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Discussing District Court Standards In Reviewing    USCIS Denials Of Certain Applications & Petitions                     ...
[page 5]Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990). A Rule 12(b)(6) motion todismiss is granted when t...
agency’s decision was based on a rational consideration of relevant factors, and that the decision       was not in clear ...
Another District of Minnesota Judge has also been a great source of well-writtenexplanations of various standards of revie...
this judge made an excellent study of the case law in adjudication of the form N-565,Application for Replacement Naturaliz...
Petitions To Amend Certificates Of Naturalization:Various applicants have taken USCIS to court seeking orders to amend the...
Second, as noted, the regulation under which Hussain seeks relief — 8 C.F.R. § 334.16(b) —on       its face gives courts t...
(3) there is reliable evidence supporting the birth date that the petitioner now       alleges is correct.” [Emphasis adde...
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Discussing District Court Standards In Reviewing USCIS Denials of Certain Petitions

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Discussing District Court Standards In Reviewing USCIS Denials of Certain Petitions

  1. 1. Discussing District Court Standards In Reviewing USCIS Denials Of Certain Applications & Petitions By Joseph P. Whalen (April 24, 2012)U.S. District Judge Ann D. Montgomery in the United States District Court for theDistrict of Minnesota recently penned a well-written Memorandum Opinion andOrder in Civil Case No. 11-2447, which was issued March 20, 2012 1. It is worthreading merely for the clear discussion of the standards that she employed inrendering this decision even if you (like me) have absolutely no interest (personal orotherwise) in the outcome of this particular case.Here is an excerpt from Alliance Home Health Care and Nursing Services, LLC et alv. 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).1 http://docs.justia.com/cases/federal/district-courts/minnesota/mndce/0:2011cv02447/121882/21/0.pdf?ts=1332333960 Page 1 of 8
  2. 2. [page 5]Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990). A Rule 12(b)(6) motion todismiss is granted when the factual allegations, even assumed to be true, do not entitle that partyto relief. See, e.g., Taxi Connection v. Dakota, Minn. & E. R.R. Corp., 513 F.3d 823, 826-27 (8thCir. 2008). Pleadings must “contain a short and plain statement of the claim showing that the pleaderis entitled to relief.” Fed. R. Civ. P. 8(a). Rule 8(a) has been interpreted to mean that a pleadingmust 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 claimmust “plead[] factual content that allows the court to draw the reasonable inference that thedefendant 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 drawon its judicial experience and common sense.” Id. at 1950. However, “where the well-pleadedfacts do not permit the court to infer more than the mere possibility of misconduct, thecomplaint has alleged—but not ‘shown’—‘that the pleader is entitled to relief.’” Id. (quotingFed. 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, orotherwise 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 anda court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n ofU.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 ofevidence than preponderance of the evidence, and that Defendants’ denial of the I-129 and I-539applications 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 failto state a claim upon which relief can be granted, and that no genuine issue exists because the Page 2 of 8
  3. 3. 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 ofany value to the point of this article however, the challenge to that USCIS H1-B denial wasdismissed. Basically the petitioner tried to pass off a bookkeeper as an accountant. Theyclaimed that this small in-home healthcare provider needed a specialized accountant. Theyonly have 49 employees and 250 to 300 “clients” at any one time for whom they providecare. Payroll and billing for so few employees (most of whom are probably part-timeworkers) and so few clients (most of whom probably merely requiring a small amount ofassistance perhaps with bathing, light housekeeping/cooking, and shopping or getting todoctors’ appointments) sure does not seem to me like it would even require a full-timebookkeeper 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 veryinformative and thankfully succinct. In that we are still waiting for USCIS to issue itsoverdue Notice of Proposed Rulemaking (NPRM) on its much anticipated AAO reforms, weneed to look to wherever information is to be found. AAO would not be wasting its timelooking at some of these well-written and well-reasoned District Court decisions. It isinteresting 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 theevidence it presents under these same standards and prepare cases accordingly fromthe very beginning. It may be the official District Court rules under discussion above but theactual adjudications by the USCIS adjudicators and then the AAO Appeals Officers will beperformed in almost identical fashion for practical purposes. Yes, the USCIS Officers will beprimarily 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 benefitadjudication should closely mirror what Judge Montgomery did. While she primarily lookedat the descriptions of the evidence submitted as described in the competing briefs, it is alsopossible that, depending on how much of the administrative record was included; she mayhave reexamined (copies of) the exact same evidence that USCIS already examined, in orderto reach her conclusions. A solidly supported petition or application need only convince thefirst Officer who reviews it. Questionable petitioners, beneficiaries and/or positions, ormerely poorly prepared submissions will likely have to be appealed after denial and furthersupplemented and thereby eventually have to overcome specific objections and ultimatelyconvince additional Officers or a Judge. Poor initial case preparation is a road best nottravelled at all.2 Thts 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 wroteabout in my essay at: http://www.slideshare.net/BigJoe5/among-other-things-part-ii-heightened-pleading-standard Page 3 of 8
  4. 4. Another District of Minnesota Judge has also been a great source of well-writtenexplanations 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, conciseand 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 APAand 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 complaints 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 amandamus order rather than to naturalization which was not the point at issue before theJudge at that time. He was deciding whether he had the authority to “compel” thegovernment 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 proceedwith 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 isancillary to this matter but is also within the area of naturalization law, specifically theadjudication of issues arising post naturalization. In a case seeking to change a date of birthon a naturalization certificate after the person had been naturalized for a number of years,3 http://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 Page 4 of 8
  5. 5. 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 Hussainv. U.S. Citizenship & Immigration Servs., 541 F. Supp. 2d 1082 (D. Minn. 2008) 4, AAO hasbeen relying on this decision in its decisions on appeals of N-565s, I wrote about it incomments submitted to DHS in connection to the “Retrospective Regulatory Review”, andeventually, USCIS repealed outdated regulations on this subject matter. In the USCISTransformation Rule, Increment I, 76 FR 53764-53806 (Aug. 29, 2011), “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 isactively working on a long overdue AAO rule. This and numerous other subjects may beincluded in that overdue rule. See “Administrative Appeals Office: Procedural Reforms ToImprove 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]4 http://www.leagle.com/xmlResult.aspx?xmldoc=20081623541FSupp2d1082_11519.xml&docbase=CSLWAR3-2007-CURR5 http://www.regulations.gov/#!documentDetail;D=DHS-2012-0005-0001 Page 5 of 8
  6. 6. Petitions To Amend Certificates Of Naturalization:Various applicants have taken USCIS to court seeking orders to amend their certificate ofnaturalization 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 theregulations.Specific Court Criticism Of The Regulations:Hussain was decided by United States District Judge Patrick J. Schiltz on March 27, 2008, inMinnesota. He performed a painstaking analysis on the topic and was rather critical of theregulations. 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.6 8 CFR § 334.16(b) “... A representative of the Service may appear at the hearing upon suchapplication and be heard in favor of or in opposition thereto….” If USCIS objects, it mayinstitute revocation proceedings per INA § 340 before reaching the N-565 Court Proceeding ormay request a continuance at this point to begin revocation. Page 6 of 8
  7. 7. 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 thecountry and spanning decades, Judge Schiltz drew some very insightful conclusions. USCISwould 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; and7 Such concessions make clear that the Government realizes that the regulations are inadequateand out of date.8 Footnote in original: Few courts have actually used the phrase “clear and convincingevidence,” but that, in reality, is the standard of proof that most courts seem to have applied. Inalmost every case in which a petition has been granted — whether the court purported to applythe 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 thepetitioner in fact presented clear and convincing evidence that the birth date on his or hercertificate was incorrect. Page 7 of 8
  8. 8. (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 guidanceand wisdom to be found within the various well-written District Court decisions undervarious provisions of the INA and other relevant statutes controlling reviews thereof. Inpreparing any case for submission to USCIS, I believe that it is wise and prudent to aim forsuccess under the review standards discussed above. I can’t stress enough just how criticalproper case preparation and presentation is towards the achieving the desired routine oftimely adjudication decisions plus the added bonus of an increase in favorable initialdecisions. While the ultimate approval and denial rates would not likely change, the numberof favorable outcomes achieved in the initial process would likely increase and aproportional commensurate volume of administrative appeals and motions should decrease.Well, at least that’s one man’s opinion. Best wishes and good luck! Page 8 of 8

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