Galos et al v. Napolitano et al

Filing 68

Order by Magistrate Judge Donna M. Ryu denying 59 Plaintiffs' Motion for Discovery.(dmrlc1, COURT STAFF) (Filed on 3/6/2014)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 11 For the Northern District of California United States District Court 10 ELIZABETH OBER GALOS, et al., 12 13 14 15 16 No. C-12-02902 DMR Plaintiffs, ORDER DENYING PLAINTIFF’S MOTION TO SUPPLEMENT AND COMPLETE THE RECORDS [DOCKET NO. 59] v. RAND BEERS, ACTING SECRETARY, DEPARTMENT OF HOMELAND SECURITY, et al., Defendants. ___________________________________/ 17 18 Before the court is Plaintiffs Elizabeth Ober Galos and Rutheil Monteclaro Galos’s motion to 19 supplement and complete the records in this action challenging the Board of Immigration Appeals’s 20 denial of an immediate relative I-130 petition under the Administrative Procedure Act. [Docket No. 21 59.] The court finds that the matter is appropriate for resolution without oral argument pursuant to 22 Civil Local Rule 7-1(b). For the following reasons, Plaintiffs’ motion is denied. 23 24 I. BACKGROUND This case follows several attempts by Plaintiffs to secure alien relative status for Plaintiff 25 Ruthiel Galos, a citizen and national of the Philippines. (2d Am. Compl. ¶ 7.) Galos married 26 Plaintiff Elizabeth Ober-Galos, a U.S. citizen, on July 7, 2003. (2d Am. Compl. ¶ 12.) Ober-Galos 27 subsequently filed an I-130 petition on behalf of Galos for immediate relative classification as the 28 spouse of a U.S. citizen. (2d Am. Compl. ¶ 12.) At his interview with immigration officials, Galos 1 allegedly admitted that his prior marriage to a U.S. citizen, Maria Codotco, aka Mary Quaterman, 2 was fraudulent and entered into solely for the purpose of gaining immigration benefit, for which 3 Galos paid Codotco $2,000.1 (2d Am. Compl. ¶ 12.) After the interview, the USCIS denied Ober- 4 Galos’s petition pursuant to Section 204(c) of the Immigration and Nationality Act (INA), 8 U.S.C. 5 § 1154(c), (see 2d Am. Compl. ¶¶ 12, 23), which forecloses any possibility of receiving a change in 6 immigration status if the current or a prior marriage was entered into for the purpose of evading 7 immigration laws. See 8 U.S.C. § 1154(c). 8 Plaintiffs allege that Galos’s admission regarding his prior marriage was coerced by an official who conducted the interview shouted at Galos and threatened to jail him in order to force 11 For the Northern District of California unnamed immigration official. (2d Am. Compl. ¶ 12.) According to Plaintiffs, the immigration 10 United States District Court 9 him to admit that his first marriage was fraudulent. (2d Am. Compl. ¶ 12.) Galos maintains that his 12 marriage to Codotco was legitimate and not a sham. (2d Am. Compl. ¶¶ 12, 13, 27, 28.) 13 Upon its denial of Ober-Galos’s I-130 petition, USCIS commenced removal proceedings 14 against Galos, which currently are pending. (2d Am. Compl. ¶ 16.) The Board of Immigration 15 Appeals (“BIA”) upheld USCIS’s decision to deny Ober-Galos’s petition on appeal. (2d Am. 16 Compl. ¶ 20.) Plaintiffs filed this lawsuit in June 2012 seeking review of BIA’s denial of Ober- 17 Galos’s I-130 petition under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706. 18 Plaintiffs now move to supplement and complete the administrative record so that it includes 19 alleged videotapes of a 1996 interview of Codotco and the 2004 interview of Plaintiffs. They also 20 seek further evidentiary hearings so that Plaintiffs may testify regarding the alleged coercion by the 21 immigration official who obtained Galos’s admission regarding his marriage to Codotco and cross- 22 examine Codotco. Defendant Rand Beers, Acting Secretary of the Department of Homeland 23 Security (DHS), opposes the motion. [Docket No. 64.] 24 II. Legal Standards 25 26 1 27 28 Codotco and Galos were married on June 10, 1993 in the Philippines, after which Codotco returned to the U.S. (2d Am. Compl. ¶¶ 13, 14.) Galos’s marriage to Codotco was annulled in the Philippines on November 29, 2001 after Galos learned that Codotco was already married. (2d Am. Compl. ¶¶ 14, 15.) 2 1 Under the APA, a court may “reverse the agency action only if the action is arbitrary, 2 capricious, an abuse of discretion, or otherwise contrary to law.” Lands Council v. Powell, 395 F.3d 3 1019, 1026 (9th Cir. 2004) (citing 5 U.S.C. § 706(2)). “An agency’s action is arbitrary and 4 capricious if the agency fails to consider an important aspect of a problem, if the agency offers an 5 explanation for the decision that is contrary to the evidence, if the agency’s decision is so 6 implausible that it could not be ascribed to a difference in view or be the product of agency 7 expertise, or if the agency’s decision is contrary to the governing law.” Id. (citation omitted). In 8 making these determinations, “the court shall review the whole record or those parts of it cited by a 9 party.” 5 U.S.C. § 706. “The ‘whole’ administrative record . . . consists of all documents and materials directly or indirectly considered by agency decision-makers and includes evidence 11 For the Northern District of California United States District Court 10 contrary to the agency’s position.” Thompson v. U.S. Dep’t of Labor, 885 F.2d 551, 555 (9th Cir. 12 1989) (citation and internal quotation marks omitted) (emphasis removed). An agency’s designation 13 and certification of the administrative record is entitled to a presumption of regularity. McCrary v. 14 Gutierrez, 495 F. Supp. 2d 1038, 1041 (N.D. Cal. 2007) (citations omitted). Accordingly, “its 15 designation and certification of the administrative record is deemed sufficient to show that the 16 record is complete.” Id. 17 As a court’s review of an agency decision under the APA is limited to the administrative 18 record, discovery generally is not permitted in such cases. Id. at 1041. The Ninth Circuit has 19 crafted four narrow exceptions to this rule. Courts may review extra-record material only when “(1) 20 it is necessary to determine whether the agency has considered all relevant factors and explained its 21 decision, (2) the agency has relied on documents not in the record, (3) supplementing the record is 22 necessary to explain technical terms or complex subject matter, or (4) plaintiffs make a showing of 23 bad faith.” City of Las Vegas, Nev. v. F.A.A., 570 F.3d 1109, 1116 (9th Cir. 2009) (citing Sw. Ctr. 24 for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir. 1996)). “[T]hese 25 exceptions are narrowly construed and applied.” Lands Council, 395 F.3d at 1030. Moreover, for 26 extra-record material to be considered, a showing must first be made that the record is inadequate. 27 See Animal Def. Council v. Hodel, 840 F.2d 1432, 1437 (9th Cir. 1988) (“The [plaintiff] makes no 28 3 1 showing that the district court needed to go outside the administrative record to determine whether 2 the [agency] ignored information”). 3 III. Discussion 4 Plaintiffs assert that the administrative record presented by Defendant is inadequate, and seek 5 to complete the record by 1) compelling Defendant to produce alleged videotapes of interviews of 6 Codotco and Plaintiffs and 2) conducting further evidentiary hearings so that Plaintiffs may testify 7 regarding Galos’s alleged forced admission regarding his marriage to Codotco and cross-examine 8 Codotco. As Defendant’s “designation and certification of the administrative record is deemed 9 sufficient to show that the record is complete,” see McCrary, 495 F. Supp. 2d at 1042, Plaintiffs must set forth clear evidence to the contrary under any of the four recognized exceptions set forth 11 For the Northern District of California United States District Court 10 above. 12 A. 13 Plaintiffs seek “videotapes which were not part of the record, which were transcribed . . . so Videotapes of Interviews 14 as to know the entirety of the communication, not excerpt[s] [of them].” (Pls.’ Mot. 5.) 15 Specifically, Plaintiffs seek videotapes of the 2004 interview of Plaintiffs and a 1996 interview of 16 Codotco. Plaintiffs appear to seek the production of the alleged videotapes pursuant to the exception 17 allowing discovery where the agency has relied on documents that are not part of the record. 18 With respect to the production of the videotape of Plaintiffs’ 2004 interview, DHS disputes 19 the existence of any such videotape. DHS submitted evidence that Galos’s USCIS file does not 20 contain a recording of the 2004 interview, nor any evidence that the interview was recorded. 21 (Nelson Decl., Dec. 6, 2013, ¶¶ 3, 6.) DHS also submitted evidence that the majority of interviews 22 conducted in the San Francisco office are not recorded. (Nelson Decl. ¶ 2.) Galos’s file contains 23 one DVD marked with his identification number, but the DVD is otherwise unlabeled and undated, 24 and USCIS was unable to access and view the recording until December 5, 2013. (Nelson Decl. ¶¶ 25 3, 4.) USCIS subsequently determined that the DVD contained an audio-visual recording of a 1996 26 interview. Because the DVD could not be played or copied before December 2013, it was not 27 reviewed or considered by USCIS or BIA in making their determinations regarding Ober-Galos’s I- 28 130 petition. (Nelson Decl. ¶ 4, 5.) Accordingly, as there is no evidence that BIA had access to, let 4 1 alone relied on, a recording of Plaintiffs’ 2004 interview, and there is no evidence that such a 2 recording exists, Plaintiffs’ request is denied. administrative record includes a transcript of a videotaped interview of Codotco that took place on 5 December 20, 1996.2 (A.R. 346-417.) Although Plaintiffs argue that they seek to know “the 6 entirety” of her interview, the record appears to contain a full transcript, not an excerpt.3 The first 7 page is labeled “Transcription of Videotape” and the last states “Video Recording Ends, Total 8 Recording Time: 135 Minutes.” (A.R. 347, 348.) Plaintiffs have not identified any other interview 9 of Codotco and do not explain why the transcript of this videotape is insufficient. Further, Plaintiffs 10 have made no showing that BIA relied on material related to any Codotco interview that is not part 11 For the Northern District of California Plaintiffs also seek the production of the videotape of the 1996 interview of Codotco. The 4 United States District Court 3 of the record. As noted above, the record contains an audio-visual recording of a 1996 interview, 12 which the court assumes is the recording of Codotco’s 1996 interview, but the video was not 13 accessible before December 2013 and so was not reviewed or considered by USCIS or BIA in 14 reviewing the I-130 petition. Accordingly, as Plaintiffs have failed to show that the record is 15 inadequate as to the Codotco interview, see Animal Def. Council, 840 F.2d at 1437, Plaintiffs’ 16 request to augment the administrative record with a videotape of her interview is denied. 17 B. 18 19 Further Evidentiary Hearings 1. Additional Testimony by Plaintiffs Plaintiffs seek a further evidentiary hearing based upon the “bad faith” exception to the 20 record rule. Plaintiffs’ complaint alleges bad faith on the part of the immigration officers in 21 obtaining Galos’s admission that his first marriage was fraudulent, and Plaintiffs seek an evidentiary 22 hearing so that they may testify as to the officers’ conduct. (Pls.’ Mot. 4.) In order to invoke the 23 bad faith exception, Plaintiffs must make “a strong showing of bad faith or improper behavior” by 24 2 25 26 27 Although the full name of the interviewee is blacked out, the initials “M.Q” appear throughout the transcript, and appear to correspond with the name “Mary Quaterman.” (See, e.g., A.R. at 394 (addressing “Ms. Quarterman” [sic]).) Further, during her interview, “M.Q.” testified about her marriage to a “Rufio Galos.” (See, e.g., A.R. at 399, 409.) Plaintiffs do not identify any other transcribed interview of Codotco, so the court will assume this is the transcript to which Plaintiffs refer. 3 28 Although the last two pages of the transcript appear out of order, (see A.R. 346-47), the transcript appears otherwise complete. 5 1 // 2 // 3 the agency. See Animal Defense Council, 840 F.2d at 1437 (citing Public Power Council v. 4 Johnson, 674 F.2d 791, 795 (9th Cir. 1982)). 5 Plaintiffs argue that Galos’s 2004 admission regarding his first marriage was “a product of a 6 wrongful act” of the immigration officers and that through their additional testimony, they can show 7 the officers’ bad faith, citing Portland Audubon Society v. Endangered Species Committee, 984 F.2d 8 1534, 1548 (9th Cir. 1993). (Pls.’ Mot. 3-4.) In Portland Audubon Society, environmental groups 9 challenged a decision by the Endangered Species Committee to grant an exemption from the requirements of the Endangered Species Act to the Bureau of Land Management for timber sales in 11 For the Northern District of California United States District Court 10 Oregon. Id. at 1536. The plaintiffs sought leave to conduct discovery into allegedly improper ex 12 parte communications between committee members and the White House in which the White House 13 allegedly had pressured individual members into voting for the exemption. Id. Concluding that the 14 President and the White House are subject to the APA’s general prohibition of ex parte contacts, the 15 Ninth Circuit remanded the matter to the committee for an evidentiary hearing to determine whether 16 such communications had occurred. Id. at 1547-49. The court held that if there had been ex parte 17 contacts, the record must be supplemented to include the communications “so that proper judicial 18 review may be conducted.” Id. at 1549. As the Ninth Circuit noted, “[i]f the record is not complete, 19 then the requirement that the agency decision be supported by ‘the record’ becomes almost 20 meaningless.” Id. at 1548. 21 Portland Audubon Society does not support Plaintiffs’ position. There, the party seeking 22 review under the APA made allegations of impropriety – unlawful political pressure – that were not 23 reflected in the administrative record. In ordering an evidentiary hearing, the Ninth Circuit noted 24 that “where the so-called ‘record’ looks complete on its face and appears to support the decision of 25 the agency but there is a subsequent showing of impropriety in the process, that impropriety creates 26 an appearance of irregularity which the agency must then show to be harmless.” Id. at 1548 27 (emphasis added). Here, the administrative record already reflects Plaintiffs’ allegations regarding 28 the immigration officers’ alleged bad faith as well as evidence they submitted to support their 6 1 // 2 // 3 allegations. The administrative record contains both Galos and Ober-Galos’s affidavits disavowing 4 Galos’s 2004 admission and describing the coercive nature of the interview. (See A.R. 138-139 5 (Galos’s Jul. 7, 2004 affidavit); 140-141 (Ober-Galos’s Oct. 11, 2005 affidavit).) The record also 6 contains the transcript of Galos’s May 22, 2008 removal hearing before an immigration judge, (A.R. 7 70-125), during which Galos and Ober-Galos each testified about the immigration officers’ alleged 8 coercion, and Galos testified about the authenticity of his first marriage. (See A.R. 81-91, 94-96, 98- 9 110 (Galos’s testimony); 115-117 (Ober-Galos’s testimony).) Plaintiffs do not offer any new or additional information supporting their allegations of bad faith or otherwise explain how additional 11 For the Northern District of California United States District Court 10 testimony on their part will supplement the record. Accordingly, Plaintiffs have not shown that the 12 record is incomplete. Their request to offer further testimony at an evidentiary hearing is denied. 13 2. Cross Examination of Codotco 14 Finally, Plaintiffs also seek to cross-examine Codotco regarding contradictory statements she 15 made about her marriage to Galos. (Pls.’ Mot. 6.) Although Plaintiffs do not specify when Codotco 16 made these statements, they appear to refer to the transcript of her 1996 interview by USCIS. (See 17 A.R. 346-417.) Plaintiffs do not argue that any of the four exceptions to the record rule apply to 18 permit such an evidentiary hearing, but instead argue that the denial of Ober-Galos’s I-130 petition 19 violated Plaintiffs’ due process rights because they were not afforded the opportunity to cross 20 examine Codotco, citing Ching v. Mayorkas, 725 F.3d 1149 (9th Cir. 2013). 21 In Ching, Teresita Ching, a citizen of the Philippines and her husband, a U.S. citizen, 22 claimed that USCIS violated their procedural due process rights and rights under the APA during its 23 adjudication of the husband’s I-130 petition. Id. at 1153. In denying the petition, USCIS relied on a 24 brief statement by Ching’s prior husband alleging that their marriage was fraudulent. Id. In 25 response, Plaintiffs submitted a “three-page, single-spaced, 21-paragraph sworn declaration from 26 Ching describing in excruciating detail her intimate relationship” with her ex-husband, but BIA 27 upheld USCIS’s denial on the grounds that Plaintiffs’ evidence had not overcome the ex-husband’s 28 affidavit. Id. at 1153-54. Plaintiffs filed suit alleging “USCIS acted arbitrarily and capriciously in 7 // 3 violation of the APA and Due Process Clause of the U.S. Constitution by denying [the husband’s] I- 4 130 petition without affording them the opportunity to cross-examine [the ex-husband] regarding his 5 statement.” Id. at 1154. The district court granted summary judgment for the government and the 6 Ninth Circuit reversed, holding that the plaintiffs had a protected interest in the I-130 petition and 7 that the interest was entitled to due process protections. Id. at 1156. Where it was “not possible to 8 determine that [the ex-husband’s] statement [was] true and that Ching’s [was] false solely by reading 9 them,” and where Ching had presented “substantial” and “uncontested documentary evidence to 10 corroborate her claim that the marriage was bona fide,” due process required a hearing at which 11 For the Northern District of California // 2 United States District Court 1 Ching had an opportunity to cross examine her ex-husband. Id. at 1159. 12 Ching does not support Plaintiffs’ position that they are entitled to cross examine Codotco in 13 these proceedings. First, Plaintiffs’ request arises in the context of their motion for discovery, but 14 Ching does not address when a party is entitled to discovery in an APA case. More importantly, 15 unlike in Ching, the only statement USCIS and BIA relied on in denying Ober-Galos’s I-130 16 petition was Galos’s own admission that his first marriage was fraudulent, not a statement by 17 Codotco. BIA’s 2011 decision states that in affirming USCIS’s denial, it considered Galos’s 2004 18 sworn admission; Plaintiffs’ subsequent affidavits disavowing the 2004 admission; and letters from 19 Codotco to Galos describing her efforts to file visa papers on Galos’s behalf, which BIA found 20 contradicted Galos’s statements that he was unaware of Codotco’s petition (and which Plaintiffs do 21 not challenge in this motion). (A.R. 3-4.) Each of these documents are contained in the record. 22 Other than Codotco’s letters to Galos, there is no indication in the record that USCIS or BIA relied 23 on any other statements by her in denying the I-130 petition. As Plaintiffs have failed to show that 24 the record is incomplete as to Codotco’s statements, and have made no showing that any other 25 exception to the record rule applies, their request for an evidentiary hearing at which they may cross 26 examine Codotco is denied. 27 IV. Conclusion 28 8 1 denied. . Ryu onna M DONNAdge RYU Ju M. D United States Magistrate Judge NO 7 Dated: March 6, 2014 RT 8 10 11 For the Northern District of California United States District Court ER H 9 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 R NIA 6 DERED O OR IT IS S FO 5 LI IT IS SO ORDERED. UNIT ED 4 S DISTRICT TE C TA RT U O S 3 A 2 For the foregoing reasons, Plaintiffs’ motion to supplement and complete the records is N F D IS T IC T O R C

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