Heng v. Bureau of Citizenship and Immigration Services

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

CHANNY HENG, et al., :

:

Plaintiffs, : Case No. 1:21-cv-00806-JPH

:

v. : Judge Jeffery P. Hopkins

:

UNITED STATES CITIZENSHIP AND :

IMMIGRATION SERVICES, et al., :

:

Defendants.

OPINION AND ORDER

This matter comes before this Court on Defendants United States Citizenship and

Immigration Services (“USCIS”) and Board of Immigration Appeals’ (“BIA”) Motion to

Dismiss (“Motion”). Doc. 11. For the reasons set forth below, the Motion is DENIED.

I. BACKGROUND

Plaintiff Channy Heng is a citizen of Cambodia. Doc. 1 ¶ 6. In 2004, she met her late

husband, Charles Otis Clay, Jr., a United States citizen, while he was visiting Phnom Penh,

Cambodia. Id. ¶¶ 39–40. Having decided to marry, the couple held a local marriage reception

in Cambodia, with Ms. Heng’s friends and family present. Id. ¶ 40. Mr. Clay then petitioned

the U.S. Citizenship and Immigration Services (USCIS), an administrative agency within the

Department of Homeland Security (DHS) responsible for adjudicating immigration petitions,

see 8 U.S.C. § 1103(a), to permit Ms. Heng and her “three teenage children, [Plaintiffs]

Vannack Sok, Vandy Sok, and Vandet Sok” could lawfully enter the United States. See Doc.

17, at 3; Doc. 1 ¶ 40.

On January 4, 2007, Plaintiffs entered the United States on K non-immigrant visas:

Ms. Heng was admitted on K-1 status, which is available to the fiancée of a United States

citizen “who seeks to enter the United States solely to conclude a valid marriage with the

petitioner within ninety days after admission,” 8 U.S.C. § 1101(a)(15)(K)(i), and her children

were admitted on K-2 status, which is available to minor children of K-1 visa holders, id. § 8

U.S.C. § 1101(a)(15)(K)(iii). Doc. 1 ¶ 10. Shortly after Plaintiffs’ arrival, on January 16, 2007,

Ms. Heng and Mr. Clay officially married in Hamilton County, Ohio. Id. Having officially

married, Ms. Heng then filed Form I-485 (“Application to Register Permanent Residence or

Adjust Status”) with USCIS.1 Id. ¶ 11.

Approximately five years later, on or about April 18, 2012, USCIS denied Ms. Heng’s

I-485 application, (Doc. 1 ¶ 14; Doc. 17, at 13), finding that Ms. Heng “had not shown that

[she] had entered into a bona fide marriage with Mr. Clay,” and was therefore not eligible for

adjustment of status (“2012 USCIS I-485 Denial”). See Doc. 17, at 13. Plaintiffs appealed the

I-485 denial to the Board of Immigration Appeals (“BIA”), a U.S. administrative agency

within the Department of Justice (DOJ) that reviews USCIS’s decisions. Id. Ms. Heng filed

the appeal by submitting Form EOIR-29 (“Notice of Appeal to the Board of Immigration

Appeals from a Decision of a DHS Officer”), together with a 28-page supporting

1 Pursuant to 8 U.S.C. § 1255(d), after the marriage takes place, K-1 visa holders may adjust to

Legal Permanent Resident (“LPR”) “on a conditional basis,” 8 U.S.C. § 1186a(a)(1). Once the

alien becomes a conditional LPR, there is a two-year wait before the conditions on the permanent

residency can be removed, and the alien spouse and petitioning spouse must jointly submit a

petition requesting the removal of the conditional designation. See 8 U.S.C. § 1186a(c)(1)(A). If

the joint petition is granted, the alien spouse becomes an LPR. See 8 U.S.C. § 1186a(c)(3)(B). If,

however, the joint petition is denied, the alien spouse's conditional LPR status is terminated, and

removal follows. See 8 U.S.C. § 1186a(c)(3)(C).

memorandum and at least two dozen exhibits, to the appropriate USCIS field office.2 Doc.

1 ¶ 15. USCIS filed its response with the BIA on April 2, 2013, which included a record of

proceedings (“ROP”). On April 9, 2013, the BIA notified USCIS that the ROP submitted is

missing records for multiple alien numbers. Id. ¶ 61. When Plaintiffs attempted to file their

reply brief to the BIA on April 12, 2013, the BIA rejected the mailing, explaining that “the

appeal has never been docketed and the BIA showed no record of a pending appeal.” Id. ¶

18. According to Plaintiffs, it turns out that “the USCIS had failed to docket the appeal with

the BIA one full year after [Plaintiff’s] filing.” Id. On October 29, 2013, the BIA dismissed the

appeal for lack of jurisdiction (“2013 BIA I-485 Dismissal”). Id. ¶ 21.

Around the same time, on April 29, 2013, Mr. Clay also filed Form I-130 (“Petition

for Alien Relative”), seeking to have Ms. Heng classified as the spouse of a U.S. citizen under

8 U.S.C. § 1154(b). Id. ¶ 20. Almost four years later, on March 10, 2017, USCIS denied the I-

130 application (“2017 USCIS I-130 Denial”). Id. ¶ 25. Mr. Clay appealed the I-130 denial to

the BIA and, while BIA’s decision was pending, Mr. Clay passed away in February 2018. Id.

¶ 34. His death automatically converted the Form I-130 to a Form I-360 (“Petition for

Widow(er) Alien”).3 Id. ¶ 34. Although Plaintiffs had filed a memorandum in support of their

BIA appeal in May 2017, (id. ¶ 27), USCIS notified Plaintiffs in February 2018 that no such

2 Although the appeal is decided by the BIA, the regulations require petitioner to send Form EOIR-

29 and required documents to the local USCIS Field Office within 30 days from the notice of

USCIS’s denial. 8 CFR § 1003.3(a)(2). The petitioner may also file with a brief in support of the

appeal. 8 CFR § 1003.3(c)(2). Once the petition record is complete, USCIS forwards the

appeal to the BIA for adjudication. See Department of Justice, Executive Office for

Immigration Review, Board of Immigration Appeals Practice Manual § 9.3(d).

3 See 8 CFR 204.2(i)(l)(iv).

brief has been received. Id. 28. In response, Plaintiffs provided the certificate of service, dated

May 2018. Id. USCIS then asked the BIA to remand the I-360 application for further

administrative proceedings in September 2019, (Id. ¶ 29), citing “Mr. Clay's passing and the

length of time the appeal had been with the BIA.” Doc. 17, at 15. On November 17, 2020, a

year later—or three years since the BIA appeal was first filed— the BIA granted USCIS’s

request and remanded the I-130 Application (“2020 BIA I-130 Remand”). Doc. 1 ¶ 33.

On November 15, 2021, USCIS denied the I-130 application (“2021 USCIS I-130

Denial”), concluding that Ms. Heng “failed to establish by the preponderance of the evidence

that [she] and Mr. Clay entered into a bona-fide marital relationship.” Doc. 17, at 19. On or

about December 6, 2021, Ms. Heng appealed the I-130 denial to the BIA.4 Doc. 11-3, at 1.

Under the section of the EOIR-29 Form asking petitioners to "[s]pecify reasons for the

appeal,” 5 Ms. Heng wrote: “The decision violates the Administrative Procedures Act. The

decision is arbitrary and capricious, and contrary to law. The evidence in the record compels

a grant of benefits sought.” Ms. Heng also indicated that she “intend[s] to file a separate

written brief or statement after filing this Notice of Appeal.” Doc. 11-3 at 1.

On December 30, 2021, while their appeal to the BIA was still pending, Plaintiffs filed

this action against USCIS and the BIA under the Administrative Procedures Act (“APA”), 5

U.S.C. §§ 704, 706(1); the Declaratory Judgment Act, 28 U.S.C. § 2201-2202; the All Writs

Act, 28 U.S.C. § 1651(a); and the Fourteenth Amendment to the United States Constitution,

4 The appeal was processed by USCIS on December 14, 2021. Doc. 11-3 at 1.

5 The same section in Form EOIR-29 further warns that “[i]f the factual or legal basis for the appeal

is not sufficiently described, the appeal may be summarily dismissed.” Doc. 11-3 at 1.

U.S. CONST. amend. XIV. See Doc. 1 ¶¶ 1–4. Specifically, Plaintiffs asserted that USCIS’s

denial of Plaintiffs’ applications, and the BIA’s related decisions, are arbitrary and capricious,

contrary to law, and violate the Due Process clause and Equal Protection clause of the United

States constitution. Id. ¶¶ 79–88. For relief, Plaintiffs sought an order declaring that the

“USCIS decision to deny [] the I-130 and I-485” and “the deficiencies manifested by the BIA”

were “(a) arbitrary and capricious, and/or (b) abuses of discretion, and/or (c) violate[] the

Constitution of the United States.” Doc. 1 at 18. They also asked that USCIS be ordered to

“issue Green Cards to Plaintiffs” and further requested attorney’s fees under the Equal Access

to Justice Act, 5 U.S.C. § 504 and 28 U.S.C. § 2412. Id.

On March 7, 2022, Defendants moved to dismiss the complaint under Rule 12(b)(1),

arguing that the then-pending administrative appeal deprived this Court of subject matter

jurisdiction. See generally, Doc. 11-1. Defendants’ motion also urged dismissal under Rule

12(b)(6) for failure to state a claim. Id. Plaintiffs have opposed the Motion (Doc. 15), and

Defendants have replied (Doc. 21).6 On August 9, 2022, Plaintiffs notified this Court that the

6 Plaintiffs filed several other motions after Defendants moved to dismiss: a motion to conduct

jurisdictional discovery and compel Defendants “to produce a complete and unredacted Certified

Administrative Record (CAR),” (Doc. 13); to strike the declaration of Julie Decker, Field Office

Director for USCIS’s Cincinnati, Ohio office, that was attached in support of defendants’ motion

to dismiss (Doc. 14); and to cite additional case authority (Doc. 23). Magistrate Judge Karen L.

Litkovitz denied all three motions on August 22, 2024. Doc. 32. As to jurisdictional discovery,

Magistrate Judge Litkovitz reasoned that “Plaintiffs fail to offer any detail regarding what they

hope to learn from the CAR and how it would change the subject matter jurisdiction analysis.”

Doc. 32. She likewise rejected Plaintiffs’ argument that Ms. Decker’s “uncorroborated”

declaration should be stricken “until the underlying documents are produced,” finding the request

is “simply a further unwarranted request for discovery.” Doc. 32 at 4. Plaintiffs’ motion regarding

additional cases—which Plaintiffs sought to introduce to bolster Ms. Heng’s children’s

standing as Plaintiffs—also failed because “[n]one of the cases raised in plaintiffs’ motion discuss

the statute of limitations at all,” which was the basis of Defendants’ motion to dismiss plaintiff

children’s claims. See Doc. 32, at 5–6.

BIA “summarily dismissed” the appeal of the I-130 denial on August 4, 2022 (“BIA 2022 I-

130 Denial”). Doc. 26.7

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(1) provides that a defendant may move to

dismiss based on a court's lack of jurisdiction over the subject matter of the case. Jurisdiction

in the federal courts is limited: it may be based on a federal question, which is one “arising

under the Constitution, laws, or treaties of the United States,” or on diversity of citizenship

where the sum in controversy exceeds $75,000. 28 U.S.C. §§ 1331, 1332. The plaintiff has

the burden of proving subject matter jurisdiction when it is challenged under Rule 12(b)(1).

Rogers v. Stratton Indus., 798 F.2d 913, 915 (6th Cir. 1986). “Where subject matter jurisdiction

is challenged pursuant to Rule 12(b)(1), the plaintiff has the burden of proving jurisdiction in

order to survive the motion.” Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269

(6th Cir.1990) (citation omitted).

There are two types of motions to dismiss for lack of subject matter jurisdiction: facial

and factual attacks. “A facial attack is a challenge to the sufficiency of the pleading itself.”

United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.1994). Upon facial attack, “the court must

take the material allegations of the petition as true and construed in the light most favorable

to the nonmoving party.” Id. (citation omitted). “A factual attack, on the other hand, is not a

challenge to the sufficiency of the pleading's allegations, but a challenge to the factual

7 The BIA’s dismissal was pursuant to 8 CFR 1003.1(d)(2)(i)(A), which authorizes the BIA to

summarily dismiss appeals where petitioner “fails to specify the reasons for the appeal” on the

EOIR-29 form. See Doc. 26-1.

existence of subject matter jurisdiction.” Id. “On such a motion, no presumptive truthfulness

applies to the factual allegations, see Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325

(6th Cir.1990), and the court is free to weigh the evidence and satisfy itself as to the existence

of its power to hear the case.” Id.

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state

a claim upon which relief can be granted “is a test of the plaintiff's cause of action as stated in

the complaint, not a challenge to the plaintiff's factual allegations.” Golden v. City of Columbus,

404 F.3d 950, 958–59 (6th Cir. 2005). When evaluating such a motion, “[a]ll factual

allegations in the complaint must be presumed to be true, and reasonable inferences must be

made in favor of the non-moving party.” Total Benefits Planning Agency, Inc. v. Anthem Blue

Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008). But the court need not accept

unwarranted factual inferences. Id. Complaints must state “more than a bare assertion of

legal conclusions to survive a motion to dismiss.” Horn v. Husqvarna Consumer Outdoor Products

N.A., Inc., 2013 WL 693119, at *1 (S.D. Ohio Feb. 26, 2013) (internal citations omitted). A

plaintiff's “[f]actual allegations must be enough to raise a right to relief above the speculative

level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The claim to relief must be

“‘plausible on its face,’” with “factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quoting Twombly, 550 U.S. at 570).

A court ruling on a motion to dismiss “may consider materials in addition to the

complaint if such materials are public records or are otherwise appropriate for the taking of

judicial notice.” New Eng. Health Care Emps. Pension Fund v. Ernst & Young, LLP, 336 F.3d 495,

501 (6th Cir. 2003). Such materials include public records, matters of which a court may take

judicial notice, and letter decisions of governmental agencies, particularly when authenticity

is not in dispute. See Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir.1999); Clark v. Walt

Disney Co., 642 F. Supp. 2d 775, 783 (S.D. Ohio 2009). Courts may also consider extrinsic

materials to the extent they “fill in the contours and details” of a complaint so long as they

add nothing new. Yeary v. Goodwill Indus.-Knoxville, Inc., 107 F.3d 443, 445 (6th Cir. 1997).

III. LAW AND ANALYSIS

Defendants urge dismissal of Plaintiff’s claims on several grounds. First, they argue

that the Complaint should be dismissed under Rule 12(b)(1) for lack of subject matter

jurisdiction, because Plaintiffs do not challenge any “final” agency action within the meaning

of the APA. Doc. 11-1, at 1. They also argue that Defendants fail to state an APA claim for

the same reason, and further contend that Plaintiffs’ APA claims are time-barred. See id. at 6-

7. Before addressing jurisdiction and sufficiency of Plaintiffs’ pleadings, this Court briefly

reviews the relevant statutory scheme governing APA claims in the immigration context.

A. Statutory Framework Governing Plaintiffs’ APA Claims

The Administrative Procedure Act (“APA”), 5 U.S.C. § 500 et seq., authorizes “[a]

person suffering legal wrong because of agency decision, or adversely affected or aggrieved

by agency action” to seek judicial review of the agency action. 5 U.S.C. § 702. Not all agency

actions, however, are reviewable. Courts may not review agency decisions where “(1) statutes

preclude judicial review; or (2) agency action is committed to agency discretion by law.” Id.

§ 701(a). In other words, absent a statutory prohibition of judicial review on the challenged

agency action or discretionary authority for such agency action, “the well-settled presumption

in favor of judicial review” applies. Jomaa v. United States, 940 F.3d 291, 295 (6th Cir. 2019)

(citing Kucana v. Holder, 558 U.S. 233. 251–252 (2010)).

The pertinent statutory provision governing judicial review of USCIS adjudications of

immigration petitions is governed by 8 U.S.C. § 1252(a)(2)(B). The provision bars judicial

review of only discretionary agency decisions. Id. So, if the challenged agency decision was

one that Congress left to the government’s discretion, it is not subject to judicial review. See

e.g., Jomaa, 940 F.3d at 294. That the challenged USCIS denial is non-discretionary, however,

does not end the inquiry. The agency action complained of must also be a “final” agency

action. 5 U.S.C. § 704. Whether a “final” agency action issued under the APA also implicates

the six-year limitations period, 28 U.S.C. § 2401. Generally, a right of action challenging

administrative action “accrues” on the date of the final agency action. See Harris v. FAA, 353

F.3d 1006, 1010 (D.C. Cir. 2004).

For an agency action to be “final,” the challenged decision must “(1) mark[] the

‘consummation of the agency's decision-making process;’ and (2) determine[] rights and

obligations or occasions legal consequences.” Bangura v. Hansen, 434 F.3d 487, 500-01 (6th

Cir. 2006) (citing Bennett v. Spear, 520 U.S. 154, 177-78 (1997); Air Brake Sys., Inc. v. Mineta,

357 F.3d 632, 639 (6th Cir. 2004)). See also Franklin v. Massachusetts, 505 U.S. 788, 797 (1992)

(“The core question is whether the agency has completed its decision-making process, and

whether the result of that process is one that will directly affect the parties.”).

B. Subject Matter Jurisdiction

Defendants argue that this Court lacks subject matter jurisdiction under Fed. R. Civ.

P. 12(b)(1), over Plaintiffs’ APA claims because the challenged agency actions—namely

USCIS’s denial of the I-130/I-360 applications and related BIA orders—are not “final”

agency actions under the APA. Doc. 11-1, at 1. Although Defendants raise the same challenge

in their Rule 12(b)(6) arguments, where a motion to dismiss presents alternative arguments,

the court must address subject matter jurisdiction first. City of Heath v. Ashland Oil, Inc., 834 F.

Supp. 971, 975 (S.D. Ohio 1993).

Defendants’ reliance on Fed. R. Civ. P. 12(b)(1) is misplaced. As the Sixth Circuit has

made clear, “[t]he APA is not a jurisdiction-conferring statute; it does not directly grant

subject matter jurisdiction to the federal courts.” Jama v. Dep't of Homeland Sec., 760 F.3d 490,

494 (6th Cir. 2014). Rather, “the federal question statute, 28 U.S.C. § 1331, ‘confer[s]

jurisdiction on federal courts to review agency action, regardless of whether the APA of its

own force may serve as a jurisdictional predicate.’” Id. (quoting Califano v. Sanders, 430 U.S.

99, 105 (1977)).

Because Plaintiffs invoke, 28 U.S.C. § 1331 (federal question jurisdiction) as a basis

for subject matter jurisdiction (see Doc. 1 at ¶ 4), dismissal pursuant to Rule 12(b)(1) is

improper.

C. Sufficiency of Plaintiffs’ APA Claims

Having established subject matter jurisdiction, this Court turns to whether Plaintiffs

have stated a claim on the merits. See Jama, 760 F.3d at 494, n. 4. (“Because the APA does

not confer jurisdiction, elements of a claim under the APA, including the final agency action

requirement, are not jurisdictional . . . Accordingly, we address the final agency action

requirement . . . where we consider whether [plaintiff] has a valid cause of action for his claims

against Defendants.”).

Defendants do not suggest that the process of adjudicating I-130 or I-360 applications

is committed to agency discretion and thus exempted from the APA. See § 701(a)(2); Sheldon

v. Vilsack, 538 F. App’x 644, 649 (6th Cir. 2013). Nor can they: The Sixth Circuit has observed

that “‘[d]eterminations regarding the validity of marriage for I–130 petition purposes are not

discretionary . . . and thus are subject to review by courts.’” Adi v. United States, 498 F. App'x

478, 481 (6th Cir. 2012) (quoting Ayanbadejo v. Chertoff, 517 F.3d 273, 278 (5th Cir.2008)).8

Rather, Defendants’ qualm with the sufficiency of Plaintiffs’ claims relate to: (1) the

applicable statute of limitations under the APA; and (2) the “finality” of the agency actions

that Plaintiffs challenge.9 Specifically, Defendants argue that the two decisions10 on Plaintiffs’

I-485 applications in 2012 and 2013 fall outside the APA’s six-year statute of limitations. The

four decisions11 on Ms. Heng’s I-130 application between 2017 and 2021, on the other hand,

are not “final” agency actions according to Defendants, because the BIA appeal was still

pending at the time Plaintiffs sued in federal court. See Doc. 11-1, at 6–7.

D. Statute of Limitations

Beginning with Defendants’ statute-of-limitations argument, dismissal is warranted if

“the allegations in the complaint affirmatively show that the claim is time-barred.’” Lutz v.

Chesapeake Appalachia, L.L.C., 717 F.3d 459, 464 (6th Cir. 2013) (quoting Cataldo v. U.S. Steel

Corp., 676 F.3d 542, 547 (6th Cir. 2012)). When disputed issues of fact relate to accrual dates,

however, statute-of-limitation defenses are more appropriately addressed at the summary

8 See also Ginters v. Frazier, 614 F.3d 822, 827 (8th Cir.2010) (“district courts have jurisdiction

to review a decision on the merits of an I–130 petition to classify an alien as a relative of a

United States citizen”); Ruiz v. Mukasey, 552 F.3d 269, 275–76 (2d Cir.2009) (district court

may properly exercise jurisdiction over USCIS's denial of a I–130 petition because the

pertinent statutory provision does not contain language specifically rendering the

determination to be within DHS’s discretion).

9 Though related, Defendants’ motion does not challenge the sufficiency of Plaintiffs’ claims

under the Declaratory Judgment Act, 28 U.S.C. § 2201-2202; the All Writs Act, 28 U.S.C. §

1651(a); or the Fourteenth Amendment to the United States Constitution.

10 2012 USCIS I-485 Denial and 2013 BIA I-485 Dismissal.

11 2017 USCIS I-130 Denial; 2020 BIA I-130 Remand; 2021 USCIS I-130 Denial.

judgment stage or at trial. See id. (noting that a Rule 12(b)(6) motion is usually an

“inappropriate vehicle” for dismissing a claim on statute-of-limitations grounds because the

statute of limitations is an affirmative defense). “Examples of such disputed factual questions

include claims that the defendant fraudulently concealed facts, thereby preventing the plaintiff

from learning of its injury. . . and complex issues about whether information in the plaintiff's

possession sufficed to alert it of the claim.” See Am. Premier Underwriters, Inc., 839 F.3d at 464.

This Court cannot conclude that Plaintiffs’ claims are barred by the statute of

limitations on the face of the complaint. The irregularities alleged in Plaintiffs’ USCIS and

the BIA proceedings over the last decade, (see e.g., Doc. 1 ¶¶ 18, 27, 28, 61), suffice to raise a

plausible inference that the applicable limitations period is subject to tolling. See Doc. 1, at 7.

Further factual development may show that tolling is not warranted, but, on the present

record, this Court must “construe the complaint in the light most favorable to [Plaintiff] and

draw all reasonable inferences in [her] favor.” Golf Vill. N., LLC v. City of Powell, 14 F.4th 611,

617 (6th Cir. 2021). Defendants’ statute of limitations defense is thus rejected, at least for now.

See In re Nat'l Prescription Opiate Litig., 440 F. Supp. 3d 773, 788 (N.D. Ohio 2020) (declining

to dismiss “any claim as barred in part by statutes of limitations at this early stage of the

proceedings”). Cf. Rembisz v. Lew, 590 F. App'x 501, 504 (6th Cir. 2014) (“While statute of

limitations ... issues are susceptible to resolution on a motion to dismiss if a plaintiff

affirmatively pleads himself out of court . . . a plaintiff need not respond to a motion to dismiss

with affirmative matter raising a triable issue of fact on an affirmative defense.”).

Although this Court denies Defendants’ Rule 12(b)(6) motion on statute-of-limitation

grounds, Defendants are not foreclosed from raising these issues at the proper time and on

the proper record.

E. Finality of Challenged Agency Actions

Defendants also argue that, because the BIA had not issued a decision on Plaintiffs’

appeal of the I-130/I-360 denial at the time Plaintiffs filed this action, the USCIS decision

was not a “final” decision subject to judicial review under the APA. Doc. 11-1, at 6–7. This

is so, Defendants contend, even if Plaintiffs are not required by statute to exhaust their

administrative appeals before filing suit in federal court. Id.

To constitute “final agency action,” an agency's action must “mark the consummation

of the agency's decision-making process . . . [and] must not be of a tentative or interlocutory

nature;” in addition, “the action must be one by which rights or obligations have been

determined, or from which legal consequences will flow.” Air Brake Systems, Inc. v. Mineta, 357

F.3d 632, 638 (6th Cir. 2004); see also Franklin v. Massachusetts, 505 U.S. 788, 797 (1992) (“The

core question is whether the agency has completed its decision-making process, and whether

the result of that process is one that will directly affect the parties.”).

According to Defendants, Plaintiffs’ decision to pursue an administrative appeal,

albeit voluntary, rendered USCIS’s decision non-final. (Doc. 11-1, at 6-7). Defendants’

argument, however, cannot be reconciled with the Supreme Court’s decision in Darby v.

Cisneros, 509 U.S. 137 (1993), which outlined the two ways in which an agency “may avoid

the finality of an initial decision.” See id. at 147. Agencies may dislodge finality “first, by

adopting a rule that an agency appeal be taken before judicial review is available, and, second,

by providing that the initial decision would be ‘inoperative’ pending appeal.” Id.

Defendants concede that Plaintiffs were not required to appeal the USCIS denial to

the BIA, see Doc. 11-1, at 6, so they fail at the first prong. See Bangura, 434 F.3d at 498 (“Where

an intra-agency appeal is optional . . . the APA does not require a plaintiff to appeal prior to

filing suit in federal court.” (citing Darby, 509 U.S. at 147)). As to the second prong,

Defendants offer no support for the proposition that mere filing of a BIA appeal renders the

challenged USCIS decision “inoperative” pending the BIA’s review. Darby, 509 U.S. at 147.

To accept Defendants’ argument would result in the “fundamental inconsistency” that the

Supreme Court cautioned against, “requiring a person to continue ‘exhausting’ administrative

processes after administrative action has become, and while it remains, effective.” Darby, 509

U.S. at 147-48 (citing S. Rep. No. 752, 79th Cong., 1st Sess., 27 (1945)).

Additionally, the APA authorizes courts both to set aside final agency action found to

be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5

U.S.C. §§ 704, 706(2), and compel an “agency action unlawfully withheld or unreasonably

delayed,” id. § 706(1). While the USCIS denial might constitute an agency action under §

706(2) that was, as Defendants contend, not yet “final” given the pending BIA appeal,

Defendants ignore that Plaintiffs also invoke the agency’s inaction or delay under § 706(1), (see

Doc. 1 ¶ 1), and fail to address “finality” in the context of that provision. See Sw. Williamson

Cnty. Cmty. Ass'n, Inc. v. Slater, 173 F.3d 1033, 1037 (6th Cir. 1999) (noting that although

“‘final agency action’ has not occurred as required under the terms of 5 U.S.C. § 704 . . . the

APA also allows a court to ‘compel agency action unlawfully withheld or unreasonably

delayed,’ 5 U.S.C. § 706(1), so a federal agency cannot avoid application of the APA simply

by refusing to act”).12

12 Even if this Court were to endorse Defendants’ argument that the USCIS decision was not

final pending the BIA appeal, see e.g., King v. McAleenan, No. 19-13454, 2020 WL 3412277, at

*3 (E.D. Mich. June 22, 2020), it is not clear to this Court—and the parties have not briefed—

what effect, if any, the BIA’s denial of Plaintiffs’ appeal after this action was initiated (Doc. 26)

has on this litigation, including whether Defendants’ “finality” arguments still apply.

Courts determine the sufficiency of APA claims under 5 U.S.C. § 706(1) based on six

factors laid out in Telecommunications Research & Action Center v. FCC, 750 F.2d 70, 80 (D.C.

Cir. 1984) (“TRAC”): (1) the time agencies take to make decisions must be governed by a rule

of reason; (2) where Congress has provided a timetable or other indication of the speed with

which it expects the agency to proceed in the enabling statute, that statutory scheme may

supply content for this rule of reason; (3) delays that might be reasonable in the sphere of

economic regulation are less tolerable when human health and welfare are at stake; (4) the

court should consider the effect of expediting delayed action on agency activities of a higher

or competing priority; (5) the court should also take into account the nature and extent of the

interests prejudiced by delay; and (6) the court need not find any impropriety lurking behind

agency lassitude in order to hold that agency action is “unreasonably delayed.” TRAC, 750

F.2d at 79 (citations and quotation marks omitted). Defendants do not argue that the Plaintiffs

fail to satisfy the TRAC factors, or even address them at all. Defendants thus do not show that

Plaintiffs fail to state APA claims under §706(1) to warrant dismissal.

Dismissal under Rule 12(b)(6) is particularly inappropriate where, as here, Plaintiffs’

claims involve unresolved factual disputes and the Court is presented with an undeveloped

record. See Greenberg v. Life Ins. Co. of Virginia, 177 F.3d 507, 519 (6th Cir. 1999). Under the

APA, the role of the court is “to ‘review the whole record’ compiled by the agency when

evaluating the lawfulness of an agency decision.” Sierra Club v. Slater, 120 F.3d 623, 638 (6th

Cir. 1997) (internal quotation marks omitted). This means that judicial review of the agency’s

decision “turns on the record before the agency at the time of its decision, not on later evidence

developed outside the administrative record.” Klein v. U.S. Dep't of Energy, 753 F.3d 576, 580

(6th Cir. 2014) (quoting 5 U.S.C. § 706(2)); see also Camp v. Pitts, 411 U.S. 138, 142 (1973) (per

curiam) (“[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.”); S. Forest Watch, Inc.

v. Jewell, 817 F.3d 965, 977 (6th Cir. 2016) (administrative record consists of those “materials

compiled by the agency at the time its decision was made”). Supplementing the administrative

record is further appropriate “when an agency has deliberately or negligently excluded certain

documents from the record, or when a court needs certain background information to

determine whether the agency has considered all relevant factors.” Jewell, 817 F.3d at 977.

Defendants have declined to file an administrative record in this case, leaving this

Court to “conduct the equivalent of an archaeological dig” through the parties’ filings to

determine the sufficiency of Plaintiffs’ claims. John B. v. Emkes, 710 F.3d 394, 406 (6th Cir.

2013). Not only does this strategy not aid Defendants, but it is also woefully unhelpful to both

Plaintiffs and reviewing courts. Few aliens are likely to command, as it is, a thorough

knowledge of the dizzying complexity of immigration laws of a nation of which they are not

citizens. Without the underlying factual record, they are doomed to repetitious administrative

process—and courts to expenditure of judicial resources—without conceivable recourse.

In short, this Court is not persuaded, at least on the present record, that Plaintiffs’ APA

claims fail as a matter law.13

13 Defendants also argue that “Plaintiffs have not pleaded that Ms. Heng’s children have

applied for any immigration benefit,” or cite to any agency decision “issued within the six-

year statute of limitations that relate[] to Ms. Heng’s children.” Doc. 11-1, at 7. Defendants

elsewhere acknowledge, however, that Plaintiffs do allege that Ms. Heng’s children filed I-

485 applications but urge dismissal on statute-of-limitation grounds. Id. at 7–8, n.4. Because

the Court declines to entertain statute-of-limitations arguments at this stage, see infra Part

III.D, and the question of whether I-485 applications were filed is fact-based inquiry,

Defendants’ motion to dismiss Ms. Heng’s children’s claims is denied.

IV. CONCLUSION

For the reasons stated, the Court DENIES the Motion to Dismiss (Doc. 11).

IT IS SO ORDERED.

September 30, 2024

e Hgkins

United States District Judge

17