Singh v. United States of America

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

Ranjit Singh, et al., Case No. 1:20cv799

Plaintiffs,

-vs- JUDGE PAMELA A. BARKER

United States of America, MEMORANDUM OPINION AND

et al., ORDER

Defendants

This matter concerns the denial of a Form I-130 Petition for Alien Relative (“Form I-130

Petition”) filed by Plaintiff Kristine Singh (hereinafter “Ms. Singh”) on behalf of her husband

Plaintiff Ranjit Singh (hereinafter “Mr. Singh”). Ms. Singh’s Form I-130 Petition was denied by the

United States Citizenship and Immigration Services (“USCIS”) and the denial was affirmed by the

Board of Immigration Appeals (“BIA”). Plaintiffs seek review under the Administrative Procedure

Act (“APA”), 5 U.S.C. § 701 et seq.

Currently pending is Plaintiffs’ “Objection to Defendants’ Certified Administrative Record.”

(Doc. No. 15.) Defendants United States of America; Merrick Garland, Attorney General of the

United States; Alejandro Mayorkas, Secretary of the Department of Homeland Security (“DHS”);

Kenneth Cuccinelli, Senior Official Performing Duties of the Director of USCIS; Anna Chau, District

Director of USCIS District N12; and Karyn Zarlenga, Cleveland Field Office Director of USCIS1

filed a Brief in Opposition on May 14, 2021. (Doc. No. 17.) Plaintiffs did not file a Reply.

1 In the Complaint, Plaintiffs name William Barr as the Attorney General, Chad Wolf as the Acting Secretary of the

Department of Homeland Security, Mark Koumans as the Director of USCIS, and Mark Hansen as the District Director

of USCIS. (Doc. No. 1.) Pursuant to Fed. R. Civ. R. 25(d), Merrick Garland, Alejandro Mayorkas, Kenneth Cuccinelli

and Anna Chau are substituted in place of these Defendants, respectively. See Doc. No. 5 at p. 1.

For the following reasons, Plaintiffs’ Objection is overruled.

I. Background

A. Factual Background and Administrative Proceedings

In September 1990, Mr. Singh entered the United States without inspection at or near

Brownsville, Texas. (Doc. No. 14-2 at PageID# 183.) Eleven years later, in 2001, Mr. Singh married

Heidi Newrones (hereinafter “Ms. Newrones”), a United States citizen. (Id.) Ms. Newrones

subsequently filed a Form I-130 Petition on Mr. Singh’s behalf, and Mr. Singh concurrently filed a

Form I-485 Application to Register Permanent Residence or Adjust Status.2 (Id.)

Mr. Singh’s and Ms. Newrones’s marriage came to an end in 2003. Specifically, a Petition

for Dissolution of Marriage was filed on June 11, 2003 and an Entry and Decree of Dissolution of

Marriage was thereafter issued on August 28, 2003. (Id.) Two years later, in August 2005, Ms.

Newrones’s Form I-130 Petition was denied “as the marriage between Mr. Singh and Ms. Newrones

was terminated.” (Id.) In addition, Mr. Singh’s Form I-485 Petition was administratively closed “as

USCIS did not have jurisdiction to adjudicate the application, as Mr. Singh was still under the

jurisdiction of the Immigration Judge.” (Id.)

Several years later, on May 6, 2013, Mr. Singh married Plaintiff Kristine Singh (then-known

as Kristine Vincent) in Cleveland, Ohio. (Id.) Ms. Singh subsequently filed the instant Form I-130

Petition on Mr. Singh’s behalf. (Id.) Ms. Singh submitted various evidence in support of the Petition,

2 The Immigration and Nationality Act (“INA”) provides that U.S. citizens may file a Form I-130 petition for classification

of their alien spouse as “immediate relative status.” 8 U.S.C. § 1154. When a United States citizen files a Form I-130

Petition, the government is required to review and adjudicate the petition. 8 U.S.C. §§ 1151(b)(2)(A)(i), 1154. If the

Form I-130 Petition is approved, the non-citizen spouse may apply for lawful permanent resident status. See 8 U.S.C. §

1255(a). See Makhamreh v. Attorney General Dep’t of Justice, 2020 WL 6146593 at * 4 (S.D. Ohio Oct. 20, 2020);

Sholanke v. U.S. Citizenship & Immigration Services, 2020 WL 1452449 at *4 (N.D. Ohio March 25, 2020).

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including (1) joint checking account statements; (2) bank cards; (3) a copy of a lease agreement for

Plaintiffs’ purported marital residence; (4) various bills in Mr. Singh’s name; (5) a Verizon wireless

call log; (6) copies of Plaintiffs’ marriage license and marriage record; (7) a copy of the Separation

Agreement and Entry and Decree of Dissolution of Marriage between Mr. Singh and Ms. Newrones;

(8) six notarized statements attesting to the validity of Plaintiffs’ marriage; and (9) copies of various

photographs. (Id.).

In March 2016, Mr. and Ms. Singh appeared for an interview with an Immigration Services

officer in connection with the Form I-130 Petition. (Id. at PageID# 184.) Based on statements made

by Plaintiffs during the interview, and USCIS’s review of the evidence submitted, USCIS determined

that “the testimony and documentary evidence in the record did not establish the claimed relationship”

between Mr. and Ms. Singh. (Id.) USCIS therefore referred Ms. Singh’s Form I-130 Petition for

“further investigation regarding the bona fides of [Plaintiffs’] current marriage and [Mr. Singh’s]

prior marriage to Heidi Newrones.” (Id.)

Immigration officials subsequently contacted Ms. Newrones by telephone in August 2016

regarding her previous marriage to Mr. Singh. (Doc. No. 14-6 at PageID# 570.) USCIS summarized

its telephone conversation with Ms. Newrones as follows:

IO Zinnerman spoke with Heidi FREDRICKSON (aka: NEWRONES). [Newrones]

stated in the telephonic interview she met the beneficiary through a friend who worked

with the beneficiary's cousin and had known him for 7 years prior to marriage.

[Newrones] admitted the beneficiary asked her several times to marry him as a favor

before she complied. [Newrones] stated she was nervous and was never comfortable

with the issue, however complied with his request to marry him as a favor because she

felt bad and was concerned for his safety if he returned to India. [Newrones] stated

they signed a lease together at 147 Deerfield Lane, Aurora, OH; however the

beneficiary never moved in with her. [Newrones] stated the beneficiary was supposed

to move in with her at the Deerfield location but he never moved in. [Newrones]

stated she recalls the beneficiary living in Maple Heights at the time she lived on

Deerfield Lane. [Newrones] stated the beneficiary paid half of the rent because he

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was scheduled to move in but when he did not move in, she stopped taking half of the

rent money and her sister later moved in with her at the Deerfield location.

[Newrones] stated she never consummated the marriage with the beneficiary, and

never had a bona fide boyfriend/girlfriend relationship with the beneficiary.

[Newrones] stated very few people knew about the marriage with the beneficiary, with

her children and father finding out on 8/10/2016. [Newrones] stated she was in a

relationship with David FREDRICKSON since the end of 2000 and was dating

DAVID the entire time of the marriage with the beneficiary. [Newrones] stated the

beneficiary did not promise her anything and she did not receive any money from him

for agreeing to the fraudulent marriage. [Newrones] stated when she filed for divorce

so that she could freely marry DAVID, in which the beneficiary got upset and wanted

her to stay married in order to continue with the immigration process. [Newrones]

admitted it was not a real marriage.

(Id.) Plaintiffs allege that Ms. Newrones was coerced into making the above statements, alleging that

“immigration officials confronted Ms. Newrones, accused her of fraud, and threatened her with fines

and jail time if she did not admit her marriage to Mr. Singh was a sham.” (Doc. No. 1 at ¶ 21.) In

addition, Plaintiffs allege that, at the time of her interview with USCIS, Ms. Newrones was in severe

pain and awaiting back surgery. (Id.)

The USCIS also conducted an unannounced visit to Plaintiffs’ marital residence as part of its

further investigation regarding Ms. Singh’s Form I-130 Petition. (Doc. No. 14-6 at PageID# 571.)

The Immigration officers noted that Mr. Singh was not at the residence at the time of the visit and,

further, that a visual inspection of the residence revealed “minimum [sic] personal belongings” of

Mr. Singh.3 (Id. at PageID# 571-572.) The officers noted that there were no daily transactions or

withdrawals in the Plaintiffs’ joint checking account and that Ms. Singh admitted she had a personal

account at a different bank which she used on a daily basis. (Id.) The USCIS officers then visited

the home of Ms. Singh’s mother, Linda Abood. (Id. at PageID# 572.) According to the officers, Ms.

3 During the March 2016 interview, Plaintiffs stated that Mr. Singh worked in Akron and that he sometimes spent the

night in Akron with a friend because he (Mr. Singh) did not have a driver’s license and Ms. Singh did not drive on the

highway. Ms. Singh reiterated this information during the officers’ unannounced visit.

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Abood made several statements that contradicted statements made by Ms. Singh. (Id.) Lastly, the

USCIS officers visited one of Plaintiffs’ neighbors. (Id. at PageID# 573.) This neighbor was able to

identify Ms. Singh and her two children but did not recognize a photo of Mr. Singh. (Id.)

On August 10, 2017, USCIS issued a Notice of Intent to Deny (“NOID”) Ms. Singh’s Form

I-130 Petition. (Doc. No. 14-2 at PageID#s 194-203.) Therein, the USCIS advised Ms. Singh that

the evidence supporting the Form I-130 Petition was insufficient to establish eligibility for the benefit

sought. (Id.) The NOID specifically cited the discrepancies discussed above and provided Plaintiffs

the opportunity to respond. (Id. at PageID# 197- 200)

On September 18, 2017, Plaintiffs responded to the NOID and submitted additional pieces of

evidence in support of the Petition, including (1) a brief from Plaintiffs’ attorney; (2) copies of joint

bank statements and personal money orders; (3) utility bills; and (4) affidavits from Ms. Singh, Mr.

Singh, and Ms. Singh’s son M. R. (Doc. No. 14-2 at PageID# 187.) In addition, on May 2, 2018,

Plaintiffs submitted additional evidence in support of the Petition, after requesting and receiving

information in response to a Freedom of Information Privacy Act (“FOIA”) request. (Id.) The

additional evidence submitted in support of the Petition included the following: (1) a brief from

Plaintiffs’ attorney; (2) copies of letters from USCIS’s FOIA Operations division; (3) copies of six

redacted affidavits obtained via Plaintiffs’ FOIA request; and (4) copies of an Immigration Officer’s

notes, also obtained via the FOIA request. (Id.)

According to USCIS’s summary, in his affidavit, Mr. Singh averred that he did not marry

either Ms. Newrones or Ms. Singh for immigration purposes. (Id. at PageID# 188.) He explained

that he did not have substantial personal items at his marital residence with Ms. Singh “as he

sometimes remains in Akron because of work.” (Id.) He further stated that there were, in fact, other

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personal items of his in the marital residence that USCIS did not see during the unannounced visit.

(Id.) Likewise, in her affidavit, Ms. Singh insisted that she and Mr. Singh are in a bona fide

relationship. (Id. at PageID# 187.) She explained that, due to several health issues, she is unable to

drive Mr. Singh back and forth from his job in Akron and, therefore, many nights he has to stay in

Akron. (Id.) Ms. Singh indicated that she and Mr. Singh do, in fact, regularly use their joint bank

account and, further, that many of Mr. Singh’s personal belongings are located at their marital

residence. (Id.) Finally, Ms. Singh indicated that her mother (Ms. Abood) may have been confused

by the Immigration officers’ questions, and that the neighbor may not have ever seen Mr. Singh

because of his (Mr. Singh’s) work schedule in Akron. (Id.)

On July 13, 2018, USCIS issued a lengthy decision in which it denied Ms. Singh’s Form I-

130 Petition. (Doc. No. 14-2 at PageID#s 181-190.) Specifically, after discussing all of the above in

detail, the USCIS determined that (1) “the record contains substantial and probative evidence

demonstrating that [Mr. Singh] married Heidi Newrones for the purpose of evading the immigration

laws;” and (2) “you have failed to demonstrate by a preponderance of the evidence that you and your

spouse have entered into a bona fide marital relationship and not for the purpose of obtaining

immigration benefits for your spouse.” (Id.)

On August 9, 2018, Plaintiffs timely appealed the USCIS decision to the Board of

Immigration Appeals (“BIA”). (Doc. No. 1 at ¶ 24.) On September 10, 2018, Plaintiffs’ counsel

submitted a brief in support of the appeal, which included additional evidence in support of Ms.

Singh’s Petition. (Id. at ¶ 25.) This additional evidence included (1) affidavits from Ms. Newrones,

Mr. Singh, and Ms. Singh; (2) a lease agreement; (3) letters from loved ones; and (4) utility bills,

joint bank account statements, and an auto insurance policy. (Id.)

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Ms. Newrones’s affidavit is dated August 30, 2018 and provides (in relevant part) as follows:

1. I was formerly married to Ranjit Singh. We later divorced and I then married my

current husband, and took his last name, "Fredrickson."

2. I married Ranjit in good faith, and because I loved him.

3. As I asserted to the USCIS-- nobody paid me or gave me anything of value to

induce me to marry Ranjit.

***

6. The USCIS officer accused me of entering into a sham marriage to help Ranjit get

his "green card." The USCIS officer accused me of "defrauding the USA" or

something like that, and threatened me with jail time, fines, or both. I was in severe

pain and awaiting back surgery. I was weak and felt alone. I was vulnerable and felt

threatened. The USCIS officer saw my weakness and coerced me into saying things

that were not true.

7. Hence I want to set the record straight:

a. I did live with Ranjit; we had a lease for our apartment at 147 Deerfield Lane

in Aurora, OH. As my husband, Ranjit did pay half the rent.

b. I did consummate my marriage with Ranjit; I lied earlier because I felt

threatened and ashamed, thinking that USCIS would besmirch my reputation

before my family and children.

c. I shared a joint bank account with Ranjit at First National Bank of Ohio, (now

PNC Bank), Aurora, Ohio into which we deposited money we earned and paid

our bills. Ranjit did contribute to our household.

d. My children loved Ranjit; he used to do things with them, such as take them

to get ice cream as a treat. My children still love him.

e. My sister . . . knew I was married to Ranjit.

f. I did not marry Ranjit as a "favor," as the USCIS states. I knew Ranjit for

several years before we got married. I got to know and love the kind of man

that he was.

g. Ranjit told me openly about his immigration status, because he did not want

to "surprise" me or make me feel like he had married me just so I could help

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him. I married Ranjit because I loved him and because when you love someone,

you want to help them.

8. Our marriage fell apart because of Ranjit's work schedule - as a truck driver, he

was gone from our home for extended periods of time and I became lonely. I really

needed a husband and a father for my children.

9. Ranjit is a really, really good guy. If he were not, I would not have married him.

10. I married Ranjit in good faith, for love, and not for money, or to help him with

"immigration."

11. I am able to state these facts now because I am strong in my marriage and trust

my husband, and my husband understands the prior relationship I had with Ranjit.

(Doc. No. 14-2 at PageID#s 254-255.)

On November 18, 2019, the BIA conducted a de novo review and dismissed the appeal. In

relevant part, the BIA found as follows:

We will affirm the Director's determination of fraud in the beneficiary's prior marriage.

Section 204(c) of the Act provides for a mandatory bar to the approval of any

subsequent visa petition filed on behalf of an alien who previously was found to have

entered into a marriage in order to evade immigration laws. Matter of Cabeliza, 11

I&N Dec. 812 (BIA 1966). Our decision in Matter of Tawfik, 20 I&N Dec. 166 (BIA

1990), states that the evidence of a fraudulent marriage "must be documented in the

alien's file and must be substantial and probative." Id. at 167. Further, the "[D]irector

should not give conclusive effect to determinations made in a prior proceeding." Id. at

168. Where the record contains evidence that the beneficiary married a United States

citizen to evade immigration laws, the burden then shifts to the petitioner to establish

that the beneficiary did not seek an immigration benefit based on a prior fraudulent

marriage. Matter of Kahy,19 I&N Dec. 803, 806-07 (BIA 1988).

In this matter, the record contains the memorialization by a USCIS officer of a

telephone conversation with the beneficiary's prior spouse, in which she admitted to

marrying the beneficiary as a "favor" in view of his lack of immigration status but

denied receiving compensation to do so. According to the notes of this telephone

conversation, which occurred in August 2016, the former spouse stated that the

beneficiary never lived with her and the marriage was never consummated.

Furthermore, the former spouse stated that she was in a relationship with another man

during her entire marriage to the beneficiary. On appeal, the petitioner submits a

sworn affidavit from the beneficiary's prior spouse disavowing her August 2016

statements to users and stating that she did not marry the beneficiary for immigration

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reasons, but rather that she married him for bona fide reasons after knowing him for

several years. See Petitioner's Br. at Attachment A. The petitioner does not indicate

why this affidavit was not provided previously in response to the NOID. Therefore,

we will not consider it for the first time on appeal. See Matter of Fedorenko, 19 I&N

Dec. 57, 74 (BIA 1984).

In view of the entire record including the prior spouse's statement to officers, her new

affidavit, and the lack of evidence in the record indicating that the beneficiary and his

prior spouse shared a bona fide relationship, we find that the evidence of a fraudulent

marriage in this record is "substantial and probative" and that, therefore, the denial of

the instant visa petition is supported on this record. Matter of Tawfik, 20 I&N Dec. at

167.

(Doc. No. 14-2 at PageID#s 205-206.)

B. Procedural History in this Court

On April 14, 2020, Plaintiffs filed the instant action, challenging the denial of Ms. Singh’s

Form I-130 Petition. (Doc. No. 1.) The Complaint does not set forth specific Counts but, rather, sets

forth a series of single-sentence paragraphs which it describes as “Claims.” (Id. at pp. 7-8.) In these

“Claims,” Plaintiffs allege that the USCIS decision denying Ms. Singh’s Form I-130 Petition:

• “violated the governing statute and regulations, is arbitrary and capricious, an

abuse of discretion, and not otherwise in accordance with law;”

• “was improper, as USCIS based its conclusions on conjecture and speculation,

instead of fact;”

• “is based on flawed reasoning;” and

• “is unsupported by the evidence in the record.”

(Id. at p. 7.) In addition, Plaintiffs allege that the “decision denying Plaintiffs’ 2015 I-130 Petition”:

• “failed to reach an independent conclusion based on the evidence and violates

Matter of Tawfik, 20 I&N Dec. 166 (BIA 1990);”

• “was incorrect because Mr. Singh’s file does not contain substantial and

probative evidence that he attempted or conspired to enter into a marriage for

the purpose of evading immigration laws;” and

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• “failed to permit Plaintiffs’ [sic] the opportunity to examine and rebut adverse

evidence in violation of 8 C.F.R. § 103.2(b)(16).”

(Id.) Finally, Plaintiffs allege that their due process rights were violated because they were not given

the opportunity to examine and rebut adverse evidence. (Id. at p. 8.)

On July 15, 2020, Defendants filed a Motion to Dismiss the Complaint in its entirety for

failure to state a claim upon which relief may be granted pursuant to Fed. R. Civ. P. 12(b)(6). (Doc.

No. 5.) Plaintiffs opposed the Motion. (Doc. Nos. 6, 8.)

On January 22, 2021, the Court issued a Memorandum Opinion & Order granting in part and

denying in part Defendants’ Motion. (Doc. No. 10.) Specifically, the Court granted Defendants’

Motion with respect to the Plaintiffs’ claims that (1) the BIA decision is arbitrary and capricious

because USCIS failed to provide Plaintiffs with the derogatory information that formed the basis of

its finding of prior marriage fraud; (2) the BIA decision is arbitrary and capricious because it is based

on evidence of prior marriage fraud that was developed years after the prior fraud allegedly occurred

and is not contained in the “file” of the Petition pertaining to that previous marriage; and (3) their due

process rights were violated because they were not given the opportunity to examine and rebut

adverse evidence. (Id.) The Court denied Defendants’ motion, however, with respect to Plaintiffs’

claim that the BIA’s finding of prior marriage fraud is arbitrary and capricious, an abuse of discretion,

or otherwise not in accordance with law because it is unsupported by the record and/or based on

flawed reasoning. (Id.)

On February 2, 2021, the Court conducted a telephonic conference with counsel, at which

time deadlines were set regarding the filing of the Certified Administrative Record and dispositive

motions. Defendants thereafter filed an Answer and the Certified Administrative Record. (Doc.

Nos. 11, 14.)

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On April 14, 2021, Plaintiffs filed an “Objection to the Certified Administrative Record,”

which the Court determined should be construed as a Motion to Supplement the Record. (Doc. No.

15.) Defendants filed a response on May 14, 2021. (Doc. No. 17.) Plaintiffs did not file a Reply

Brief in support of their Motion.

II. Legal Standard

District courts have jurisdiction to review a decision on the merits of a Form I–130 petition

to classify an alien as a relative of a United States citizen. Adi v. U.S., 498 Fed. Appx. 478, 480 (6th

Cir. 2012) (citations omitted). See also Daraghma v. U.S. Citizenship and Immigration Services, 228

F.Supp.3d 818, 822 (N.D. Ohio 2017). Pursuant to the APA, courts shall “hold unlawful and set

aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). An agency decision is

arbitrary and capricious if the agency fails to examine the relevant evidence or articulate a satisfactory

explanation for the decision. See Bangura v. Hansen, 434 F.3d 487, 502 (6th Cir. 2006).

This standard of review is narrow and deferential, and courts “should accept the agency's

factual findings if those findings are supported by substantial evidence on the record as a whole.”

Arkansas v. Oklahoma, 503 U.S. 91, 113 (1992). “Even when an agency explains its decision with

less than ideal clarity,” the decision will not be overturned “on that account if the agency's path may

reasonably be discerned.” Bangura, 434 F.3d at 502 (quoting Alaska Dep't of Env't Conservation v.

EPA, 540 U.S. 461, 497 (2004)). Courts should make a “searching and careful” inquiry into the facts,

but an agency's factual findings should be accepted if they are supported by substantial evidence on

the record. See National Cotton Council of America v. US. EPA, 553 F.3d 927, 934 (6th Cir. 2009);

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Ky. Waterways Alliance v. Johnson, 540 F.3d 466, 474 (6th Cir. 2008). See also Arkansas, 503 U.S.

at 113.

When courts review an agency decision, “[t]he APA requires courts to review the whole

record or those parts of it cited by the party.” Sierra Club v. Slater, 120 F.3d 623, 638 (6th Cir. 1997)

(internal quotation marks omitted). “The task of the reviewing court is to apply the appropriate APA

standard of review, 5 U.S.C. § 706, to the agency decision based on the record the agency presents to

the reviewing court.” Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743–44 (1985) (citation

omitted) (emphasis added). “[T]he focal point for judicial review should be the administrative record

already in existence, not some new record made initially in the reviewing court.” Kroger Co. v. Reg'l

Airport Auth. of Louisville & Jefferson Cty., 286 F.3d 382, 387 (6th Cir. 2002) (citation and internal

quotation marks omitted, alteration in original). See also Little Traverse Lake Property Owners Ass’n

v. National Park Service, 883 F.3d 644, 658 (6th Cir. 2018).

The Sixth Circuit has found, however, that supplementation of the record may be appropriate

under “exceptional circumstances.” Such exceptional circumstances have been found, for example,

“when an agency has deliberately or negligently excluded certain documents from the record, or when

a court needs ‘background’ information to determine whether the agency has considered all relevant

factors.” S. Forest Watch, Inc. v. Jewell, 817 F.3d 965, 977 (6th Cir. 2016) (quoting Latin Ams. for

Soc. & Econ. Dev. v. Adm'r of the Fed. Highway Admin., 756 F.3d 447, 465 (6th Cir. 2014)). See

also Slater, 120 F.3d at 638; Little Traverse Lake Property Owners Ass’n, 883 F.3d at 658; Friends

of Mahoning River v. United States Army Corps of Engineers, 487 F.Supp.3d 638, 641 (N.D. Ohio

2020). A “strong showing of bad faith” may also justify supplementation of the record. Little

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Traverse Lake Property Owners Ass’n, 883 F.3d at 658 (quoting Charter Twp. of Van Buren v.

Adamkus, 1999 WL 701924 at *4 (6th Cir. Aug. 30, 1999)).

In considering whether to supplement the record, courts must bear in mind that an

administrative agency's designation of its administrative record is entitled to a strong presumption of

regularity. Center for Biological Diversity v. U.S. Forest Service, 2018 WL 7200718 at * 6 (S.D.

Ohio 9/7/18) (citing Hickey v. Chadick, 2009 WL 3064445 at *2 (S.D. Ohio Sept. 18, 2009). “’The

court assumes the agency properly designated the Administrative Record absent clear evidence to the

contrary.’” Id. (quoting Bar MK Ranches v. Yuetter, 994 F.2d 735, 740 (10th Cir. 1993)). The burden

is upon plaintiff to justify supplementation of the record. Latin Ams. for Soc. & Econ. Dev., 756 F.

3d at 464–65 (6th Cir. 2014. See also Slater, 120 F. 3d at 638.

III. Analysis

In their Objection/Motion, Plaintiffs argue, summarily, that the Certified Administrative

Record (“CAR”) “does not contain the full record, only a recitation of evidence previously produced.”

(Doc. No. 15 at p. 2.) Plaintiffs further assert that “the additional documentation that was provided

nevertheless still omits information – either that can be logically deduced to be missing and/or which

appears to be redacted or removed.” (Id.) Plaintiffs then identify six specific items of information

which they claim have been improperly omitted from the record. (Id. at pp. 2-3.) Plaintiffs do not

acknowledge the Sixth Circuit case law cited above or otherwise cite any legal authority in support

of their Motion.

Defendants oppose Plaintiffs’ Motion on numerous grounds. (Doc. No. 17.) Defendants

argue that (1) the USCIS has expressly certified that the 434-page CAR in this case is complete, and

(2) the CAR contains numerous materials that explicitly provide the reasons that the BIA affirmed

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USCIS’s denial of Plaintiff Vincent’s I-130 visa. (Id. at pp. 2-4.) Defendants maintain that the CAR

in this case is entitled to a presumption of regularity and completeness and that Plaintiffs have failed

to carry their heavy burden of overcoming this presumption. (Id.) Defendants next argue that

Plaintiffs’ specific requests should be denied because they either seek (1) privileged information that

is not subject to disclosure; (2) irrelevant information that is not necessary to resolution of the

remaining issues in this case; or (3) information that does not exist. (Id. at pp. 4-10.) As discussed

in more detail below, Defendants support these arguments with the Declaration of Fraud Detection

and National Security Immigration Officer Amina Zinnerman, which is attached as an Exhibit to their

Response. (Doc. No. 17-1.)

Plaintiffs did not file a Reply Brief in support of their Motion.

The Court will address each of Plaintiffs’ specific requests for supplementation of the record,

below.

A. Redacted Information in the August 11, 2016 “Statement of Findings”

The first four items of information requested by Plaintiffs are located within a document in

the CAR dated August 11, 2016 entitled “Statement of Findings” (hereinafter “SOF”). (Doc. No. 14-

6 at PageID#s 568-573.) First, Plaintiffs note that the very bottom of the first page (i.e., Doc. No.

14-6, PageID# 568) “contains information which has been cut off or removed from the record.” (Doc.

No. 15 at p. 2.) Second, Plaintiffs state that the entirety of the following page is “blank and contains

no information.” (Id.) Third, Plaintiffs object to the fact that the telephone number of Heidi

Newrones has been redacted from the third page of the SOF (i.e., Doc. No. 14-6, PageID# 570.)

Finally, Plaintiffs assert that “various information” has been redacted from the sixth page (i.e., Doc.

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No. 14-6, PageID# 573), including the address of the neighbor of Plaintiff Vincent that was

interviewed by USCIS. (Doc. No. 15 at p. 3.)

Defendants argue that the redacted information on the first and second pages of the SOF is

“privileged information, including law enforcement sensitive internal USCIS database and systems

checks and deliberative process notes that are not part of the CAR.” (Doc. No. 17 at p. 7.) Defendants

support this assertion with the Declaration of USCIS Field Officer Zinnerman, in which she avers

that:

I wrote the August 11, 2016 Statement of Findings in the above-captioned case. The

bottom of page 1 through 2 consists of headings labelled II-V.A and contain check

boxes and internal processing comment boxes.

(Doc. No. 17-1 at ¶ 4.) Citing numerous district court cases, Defendants argue that such information

constitutes privileged, deliberative process information that is properly excluded from the CAR.

(Doc. No. 17 at p. 7.)

As Plaintiffs failed to file a Reply Brief, they have offered no response to Defendants’

argument. Nor have Plaintiffs offered any other legal basis for requiring Defendants to produce this

information.

For the following reasons, the Court finds that Plaintiffs have failed to demonstrate that the

CAR should be supplemented to include the redacted information in the first and second pages of the

August 11, 2016 SOF. Field Officer Zinnerman, who prepared the document, has averred that the

redacted information consists solely of internal processing material. Plaintiffs have come forward

with no reasoned explanation or argument as how or why this material might be relevant to the BIA’s

decision to affirm the denial of Plaintiff Vincent’s Petition. Nor have Plaintiffs argued, or

demonstrated, that the redacted information on pages 1 and 2 of the SOF constitute “background”

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information that is necessary for this Court to determine whether the agency has considered all

relevant factors. See S. Forest Watch, Inc., 817 F.3d at 977; Latin Ams. for Soc. & Econ. Dev., 756

F.3d at 465. Nor have Plaintiffs even asserted (much less made) a “strong showing of bad faith” with

regard to the redaction of this information. Little Traverse Lake Property Owners Ass’n, 883 F.3d at

658. Moreover, to the extent the redacted material constitutes deliberative intra-agency information,

Defendants correctly note that courts have found that such material is ordinarily privileged. See, e.g.,

Stand Up for California! v. United States Department of the Interior, 315 F.Supp.3d 289, 293 (D.D.C.

2018) (citing Amfac Resorts L.L.C. v. U.S. Dep’t of Interior, 143 F.Supp.2d 7, 13 (D.D.C. 2001)).

In sum, the Court finds that Plaintiffs have failed to carry their heavy burden of demonstrating

that the CAR in this matter should be expanded to include the redacted information on pages 1 and 2

of the SOF. Plaintiffs’ request for this information is, therefore, denied.

The Court also denies Plaintiffs’ request that the record be supplemented to include the

redacted telephone number of Heidi Newrones on the third page of the SOF (i.e., Doc. No. 14-6,

PageID# 570.) Plaintiffs’ claim that they require this telephone number in order to verify that Ms.

Newrones was contacted “at the specified time and date” is disingenuous. As Defendants correctly

note, there is no dispute as to whether USCIS telephoned Ms. Newrones. Indeed, in her August 2018

affidavit, Ms. Newrones herself states that she spoke with the USCIS officer by telephone on one

occasion. (Doc. No. 14-2 at PageID# 254.) Under these circumstances, the Court finds that Plaintiffs

have simply failed to articulate any reasoned explanation as to why the record should be

supplemented to include this information. Plaintiffs’ request is, therefore, denied.

Lastly, the Court denies Plaintiffs’ request that the CAR be supplemented to include the

redacted information on page 6 of the SOF. Two of the redactions on this page appear to be the

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address of the neighbor of Plaintiff Vincent, to whom the USCIS officers spoke on August 10, 2016.

(Doc. No. 14-6 at PageID# 573.) Plaintiffs offer no explanation or argument as to why they believe

the record should be expanded to include this information. Specifically, Plaintiffs do not assert either

that this information constitutes background information that is necessary to a determination of

whether the agency has considered all relevant factors, and/or demonstrates bad faith on the part of

the USCIS. See Slater, 120 F.3d at 638; Little Traverse Lake Property Owners Ass’n, 883 F.3d at

658. Nor have Plaintiffs sufficiently articulated why this information is relevant. Accordingly,

Plaintiffs’ request for this information is denied.

Page 6 of the SOF also appears to include an unidentified section in the middle of the page

that is redacted. In her Declaration, Field Officer Zinnerman avers that “Section V.E, which is the

one sentence in the middle on page 6 refers to an internal agency database entry and numerical code

designation.” (Doc. No. 17-1 at ¶ 4.) Defendants, therefore, assert that this redacted material is

privileged and properly excluded from the record. (Doc. No. 17 at p. 9.) As noted above, Plaintiffs

failed to file a Reply Brief.

In light of Officer Zinnerman’s averment, and Plaintiffs’ failure to oppose Defendants’

argument that this redacted information is privileged, the Court finds that Plaintiffs have failed to

demonstrate that the CAR should be supplemented to include this information. Accordingly, the

Court denies Plaintiffs’ request that the CAR be supplemented to include the information redacted

from the middle of page six of the SOF.

B. Notes, Recordings, and/or Transcripts of USCIS’ attempted in-person interview

of Ms. Newrones in August 2016

Plaintiffs next request that the Court order Defendants to “produce any notes, recordings,

and/or transcripts of the attempted in-person interview with Ms. Newrones conducted on or around

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August 11, 2016.” (Doc. No. 15 at p. 3.) Plaintiffs’ entire argument as to this request is as follows:

“At the time of this attempted interview, Ms. Newrones was not present and USCIS officers

supposedly spoke to Ms. Newrones’ daughter, Shelby Brown. ECF No. 14-2 at p. 74, ¶ 4. The CAR

is devoid of any evidence that this interview ever occurred.” (Id.)

In response, Defendants argue that there is no documentation responsive to this request. (Doc.

No. 17 at pp. 9-10.) Defendants direct this Court’s attention to Field Officer Zinnerman’s

Declaration, in which she avers as follows:

To the best of my recollection, on August 10, 2016, I participated in an attempted site

visit to 649 Winslow Drive, an address FDNS believed to be the residence of Heidi

Newrones. I did not encounter Heidi Newrones at that address at that time. The next

day, I made contact with Ms. Newrones by telephone. The summary of my August 11,

2016, telephonic conversation with Ms. Newrones is documented in the Statement of

Findings dated August 11, 2016. I have no information on a person named Shelby

Brown.

(Doc. No. 17-1 at ¶ 2.) In light of the above, Defendants argue that “Plaintiffs’ request for

documentation of an attempted in person-interview that never occurred, and documentation of an

alleged conversation with an unknown person that is not mentioned in any of the agency decisions is

nonsensical at best.” (Doc. No. 17 at p. 10) (emphasis in original).

The Court agrees with Defendants. Plaintiffs' speculation that documentation might exist

(regarding either the attempted in-person meeting with Ms. Newrones or the alleged conversation

with her daughter) does not overcome the general presumption of regularity that review is limited to

the record compiled by the agency. See, e.g., Taylor Energy Co. v. United States, 2021 WL 538052

at *8 (D.D.C. Feb. 15, 2021) (holding that plaintiff's speculation that other documents “must exist”

does not overcome presumption that administrative record was complete); Stand Up for California!,

315 F. Supp. 3d at 295-96 (holding that agency “is entitled to a presumption that it properly compiled

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the record, and the Plaintiffs' speculation that other documents may exist is not an ‘unusual

circumstance’ warranting supplementing the record”). See also Blue Ocean Inst. v. Gutierrez, 503 F.

Supp. 2d 366, 371 (D.D.C. 2007); Save Barton Creek Ass’n v. Texas Dep’t of Transportation, 2021

WL 3849723 (W.D. Tex. Aug. 27, 2021).

The Court finds Plaintiffs' speculation that additional documents might exist fails to sustain

their burden to show an unusual circumstance requiring supplementation of the CAR. Accordingly,

this request is denied.

D. Recording and/or Transcript of USCIS’ Telephone Interview of Ms. Newrones

on August 11, 2016

Lastly, Plaintiffs ask the Court to order Defendants to “produce any recording and/or

transcript, if such exists, of the interview of Ms. Newrones, which occurred telephonically on August

11, 2016.” (Doc. No. 15 at p. 3-4.) Plaintiffs argue that such a recording and/or transcript is critical

evidence in light of alleged contradictions between the interviewer’s summary notes of the telephone

conversation and Ms. Newrones’ August 2018 affidavit. (Id. at pp. 3-4.)

In response, Defendants state that “no such recording exists.” (Doc. No. 17 at p. 10.) As

evidence of this, Defendants point to Field Officer Zinnerman’s Declaration, in which she avers that:

I conducted the telephonic interview of Heidi Newrones on August 11, 2016. There

is no electronic or audio recording of the telephonic interview with Heidi Newrones,

conducted on August 11, 2016.

(Doc. No. 17-1 at ¶ 3.)

The Court cannot order supplementation of the record with evidence that does not exist.

Accordingly, and in light of the above, Plaintiffs’ request is denied.

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IV. Conclusion

For all the foregoing reasons, Plaintiffs’ Objection to the Certified Administrative Record is

without merit and overruled.

IT IS SO ORDERED.

s/Pamela A. Barker

PAMELA A. BARKER

Date: September 2, 2021 U. S. DISTRICT JUDGE

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