Davis v. Secretary, Department of Homeland Security

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

GARY LORENZO DAVIS, et al., Case No. 1:21-cv-615

Plaintiffs, McFarland, J.

Litkovitz, M.J.

vs.

ALEJANDRO MAYORKAS, Secretary

of United States Department of Homeland

Security, et al.,

Defendants. ORDER

On September 23, 2021, plaintiffs filed their complaint for review of defendants’ denial

of the I-130 (Petition for Alien Relative) and I-485 (Adjustment of Status to Lawful Permanent

Resident) pursuant to the Administrative Procedures Act (APA).1 (Doc. 1). Defendants moved

for and were granted permission to file the Certified Administrative Record (CAR) under seal.

(Docs. 17-19). This matter is before the Court on plaintiffs’ Motion to Compel Production of

Unredacted CAR (Doc. 23), defendants’ response (Doc. 25), and plaintiffs’ reply (Doc. 28).2

The District Judge’s reference of this matter to the undersigned is limited to the adjudication of

this motion. (See Doc. 29).

1 As explained in Makhamreh v. Attorney General Department of Justice:

When a United States citizen marries a non-citizen, the United States citizen can file a Form I-130

for an immediate relative visa. [Immigration and Nationality Act (INA)] § 204(a), 8 U.S.C. §

1154(a); 8 C.F.R. § 204.2(a); see INA § 201(b)(2)(A)(i), 8 U.S.C. § 1151(b)(2)(A)(i). The

petitioner must establish that the marriage was bona fide at its inception by a preponderance of the

evidence. If the Form I-130 is approved, the beneficiary may seek lawful permanent residence by

filing a Form I-485, Application to Register Permanent Residence or Adjust Status. See INA §

245(a), 8 U.S.C. § 1255(a).

No. 3:18-cv-227, 2020 WL 6146593, at *2 n.3 (S.D. Ohio Oct. 20, 2020).

2 Plaintiffs refiled their motion pursuant to the Clerk’s Notice of Non-Compliance with S.D. Ohio Civ. R. 5.1(c).

(See Docs. 21, 22). Defendants’ response also corrects a prior version. (See Doc. 24).

I. Background

Plaintiff Gary Lorenzo Davis, a U.S. Citizen, married plaintiff Uwa Maureen Afolabi, a

Nigerian citizen, in Hamilton County, Ohio on January 31, 2018. (Doc. 1 at PAGEID 3-4). On

February 28, 2019, United States Citizenship and Immigration Services (USCIS) denied plaintiff

Davis’s I-130 and plaintiff Uwa Afolabi’s I-485. (Id. at PAGEID 4). On May 16, 2019, USCIS

dismissed plaintiff Uwa Afolabi’s motion to reopen and reconsider its decision. (Id.; see also

Doc. 17 at PAGEID 133). On August 5, 2019, plaintiff Davis adopted plaintiff Uwa Afolabi’s

two children in Butler County, Ohio. (Doc. 1 at PAGEID 4). On November 4, 2019, the Board

of Immigration Appeals denied plaintiff Davis’s appeal, and removal proceedings are pending.

(Id. at PAGEID 4-5; see also Doc. 17 at PAGEID 124-28).

In their motion to compel, plaintiffs argue that redactions in the CAR prevent them from

fully and fairly challenging defendants’ decisions below. The CAR filed in this Court includes

the USCIS Fraud Detection & National Security (FDNS) unit’s Statement of Findings (SOF). In

particular, plaintiffs attach to their motion 21 pages from the SOF that they seek to have

unredacted. (See Doc. 23-1 at PAGEID 821-41).3

After initial review of the pending motion, the Court issued an order directing defendants

to (1) submit the unredacted SOF to the Court for in camera review, and (2) file a supplement to

their response detailing the particular privileges asserted and corresponding justifications. (Doc.

31 at PAGEID 885). Defendants complied and submitted a detailed log of asserted privileges

and protections, including the Privacy Act (5 U.S.C. § 552a), the law enforcement privilege, the

3 Plaintiffs do not identify the 21 PAGEID numbers in the CAR itself to which their attachment corresponds. Based

on the Court’s review, however, the SOF begins at PAGEID 275 of the CAR. PAGEID 821-41 of plaintiffs’

motion’s exhibit (Doc. 23-1) appear to correspond to PAGEID 276-77, 279-81, 283-291, and 308-11 of the CAR

(Doc. 17). One of the pages in plaintiffs’ filing appears duplicated (see Doc. 23-1 at PAGEID 823 and 826), and the

Court was unable to determine the PAGEIDs of the CAR to which Doc. 23-1 at PAGEID 836 and 837 correspond.

deliberative process privilege, and the third agency rule. (Doc. 32). The Court gave plaintiffs

until October 13, 2022 to file a supplemental reply. (Doc. 33). To date, plaintiffs have not

replied.

II. APA

This Court has jurisdiction over plaintiffs’ lawsuit. Adi v. U.S., 498 F. App’x 478, 480-

81 (6th Cir. 2012) (determinations regarding I-130 petitions are subject to district court review).

The APA directs courts to “hold unlawful and set aside agency action, findings, and conclusions

of law” that are 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.” Bangura v. Hansen, 434 F.3d 487, 502 (6th Cir. 2006) (citing

Motor Vehicle Mfrs. Assn v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42-43 (1983)). Under

long-standing principles of administrative law, 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) (emphasis deleted). “[E]ven when an agency

explains its decision with less than ideal clarity,” its 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. E.P.A., 540 U.S. 461, 497 (2004)). Courts must make a

“searching and careful” inquiry into an agency’s decision, but the substantial evidence standard

of review is ultimately narrow and deferential. Nat’l Cotton Council of Am. v. U.S. E.P.A., 553

F.3d 927, 934 (6th Cir. 2009) (quoting Citizens Coal Council v. U.S. E.P.A., 447 F.3d 879, 890

(6th Cir. 2006)); Ky. Waterways Alliance v. Johnson, 540 F.3d 466, 474 (6th Cir. 2008)

(explaining that the arbitrary and capricious standard is deferential but not inconsequential).

The Court in reviewing an agency’s decision “shall review the whole record or those

parts of it cited by the party. . . .” 5 U.S.C. § 706. “[T]he administrative record for judicial

review consists of all materials that were before the agency when it made the challenged

decision.” Sherwood v. Tenn. Valley Auth., 842 F.3d 400, 407 (6th Cir. 2014) (citing Sierra Club

v. Slater, 120 F.3d 623, 638 (6th Cir. 1997)). “[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.” Little Traverse Lake Prop. Owners Ass’n v. Nat’l Park Serv., 883 F.3d 644, 657 (6th Cir.

2018) (quoting Kroger Co. v. Reg’l Airport Auth. of Louisville & Jefferson Cnty., 286 F.3d 382,

387 (6th Cir. 2002)). Warranted supplementation of the administrative record is rare and

requires a demonstration of “exceptional circumstances.” Id. (quoting Charter Twp. of Van

Buren v. Adamkus, No. 98-1463, 1999 WL 701924, at *4 (6th Cir. Aug. 30, 1999)). “Absent

clear evidence to the contrary, the reviewing court assumes the agency has properly designated

the administrative record.” Sherwood v. Tennessee Valley Authority, 590 F. App’x 451, 459-60

(6th Cir. 2014) (citing Bar MK Ranches v. Yuetter, 994 F.2d 735, 740 (10th Cir. 1993)).

II. Arguments

Plaintiffs first argue that the SOF should be unredacted pursuant to liberally construed

Federal Rules of Civil Procedure pertaining to discovery. See Fed. R. Civ. P. 34, 37. Plaintiffs

also argue that SOFs are not covered by the deliberative process privilege and therefore should

not be redacted in the CAR. Plaintiffs rely on Zerezghi v. U.S. Citizenship & Immigr. Servs., 955

F.3d 802 (9th Cir. 2020), and Bangura for the proposition that they are entitled to production of

an unredacted SOF based on their procedural Due Process right “to a fair adjudication of their I-

130/I-485.” (Doc. 23 at PAGEID 817).

In response, defendants argue that the CAR as filed (i.e., redacted) is entitled to a strong

presumption of regularity. (See Doc. 25 at PAGEID 853 (citing Pilica v. Ashcroft, 388 F.3d 941,

949-50 (6th Cir. 2004) (summarizing Supreme Court and various circuits’ authority holding that

administrative procedures and actions are entitled to a presumption of regularity)). Defendants

also argue that plaintiffs have not put forth clear evidence that the CAR has not been properly

designated. (See id. at PAGEID 854 (citing Pac. Shores Subdivision, Cal. Water Dist. v. U.S.

Army Corps of Engineers, 448 F. Supp. 2d 1, 5 (D. D.C. 2006) (“[A]bsent clear evidence to the

contrary, an agency is entitled to a strong presumption of regularity, that it properly designated

the administrative record.”)). Defendants argue that they are not required to produce privileged

materials as part of the CAR because an agency’s actual subjective motivation is irrelevant; only

its stated reasons are considered absent bad faith or improper motive. (See id. at PAGEID 855

n.1 (citing In re Subpoena Duces Tecum Served on Off. of Comptroller of Currency, 156 F.3d

1279, 1279-80 (D.C. Cir. 1998), and PAGEID 856-57 (citing Gen. Elec. Co. v. Jackson, 595 F.

Supp. 2d 8, 18 (D.D.C. 2009), aff’d, 610 F.3d 110 (D.C. Cir. 2010)).

Defendants characterize plaintiff’s request as one for supplementation of the CAR. They

argue that only limited, exceptional circumstances warrant such supplementation, and plaintiffs

carry a heavy burden to demonstrate that supplementation is necessary to adequately review the

agency’s decision. (See id. at PAGEID 855 (citing Slater, 120 F.3d at 638, and Musa v. Nielsen,

No. 18-12073, 2020 WL 4587406, at *2 (E.D. Mich. Feb. 11, 2020)). Defendants argue that

merely identifying omitted documents is not sufficient to warrant supplementation of the CAR.

(See id. at PAGEID 855-56 (citing Qing Tian v. United States, No. 1:15-cv-264, 2017 WL

2964910, at *4 (S.D. Ohio July 12, 2017)). Defendants argue that plaintiffs’ own motion

includes, via attachment, the unredacted information from the SOF on which defendants based

their determination. (See id. at PAGEID 856, referring to Doc. 23-1 at PAGEID 822-26).

Defendants also submit the declaration of FDNS officer Megan M. Green, who averred that the

redacted portions of the SOF at issue “consist[] of the FDNS Officer’s opinion based on her

findings[,]” “check boxes, internal processing comment boxes, . . . notes from the internal system

checks[,]” “printouts from the internal systems checks, photos and documents obtained from the

site visit, and third party records.” (Doc. 25-1 at PAGEID 860).

In reply, plaintiffs point to a recent case from this Court discussing Zerezghi as support

for their position that Due Process compels production of the unredacted SOF. (Doc. 28 at

PAGEID 866 (citing Hamad v. Mayorkas, No. 3:20-cv-476, 2022 WL 3081971, at *5 (S.D. Ohio

Aug. 3, 2022)). Plaintiffs also argue that they do not seek supplementation of the CAR and agree

that its regularity is not in dispute; rather, they argue that they seek full production of the

otherwise properly designated CAR. Plaintiffs next reiterate their position that SOFs are not

covered by the deliberative process privilege. Finally, plaintiffs reiterate that the redactions

prevent a fair challenge to defendants’ determinations below.

In defendants’ supplemental response, they emphasize that plaintiffs’ procedural Due

Process claim—even if it were recognized—does not require disclosure of the unredacted SOF in

this case. Defendants argue that plaintiffs have not asserted that the particular derogatory

information forming the basis for its denials has been withheld via redaction. Defendants also

argue that plaintiffs were afforded Due Process in the proceedings below.

III. Decision

Disposition of plaintiffs’ motion raises three primary questions. First, do plaintiffs seek

supplementation of the CAR, which requires a threshold demonstration of unusual or exceptional

circumstances? Second, have defendants properly asserted privileges justifying their redactions?

Third, do proper assertions of privilege nevertheless deny plaintiffs Due Process?

As to the first question, the Court finds that plaintiffs do not seek to supplement the CAR

by requesting that the SOF—already made part of the CAR by defendants—be unredacted.

Sixth Circuit authority discussing this issue and the burdens associated with supplementation of a

CAR is largely factually distinguishable. See, e.g., Little Traverse Lake Prop. Owners Assoc.,

883 F.3d at 653 (the plaintiffs sought to supplement with photos, maps, and lay testimony);

Adamkus, 188 F.3d 506, at *4 (the plaintiff sought to supplement with an affidavit and

depositions); Slater, 120 F.3d at 638 (the plaintiffs sought to supplement “with other records

related to the Project”) (emphasis added); and Musa, 2020 WL 4587406, at *1 (the plaintiffs

sought to supplement with various other documents, administrative files, policies, manuals,

trainings, and personnel records). When considering redactions in particular, courts have

reached different results. Compare Pitman v. U.S. Citizenship & Immigr. Servs., No. 2:17-cv-

00166, 2018 WL 6725535, at *1 (D. Utah Dec. 21, 2018) (request for unredacted documents not

treated as a request for supplementation), with Singh v. United States, No. 1:20-cv-799, 2021 WL

3930312, at *1 (N.D. Ohio Sept. 2, 2021) (request for unredacted documents treated as a request

for supplementation).

The Court appreciates the authority cited by defendants regarding the presumption of

regularity afforded to an agency’s compilation of the CAR. See, e.g., Pilica, 388 F.3d at 949-50

(summarizing authority for the general presumption of regularity afforded to agency action).

The Court is equally mindful, however, of the well-established principle that a party asserting a

privilege bears the burden of establishing its existence and that privileges are narrowly

construed. See Iron Workers Loc. Union No. 17 Ins. Fund v. Philip Morris, Inc., 35 F. Supp. 2d

582, 591 (N.D. Ohio 1999) (“Because privileges keep relevant evidence from the fact-finder, the

party making claim of an attorney-client privilege bears the burden of proving that the privilege

is applicable. . . . The privilege is ordinarily strictly construed.”). Balancing the foregoing

under the circumstances at bar, the Court is not persuaded that plaintiffs’ request should be

measured against the requirements for supplementation under the APA. The Court therefore

turns to the privileges asserted.

Plaintiffs have not challenged defendants’ more robust privilege designations asserted

and explained in their supplemental response (Doc. 32). Plaintiffs have only challenged

defendants’ assertion of the deliberative process privilege. “The deliberative process privilege

protects ‘documents reflecting advisory opinions, recommendations and deliberations

comprising part of a process by which governmental decisions and policies are formulated.’”

Marko v. Barr, No. 2:18-cv-11089, 2019 WL 1236452, at *3 (E.D. Mich. Mar. 18, 2019)

(quoting N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975)). Plaintiffs argue that “the

redacted pages pertain to factual findings of the FDNS and [do] not permeate or intrude[]into the

agency[’s] ‘deliberat[ive] processes.’” (Doc. 23 at PAGEID 815; see also Doc. 28 at PAGEID

867-69). Plaintiffs’ discussion of the deliberative process privilege suggests that covered

materials must have “higher level policy implications. . . .” (Doc. 28 at PAGEID 869). The

Court is not persuaded, however, that this is a relevant distinction. See, e.g., United States Fish

& Wildlife Serv. v. Sierra Club, Inc., 141 S. Ct. 777, 785 (2021) (referring to the fact that the

deliberative process privilege covers “advisory opinions” and “recommendations”) (quoting

N.L.R.B., 421 U.S. at 150); Dawson v. Sullivan, 136 F.R.D. 621, 624 (S.D. Ohio 1991) (“The

deliberative process privilege . . . promote[s] frank discussion of issues relating to . . . the making

of specific adjudicative decisions[] within a governmental agency. Once an agency makes a

decision, it is obligated to state both the decision and the reasons that support it. Those matters

are public records.”) (emphasis added).

The Court has reviewed defendants’ supplemental response (Doc. 32) and the unredacted

SOF and is satisfied that defendants’ assertions of the deliberative process privilege are proper.

Contrary to plaintiffs’ assertions otherwise, defendants’ assertions of the deliberative process

privilege do not pertain to factual findings but rather internal agency notes and recommendations

regarding this case. The Court’s analysis, therefore, turns on the procedural Due Process

element of plaintiffs’ argument: whether even properly asserted privileges violate plaintiffs’

constitutional right to procedural Due Process.

Plaintiffs argue that Bangura “recognized the right to procedural Due Process in

immigration fraud cases.” (Doc. 23 at PAGEID 816). In fact, however, the Bangura court

noted, “[w]hile this Court recognizes that the Banguras have a fundamental right to marry, it

does not agree with Plaintiffs’ characterization of the nature of the government’s infringement.

A denial of an immediate relative visa does not infringe upon their right to marry.” 434 F.3d at

496. The Sixth Circuit expressly left open the question of whether there is a protected property

interest in an immediate relative visa. Id. at 496. As explained in Hamad, the recent authority

from this Court raised by plaintiffs in their reply:

In [Bangura], the Sixth Circuit rejected as improvidently raised the plaintiffs’

argument that they had a property interest in a spousal visa. [434 F.3d at 496].

The Bangura plaintiffs did not argue, and the Sixth Circuit did not consider,

whether they had a procedural due process right to derogatory information

underpinning a Form I-130 denial. Id.

2022 WL 3081971, at *5 (S.D. Ohio Aug. 3, 2022).4 This is in contrast to the Ninth Circuit,

which has expressly acknowledged “a constitutionally protected interest in the grant of an I-130

petition.” Zerezghi, 955 F.3d at 808.5

Even if, however, the Sixth Circuit were to recognize a protected property interest in an

immediate relative visa, a procedural Due Process violation requires a plaintiff to show both that

“(1) he or she was deprived of a protected liberty or property interest, and (2) the ‘deprivation of

that interest contravened notions of due process.’” Abdulla v. Cuccinelli, 840 F. App’x 827, 840

(6th Cir. 2020) (quoting Thomas v. Cohen, 304 F.3d 563, 576 (6th Cir. 2002)). In the

immigration context, due process requires “notice reasonably calculated to provide actual notice

of the proceeding[s] and a meaningful opportunity to be heard[.]” Id. at 840 (quoting Cabrera-

Ramos v. Gonzales, 233 F. App’x 449, 453 (6th Cir. 2007)).

Here, defendants provided a Notice of Intent to Deny the I-30, which gave plaintiffs 30

days to respond with additional information and argument. (Doc. 17 at PAGEID 270-73).

Plaintiffs appealed the I-30 decision (see id. at PAGEID 124-32, 160-63, 208-14) and moved to

reopen/reconsider the I-485 decision (see id. at PAGEID 133-59, 195-96). In addition,

defendants maintain that the factual information used in their determinations is in the unredacted

portion of the SOF at issue. (See Doc. 25 at PAGEID 856, referring to Doc. 23-1 at PAGEID

822-25). Plaintiffs assert in reply, without explanation, that officer Green’s declaration

“establishes that the redacted information was used to deny the I-130. . . .” (Doc. 28 at PAGEID

866). The Court’s review of the unredacted SOF suggests otherwise.

4 The Bangura court acknowledged “a decent amount of support” for the proposition that 8 U.S.C. §§ 1151 and

1154 “create[] a protected property interest” under the Due Process clause. 434 F.3d at 496 n.2.

5 In Zerezghi, USCIS had relied on a particular document (an apartment-rental application) for its determination that

was never made available to the plaintiffs throughout the administrative proceedings. Id.

In sum, plaintiffs have not cited persuasive authority that the Sixth Circuit has recognized

a procedural Due Process right to a spousal visa. Even if they had, plaintiffs have offered no

colorable argument that the SOF’s redactions have interfered with their “meaningful opportunity

to be heard” related to their immigration petitions. See Abdullah, 840 F. App’x at 840 (quoting

Cabrera-Ramos, 233 F. App’x at 453). As such, plaintiffs cannot establish that they have

suffered any violation of a procedural Due Process right. Plaintiffs’ motion (Doc. 23) is

DENIED.

IT IS SO ORDERED.

Date: 10/25/2022 Harun K Xethovr

Karen L. Litkovitz

Chief United States Magistrate Judgep

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