Opinion
6:22-cv-999
2023-09-07
Anthony ROSATI, Plaintiff, v. Alejandro MAYORKAS in his official capacity as Secretary of Homeland Security, U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, UR Jaddou in her official capacity as Director of USCIS, USCIS Syracuse Satellite Office Director of USCIS Syracuse Field Office, Matthew Emrich in his official capacity as Associate Director for USCIS's Fraud Detection and National Security Directorate (FDNS), Merrick Garland in his official capacity as U.S. Attorney General, and U.S. Department of Justice, Defendants.
JULIE GOLDBERG, ESQ., GOLDBERG & ASSOCIATES, Attorneys for Plaintiff, 5586 Broadway, Third Floor, Bronx, NY 10463. JULIAN KURZ, ESQ., U.S. DEPARTMENT OF JUSTICE, Attorneys for Defendants, Ben Franklin Station, P.O. Box 868, Washington, DC 20044.
JULIE GOLDBERG, ESQ., GOLDBERG & ASSOCIATES, Attorneys for Plaintiff, 5586 Broadway, Third Floor, Bronx, NY 10463. JULIAN KURZ, ESQ., U.S. DEPARTMENT OF JUSTICE, Attorneys for Defendants, Ben Franklin Station, P.O. Box 868, Washington, DC 20044. DECISION and ORDER DAVID N. HURD, United States District Judge
I. INTRODUCTION
On September 22, 2022, Anthony Rosati ("Rosati" or "plaintiff") filed this action challenging the United States Citizenship and Immigration Services' ("USCIS" or the "agency") decision denying his I-130 Petition for Alien Relative ("I-130 petition" or "petition") filed on behalf of his spouse, Cindy Rosati ("Cindy"). Dkt. No. 1. Plaintiff's complaint seeks judicial review of the decision under the Administrative Procedure Act ("APA"). Id.
On January 18, 2023, defendants moved for summary judgment under Federal Rule of Civil Procedure ("Rule") 56. Dkt. No. 15. On March 31, 2023, Rosati cross-moved for summary judgment. Dkt. No. 20. On June 30, 2023, plaintiff filed an opposition to defendants' motion for summary judgment and moved for discovery pursuant to Rule 56(d). Dkt. No. 26. On July 20, 2023, defendants moved to strike plaintiff's response to his motion for discovery. Dkt. No. 29. The motions have been fully briefed and will be considered on the basis of the submissions without oral argument.
Defendants are the United States Department of Justice; the United States Department of Homeland Security; USCIS; USCIS Syracuse Satellite Office; Merrick Garland, the United States Attorney General; Alejandro Mayorkas, Secretary of Homeland Security; Ur Jaddou, Director of USCIS; and Matthew Emrich, Associate Director, Fraud Detection and National Security Directorate of USCIS.
II. BACKGROUND
A. Statutory and Regulatory Background
The Immigration and Nationality Act ("INA") delegates the adjudication and investigation of immigration benefit petitions to the United States Department of Homeland Security and USCIS. 8 U.S.C. §§ 1103(a), 1154. Pursuant to the INA, a United States citizen may seek permanent resident status on behalf of an alien spouse. 8 U.S.C. § 1154; 8 C.F.R. § 204.1(a)(1), (b). In order to do so, the United States citizen (the "petitioner") must file a I-130 petition on behalf of the alien spouse (the "beneficiary"). 8 U.S.C. §§ 1151(b)(2)(A)(i), 1154; 8 C.F.R. § 204.1(a)(1). Once an I-130 petition has been filed, USCIS is directed to conduct "an investigation of the facts in each case." 8 U.S.C. § 1154(b). If USCIS determines that "the facts stated in the petition are true and that the alien on behalf of whom the petition is made is an immediate relative," the agency shall approve the petition. Id.
"One reason USCIS may deny an I-130 petition is if it finds that the beneficiary has engaged in marriage fraud." Mamedov v. Barr, 2021 WL 781743, at *1 (E.D.N.Y. Mar. 1, 2021). Pursuant to the marriage-fraud bar, an I-130 petition must be denied if there is "substantial and probative evidence" that: (1) the beneficiary "has previously been accorded, or has sought to be accorded," immediate relative status based on a marriage "entered into for the purpose of evading the immigration laws;" or (2) the beneficiary "has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws." 8 U.S.C. § 1154(c); see also Bourisquot v. Holder, 569 F. App'x 35, 35-36 (2d Cir. 2014) (summary order). The petitioner bears the burden of showing by a preponderance of the evidence that his or her marriage was bona fide at its inception. Berrios v. Holder, 502 F. App'x 100, 101 (2d Cir. 2012) (summary order) (citation omitted).
The APA confines judicial review of agency decisions to the administrative record of proceedings before the pertinent agency. See 5 U.S.C. § 706. The following facts are derived from the Certified Administrative Record. See Dkt. No. 9.
On July 16, 2018, Rosati filed an I-130 petition on behalf of his spouse, Cindy, seeking to classify her as the spouse of a United States citizen. Certified Administrative Record ("AR"), Dkt. No. 9 at 111-22.
Pagination corresponds to CM/ECF.
On June 26, 2019, Rosati and Cindy appeared before USCIS for an interview in connection with plaintiff's I-130 petition at the agency's Syracuse Field Support Office. AR at 172-75. On November 14, 2019, the agency conducted field site visits to plaintiff and Cindy's residences. Id. at 181-85.
On November 25, 2019, USCIS issued Rosati a Notice of Intent to Deny ("NOID"). AR at 18-21. The NOID outlined the information considered by the agency in support of its intended denial of plaintiff's I-130 petition and provided plaintiff with an opportunity to respond to the NOID. Id. On December 26, 2019, plaintiff responded to the NOID and provided additional documentation in support of his petition. Id. at 22-27, 36-37.
On January 21, 2020, USCIS issued a decision denying Rosati's I-130 petition. AR at 6-13. The decision outlined the evidence in support of the agency's finding that plaintiff failed to meet his burden of demonstrating a bona fide marriage. Id. The decision also explained why the additional information submitted by plaintiff in response to the NOID failed to overcome the evidence of marriage fraud. Id.
III. LEGAL STANDARD
"Under the APA, a 'person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action . . . is entitled to judicial review thereof.' " Hadwan v. United States Dep't of State, 2021 WL 4037714, at *3 (S.D.N.Y. Sept. 3, 2021) (quoting 5 U.S.C. § 702(2)(A)). Specifically, the APA authorizes a district court to "hold unlawful and set aside agency action" that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Almakalani v. McAleenan, 527 F. Supp. 3d 205, 219 (E.D.N.Y. 2021) (citing 5 U.S.C. § 706(2)(A)).
"When a party challenges agency action under the APA, the district court acts as an 'appellate tribunal' and the case on review presents 'a question of law.' " Saleh v. Blinken, 596 F. Supp. 3d 405, 413 (E.D.N.Y. 2022) (citations omitted). "Summary judgment is generally an appropriate procedural vehicle to resolve such a case, but the usual summary judgment standard under Federal Rule of Civil Procedure 56 does not apply." Id. (cleaned up). Instead, pursuant to the "record rule," the district court decides the legal issue of whether the agency's action was arbitrary and capricious by reviewing the administrative record compiled by the agency when it made its decision. Id. (citations omitted); see also Ali v. Pompeo, 2018 WL 2058152, at *4 (E.D.N.Y. May 2, 2018).
The scope of review under the arbitrary and capricious standard is narrow and "courts should not substitute their judgment for that of the agency." Karpova v. Snow, 497 F.3d 262, 267 (2d Cir. 2007) (citing Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 33, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). Agency action may be overturned as arbitrary and capricious only if:
the agency "has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise."Id. at 268 (citation omitted). In other words, agency action will be upheld "so long as the agency examines the relevant data and has set out a satisfactory explanation, including a rational connection between the facts found and the choice made." Id.
IV. DISCUSSION
There are four motions pending: (1) defendants' motion for summary judgment; (2) Rosati's cross-motion for summary judgment; (3) plaintiff's motion for discovery; and (4) defendants' motion to strike plaintiff's response to his motion for discovery. See Dkt. Nos. 15, 20, 26, 29.
A. Motion for Discovery
As an initial matter, Rosati has moved for limited discovery under Rule 56(d). See Pl.'s Opp'n, Dkt. No. 26-1. Plaintiff maintains that he is unable to respond to defendants' motion for summary judgment due to material facts being missing from the administrative record. See id. at 6-14. For the following reasons, neither administrative law principles nor Rule 56(d) warrant supplementation of the record.
1. APA Discovery
"[I]n an APA case, a court should only consider materials outside the certified administrative record in special circumstances." Blinken, 596 F. Supp. 3d at 413. "Requests by a party to put materials before the Court that are outside the administrative record filed by the agency fall into two distinct categories." Comprehensive Cmty. Dev. Corp. v. Sebelius, 890 F. Supp. 2d 305, 309 (S.D.N.Y. 2012) (citation omitted). First, a party may seek extra-record evidence, i.e., evidence that was not necessarily considered by the agency, "where 'there has been a strong showing in support of a claim of bad faith or improper behavior on the part of the agency decision-maker or where the absence of formal administrative findings makes such investigation necessary in order to determine the reasons for the agency's choice.' " Id. (quoting Nat'l Audubon Soc'y v. Hoffman, 132 F.3d 7, 14 (2d Cir. 1997)). Second, "a party may seek to supplement the administrative record by showing 'that materials exist that were actually considered by the agency decision-makers but are not in the record as filed.' " Blinken, 596 F. Supp. 3d at 413 (citations omitted). "[I]n either case, the Court must be mindful that supplementation of the administrative record is the exception, not the rule." Ali, 2018 WL 2058152, at *4 (cleaned up).
"When permitted, 'discovery should not transform the litigation into one involving all the liberal discovery available under the Federal Rules.' " Hadwan, 2021 WL 4037714, at *4 (quoting Ali, 2018 WL 2058152, at *4). "Rather, the Court must permit only that discovery necessary to effectuate the Court's judicial review, i.e. review the decision of the agency under Section 706." Ali, 2018 WL 2058152, at *4 (collecting cases). "Moreover, in the rare circumstances where supplementation of the record is required, it is typically accomplished by remand to the agency, not through court-supervised discovery." Hadwan, 2021 WL 4037714, at *4 (citing Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 84 L.Ed.2d 643, (1985)).
Rosati argues that supplementation of the administrative record is necessary because USCIS relied on a misapprehension of facts in denying his I-130 petition. See Declaration of Julie Goldberg ("Goldberg Decl."), Dkt. No. 26 ¶ 14; see also Pl.'s Opp'n at 6-9. Relevant here, the decision asserts that agency officials were able to speak with "neighbors and individuals in the surrounding community" during their field visit to plaintiff's apartment. AR 8-9. However, plaintiff maintains that agency officials spoke only with his neighbor Antoinette Bono ("Bono") during their field visit., See Goldberg Decl. ¶ 6; Pl.'s Opp'n at 6-9. Thus, in plaintiff's view, because the decision relied upon a misrepresentation of facts, the denial of his petition must be set aside as arbitrary and capricious. Goldberg Decl. ¶ 14; Pl.'s Opp'n at 8-9.
Rosati maintains if USCIS officials interviewed other individuals, completion of the record is necessary to reflect the notes or testimony of these individuals. Pl.'s Opp'n at 6-9. Plaintiff's argument must be rejected. Plaintiff's mere speculation that notes or testimony of other individuals exist outside of the record is not enough to meet the high burden necessary to rebut the presumption of administrative regularity. See Blinken, 596 F. Supp. 3d 405 at 415; Ali, 2018 WL 2058152, at *11.
Rosati suggests that if USCIS officials interviewed other individuals, the agency engaged in improper behavior by either: (1) failing to take notes reflecting the interviews; or (2) not including the notes or testimony of these interviews in the administrative record. See Goldberg Decl. ¶ 6. This conclusory assertion must be rejected. Plaintiff has failed to offer evidence sufficient to demonstrate that such actions warrant supplementation of the record. See Hadwan, 2021 WL 4037714, at *5.
Upon review, Rosati's argument must be rejected. Plaintiff's allegations in favor of supplementation of the administrative record relate to the merits of his APA claim. If plaintiff's allegations are proven to be true, it may be that the denial of his petition was arbitrary and capricious. However, such a determination is appropriate in the context of a motion for summary judgment, not a motion to supplement the record. See Sebelius, 890 F. Supp. 2d at 315; Hadwan, 2021 WL 4037714, at *5 n.8; Ali, 2018 WL 2058152, at *6. Accordingly, plaintiff's request to supplement the record must be denied.
2. Rule 56(d)
Rule 56(d) provides that a court may defer or deny a motion for summary judgment and allow discovery if a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition to summary judgment. FED. R. CIV. P. 56(d). The affidavit or declaration must describe: (1) what facts are sought and how they are to be obtained; (2) how these facts are reasonably expected to raise a genuine issue of material fact; (3) what efforts the affiant has made to obtain them; and (4) why the affiant's efforts were unsuccessful." Blinken, 596 F. Supp. 3d at 417 (citing Gene Codes Forensics, Inc. v. City of N.Y., 812 F. Supp. 2d 295, 304 (S.D.N.Y. 2011)).
Rosati has not demonstrated that he cannot present facts essential to justify his opposition to summary judgment. As noted supra, a reviewing court may consider materials outside of the administrative record only in limited circumstances. Blinken, 596 F. Supp. 3d at 417. For the foregoing reasons, plaintiff has not established any basis for supplementation of the record. As a result, judicial review of the denial of plaintiff's I-130 petition must be confined to the record. Id.; see also Hadwan, 2021 WL 4037714, at *6. Consequently, plaintiff's motion for discovery pursuant to Rule 56(d) shall be denied.
Defendants' motion to strike Rosati's response in support of his motion for discovery shall be denied as moot because resolution of plaintiff's motion did not require consideration of his reply memorandum.
B. Motions for Summary Judgment
Rosati asserts three arguments in challenging the denial of his I-130 petition: (1) USCIS violated mandatory regulations requiring the disclosure of derogatory information; (2) the agency's decision was arbitrary and capricious; and (3) the agency violated his right to due process of law. See Pl.'s Mem., Dkt. No. 20 at 18-32. For the following reasons, each argument must be rejected.
As a threshold matter, several arguments advanced in Rosati's cross-motion for summary judgment do not correspond to the causes of action set forth in his complaint. Although plaintiff contends that the denial of his petition was arbitrary and capricious in both his complaint and cross-motion for summary judgment, the bases for his claims vary in many respects. Generally, a plaintiff may not amend a complaint through submissions on summary judgment. Kravitz Leis, 803 Fed. App'x 547, 548 (2d Cir. 2020) (summary order) (citing Greenidge v. Allstate Ins. Co., 446 F.3d 356, 361 (2d Cir. 2006)). In any event, plaintiff's arguments fail on the merits for the following reasons.
1. Disclosure of Derogatory Information
First, Rosati argues that USCIS violated 8 CFR § 103.2(b)(16) by failing to disclose derogatory information. Pl.'s Mem. at 18-21. 8 CFR § 103.2(b)(16) provides in relevant part:
Inspection of evidence. An applicant or petitioner shall be permitted to inspect the record of proceeding which constitutes the basis for the decision, except as provided in the following paragraphs.8 C.F.R. § 103.2(b)(16)(i)-(ii). Notably, 8 CFR § 103.2(b)(16) does not require the agency to provide the petitioner with an opportunity to inspect actual evidence or cross-examine witnesses. Owusu-Boakye v. Barr, 376 F. Supp. 3d 663, 678 (E.D. Va. 2019), aff'd, 836 F. App'x 131 (4th Cir. 2020) (summary order); see also Koffi v. Holder, 487 F. App'x 658, 660-61 (2d Cir. 2012) (summary order); Mangwiro v. Johnson, 554 F. App'x 255, 261 (5th Cir. 2014) (summary order). Rather, 8 CFR § 103.2(b)(16) merely requires the agency to inform the petitioner of derogatory information and offer the petitioner an opportunity to rebut it. See Zizi v. Field Off. Dir., 753 F. App'x 116, 117 (3d Cir. 2019) (summary order).
(i) Derogatory information unknown to petitioner or applicant. If the decision will be adverse to the applicant or petitioner and is based on derogatory information considered by the Service and of which the applicant or petitioner is unaware, he/she shall be advised of this fact and offered an opportunity to rebut the information and present information in his/her own behalf before the decision is rendered . . . . Any explanation, rebuttal, or information presented by or in behalf of the applicant or petitioner shall be included in the record of proceeding.
(ii) Determination of statutory eligibility. A determination of statutory eligibility shall be based only on information contained in the record of proceeding which is disclosed to the applicant or petitioner . . . .
Rosati asserts that USCIS failed to disclose derogatory information in violation of 8 CFR § 103.2(b)(16) by: (1) not providing him with the identity of his neighbor Bono as a witness who provided agency officials with testimony during their field visit; and (2) misrepresenting the number of individuals agency officials spoke with during their field visit. Pl.'s Mem. at 19-21.
Rosati also asserts that USCIS violated the mandatory regulations by not limiting their determination to the information contained in the administrative record. Pl.'s Mem. at 19. As determined supra, plaintiff has not overcome the strong presumption of regularity that attaches to the agency's certification of the record.
Rosati has not demonstrated that USCIS violated 8 CFR § 103.2(b)(16). The NOID issued by the agency includes the following of recitation of information obtained from agency officials during their field visit:
[T]he service was able to speak with neighbors and individuals in the surrounding community. The individuals interviewed stated they were familiar with you. The individuals confirmed you lived at the apartment on River Road with your daughter . . . . When the individuals were asked if you had any other guests come stay in your home, they stated you have girlfriend. When asked to describe the girlfriend, the individuals noted she is a "petit blonde". When asked if your girlfriend was a Spanish speaker, the individuals noted this was not accurate. The description of the aforementioned girlfriend does not match the beneficiary's profile. The individuals also noted that they did not believe you had ever been married. When USCIS officials showed a photo of the beneficiary and her daughter to these neighbors and community members, all confirmed they had never seen the beneficiary or her daughter at your home.AR at 20. As evident from the NOID, the agency sufficiently advised plaintiff of the derogatory information obtained from individuals during their field visit. As outlined supra, 8 CFR § 103.2(b)(16) does not require the agency to provide in painstaking detail the evidence of fraud it finds. Rather, a summary of the derogatory information can suffice. See Sehgal v. Lynch, 813 F.3d 1025, 1031-32 (7th Cir. 2016). Accordingly, plaintiff's first argument must be rejected.
Rosati also argues that by violating 8 CFR § 103.2(b)(16), USCIS violated the Accardi doctrine. Pl.'s Mem. at 20-21. As it has been determined that the agency did not violate 8 CFR § 103.2(b)(16), this argument need not be addressed. See Blinken, 596 F. Supp. 3d at 419-20.
2. Arbitrary and Capricious
Next, Rosati argues that the denial of his I-130 petition was arbitrary and capricious. Pl.'s Mem. at 21-27.
A reviewing court must uphold agency action unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). The scope of review under this standard is narrow "and courts should not substitute their judgment for that of the agency." Karpova, 497 F.3d at 267 (citation omitted). Agency action will be upheld "so long as the agency examines the relevant data and has set out a satisfactory explanation, including a rational connection between the facts found and the choice made." Id. at 268.
Rosati asserts that USCIS violated the "reasoned decision-making requirement of the APA" by relying on a misrepresentation of facts in denying his I-130 petition. Pl.'s Mem. at 21-22; Pl.'s Opp'n at 8-9. As noted supra, the decision asserts that agency officials were able to speak with "neighbors and individuals in the surrounding community" during their field visit to plaintiff's apartment. AR 8-9. However, plaintiff maintains that officials spoke only with his neighbor Bono. Pl.'s Mem. at 21-22; Pl.'s Opp'n at 8-9. As a result, plaintiff asserts that because the decision is incongruent with the administrative record, the decision must be set aside as arbitrary and capricious. Pl.'s Mem. at 21-22.
Upon review, Rosati has not demonstrated that the denial of his I-130 petition relied on a mischaracterization of evidence. A review of the administrative record does not indicate that agency officials spoke only with Bono during their field visit. To the contrary, the Site Visit Worksheet completed by the agency after its field visit contains the following summary tending to show that officials were able to speak with several individuals:
From discussions with neighbors and the searches completed [the agency] was able to confirm that beneficiary does not physically reside at [plaintiff's residence], nor does she visit the residence regularly. Neighbors reported Anthony has an on and off again girlfriend described as a petite blonde female. When shown photos of the beneficiary and her daughter . . . neighbors had never seen either at the apartment, and reported they did not believe Anthony was married, and confirmed he only has one child . . . .AR at 20. Thus, plaintiff has not demonstrated that in denying his petition, the agency relied on a misapprehension of facts. Rather, the agency considered the relevant evidence, including evidence submitted in response to the NOID, and provided a satisfy explanation for its finding that plaintiff failed to meet his burden of establishing a bona fide marriage. See AR 6-13. Indeed, the record contains evidence from which the agency could reasonably infer that plaintiff and Cindy entered into their marriage for the primary purpose of obtaining immigration benefits. See id. For instance, the record reflects that plaintiff and Cindy: (1) lacked the ability to communicate with one another without the use of a language application; (2) provided conflicting answers on a number of questions and were unable to answer basic questions about one another; and (3) did not share a residence. Id. at 9-8; see also Berrios, 502 F. App'x at 101 (noting that evidence relevant to demonstrating a bona fide marriage includes, inter alia, testimony or other evidence regarding courtship, shared residence, and experiences). From these facts, and under the exceedingly deferential standard of review applicable to this case, it cannot be concluded that the agency's decision was arbitrary and capricious. Accordingly, plaintiff's second argument must be rejected.
To be fair, the Worksheet does only specifically identify Bono as providing testimony to agency officials and the statements accredited to Bono are substantially similar to the statements described as being provided by several individuals. Nevertheless, it would be improper to conclude from these facts that officials spoke only with Bono and subsequently projected her statements onto a larger group of individuals. See Agyapomaa v. Mayorkas, 680 F.Supp.3d 141, 151-53 (D. Conn. June 27, 2023) (noting that there is a presumption of regularity and good faith accorded to agency action). Indeed, it very well could be that the other individuals reiterated the statements made by Bono.
The remainder Rosati's assertions in support of his argument that the denial of his I-130 petition was arbitrary and capricious essentially ask the Court to reweigh the evidence submitted to USCIS. To do so would be improper. The Court is not empowered to substitute its judgment for that of the agency. See Karpova, 497 F.3d at 267 (citing Motor Vehicle Mfrs. Ass'n of U.S., Inc., 463 U.S. at 33, 103 S.Ct. 2856); see also Sohail Rice Mills USA, Inc. v. United States Citizenship, 2022 WL 3358079, at *4 (E.D.N.Y. Aug. 15, 2022).
Rosati's also asserts that the denial of his I-130 petition "materially misrepresented the evidence in the record or relied upon evidence not contained in the record." Pl.'s Mem. at 27. As it has been determined that plaintiff has failed to demonstrate that the decision relied on a misapprehension of facts or relied upon evidence outside of the administrative record, this argument must be rejected.
3. Procedural Due Process
Lastly, Rosati argues that USCIS violated his right to procedural due process of law. Pl.'s Mem. at 27-32.
The Due Process Clause of the Fifth Amendment provides in relevant part that no person shall "be deprived of life, liberty, or property, without due process of law." U.S. CONST. amend. V. "A procedural due process claim entails a two-part inquiry: whether claimants were deprived of a protected interest and, if so, whether claimants received adequate notice and a meaningful opportunity to be heard." In Re Purdue Pharma L.P., 69 F.4th 45, 82 (2d Cir. 2023) (citing Spinelli v. City of N.Y., 579 F.3d 160, 168 (2d Cir. 2009)).
Rosati asserts that he has a fundamental property interest in the proper adjudication of his I-130 petition and USCIS violated his right to due process by: (1) misrepresenting the number of individuals agency officials spoke to during their field visit; and (2) failing to disclose "the nature, identity, and numerosity of the witnesses who provided information to USCIS." Compl. ¶ 256; Pl.'s Mem. at 28.
Rosati also asserts that USCIS violated his due process rights by misrepresenting the number of individuals agency officials spoke to during their field visit. Pl.'s Mem. at 28. As determined supra, plaintiff has not demonstrated that agency officials spoke only with his neighbor, Bono.
Even assuming Rosati has a protected interest sufficient to warrant procedural protections, plaintiff has not demonstrated that USCIS failed to afford him due process. The vast majority of courts have held that the agency satisfies due process in the context of adjudicating an I-130 petition by: (1) issuing a NOID or Notice of Intent to Revoke that lists the reasons why the agency intends to deny the petition; (2) giving the petitioner an opportunity to present evidence to attempt to persuade the agency to grant the petition; and (3) issuing a decision that specifies facially legitimate reasons for denying the petition. Owusu-Boakye, 376 F. Supp. 3d at 681 (collecting cases); see also Akinsuyi v. Bd. of Immigr. Appeals, 2018 WL 4017579, at *8 (E.D.N.Y. Aug. 22, 2018); Kinda v. Jaddou, 2023 WL 3624677, at *17-19 (D. Neb. Mar. 16, 2023).
Defendants do not dispute that Rosati has a protected interest, however, "courts are divided on whether applicants have a liberty or property interest in seeing their immigration applications adjudicated pursuant to a specific procedure, and the Second Circuit has not decided the issue yet." Saleh v. Garland, 2022 WL 4539475, at *6 n.8 (E.D.N.Y. Sept. 28, 2022) (collecting cases); see also Mamedov v. Garland, 2023 WL 2652266, at *4 (E.D.N.Y. Mar. 27, 2023).
Measured against this standard, Rosati has not demonstrated that USCIS followed inadequate procedures in denying his I-130 petition. The NOID sufficiently notified plaintiff of the bases for its proposed denial of his petition and informed plaintiff of derogatory information indicating marriage fraud. See AR 18-21. Plaintiff was given the opportunity to rebut the information and present information on his own behalf before the decision was rendered. Id. at 21. Plaintiff availed himself of this process and responded to the NOID with additional documentation in support of his petition. Id. at 22-27. Therefore, plaintiff has not shown that the agency failed to afford him due process in adjudicating his petition. As a result, plaintiff's final argument must be rejected. Accordingly, plaintiff's cross-motion for summary judgment shall be denied and defendants' motion for summary judgment shall be granted.
V. CONCLUSION
Therefore, it is
ORDERED that
1. Defendants' motion for summary judgment (Dkt. No. 15) is GRANTED;
2. Plaintiff's cross-motion for summary judgment (Dkt. No. 20) is DENIED;
3. Plaintiff's motion for discovery (Dkt. No. 26) is DENIED;
4. Defendants' motion to strike (Dkt. No. 29) is DENIED as moot; and
5. The complaint is DISMISSED.
IT IS SO ORDERED.