 1. Claim Two: Administrative Procedure Act a. Legal Standard The Administrative Procedure Act (“APA”) subjects to judicial review any “final agency 12 action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. Under the APA, a 13 reviewing court “shall ... hold unlawful and set aside agency action, findings, and conclusions found 14 to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. § 15 706(2)(A). This “standard of review is a narrow one,” demanding a “searching and careful” inquiry 16 that assesses “whether the decision was based on a consideration of the relevant factors and whether 17 there has been a clear error of judgment.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 18 U.S. 402, 416 (1971), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 105 (1977). 19 “The court is not empowered to substitute its judgment for that of the agency.” Id. Nor is the court 20 required to resolve any facts where relief is sought under the APA. Occidental Engineering Co. v. 21 Immigration & Naturalization Serv., 753 F.2d 766, 769 (9th Cir. 1985). Rather, the court’s task is 22 to determine whether the evidence in the administrative record permitted the agency to make the 23 decision it did. Id. A court should uphold an agency decision even if it is “‘of less than ideal 24 clarity,’” so long as “‘the agency’s path may reasonably be discerned.’” Northwestern Motorcycle 25 Ass’n v. U.S. Dept. of Agriculture, 18 F.3d 1468, 1478 (9th Cir. 1994) (citing Motor Vehicle Mfr. 26 Ass’n v. State Farm Mutual Ins. Co., 463 U.S. 29, 43 (1983)). The agency need only show “‘a 27 rational connection between the facts found and the choices made.’” Motor Vehicle Mfr. Ass’n, 463 28 U.S. at 43 (citation omitted). “[R]eview is especially deferential in the context of immigration 17 1 policy.” Jang v. Reno, 113 F.3d 1074, 1077 (9th Cir. 1997). 2 3 b. Discussion The USCIS denied Plaintiff Sandhu’s third I–130 petition filed on behalf of Plaintiff Singh 4 pursuant to Section 204(c) of the INA, 8 U.S.C. § 1154(c), based on “the results of interviews, 5 documentary evidence, and Evelyn Williams’ own admissions regarding her participation in a 6 marriage fraud scheme.” (Compl. Ex. 1 at 9.) Underlying Plaintiffs’ APA claim is their contention 7 that USCIS made an “erroneous determination that Mr. Singh’s prior marriage was a sham, based 8 on false allegations by Ms. Williams” and therefore “oppressively denied” the I-130 petition. 9 (Compl. ¶¶ 114, 148, 151.) Specifically, Plaintiffs contend that Ms. Williams’ statements about the 10 fraudulent nature of her marriage to Plaintiff Singh were “fabricated,” “coerced” by Officer Yurgin, 11 and “made under extreme duress” by someone who “capitulated under pressure and threats” of going 12 to jail and losing her children because of the “vulnerability she developed as a result of hardships 13 she suffered in her life growing up on the ‘wrong side of the fence.’” (Compl. ¶¶ 10, 17, 57, 65, 78, 14 79, 106, 109, 152, 199.) 15 Defendants contend in their Motion that the USCIS’s Notice of Decision denying Plaintiff 16 Sandhu’s third I-130 petition “pointed out that the answers given by Ms. Williams and Mr. Singh 17 were not only discrepant, but contradictory,” and that, upon being confronted with “these and other 18 discrepancies” Ms. Williams “immediately admitted” that the marriage was a sham and signed a 19 voluntary sworn statement affirming that admission. (Doc. 16-1 at 10.) The Notice of Decision, 20 however, does not identify the “discrepant and contradictory testimony” given by Ms. Williams and 21 Mr. Singh on which the USCIS relies in denying the I-130 petition. (See Compl. Ex. 1 at 2–10.) 22 Nor does it identify on what “documentary evidence,” other than Ms. Williams’ written confession, 23 the USCIS relied for the denial. (See id.) Because the standard on a motion to dismiss requires the 24 Court to construe allegations of material fact in a light most favorable to Plaintiffs, and accept them 25 as true, Plaintiffs’ allegation that Ms. Williams’ oral and written admissions were false must be 26 accepted over Defendants’ contrary assertions. See Erickson, 551 U.S. at 94; Parks Sch. of Bus., 27 Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Consequently, Plaintiffs’ assertions that Ms. 28 Williams’ admission of marriage fraud was false, that the administrative record before the USCIS 18 1 contained evidence showing the bona fides of Mr. Singh’s marriage to Ms. Williams, such as car 2 registration information, insurance statements, joint tax returns, and sworn affidavits, and that 3 USCIS nevertheless denied the I-130 petition, raises a cognizable cause of action for judicial review 4 of agency action under the APA’s arbitrary and capricious standard. See Angeles v. Johnson, No. 5 13-CV-00008-BTM-RBB, 2014 WL 4912811, at *5 (S.D. Cal. Sept. 29, 2014). Cf. Iredia v. 6 Fitzgerald, No. CIV.A. 10-228, 2010 WL 2994215, at *5 (E.D. Pa. July 27, 2010) (granting motion 7 to dismiss a claim under the APA challenging the denial of an I-130 petition pursuant to Section 8 204(c) of the INA where the USCIS “simply chose to believe the ex-wife, who had no demonstrated 9 reason to lie, over the plaintiffs.”) (emphasis added). 10 Additionally, given the nature of the allegations raised in the pleadings and exhibits thereto, 11 it is premature at this stage of the proceedings to determine whether the USCIS’s denial of Plaintiff 12 Sandhu’s third I-130 petition pursuant to Section 204(c) of the INA, 8 U.S.C. § 1154(c), violated 13 the APA. Such determination is best suited for a motion for summary judgment with the benefit of 14 the complete administrative record, which is not presently before the Court.4 See Thompson v. U.S. 15 Dep’t of Labor, 885 F.2d 551, 555 (9th Cir. 1989) (In APA cases the administrative record is “the 16 whole record,” which “consists of all documents and materials directly or indirectly considered by 17 agency decision-makers.”); Portland Audubon Soc. v. Endangered Species Comm., 984 F.2d 1534, 18 1548 (9th Cir. 1993) (“‘The whole record’ includes everything that was before the agency pertaining 19 to the merits of its decision.”). 20 This is not to say that Defendants may not be successful later in this suit, particularly if the 21 administrative record shows reality to be closer to Defendants’ conception than Plaintiffs’ version.5 22 23 24 25 26 27 28 4 Although many of the exhibits attached to the complaint are the same as those contained in the administrative record, there are many notable omissions. For example, not attached to the complaint, but which comprises the administrative record, are the USCIS’s Notices of Intent to Deny Plaintiff Sandhu’s I-130 petitions, the copy of car registration information for Mr. Singh and Ms. Williams, the IRS account transcript showing Mr. Singh and Ms. Williams filed joint tax returns in 2001, Allied Interstate statements addressed to Mr. Singh at the address he shared with Ms. Williams, and, perhaps most pertinent to Plaintiffs’ allegations, the video recording of the October 8, 2002 interviews of Plaintiff Singh and Ms. Williams. 5 In their opposition to the Motion, Plaintiffs assert that the Court “should hold unlawful and set aside the final agency action in this matter as ‘arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with law,’” and in so doing appear to request that the Court adjudicate the merits of their APA claim in the context of Defendants’ Motion. (See Doc. 18 at 9–10.) To the extent Plaintiffs seek in their opposition brief to move for summary judgment on their APA claim (Claim Two), that request is DENIED without prejudice, subject to being renewed upon submission of the 19 1 Since this is an APA action, the Court is limited in its scope of review, that is, whether substantial 2 evidence supports the agency fact finding and whether the decision was legally erroneous. See 3 Melkonian v. Ashcroft, 320 F.3d 1061, 1065 (9th Cir. 2003) (noting that an agency’s factual findings 4 must be upheld “if supported by reasonable, substantial, and probative evidence in the record”); 5 Bonnichsen v. U.S., 367 F.3d 864, 880 n.19 (9th Cir. 2004) (“substantial evidence means such 6 relevant evidence as a reasonable mind might accept as adequate to support a conclusion”) (internal 7 citation omitted). At this point, however, Defendants have not shown that Plaintiffs’ allegations 8 underlying Claim Two are implausible, and their Motion is DENIED as to this claim. 9 2. 10 Claim Five: Procedural Due Process a. Legal Standard The Due Process Clause of the Fifth Amendment provides that no person “shall be deprived 11 12 of life, liberty, or property, without due process of law.” U.S. Const. amend. V. “A threshold 13 requirement to a substantive or procedural due process claim is [a] plaintiff’s showing of a liberty 14 or property interest protected by the Constitution.” Wedges/Ledges of Cal., Inc. v. City of Phoenix, 15 24 F.3d 56, 62 (9th Cir. 1994). The Ninth Circuit has recognized that “[i]mmediate relative status 16 for an alien spouse is a right to which citizen applicants are entitled [so] long as the petitioner and 17 spouse beneficiary meet the statutory and regulatory requirements for eligibility” and that “this 18 protected interest is entitled to the protections of due process.” Ching, 725 F.3d at 1156. See 19 Shashlov v. Sessions, Case No. 2:17-cv-2166-JFW-KS, 2017 WL 6496440, at *3 (C.D. Cal. Dec. 4, 20 2017). 21 “Due Process is flexible and calls for procedural protections as the particular situation 22 demands.” Gilbert v. Homar, 520 U.S. 924, 930 (1997). It is not “a technical conception with a 23 fixed content unrelated to time, place, and circumstances.” Id. (quoting Cafeteria & Restaurant 24 Workers v. McElroy, 367 U.S. 886 (1961)). Moreover, not every case requires a formal hearing or 25 an opportunity to cross-examine witnesses to satisfy due process. To determine what process is 26 required, courts consider three factors: (1) the private interest at stake; (2) the risk of erroneously 27 28 administrative record to the Court and in compliance with Federal Rule of Civil Procedure 56 and Rule 260 of the Local Rules of the United States District Court, Eastern District of California. 20 1 depriving the petitioner of that interest under the procedures currently in use, and the probable value, 2 if any, of additional or substitute procedural safeguards; and (3) the government’s interest, including 3 the burdens of adding or substituting the procedures used. Mathews v. Eldridge, 424 U.S. 319, 335 4 (1976). 5 b. Discussion To determine whether Plaintiffs have adequately alleged a procedural due process challenge, 6 7 the Court must apply the factors outlined in Mathews. In Ching, the Ninth Circuit applied Mathews 8 where USCIS denied an I–130 petition under § 1154(c)(1). 725 F.3d 1149, 1157 (9th Cir. 2013). 9 The Ching Court found the first two Mathews factors weighed heavily in favor of the petitioners 10 because the alien spouse, Ching, was in deportation proceedings and would be removed from the 11 country if the I–130 petition was denied. The court also found that Ching had presented “substantial” 12 and “uncontested documentary evidence” to rebut her ex-husband’s claim that their marriage was 13 not bona fide. Id. at 1159. Accordingly, the court concluded that “under the specific circumstances 14 of th[e] case,” due process required a hearing with an opportunity for Ching to cross-examine her 15 husband about his statements that their marriage was not bona fide. Id. Defendants contend that Plaintiffs’ claim for violation of their procedural due process rights 16 17 is subject to dismissal because the USCIS complied with the process provided by applicable statue 18 and regulation, and the Ching decision does not require additional process in this case. (Doc. 16-1 19 at 12–15.) Plaintiffs respond that the Mathews factors “clearly cut in favor” of providing them an 20 opportunity to confront and/or cross-examine Ms. Williams and Officer Yurgin, as their case is 21 “strikingly similar to Ching.” (Doc. 18 at 10, 12.) First, although Defendants assert that they “followed the statutory and regulatory 22 23 requirements” applicable to the adjudication of Plaintiff Sandhu’s I-130 petition on behalf of 24 Plaintiff Singh, the Court, in the absence of the administrative record, cannot make that 25 determination. The Court is unable to ascertain, for example, whether the NOID issued on October 26 19, 20176 specified “the bases for the proposed denial sufficient to give the applicant or petitioner 27 adequate notice and sufficient information to respond” as required by 8 C.F.R. § 103.2(b)(8)(iv) 28 6 The NOID is referenced in the Notice of Decision dated March 13, 2018. (See Compl. Ex. 1 at 7.) 21 1 because the NOID is not before the Court. Cf. Shashlov, 2017 WL 6496440, at *3 (finding that the 2 plaintiffs “received all of the process to which they are entitled by statute and regulation” where the 3 NOID “detail[ed] the evidence that supported the USCIS’ finding of marriage fraud pursuant to 8 4 C.F.R. Section 103.2(b)(8)(iv)). 5 The Court next considers the Mathews factors. With respect to the first factor, assessment 6 of the private interest that will be affected by the official action, Plaintiffs allege that “without an I7 130 approval, Mr. Singh faces imminent removal from the United States, which would undoubtedly 8 inflict immense hardship and irreparable harm upon the family.” (Compl. ¶ 118.) Given the weight 9 that is given to the right to live with and not be separated from one’s immediate family, see Ching, 10 725 F.2d at 1157, these allegations demonstrate that the first factor of Mathews favors Plaintiffs. 11 It is less clear what weight should be given to the second (risk of erroneous deprivation) and 12 third (governmental interest) factors. Both turn on the factual circumstances of this case, much of 13 which is contained in the administrative record that is not yet before this Court. Plaintiffs allege in 14 their complaint that Ms. Williams was “intimidated” by Officer Yurgin and coerced into making 15 admissions of marriage fraud, which were false and resulted in an “erroneous determination that 16 [Plaintiff] Singh’s prior marriage was a sham.” (Compl. ¶¶ 10, 25, 58, 63, 65, 94, 99, 119, 151, 152, 17 155.) Plaintiffs also allege that they presented “substantial evidence that [Plaintiff Singh’s] first 18 marriage was bona fide”—much of which is not presently before the Court, see Section II.D.1.b 19 supra—to the USCIS in support of the I-130 petitions. (Id. ¶¶ 20, 66, 114, 120.) Taking Plaintiffs’ 20 allegations as true, as the Court must at this stage of the proceedings, they state at least a “plausible” 21 claim that, in the absence of Plaintiffs’ ability to cross-examine Ms. Williams and/or Officer Yurgin, 22 there is a significant “risk of [an] erroneous” finding that Plaintiff Singh’s marriage to Ms. Williams 23 was fraudulent. See Ching, 725 F.2d at 1158 (determining that the “risk of erroneous deprivation” 24 to be high where the USCIS based its marriage fraud determination solely on a six-sentence 25 statement from an ex-spouse, solicited by USCIS officers at an “unexpected visit” to his home and 26 could be “quite intimidating,” and where the petitioners submitted “substantial evidence” that the 27 first marriage was bona fide.) See also, e.g., J.E.F.M. v. Holder, 107 F. Supp. 3d 1119, 1142 (W.D. 28 Wash. 2015) (denying motion to dismiss the plaintiff’s procedural due process claim where it was 22 1 plausible that the current procedures employed during removal proceedings were inadequate), aff’d 2 in part, rev’d in part sub nom. J.E.F.M. v. Lynch, 837 F.3d 1026 (9th Cir. 2016)). Whether Plaintiffs 3 can ultimately prevail on this issue once the administrative record is before the Court is a question 4 for another day.7 5 With respect to the third Mathews factor, the fiscal and administrative burden of giving 6 Plaintiffs the opportunity to cross-examine Ms. Williams and/or Officer Yurgin, is outside 7 Plaintiffs’ knowledge and therefore cannot be alleged in the complaint. Defendants do not address 8 this factor in their Motion, strongly suggesting that such burden is, as it was in Ching, “relatively 9 slight.” Id. at 1159. Nevertheless, the Court cannot, on this scant record, evaluate in a meaningful 10 way the burden that would be imposed by the additional due process. See J.E.F.M. v. Holder, 11 J.E.F.M. v. Holder, 107 F. Supp. 3d at 1143 (finding that the burdens on the government related to 12 the right to appointed counsel in removal proceedings “not sufficiently quantified or developed to 13 allow the Court to engage in the balancing required by Mathews” and denying motion to dismiss 14 procedural due process claim). Administrative proceedings like the adjudication of I-130 petitions “must be carefully 15 16 assessed to determine what process is due, given the specific circumstances involved” and must be 17 determined on a “case by case basis.” Ching, 725 F.3d at 1157. It is therefore premature to conduct 18 the weighing process called for under Mathews, “which is more suitably addressed at the summary 19 judgment stage of the case when a factual record has been developed.” Singh v. Holder, No. C–13– 20 4958 EMC, 2014 WL 117397, at *6 (N.D. Cal. Jan. 10, 2014). Here, Plaintiffs have adequately 21 alleged in their complaint a claim, based on Mathews and Ching, of entitlement to additional 22 procedural due process under the Fifth Amendment to the U.S. Constitution, which is all that is 23 24 25 26 27 28 7 The Court notes that the Ninth Circuit did not establish in Ching a right to cross-examine witnesses in every visa adjudication. Indeed, it has twice declined to find a Mathews/Ching violation in the context of the denial of an I-130 petition under 8 U.S.C. § 1154(c)(1). See Alabed v. Crawford, 691 F. App’x 430, 432 (9th Cir. 2017) (finding no procedural due process violation); Dhillon v. Mayorkas, 537 F. App’x 737, 738 (9th Cir. 2013) (finding no procedural due process violation in an opinion released within a week of Ching and heard by the same panel); accord, e.g., Shashlov, 2017 WL 6496440, at *4–6; Mattson v. Kelly, Case No. 3:15–cv–182–LRH–WGC, 2017 WL 4102463, at *10 (D. Nev. Sept. 14, 2017); Avitan, 2011 WL 499956, at *9; Garcia–Lopez v. Aytes, No. C 09–0592 RS, 2010 WL 2991720, at *4 (N.D. Cal. July 28, 2010). 23 1 required to survive a motion to dismiss under Rule 12(b)(6). See Iqbal, 556 U.S. at 678–79; 2 Twombly, 550 U.S. at 555, 558–59. As such, the Motion is DENIED as to Claim Five. 3 E. Leave to Amend Claim Four Will be Granted 4 Courts are free to grant a party leave to amend whenever “justice so requires,” Fed. R. Civ. 5 P. 15(a)(2), and requests for leave should be granted with “extreme liberality.” Owens v. Kaiser 6 Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001) (quoting Morongo Band of Mission 7 Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir.1990)); see Moss, 572 F.3d at 972 (9th Cir. 2009). 8 “[A] district court should grant leave to amend even if no request to amend the pleading was made, 9 unless it determines that the pleading could not possibly be cured by the allegation of other facts.” 10 Lacey v. Maricopa Cty., 693 F.3d 896, 926 (9th Cir. 2012) (quoting Doe v. United States, 58 F.3d 11 494, 497 (9th Cir. 1995). 12 Leave to amend Claim Four will be granted to give Plaintiffs the opportunity to state an 13 equal protection claim against Defendants under the Fifth Amendment. Plaintiffs may not change 14 the nature of this suit by adding new, unrelated claims in their amended complaint. See George v. 15 Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints). 16 Under Federal Rule of Civil Procedure 8(a), a complaint must contain “a short and plain 17 statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). 18 The Court notes that Plaintiffs’ complaint is 60 pages in length. It is verbose, containing repetitive 19 allegations, verbatim reproductions from attached exhibits, exaggerated characterizations, and 20 argument of counsel, all set forth with various typographic emphasis. Plaintiffs’ amended complaint 21 must set forth their claims in short and plain terms, simply, concisely, and directly. See 22 Swierkiewicz v. Sorema, 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting point of a simplified 23 pleading system, which was adopted to focus litigation on the merits of a claim.”); Fed. R. Civ. P. 24 8. Plaintiffs must eliminate from their amended complaint all unnecessary repetition, argument, 25 hyperbole, attempts to negate possible defenses, and the like. See McHenry v. Renne, 84 F.3d 1172, 26 1180 (9th Cir. 1996). 27 Lastly, Plaintiffs are advised that an amended complaint supersedes the original complaint. 28 Lacey., 693 F.3d at 927. Therefore, Plaintiffs’ amended complaint must be “complete in itself 24 1 without reference to the prior or superseded pleading.” Rule 220, Local Rules of the United States 2 District Court, Eastern District of California. 3 III. ORDER 4 For the reasons stated above, IT IS HEREBY ORDERED THAT: 5 1. Defendants’ motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) 6 (Doc. 16) is GRANTED IN PART AND DENIED IN PART. 7 2. Plaintiffs’ Claims One and Three are DISMISSED WITHOUT LEAVE TO 8 AMEND. 9 3. Plaintiffs’ claim under 42 U.S.C. § 1983 asserted in Claim Four is DISMISSED 10 WITHOUT LEAVE TO AMEND. 11 4. Plaintiffs’ claim for violation of their rights to equal protection asserted in Claim 12 Four is DISMISSED WITH LEAVE TO AMEND. 13 5. Any amended complaint shall be filed within 30 days. If Plaintiffs fail to file an 14 amended complaint in compliance with this order, the Court shall dismiss Plaintiffs’ equal 15 protection claim asserted in Claim Four for failure to state a claim. 16 17 IT IS SO ORDERED. 18 Dated: 19 September 30, 2018 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 25 .
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