# Smith v. United States Citizenship and Immigration Service

> District Court, N.D. Alabama · January 15, 2021

URL: https://www.frixlaw.com/law-library/cases/9990037

## Case

- **Court:** District Court, N.D. Alabama
- **Decided:** January 15, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9990037

## How later opinions describe it (automated extraction)

- holding that non-precedential opinions issued by one member of the Board of Immigration Appeals [BIA] are not entitled to Chevron deference

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
RODNEY SMITH, )
)
Plaintiff, )
)
vs. ) Civil Action No. 5:19-CV-01913-CLS
)
UNITED STATES CITIZENSHIP )
AND IMMIGRATION SERVICE, )
et al., )
)
Defendants. )
MEMORANDUM OPINION
Plaintiff Rodney Smith, a native of Bermuda present in the United States on an
F-1 student visa, sought to extend his time here by applying for employment
authorization through the Optional Practical Training program. His application was
denied twice: first as premature, then again as untimely. He then brought this action
against the United States Citizenship and Immigration Service (“USCIS”), former
Acting Secretary of the Department of Homeland Security Kevin McAleenan, Acting
USCIS Director Ken Cuccinelli, and former Attorney General William P. Barr for
violations of the Administrative Procedure Act, 5 U.S.C. § 702.1
The case presently is before the court on plaintiff’s motion for summary

1 All defendants will be collectively referred to as “USCIS.”
judgment (doc. no. 13) and defendants’ cross-motion for summary judgment (doc. no.
14). Upon consideration of the motions, briefs, and pleadings,2 the court enters the

following opinion.
I. UNDISPUTED FACTS
Plaintiff Rodney Smith, a native and citizen of Bermuda, first entered the

United States as an F-1 nonimmigrant student to attend Alabama Agricultural and
Mechanical University (“Alabama A&M”).3 He received a Masters of Social Work
degree from Alabama A&M in May of 2018.4

Prior to his graduation, Smith began the process of extending his time in the
United States by applying for Optional Practical Training (“OPT”) employment
authorization, which is a temporary employment visa that allows F-1 students to

obtain employment directly related to their field of study for up to twelve months
after completing a degree in the United States.5 To apply for OPT employment
authorization, an applicant must submit two forms. First, the applicant must submit

2 See doc. no. 1 (Complaint); doc. no. 9 (Corrected Answer); doc. no. 13 (Plaintiff’s Motion
for Summary Judgment); doc. no. 14 (Defendants’ Motion for Summary Judgment); doc. no. 15
(Plaintiff’s Response); doc. no. 18 (Defendants’ Reply); doc. no. 19 (Administrative Record).
3 See doc. no. 19-2 (Administrative Record for USCIS Decision dated June 1, 2018), at bates
number 004–006 (hereinafter, “A.R.1”). The page numbers referred to in the Administrative Record
will be the bates numbers found at the bottom center of the page.
4 A.R.1 at 009.
5 See also Optional Practical Training (OPT) for F-1 Students, USCIS.gov,
https://www.uscis.gov/working-in-the-united-states/students-and-exchange-visitors/optional-prac
tical-training-opt-for-f-1-students.
2
a Form I-765 Application for Employment Authorization. 8 C.F.R. §
214.2(f)(11)(i)(A). Second, the applicant must submit a Form I-20 Certification of

Eligibility for Nonimmigrant Student Status endorsed by the Designated School
Official at the applicant’s academic institution, and containing that official’s
recommendation for OPT employment authorization. The Designated School Official

must also note his or her recommendation for OPT employment authorization in the
student’s record in the Student and Exchange Visitor Information System: the web-
based system that maintains information on nonimmigrant students. 8 C.F.R. §

214.2(f)(11)(i).
The Application for Employment Authorization may be submitted up to ninety
days before the applicant completes his or her degree, but no later than sixty days

after degree completion. 8 C.F.R. § 214.2(f)(11)(i)(B)(2). The Form I-765 must be
submitted within thirty days of the date on which the Designated School Official
enters the recommendation for OPT employment authorization into the student’s
record in the Student and Exchange Visitor Information System. Id.

On February 5, 2018, the Designated School Official at Alabama A&M
recommended Smith for OPT employment authorization in the Student and Exchange
Visitor Information System.6 Three weeks later, on February 26, 2018, Smith

6 See A.R.1 at 009 (Form I-20 noting date issued as February 8, 2018); doc. no. 19.3–19.11
(Administrative Record for USCIS Decision dated October 3, 2019) at bates number 020
3
submitted his Form I-765, along with the $410 application fee, seeking post-
completion OPT employment authorization under 8 C.F.R. § 274a.12(c)(3)(i)(B).7

In support of his Form I-765, he also submitted a Form I-20 completed by the
Designated School Official at Alabama A&M, dated February 8, 2018.8
Smith participated in Alabama A&M’s graduation ceremonies on May 4,

2018.9 About a month later, on June 1st, USCIS denied Smith’s application for
employment authorization because he had submitted his Form I-765 more than ninety
days before the program completion date that the university had provided on the Form

I-20 (May 31, 2018).10 As measured against that date, he had filed his Form I-765
exactly four days too early.
Smith filed a second Form I-765 on June 19, 2018, which required another

$410 application fee.11 That application was supported by a Form I-20 signed by the
Designated School Official for Alabama A&M dated June 13, 2018.12 However, the
new Form I-20 did not include the Designated School Official’s endorsement for OPT

(hereinafter, “A.R.2") (Form I-20 noting date issued as February 5, 2018).
7 A.R.1 at 004–006.
8 A.R.1 at 009–010.
9 See doc. no. 15 (Plaintiff’s Response in Opposition to USCIS Motion for Summary
Judgment), at 2.
10 A.R.1 at 001–002.
11 A.R.2 at 0029–0039.
12 A.R.2 at 036–037.
4
employment authorization, and she also failed to update the recommendation for OPT
employment authorization in Smith’s record in the Student and Exchange Visitor

Information System, so the date of the recommendation remained February 5, 2018.13
On September 21, 2018, USCIS sent Smith a Request for Evidence seeking
additional documentation to establish that he had maintained his F-1 nonimmigrant

status by enrolling in a full course of study at Alabama A&M. Specifically, USCIS
requested:
1. A statement from the Designated School Official (DSO) and the
Registrar attesting to your physical presence in the classroom;

2. A full description of your course of study/academic program,
including all graduation requirements such as the number of
credits or classroom hours and your college’s definition of “full
course of study” for your degree level;
3. Copies of your course syllabi for all classes and coursework in
which you earned credit towards your degree. Provide delivery
method (in person/lecture, lab, virtual, online, tele-learning,
broadcast, satellite, etc.) of the course if not listed on the syllabus;
4. Proof of tuition payments made by you for the duration of your
enrollment;
5. A copy of your most recent transcripts showing number of credits
or hours received.
A.R.2 at 041–042. The foregoing Request for Evidence also sought a “complete
13 See A.R.2 at 037 (Form I-20 with no notation in the Employment Authorization box);
A.R.2 at 020–021 (Form I-20 dated February 5, 2018 with Post-completion OPT notation in
Employment Authorization box).
5
listing of all addresses where [Smith] lived while [he] was enrolled as an F-1
student,” and a “Form I-20 requesting Post-Completion Optional Practical Training,

under category (c)(3)(B).” Id. at 042 (alterations supplied). The Request for
Evidence did not, however, inform Smith of any inadequacies with the Form I-20 he
had already submitted, nor did it inform him that the recommendation for OPT

employment authorization in his record in the Student and Exchange Visitor
Information System had been made several months before. Smith timely responded
with evidence that he had maintained valid F-1 nonimmigrant status.14

USCIS denied Smith’s application for OPT employment authorization on
January 30, 2019, because he had failed to file his Form I-765 within thirty days of
the date on which the Designated School Official entered the recommendation for

OPT employment authorization into Smith’s record in the Student and Exchange
Visitor Information System (February 5, 2018).15 Smith requested that USCIS reopen
or reconsider its decision on February 21, 2019, by filing the Form I-290B Notice of
Appeal or Motion, accompanied by the required $675 fee.16 In support of his motion

to reopen or reconsider, Smith submitted a letter from the Alabama A&M Designated
School Official Chandra Glover stating that she had mistakenly “failed to re-enter a

14 A.R.2 at 048–607.
15 A.R.2 at 027–028.
16 See A.R.2 at 006–025.
6
new OPT request in [the Student and Exchange Visitor Information System],” and
requesting that Smith’s status be changed from “complete” to “active” in the Student

and Exchange Visitor Information System so that he may comply with the
requirements once his case had been reopened. A.R.2 at 018 (alteration supplied).
USCIS denied Smith’s motion to reopen or reconsider on October 3, 2019,

finding that he had not provided sufficient new information to reopen or reconsider
his application.17 On November 25, 2019, Smith filed this action alleging that
USCIS’s decision denying his Form I-290B Notice of Appeal or Motion violated the

Administrative Procedure Act.18
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 provides that a court “shall grant summary

judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
This case is well-suited for summary judgment because the parties do not dispute the

material facts and the court’s review is limited to the administrative record before the
agency. See Mahon v. U.S. Department of Agriculture, 485 F.3d 1247, 1253 (11th
Cir. 2007) (“Summary Judgment is particularly appropriate in cases in which a district

17 A.R.2 at 002–003.
18 See doc. no. 1 (Complaint).
7
court is asked to review a decision rendered by a federal administrative agency.”)
(citations omitted).

An agency action challenged under the Administrative Procedure Act (“APA”)
may be set aside only if it is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A). To determine

whether the agency decision violated the APA, the reviewing court “must consider
whether the decision was based on a consideration of the relevant factors and whether
there has been a clear error of judgment.” Fund for Animals, Inc. v. Rice, 85 F.3d

535, 541-42 (11th Cir. 1996) (quoting North Buckhead Civic Association v. Skinner,
903 F.2d 1533, 1538-40 (11th Cir. 1990)).
The court generally accords substantial deference to an agency’s interpretation

of a statute it administers, as well as its own implementing regulations. See Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)
(creating a test for deference when an agency is interpreting a statute it administers);

see also Auer v. Robbins, 519 U.S. 452 (1997) (defining the deference owed an
agency interpreting its own regulations). The stricter Chevron deference is owed only
when the agency is exercising its authority to “make rules carrying the force of law.”
United States v. Mead Corp., 533 U.S. 218, 226-27 (2001).

Where, as here, the agency is making a non-precedential decision through
8
informal adjudication, meaning its decision does not carry “the force of law,” an
interpretation of its own regulations instead receives the less-strict Skidmore

deference, meaning it “is ‘entitled to respect’ only to the extent it has the ‘power to
persuade.’” Gonzalez v. Oregon, 546 U.S. 243, 256 (2006) (quoting Skidmore v.
Swift & Co., 323 U.S. 134, 140 (1944)); see also, e.g., Fogo de Chao (Holdings) Inc.

v. U.S. Department of Homeland Security, 769 F.3d 1127, 1136-37 (D.C. Cir. 2014)
(“The absence of those ‘relatively formal administrative procedure[s]’ that ‘tend[ ] to
foster the fairness and deliberation that should underlie a pronouncement’ of legal

interpretation weighs against the application of Chevron deference.”) (quoting Mead,
533 U.S. at 230); Martinez v. Holder, 740 F.3d 902, 909-10 (4th Cir. 2014) (holding
that non-precedential opinions issued by one member of the Board of Immigration

Appeals [BIA] are not entitled to Chevron deference); Dhuka v. Holder, 716 F.3d
149, 156 (5th Cir. 2013) (“We conclude that a non-precedential opinion of the BIA
does not, due to the terms of the regulation itself, bind third parties and is not entitled
to Chevron deference.”); Carpio v. Holder, 592 F.3d 1091, 1097 (10th Cir. 2010)

(same); Quinchia v. U.S. Attorney General, 552 F.3d 1255, 1258 (11th Cir. 2008)
(same); Rotimi v. Gonzales, 473 F.3d 55, 57-58 (2d Cir. 2007) (same) Garcia-
Quintero v. Gonzales, 455 F.3d 1006, 1012 (9th Cir. 2006) (same).

When evaluating an agency’s regulatory interpretation that is entitled to
9
Skidmore deference, the court will accord deference depending “upon the
thoroughness evident in [the agency’s] consideration, the validity of its reasoning, its

consistency with earlier and later pronouncements, and all those factors which give
it power to persuade, if lacking power to control.” Skidmore, 323 U.S. at 140
(alteration supplied).

III. DISCUSSION
Plaintiff asks the court to declare that USCIS arbitrarily and capriciously
denied his motion to reopen or reconsider its denial of his second application for

employment authorization in violation of the Administrative Procedure Act
(“APA”),19 grant him post-completion Optional Practical Training, and order that he
has been (and remains) lawfully present with F-1 status until the completion of this

matter.20
USCIS initially denied plaintiff’s second application for employment
authorization because it was not filed within thirty days of the recommendation made

19 Plaintiff also argues in his response that USCIS incorrectly denied his first application for
employment authorization because it arbitrarily used the date May 31, 2018, as his program
completion date, instead of the date of the graduation ceremonies — May 4, 2018. See doc. no. 15,
at 2; A.R.1 at 001-002. Even though plaintiff believed he filed his application within the appropriate
time frame based on his knowledge of when the semester ended, this argument ultimately fails
because USCIS used the completion date listed on the Form I-20 provided by plaintiff’s university.
See A.R.1 at 009; see also doc. no. 18 (Government’s Reply), at 3. It is of note, however, that
USCIS could have chosen to use the “current session end date” of May 15, 2018, on page 2 of the
Form I-20 to find that plaintiff was applying within the correct time frame, and to grant his first
application. SeeA.R.1 at 010.
20 Doc. no. 1 (Complaint), at 6.
10
by his university’s Designated School Official in his record in the Student and
Exchange Visitor Information System as required by 8 C.F.R. § 214.2(f)(11)(i)(B)(2).

The decision from USCIS specifically stated:
You are applying for post-completion OPT. Your Form I-765
application was receipted by USCIS on June 19, 2018 and the date the
DSO entered your recommendation for OPT into your SEVIS record
was February 5, 2018. You have failed to submit Form I-765 within 30
days of the date the DSO entered the recommendation for OPT in your
SEVIS record. Moreover, SEVIS record shows that on June 13, 2018,
your DSO reprinted the I-20 and there is no DSO recommendation
entered for the Post Completion OPT. USCIS does not accept a
reprinted I-20.
A.R.2 at 027.
Plaintiff moved for the agency to reopen or reconsider that denial.21 As support
for that motion, plaintiff provided a letter from his university’s Designated School
Official that said she had inadvertently failed to update the recommendation for OPT
employment authorization in plaintiff’s record in the Student and Exchange Visitor
Information System when she printed the Form I-20 for his second application.22 She
also requested that USCIS change plaintiff’s status in the Student and Exchange
Visitor Information System from “complete” to “active” so he could comply with the
deadlines when the agency reopened his application. USCIS denied plaintiff’s

21 A.R.2 at 010–014 (Form I-290B).
22 A.R.2 at 018 (Letter from DSO).
11
motion to reopen or reconsider, stating that:
the language of 8 C.F.R. § 214.2(f)(11)(i)(B)(2) clearly states that the
student “must” file the Form I-765 with USCIS within 30 days of the
date the DSO enters the recommendation for OPT into his or her SEVIS
record. It does not suggest that USCIS has discretion in excusing this
requirement. The PDSO’s admission of error is insufficient to overcome
the applicant’s burden that he filed the Form I-765 within 30 days of the
date the DSO entered the recommendation for post-completion OPT into
his SEVIS record. USCIS also does not accept reprinted Form I-20, and
the DSO recommendation for post-completion OPT must be entered into
SEVIS not more than 30 days prior to the submission of the student’s
Form I-765 application.
Your motion does not state sufficient facts in the reopened
proceeding, supported by affidavits or other documentary evidence.
Your motion also does not state sufficient reasons for reconsideration,
supported by precedent decisions, establishing that the decision was
based on an incorrect application of law or policy, and establish that the
decision was incorrect based on the evidence of record at the time of the
initial decision.
A.R.2 at 003.
USCIS correctly denied plaintiff’s motion to reconsider because, based on the
record evidence available to USCIS when making its initial decision, plaintiff’s
second application for employment authorization was unambiguously submitted more
than thirty days after the date on which the Designated School Official entered the
recommendation for OPT employment authorization into his record in the Student
and Exchange Visitor Information System. Therefore, plaintiff could not “establish
that the decision was incorrect based on the evidence of record at the time of the
12
initial decision.” See 8 C.F.R. § 103.5(a)(3).
Accordingly, the court now narrowly evaluates whether USCIS’s denial of

plaintiff’s motion to reopen was arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with the law. See 5 U.S.C. § 706(2)(A). A motion to
reopen requires the movant to “state the new facts to be provided in the reopened

proceeding and be supported by affidavits or other documentary evidence.” 8 C.F.R.
§ 103.5(a)(2).
Plaintiff presented the “new facts” through a letter from the Designated School

Official at Alabama A&M, which stated in full that:
Mr. Rodney Smith was accepted as an F-1 student seeking a
Master’s degree in Social Work at Alabama A&M University
(ATL214F00018000) for the fall 2016 semester.
He initially applied for OPT in February of 2018. Due to sending
in his application too early he received a denial notification. He [then]
requested a “new I-20,” and as the PDSO, I failed to re-enter a new OPT
request in SEVIS, which resulted in a second denial. Due to the
mistake, I am requesting that his status be corrected from “completed”
to “active” in an effort for him to comply with the notice he has now
received from USCIS to have his case re-opened and re-considered.
I can contest [sic] that Mr. Smith has been an asset to Alabama
A&M University and has always remained in compliance with
university process and procedures. Your consideration will be greatly
appreciated, as this was truly and oversite [sic] on the part of the Office
of Community College Relations and Global Initiatives.
Thanks!
13
Chandra J. Glover, M.Ed., PDSO, RO
Director
Community College Relations and Global Initiatives
Alabama A&M University
A.R.2 at 018 (alterations supplied, boldface emphasis in original).
Ms. Glover explained in her letter that it was her error, not plaintiff’s, that
caused his application to fail to comply with the regulatory requirements. The Form
I-20 that plaintiff submitted with his second application was dated June 13, 2018,

only six days before he submitted his second Form I-765. Based on the date of the
Form I-20, plaintiff believed he was submitting his application within the 30-day
window required by the regulations. Plaintiff had no way of knowing that the

recommendation for OPT employment authorization had not been made in his record
at that time because only the Designated School Official and USCIS have access to
the Student and Exchange Visitor Information System. Yet, USCIS found the letter

did not constitute sufficient “new facts” to reopen plaintiff’s application.
Plaintiff argues that this decision was arbitrary and capricious because the
Department of Homeland Security (USCIS’s parent agency) regulations allow for
error correction, especially those errors made in the Student and Exchange Visitor

Information System. See Retention and Reporting of Information for F, J, and M
Nonimmigrants; Student and Exchange Visitor Information System (SEVIS), 67 Fed.

14
Reg. 76,255–76,280 (Dec. 11, 2002). Plaintiff argues that the comments to the
regulation recognize that errors are possible and that students should not be penalized

when the Designated School Official makes a mistake.23 The comment specifically

23 The relevant section states in full:
Many commenters contended that the provisions in the proposed rule for
reinstatement were unnecessarily strict. Commenters urged the Service to provide
relief for students who are adversely affected by “technical or computer errors” in
SEVIS, and suggest that the Service adopt provisions similar to the provisions in
DOS regulations that allow for a correction of “minor or technical infractions.”
Commenters stressed that DSOs will make mistakes occasionally, especially when
dealing with a new computer system. Other commenters stated that to punish
students for mistakes on the part of the DSO is overly punitive.
The Service agrees that there may be a possibility that errors on the part of
SEVIS or other technological failures may cause a student to fall out of status.
Therefore, the Service has added § 214.3(g)(4) to allow for a student’s record to be
administratively corrected in situations where the error in question resulted from
technological errors or errors on the part of SEVIS. To administratively correct a
student’s record in instances of SEVIS error or technological failure, the DSO must
contact the SEVIS system administrator to explain the circumstances that caused the
correction to be requested, with documentation if necessary, as provided in §
214.3(g)(4). An administrative correction by the system administrator will be
completed without fee.
However, while the Service recognizes that a DSO may make a mistake in a
student’s record that causes the student to fall out of status, the Service does not
believe that such errors merit an administrative correction. Ultimately, it is the
student’s responsibility to ensure that he or she remains in status and is in compliance
with the regulations at all times. That is not to say that the student will not be
afforded a remedy in these situations. On the contrary, in instances where the DSO
was neglectful or inadvertently failed to update or extend a student’s status, the
student is permitted to file for reinstatement and establish that the actions on the part
of the DSO were beyond his or her control. Where the Service finds that a DSO has
repeated violations of Service regulations or finds malfeasance on the part of a DSO,
the Service may withdraw the approval of the designated school official.
67 Fed. Reg. 76,264–76,265 (emphasis added). 8 C.F.R. § 214.3(g)(4) has since been redesignated
as 8 C.F.R. § 214.3(g)(3).
15
states that a student whose status is in jeopardy due to a mistake on the part of the
Designated School Official “is permitted to file for reinstatement and establish that

the actions on the part of the DSO were beyond his or her control.” 67 Fed. Reg.
76,265. Plaintiff attempted to solve his dilemma through the method laid out in the
comment to the regulation — he provided USCIS with evidence that the Designated

School Official had erred, and that the mistake was beyond his control because he had
no access to the Student and Exchange Visitor Information System and, therefore, no
way of knowing that an error had been made in the system prior to the denial.

USCIS argues that the comments plaintiff cites are outdated simply because
they accompany the regulations as promulgated in 2002. There is no evidence that
Congress’s intention has shifted since the regulations were promulgated eighteen

years ago, however, and the regulatory language has not been modified.
In fact, in line with the regulatory language allowing correction of technical
errors, at the time plaintiff submitted his second application for employment
authorization USCIS had a policy that it would issue Requests for Evidence on any

application where “the totality of the evidence submitted does not meet the applicable
standard of proof . . . unless . . . there is no possibility that additional evidence
available to the individual might cure the deficiency.” USCIS, PM-602-0085,

16
Requests for Evidence and Notices of Intent to Deny (June 3, 2013).24 In this case,
USCIS issued a Request for Evidence to plaintiff, seeking additional evidence that

he had maintained lawful status throughout his degree program, but the Request did
not inform plaintiff that the OPT recommendation had not been updated in the
Student and Exchange Visitor Information System, that his Form I-20 was missing

the notation of the OPT recommendation, or that his Form I-20 had been reprinted,
which was unacceptable to them.25 Without access to the Student and Exchange
Visitor Information System, and without USCIS informing him of the mistake,

plaintiff could not have known about the error, or taken steps to correct it.
As explained in the standard of review section, the agency’s determination of
what constitutes sufficient “new facts” to reopen a proceeding is not entitled to

Chevron deference because the non-precedential decision directed by an individual
officer to an individual applicant does not carry the “force of law.” See Mead, 533
U.S. at 234. That does not mean, however, that the decision does not merit some
deference under the Supreme Court’s Skidmore standard. See Skidmore v. Swift &

24 Approximately one month after plaintiff submitted his second application, USCIS issued
a new Policy Memorandum removing the requirement that USCIS officers issue Requests for
Evidence unless there is “no possibility” that additional evidence might cure the deficiency.
See USCIS, PM-602-0163, Issuance of Certain RFEs and NOIDs; Revisions to Adjudicator’s Field
Manual (AFM) Chapter 10.5(a), Chapter 10.5(b) (July 13, 2018). The Memorandum noted,
however, that the change was “not intended to penalize filers for innocent mistakes or
misunderstandings of evidentiary requirements.” See id. at 2.
25 See A.R.2 at 0041–0042.
17
Co., 323 U.S. 134, 140 (1944); see also generally Metropolitan Stevedore Co. v.
Rambo, 521 U.S. 121, 136 (1997) (reasonable agency interpretations carry “at least

some added persuasive force” where Chevron is inapplicable); Reno v. Koray, 516
U.S. 50, 61 (1995) (according “some deference” to an interpretive rule that “do[es]
not require notice and comment”); Martin v. Occupational Safety & Health Review

Commission, 499 U.S. 144, 157 (1991) (“some weight” is due to informal
interpretations though not “the same deference as norms that derive from the exercise
of . . . delegated lawmaking powers”). Skidmore deference accords an agency’s

interpretations with respect according to its power to persuade. See Skidmore, 323
U.S. at 140.
USCIS’s interpretation of what constitutes sufficient new facts is not

persuasive. Plaintiff presented evidence that he had complied with the deadlines to
the best of his knowledge and ability, and only an error on the part of the Designated
School Official kept his application out of compliance. If those new facts were not
sufficient, it would have been impossible for plaintiff to provide facts that show he

was eligible for OPT employment authorization. USCIS’s reasoning that the
admission of error “did not overcome the applicant’s burden” placed an impossibly
high burden on plaintiff and left him at a dead end. His second application was

denied initially on January 30, 2019, then the motion to reopen was denied on
18
October 3, 2019: both dates long after the end of his graduate program, and the
window in which he would be able to timely apply for employment authorization

under the Optional Practical Training program. The solution proposed by the
Designated School Official when she admitted her error — that plaintiff’s status as
an F-1 student be changed from “complete” to “active” in order to provide him a

window to timely submit documents upon reopening — was completely ignored by
USCIS. The decision to ignore the only solution available to plaintiff and disregard
the new facts he presented was, therefore, arbitrary and capricious.

Additionally, USCIS’s statement that it does not accept reprinted Forms I-20
also placed plaintiff in an impossible position. If plaintiff was able to support his
application only with the original Form I-20, printed on February 8, 2018, which

included the recommendation in the Student and Exchange Visitor Information
System from February 5, 2018, it would be impossible for him to comply with the
requirement that his application be submitted within thirty days of that date after his
first application (which did meet that requirement) was denied on June 1, 2018 for

being submitted four days too early.26 USCIS does not cite any regulation to support
its prohibition on reprinted Forms I-20, nor does it explain how plaintiff possibly
could have complied with the appropriate deadlines without asking his Designated

26 See A.R.1 at 001.
19
School Official to reprint the form.
IV. CONCLUSION
In accordance with the foregoing, this court finds that USCIS’s decision to
deny Mr. Smith’s motion to reopen his application for employment authorization was
arbitrary and capricious. Plaintiff's motion for summary judgment is due to be
granted, and defendants’ motion for summary judgment is due to be denied.
Plaintiffs application for employment authorization on the basis of post-completion
OPT is to be reopened, and his F-1 immigration status be changed from “complete”
to “active” in order for him to be able to timely submit new Forms I-20 and I-765
after the Designated School Official makes the recommendation for OPT employment
authorization in his record in the Student and Exchange Visitor Information System.
An appropriate order consistent with this memorandum opinion will be entered
simultaneously herewith.
DONE and ORDERED this 15th day of January, 2021.
kal

20

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9990037. Public record. Not legal advice.