AK et al v. GARLAND et al

Filing 31

ORDER OF 8/2/22 FOR THE REASONS SET FORTH IN THE OPINION ISSUED THIS DATE, IT IS ORDERED THAT: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, (ECF NO. 22) IS DENIED. PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT, ECF NO. 24) IS GRANTED. JUDGMENT IS ENT ERED AGAINST DEFENDANTS AND IN FAVOR OF PLAINTIFFS. THE DECISION OF UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES (USCIS) OF MAY 16, 2019, DENYING THE OPERATIVE PETITION, AND THE DECISION OF THE BOARD OF IMMIGRATION APPEALS OF JULY 30, 2022, AFF IRMING DENIAL OF THE PETITION, ARE VACATED. THE MATTER IS REMANDED TO USCIS FOR A NEW ADJUDICATION OF THE OPERATIVE I-130 PETITION CONSISTENT WITH THE COURT'S OPINION ISSUED THIS CASE, AND WITH THE FOLLOWING SPECIAL INSTRUCTIONS: a. WHEN ADJUDIC ATING THE MATTER ON REMAND, USCIS SHALL NOT CONSIDER THE TESTIMONY OFFERED BY C. MICHAEL ROHRBACH, b. WHEN ADJUDICATING THE MATTER ON REMAND, USCIS SHALL NOT RELY ON ITS FACTUAL FINDING THAT PLAINTIFFS' ABILITY TO COMMUNICATE IN ENGLISH DURING T HE 2016 INTERVIEW WAS ATTRIBUTABLE TO THE PASSAGE OF YEARS BETWEEN THE FIRST AND SECOND INTERVIEWS. RATHER, PER ITS MANDATE, USCIS SHALL CONSIDER ALL OTHER PROBATIVE EVIDENCE ON THE SUBJECT OF PLAINTIFFS' ABILITY TO COMMUNICATE WITH ONE ANOTHER. 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 31 Filed 08/02/22 Page 1 of 2

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

:
:
:
:
v.
:
:
MERRICK GARLAND, Attorney General, et al., :
Defendants.
:
__________________________________________
ORDER

No.

5:21-cv-4507

AND NOW, this 2nd day of August, 2022, upon consideration of the Motion for
Summary Judgment filed by Defendants, ECF No. 22, Plaintiffs’ response thereto, ECF No. 25,
the Motion for Summary Judgment filed by Plaintiffs, ECF No. 24, Defendants’ response
thereto, ECF No. 26, and for the reasons set forth in the Court’s Opinion issued this date, IT IS
ORDERED THAT:
1.

Defendants’ Motion for Summary Judgment, ECF No. 22, is DENIED.

2.

Plaintiffs’ Motion for Summary Judgment, ECF No. 24, is GRANTED.

3.

Judgment is ENTERED against Defendants and in favor of Plaintiffs.

4.

The decision of United States Citizenship and Immigration Services (USCIS) of

May 16, 2019, denying the operative petition, and the decision of the Board of Immigration
Appeals of July 30, 2020, affirming denial of the petition, are VACATED.
5.

The matter is REMANDED to USCIS for a new adjudication of the operative I-

130 Petition consistent with the Court’s Opinion issued this date, and with the following special
instructions:
a.

When adjudicating the matter on remand, USCIS shall not consider the

testimony offered by C. Michael Rohrbach.
1
080122

Case 5:21-cv-04507-JFL Document 31 Filed 08/02/22 Page 2 of 2

b.

When adjudicating the matter on remand, USCIS shall not rely on its

factual finding that Plaintiffs’ ability to communicate in English during the 2016 interview was
attributable to the passage of years between the first and second interviews. Rather, per its
mandate, USCIS shall consider all other probative evidence on the subject of Plaintiffs’ ability to
communicate with one another.
BY THE COURT:

/s/ Joseph F. Leeson, Jr.
JOSEPH F. LEESON, JR.
United States District Judge

2
080122