AK et al v. GARLAND et al

Filing 30

MEMORANDUM AND/OR OPINION OF 8/2/22. SIGNED BY JUDGE: JOSEPH F. LEESON JR ON 8/2/22. 8/2/22 ENTERED AND COPIES E-MAILED. (DT)

Case 5:21-cv-04507-JFL Document 30 Filed 08/02/22 Page 1 of 18

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
__________________________________________
EDA AK, CEM SUMERER and OLANDO
ESPINAL,
Plaintiffs,

:
:
:
:
v.
:
No. 5:21-cv-4507
:
MERRICK GARLAND, Attorney General, et al., :
Defendants.
:
__________________________________________
OPINION
Defendants’ Motion for Summary Judgment, ECF No. 22 – Denied
Plaintiffs’ Motion for Summary Judgment, ECF No. 24 – Granted

Joseph F. Leeson, Jr.
United States District Judge
I.

August 2, 2022

INTRODUCTION
This matter involves an I-130 petition filed by Plaintiff Orlando Espinal, which seeks

preference status for his wife, Plaintiff Eda Ak and her son, Plaintiff Cem Sumerer. United
States Citizenship and Immigration Services (USCIS) denied Espinal’s petition, a decision that
was affirmed by the Board of Immigration Appeals (BIA). Plaintiffs assert that the denial was
arbitrary, capricious, and in violation of the law. Following the filing of the administrative
record, Plaintiffs and Defendants filed cross-motions for summary judgment.
Following a review of the administrative record in light of the guiding legal principles,
this Court concludes that USCIS violated the Administrative Procedures Act (APA).
Accordingly, Plaintiffs’ motion for summary judgment is granted, and Defendants’ motion for
summary judgment is denied.

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II.

FACTUAL AND PROCEDURAL BACKGROUND
Ak and her son, Sumerer, are citizens of Turkey. See Pls. Stmt. Undis. Facts ¶ 2

(“PSUF”), ECF No. 24-2; Defs. Resp. Undis. Facts ¶ 2 (“DRUF”), ECF No. 26-1. Espinal is a
United States Citizen. See PSUF ¶ 2; DRUF ¶ 2. In 2009, Ak and Sumerer entered the United
States on non-immigrant visas. See PSUF ¶ 3; DRUF ¶ 3. On May 20, 2010, a wedding
ceremony for Ak and Espinal was held in Pennsylvania. See PSUF ¶ 4; DRUF ¶ 4. Plaintiffs
filed their first I-130 petition on January 23, 2011. See PSUF ¶ 5; DRUF ¶ 5. Plaintiffs were
interviewed in connection with this petition, and an investigation was conducted by the office of
Fraud Detection and National Security (FDNS). See PSUF ¶¶ 6–7; DRUF ¶¶ 6–7. On April 30,
2012, USCIS issued a “Notice of Intent to Deny” (NOID) to Plaintiffs. See PSUF ¶ 8; DRUF ¶
8. Plaintiffs responded to the NOID with additional evidence of the bona fides of their marriage.
See PSUF ¶ 8; DRUF ¶ 8. On March 25, 2013, USCIS denied the Plaintiffs’ first I-130 petition.
On April 22, 2013, Plaintiffs filed a second I-130 petition, which is the operative petition
in the instant matter. See PSUF ¶ 9; DRUF ¶ 9. Three years later, on March 30, 2016, USCIS
issued a Request for Evidence to Plaintiffs in relation to the petition. See PSUF ¶ 10; DRUF ¶
10. Among other evidence sought, the Request for Evidence also directed Plaintiffs to file form
I-601, an Application for Waiver of Ground of Inadmissibility. See PSUF ¶ 10; DRUF ¶ 10. 1
Plaintiffs responded to the Request for Evidence by filing the Form I-601 and providing
additional evidence of the bona fides of their marriage. See PSUF ¶ 11; DRUF ¶ 11.

1

The form was required by USCIS based on the agency’s finding that Ak had made a
material misrepresentation in the operative I-130 petition, which related to the residence of her
son Sumerer. The parties dispute whether any misrepresentation actually occurred. See PSUF ¶
10; DRUF ¶ 10.
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Three years later, on March 6, 2019, USCIS issued a NOID for the operative petition.
See PSUF ¶ 12; DRUF ¶ 12. Plaintiffs responded to the NOID with additional evidence on April
5, 2019. See PSUF ¶ 12; DRUF ¶ 12. On May 16, 2019, USCIS denied the operative petition.
See PSUF ¶ 13; DRUF ¶ 13. Plaintiffs appealed the decision to the Board of Immigration
Appeals (BIA), and the appeal was ultimately denied on July 30, 2020. See PSUF ¶ 13; DRUF ¶
13.
On October 14, 2021, Plaintiffs filed suit before the Court, seeking this Court’s review of
the BIA’s denial of their appeal. See Compl., ECF No. 1. In particular, Plaintiffs assert that the
BIA’s decision was arbitrary and capricious, or otherwise violated the Fifth Amendment. See id.
Following the filing of the administrative record, see ECF Nos. 13, 14, 15, and 16, 2 the parties
filed cross-motions for summary judgment. See Defs. Mot., ECF No. 22; Pls. Mot., ECF No. 24.
After a series of responses, the motions are ready for review. See Pls. Resp., ECF No. 25; Defs.
Resp., ECF No. 26.
III.

LEGAL STANDARDS
A.

Review of Agency Decision on Motion for Summary Judgment – Review of

Applicable Law
“Although ‘summary judgment is the proper mechanism for deciding, as a matter of law,
whether an agency’s action is supported by the administrative record’ the district court is acting
as an appellate tribunal, and ‘the usual summary judgment standard does not apply.’” See Zizi v.
Bausman, 306 F. Supp. 3d 697, 702 (E.D. Pa. 2018) (quoting Dorley v. Cardinale, 119 F. Supp.

2

Because the administrative record in this matter spans multiple docket entries, each with
multiple parts, the Court refers to the record first by the docket number and then by the ECFgenerated page number. For example, page 103 of the record docketed at ECF No. 15-3 would
be referenced as “Record 15-3 at 103.”
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3d. 345, 351 (E.D. Pa. 2015)). Rather, “[u]nder the APA, a district court may only set aside
agency action if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law.’” See id. (quoting 5 U.S.C. § 706(2)(a)).
Under the first group of factors, in determining whether the agency’s action was
arbitrary, capricious, or an abuse of discretion, the court must “look[] at the reasoning the agency
employed in coming to its decision.” See id. (citing Mirjan v. Atty. Gen. of United States, 494 F.
App’x 248, 250 (3d Cir. 2012)). In particular, an action is “arbitrary and capricious where ‘the
evidence not only supports a contrary conclusion but compels it.’” See id. (quoting Yitang Sheng
v. Atty. Gen. of United States, 365 F. App’x 408, 410 (3d Cir. 2010)). A court may reverse the
agency decision “only where the administrative action is irrational or not based on relevant
factors.” See id. (quoting NVE, Inc. v. Dep’t of Health & Hum. Servs., 436 F.3d 182, 190 (3d
Cir. 2006)). A decision is irrational or based on irrelevant factors where “the agency relied on
factors outside those Congress intended for consideration, completely failed to consider an
important aspect of the problem, or provided an explanation that is contrary to, or implausible in
light of, the evidence.” See id. (quoting NVE, Inc., 436 F.3d at 190).
Under the final factor, in determining whether the agency’s action was otherwise not in
accordance with the law, the court must determine whether the agency’s decision, even if “wellreasoned, violate[s] other statutory or regulatory strictures.” See id.
The district court should base its review on “the administrative record already in
existence, not some new record made initially in the reviewing court.” See id. (quoting Camp v.
Pitts, 411 U.S. 138, 142 (1973)). Moreover, a district court “may not substitute its judgment for
that of the agency.” See id. (citing Judulang v. Holder, 565 U.S. 42, 52 (2011)). Rather, the
court must only determine whether the agency has articulated a “satisfactory explanation for its

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action including a rational connection between the facts found and the choice made . . . .” See id.
(quoting CBS Corp. v. FCC, 663 F.3d 122, 137 (3d Cir. 2011)).
B.

Spousal Eligibility for Lawful Permanent Residency through Form I-130 –

Review of Applicable Law
“A United States citizen may apply for her alien spouse to obtain lawful permanent
residence by filing an I-130 Petition with USCIS.” 3 See Young v. Bausman, Civ. A. No. 191870, 2020 WL 996423, at *5 (E.D. Pa. Mar. 2, 2020) (citing 8 C.F.R. §§ 204.1(a)(1), 204.2(a)).
However, such a petition cannot be approved if
the alien has previously been accorded, or has sought to be accorded, an immediate
relative or preference status as the spouse of a citizen of the United States . . . by
reason of a marriage determined by the Attorney General to have been entered into
for the purpose of evading the immigration laws, or [ ] the Attorney General has
determined that the alien has attempted or conspired to enter into a marriage for the
purpose of evading the immigration laws.
See id. (alterations in original) (quoting 8 U.S.C. § 1154(c)).
In the event USCIS “discovers evidence supporting marriage fraud, it will issue a
[NOID], inform the petitioner of its reasons for denial, and allow the petitioner to present
rebuttal evidence.” See id. (quoting Keita v. Barr, No. CV 19-980, 2019 WL 5551425, at *5
(E.D. Pa. Oct. 28, 2019)). Once a NOID is issued, the burden of proof shifts to the petitioner “to
establish that the prior marriage was not entered into for the purpose of evading immigration
laws.” See id. (quoting Keita, 2019 WL 5551425, at *5). USCIS may ultimately deny an I-130
petition “where there is substantial and probative evidence of marriage fraud.” See id.

3

The granting of the I-130 petition does not itself confer lawful permanent resident status.
Rather, it provides the beneficiary, who must be an “immediate relative” of the petitioner, with a
“preference status.” See 8 U.S.C. § 1154(b). As one court explained, the preference status
exempts the beneficiary from “the annual quotas imposed on other family-based immigration
classifications.” See Saleh v. Holder, 54 F. Supp. 3d 1163, 1169 (D. Nev. 2014). In other words,
the beneficiary of a granted I-130 petition may “jump the line by immediately applying for
lawful permanent resident status.” See id. (citing 8 U.S.C. § 1151(b)(2)).
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“Substantial evidence is more than scintilla, but . . . something less than a preponderance
of the evidence.” See id. (quoting Salvador v. Sessions, No. CV 18-01608, 2019 WL 1545182,
at *3 (E.D. Pa. Apr. 9, 2019)).
C.

Unreasonable Delay in Agency Action – Review of Applicable Law

The Administrative Procedures Act (APA) provides that USCIS, among other agencies,
must act “within a reasonable time” to “conclude a matter presented to it.” See 5 U.S.C. §
555(b). “To determine the reasonableness of a delay under the APA, courts consider the six
factors articulated in Telecommunications Research and Action Center v. FCC (“TRAC” ), 750
F.2d 70 (D.C. Cir. 1984).” See Daraji v. Monica, No. 07-1749, 2008 WL 183643, at *5 (E.D.
Pa. Jan. 18, 2008) (citing TRAC, 750 F.2d 70). These factors include:
(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.
See id. at *5 n.8 (citing TRAC, 750 F.2d at 80).
The Third Circuit has articulated additional factors to be considered when adjudicating
the reasonableness of a delay under the APA:
First, the court should ascertain the length of time that has elapsed since the agency
came under a duty to act. Second, the reasonableness of the delay should be judged
in the context of the statute authorizing the agencies action. Third, the court should
assess the consequences of the agency’s delay. Fourth, the court should consider
any plea of administrative error, administrative inconvenience, practical difficulty
in carrying out a legislative mandate, or need to prioritize in the face of limited
resources.
See id. at *5 (citing Oil, Chemical, & Atomic Workers Union v. OSHA (“OCAWU”), 145
F.3d 120, 123 (3d. Cir. 1998)).
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“A court’s inquiry into the reasonableness of an agency’s delay under the APA is
necessarily case-by-case and ‘fact-intensive . . . .’” See id. (quoting OCAWU, 145 F.3d at
123.
IV.

ANALYSIS
In their Complaint, Plaintiffs assert two categories of claims. First, Plaintiffs assert that

USCIS acted arbitrarily, capriciously, or not in accordance with the law in its review of the
operative petition. Second, Plaintiffs assert certain violations of the Fifth Amendment with
respect to USCIS’s review of the operative petition.
In review of Plaintiffs first set of claims, this Court concludes that USCIS failed to act in
accordance with the law in its handling of the I-130 petition. 4 Put another way, USCIS engaged
in unreasonable delay under 5 U.S.C. § 555(b) and 5 U.S.C. § 706(1) that resulted in Plaintiffs
suffering prejudice. Accordingly, Plaintiffs’ motion is granted, and Defendants’ motion is
denied. This Court remands the matter with specific instructions for curing the prejudice and
performing a new adjudication of the petition. The Court does not address Plaintiffs’ additional
claims at this time.
A.

Whether USCIS Engaged in Unreasonable Delay

Plaintiffs claim that USCIS engaged in an unreasonable delay in the adjudication of their
second I-130 petition, leading to prejudice. In their response to Plaintiffs’ motion for summary

4

In their briefing, Plaintiffs first assert that USCIS acted arbitrarily and capriciously in
denying the operative petition on the merits. Notwithstanding, it would be unhelpful to entertain
a review of that claim at this time. As the Court explains below, USCIS engaged in an
unreasonable delay that prejudiced Plaintiffs’ opportunity to adequately respond to certain
evidence that formed the basis of USCIS’s decision to deny the operative petition. Accordingly,
in light of the role the prejudicial evidence played in Agency’s decision on the merits, a review
of the decision at this juncture would be futile.
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judgment, Defendants briefly address the matter, arguing that they complied with the APA in
their handling of the operative petition.
Notwithstanding Defendants’ arguments to the contrary, this Court concludes that USCIS
engaged in unreasonable delay in the adjudication of the operative petition. Moreover, as
explained below, the Court finds that the delay prejudiced Plaintiffs, insofar as it deprived
Plaintiffs of an adequate opportunity to rebut certain evidence that was central to USCIS’s
decision to deny the petition. Accordingly, this Court remands the matter for a new adjudication
of Plaintiffs’ petition, including special instructions aimed at curing the prejudice caused by
USCIS’s unreasonable delay.
1.

TRAC and OCAWU Factors

In determining whether USCIS engaged in unreasonable delay violative of the APA, this
Court is guided by the factors set forth in both TRAC and OCAWU, which are set forth in full
above. See TRAC, 750 F.2d at 80; OCAWU, 145 F.3d at 123. While the TRAC factors are not
binding on this Court, the Court nonetheless finds their application helpful in determining the
reasonableness of the delay alleged.
As a threshold matter, this Court must first decide whether the agency, in this case
USCIS, had a nondiscretionary duty to act. See Doe #1 v. Wolfe, 1:20-cv-02339, 2021 WL
4149186, at *3 (M.D. Pa. Sept. 13, 2021) (noting plaintiff alleging unreasonable delay must
show “an agency “failed to take a discrete agency action that it is required to take.” (quoting
Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004) (emphasis in original))). As courts in
this district have noted, the “grant of an I-130 petition for immediate relative status is a
nondiscretionary decision.” See Zizi v. Bausman, 306 F. Supp. 3d 697, 708 (E.D. Pa. 2018)
(quoting Ching v. Mayorkas, 725 F.3d 1149, 1156 (9th Cir. 2013)). Based on this proposition, at

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a minimum, this Court concludes that USCIS had a nondiscretionary duty to adjudicate
Plaintiffs’ I-130 petition. Accordingly, having determined that USCIS had a nondiscretionary
duty to adjudicate Plaintiffs’ I-130 petition, and recognizing that the time for completing this
duty is governed by the reasonableness strictures of the APA, this Court turns to a review of the
subject delay.
a.

The Period of Delay

Beginning with the first TRAC factor, the time for the USCIS to act in this case is
governed by a rule of reason. Specifically, 5 U.S.C. § 555(b) provides that agencies, including
USCIS, must act “within a reasonable time” to “conclude a matter presented to it.” See 5 U.S.C.
§ 555(b); see also 5 U.S.C. § 706(1) (instructing the reviewing court to compel agency action
that is “unreasonably delayed”). However, under the second TRAC factor, neither the statutory
nor regulatory schemes provide a timetable for the agency decision. Accordingly, this Court
must determine, in the absence of a governing timetable, whether USCIS’s delay in this case was
reasonable.
As the first OCAWU factor instructs, the Court looks to the length of time that elapsed
since USCIS was under a duty to act. See OCAWU, 145 F.3d at 123. Plaintiffs filed the
operative I-130 petition on April 22, 2013. See PSUF ¶ 9; DRUF ¶ 9. It was not until nearly
three years later, on March 30, 2016, that USCIS issued a Request for Evidence to Plaintiffs. See
PSUF ¶ 10; DRUF ¶ 10. Plaintiffs responded to the Request for Evidence with additional
evidence on May 25, 2016. See PSUF ¶ 11; DRUF ¶ 11. Thereafter, USCIS waited another
three years, until March 6, 2019, before issuing a NOID on the operative petition. See PSUF ¶
12; DRUF ¶ 12. Plaintiffs responded to the NOID on April 5, 2019, and USCIS rendered a final

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decision denying the petition on May 16, 2019. See PSUF ¶¶ 12–13; DRUF ¶¶ 12–13. All told,
USCIS took approximately six years to render a decision on the operative petition.
Courts have found USCIS delays of between two and four years presumptively
unreasonable under the APA. See Daraji, 2008 WL 183643, at *5–6 (finding delay of two years
in USCIS review of adjustment petition was unreasonable (citing Wang v. Gonzalez, 2007 WL
4463009 (N.D. Cal. Dec. 17, 2007) (holding delay of two years in review of adjustment petition
was presumptively unreasonable); Ying He v. Gonzales, No. C07-02765 HRL, 2007 WL
4259453 (N.D. Cal. Dec. 4, 2007) (holding delay of two and a half years was not reasonable as a
matter of law); Wang Yi Chao v. Gonzales, No. C07-1562 PVT, 2007 WL 3022548 (N.D. Cal.
Oct. 15, 2007) (holding delay of three years presumptively unreasonable); Liu v. Novak, 509 F.
Supp. 2d 1, 10 (D.D.C. 2007) (holding four-year delay unreasonable))). Here, the six-year delay
in the adjudication of Plaintiffs’ operative petition is longer than the two- to four-year periods of
delay found presumptively unreasonable in similar cases. Accordingly, the length of the delay in
this case weighs in favor of finding it unreasonable.
b.

Resultant Prejudice

Both TRAC and OCAWU instruct courts to inquire whether any prejudice was suffered as
a result of the delay. See TRAC, 750 F.2d at 80; OCAWU, 145 F.3d at 123. Plaintiffs focus on
two discrete issues on which they were prejudiced: (1) the statements taken from their former
landlord, and (2) the issue of Plaintiffs’ communication with one another. Following a review of
the record, this Court is persuaded that Plaintiffs suffered prejudice with respect to both issues.
Beginning with the first issue, on April 13, 2011, FDNS agents spoke with C. Michael
Rohrbach, who was Plaintiffs’ landlord at the time. See Record 13 at 49. This conversation was
held in connection with Plaintiffs’ first I-130 petition. See id. Notwithstanding, there was no

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mention of any interview with Rohrbach contained in the NOID issued on the first petition nor in
the ultimate decision on that first petition. See Record 13-5 at 73–75; Record 16-1 at 133–141.
Rather, this information first appeared in the NOID issued on Plaintiffs’ second petition in
March of 2019. In other words, Plaintiffs first became aware that an interview was conducted
with Rohrbach when the NOID on the operative petition was issued, over eight years after the
interview had taken place. See Pls. Mot. 26. Plaintiffs indicate that, by the time they found out
Rohrbach had been interviewed, they no longer had a personal or professional relationship with
Rohrbach. See id. at 27.
Defendants argue that Plaintiffs suffered no prejudice with respect to the interview
evidence. In particular, Defendants assert that they fully complied with the requirements 8
C.F.R. § 103.2(b)(16) by providing Plaintiffs with notice of the derogatory testimony in March
of 2019 in the form of a NOID. To be sure, where USCIS intends to make a decision on a
petition based on derogatory information unknown to the petitioner, § 103.2(b)(16) requires that
the petitioner “be advised of this fact and offered an opportunity to rebut the information . . .
before the decision is rendered . . . .” See § 103.2(b)(16). Accordingly, to the extent USCIS
intended to base any part of its decision to deny Plaintiffs’ operative petition on the interview
with Rohrbach, Plaintiffs were entitled to know that Rohrbach was interviewed and were
similarly entitled to an opportunity to rebut that evidence.
Defendants suggest that Plaintiffs were made aware of the interview evidence in the
March 2019 NOID, and they further argue that Plaintiffs had an adequate opportunity to rebut
the interview evidence in their response to the NOID. The Court finds this explanation
unavailing. Certainly, USCIS mentioned the interview in the NOID such that Plaintiffs were
placed on notice of its existence. Notwithstanding, because of the USCIS’s significant delay in

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issuing a NOID on the operative petition, Plaintiffs were deprived of a meaningful opportunity to
rebut the derogatory evidence. As this Court already indicated, eight years had passed between
the initial interview with Rohrbach and the issuance of the NOID. By that time, Plaintiffs no
longer had a personal or professional relationship with Rohrbach, which inhibited their ability to
locate and interview him for themselves. Moreover, even if Plaintiffs had been successful in
locating and interviewing Rohrbach in March 2019, this fact does not necessarily cure the
prejudice. Conceivably, to rebut Defendants’ testimonial evidence collected from Rohrbach in
2011, Plaintiffs would have had to elicit similar information from Rohrbach about their residence
during that same time period. With more than eight years having passed since the initial
interview in April 2011, there are inherent reliability concerns with any testimony that Rohrbach
could have offered on that subject in March 2019. Put another way, even had Plaintiffs been
able to elicit rebuttal testimony from Rohrbach, it is likely that USCIS would have viewed it as
unpersuasive given that eight years had lapsed in the interim. 5 Accordingly, this Court is
persuaded that Plaintiffs suffered prejudice as a result of USCIS’s delay, insofar as they were
deprived of an adequate opportunity to acquire rebuttal evidence of Rohrbach’s testimony.

5

This concern is well-founded. As USCIS noted in its decision, the relevant standard
requires a petitioner to show, by a preponderance of the evidence, that the marriage was bona
fide at its inception. See Record 14-4 at 71. Accordingly, evidence that lacks a temporal
proximity to the inception of the marriage naturally carries with it a lower probative value. As
the Court discusses in further detail below, USCIS held its own delay against Plaintiffs in
adjudicating the operative petition. In particular, USCIS found it unavailing that both Plaintiffs
provided an interview without the use of translators in 2016 because “[l]anguage can be
developed over a period of years, and there remains a significant date difference between your
first and second or third USCIS interviews.” See id. at 76. Accordingly, that USCIS had gone so
far as to hold the passage of years against Plaintiffs lends credence to the concern that USCIS
would have simply considered rebuttal testimony of Rohrbach collected in 2019 as having little
probative value.
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Turning to the second issue, relating to the supposed language barrier between the
Plaintiffs, this Court is also persuaded that Plaintiffs faced prejudice as a result of USCIS’s
delay. Plaintiffs first appeared for an interview with USCIS in April of 2011. See Record 13 at
49. At that interview, Espinal used a Spanish translator, and Ak used a Turkish translator. See
id. Despite Plaintiffs representations that they shared common interests and communicated with
one another, USCIS concluded in its NOID on the first petition that “[t]he record was unclear as
to how [Espinal] and [Ak] entered into and maintained a courtship and marriage without the
ability to effectively communicate with one another.” See id. On April 22, 2013, just one month
after the denial of their first petition, Plaintiffs filed the operative petition. Notwithstanding, it
was not until March 28, 2016, nearly three years later, that Plaintiffs were called in for a
subsequent USCIS interview.
During the 2016 interview, neither Espinal nor Ak used a translator. See Record 14-4 at
76. However, USCIS found this evidence of adequate English communication was ultimately
outweighed by Plaintiffs’ first USCIS interview, primarily because of the substantial time that
had passed between the two interviews. In particular, USCIS concluded that “[l]anguage can be
developed over a period of years, and there remains a significant date difference between your
first and second or third USCIS interviews.” See id. In essence, USCIS held the delay between
the 2011 and 2016 interviews, a delay of its own making, against Plaintiffs. That Plaintiffs
lacked an earlier opportunity to exhibit their communication skills with respect to the operative
petition is due to no fault of their own; whether and when to require a subsequent interview was
a choice solely within the discretion of USCIS. 6 See 8 C.F.R. § 103.2(b)(9) (“USCIS may

6

Moreover, as Plaintiffs point out elsewhere in their briefing, USCIS did not comment on
or otherwise entertain arguments that supported that Plaintiffs had adequate communication
ability at the time of their first petition. In particular, as of the filing of their first petition,
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require any applicant . . . to appear for an interview . . . .” (emphasis added)); see also Sabhari v.
Cangemi, No. 04-1104 ADM/JSM, 2005 WL 1387595, at *7 (D. Minn. June 10, 2005)
(“Interviews are permissible but not required when evaluating an I-130 visa petition based on
marriage.” (citing Braimah v. INS, 94 Civ. 6317 (JSM), 1995 WL 390108, *2–3 (S.D.N.Y. July
3, 1995))). Accordingly, this Court is persuaded that Plaintiffs suffered prejudice as a result of
USCIS’s delay, insofar as they were deprived of an adequate opportunity to provide temporally
proximate evidence of their ability to communicate with one another. Even more troubling,
USCIS held its own delay against Plaintiffs when reviewing the matter of their communication
capabilities. Therefore, this factor weighs in favor of finding the delay unreasonable.
c.

Whether Defendants Establish Cause for the Delay

The final OCAWU factor instructs the reviewing court to inquire into whether the agency
pleads administrative error, inconvenience, or other practical difficulty in carrying out its
legislative mandate. While Defendants briefly address this claim in their response to Plaintiffs’
motion, they do not attempt to justify the delay as resulting from any inconvenience or practical
difficulty. Instead, Defendants exclusively argue that Plaintiffs did not suffer any prejudice
resulting from the “length of the investigation into their marriage.” See Defs. Resp. 6.
Accordingly, in the absence of any cause offered for the delay, this factor weighs in favor of
finding the delay unreasonable.

Espinal had already taken and passed the English literacy test required to become naturalized.
See Record 16-3 at 35 (Espinal’s proof of citizenship); 8 U.S.C. § 1423(a)(1) (requiring English
literacy test for naturalization). Moreover, during the home visit on March 23, 2012, FDNS
agents describe conversations held with Ak. See Record 13 at 51–52. However, there is no
mention of the presence of any translator during that visit. Accordingly, in light of USCIS
declining to consider evidence that favored adequate communication skills at the time of the first
petition, Plaintiffs were all the more prejudiced by USCIS’s failure to favorably consider their
communication skills at the time of the subsequent interview because of the delay between the
two.
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2.

Whether the Delay Was Unreasonable

Having reviewed the relevant TRAC and OCAWU factors, this Court concludes that the
delay USCIS engaged in with respect to the operative petition was unreasonable. Foremost, the
delay spanned over six years, from April 2013 to May 2019. In their briefing, Defendants did
not attempt to provide any explanation for the length of the delay. Indeed, in a USCIS press
release dated November 25, 2013, the Agency indicated that it was addressing I-130 petitions
filed as recently as February 2013. See USCIS Update on the Processing Times of Form I-130s
Filed by U.S. Citizens for Their Eligible Immediate Relatives, 90 No. 45 INTERPRETER RELEASES
2231, 2232 (Nov. 25, 2013). Though Plaintiffs filed their operative petition shortly thereafter in
April 2013, it strains credulity that USCIS waited three years before taking any action thereon.
This supposition finds support in USCIS’s own proclamations. In the same press release cited
above, USCIS stated its expectation that it would “return to an average processing time of five
months for these Forms I-130 by May 2014.” See id. Despite these representations, Plaintiffs’
operative petition, filed in April 2013, went seemingly untouched for three years, until the
Request for Evidence was sent in March 2016. It would then go untouched for another three
years, until issuance of the NOID in March 2019.
Moreover, the delay in this case was not harmless, as it had a prejudicial effect on
Plaintiffs’ ability to rebut and respond to evidence collected by Defendants. By the time
Plaintiffs had learned in 2019 that Rohrbach was interviewed by USCIS, Plaintiffs were
hamstrung in their ability to effectively rebut that testimony, as (1) it had been taken eight years
prior in 2011, and (2) Plaintiffs no longer had any professional or personal relation with
Rohrbach. In an even more troubling example, USCIS held its own delay against Plaintiffs in
asserting that Plaintiffs’ improved English skills during a 2016 interview could have been the

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product of language developed over a period of years, rather than probative evidence of
Plaintiffs’ abilities to effectively communicate with one another dating back to the inception of
their marriage. Both Rohrbach’s testimony and Plaintiffs’ communication skills undergirded
USCIS’s decision to ultimately deny the operative petition.
Finally, USCIS does not offer any explanation of inconvenience, resource scarcity, or
administrative error to justify the delay. Indeed, as noted directly above, USCIS disseminated its
expectation that it would return to an I-130 processing time of five months by May 2014.
Therefore, having reviewed the relevant TRAC and OCAWU factors, this Court concludes
that USCIS engaged in an unreasonable delay with respect to its review of the operative petition,
and Plaintiffs suffered prejudice as a result. Accordingly, USCIS’s delay represents a violation
of the APA, and summary judgment is granted in Plaintiffs’ favor and against Defendants on that
claim.
B.

Fashioning an Appropriate Remedy

Having determined that the delay was unreasonable, and prejudice was suffered, the
Court turns to fashioning a remedy. “A remand may be ordered with or without . . . specific
instructions.” See IAP Worldwide Servs., Inc. v. United States, 160 Fed. Cl. 57, 78 (Ct. Fed. Cl.
2022); see also id. at 79 (citing Miccosukee Tribe of Indians of Fla. v. United States, No. 0421448-CIV, 2008 WL 2967654, at *41 (S.D. Fla. July 29, 2008) (“The Supreme Court has
suggested that in rare circumstances, it is appropriate in cases brought under the APA for courts
to go beyond simply remanding a matter back to the agency . . . . Circuit courts have upheld
district court decisions to remand with specific instructions to the agencies in cases brought
under the APA.”); All. for the Wild Rockies v. Zinke, 265 F. Supp. 3d 1161, 1181 (D. Mont.

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2017) (“[U]pon remand, a court should provide the agency with specific instructions to address
its errors.” (citing Friends of Wild Swan v. EPA, 74 F. App’x 718, 722 (9th Cir. 2003))).
While the Court notes that remand with specific instructions occurs only under rare
circumstances, it is the Opinion of the Court that such circumstances are present here. It is true
that cases involving unreasonable delay by USCIS are not rare on their own, see Daraji, 2008
WL 183643, *8 (finding delay unreasonable and remanding for adjudication of petition within
ninety days), nor are cases involving violation of the Agency’s disclosure requirements under 8
C.F.R. § 103.2(b)(16), see Naiker v. USCIS, 352 F. Supp. 3d 1067, 1079 (W.D. Wash. 2018)
(finding violation of § 103.2(b)(16) and remanding for reconsideration on only that evidence in
the record that was disclosed to the petitioner). Notwithstanding, there are hardly any cases—if
any at all—that involve the sort of circumstances present in this case, which involve elements of
the delay at issue in Daraji in addition to elements of the evidentiary prejudice found in Naiker.
Whereas many cases involving delay result in judicial orders compelling USCIS to render a
timely decision, such an order would be wholly ineffective here, as a decision was ultimately
rendered. Notwithstanding, the decision in this case was undoubtedly grounded, at least in part,
on the prejudicial evidence discussed above. Similar to cases involving spoliation, by the time
Plaintiffs were made aware of the existence of the evidence, their opportunity to obtain rebuttal
testimony was demonstrably prejudiced. Accordingly, unique and rare circumstances in this case
exist such that a remand with specific instructions is appropriate.
Moreover, equitable considerations favor the inclusion of specific instructions along with
the Court’s remand. USCIS ultimately decided to deny the operative petition, after having
considered the prejudicial evidence. Accordingly, to remand without providing any specific
instructions as to how that evidence should be treated on a new adjudication would do nothing to

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cure the prejudice. Therefore, this Court remands the matter to the Board of Immigration
Appeals with specific instructions for treating the prejudicial evidence, which are set forth in the
Order accompanying this Opinion.
V.

CONCLUSION
Following a review of the briefing and administrative record in this matter, this Court

concludes that USCIS acted in violation of the APA. Specifically, USCIS failed to adjudicate
Plaintiffs’ I-130 petition within a reasonable amount of time, which in turn caused Plaintiffs to
suffer prejudice. Accordingly, Plaintiffs’ motion for summary judgment is granted and
Defendants’ motion is denied. Because this Court finds the decision of USCIS relied in part on
the prejudicial evidence, it does not opine on Plaintiffs’ remaining APA claims and Fifth
Amendment claims at this time.
The matter is remanded to USCIS for a new adjudication of the operative petition with
specific instructions for curing the prejudice.
A separate Order follows.
BY THE COURT:
/s/ Joseph F. Leeson, Jr.
JOSEPH F. LEESON, JR.
United States District Judge

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