1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 DOE I, et al., Case No. 20-cv-07517-BLF

8 Plaintiffs,

ORDER OVERRULING OBJECTION

9 v. TO COMPLETENESS OF THE

ADMINISTRATIVE RECORD

10 UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., [Re: ECF No. 56] 11 Defendants. 12 13 This is an immigration mandamus case brought under the Administrative Procedure Act. 14 Plaintiffs Does I-IV have filed renewed objections to the completeness of the administrative 15 record. See ECF No. 56 (“Obj.”). The Government urges the Court to overrule the objections, 16 contending that Plaintiffs misstate the legal standard and that, under the proper standard, the 17 administrative record is complete. ECF No. 58 (“Opp.”). For the reasons stated below, the Court 18 OVERRULES Plaintiffs’ objections and DIRECTS the Parties to submit a stipulated schedule for 19 summary judgment briefing. 20 I. BACKGROUND 21 A. Factual Background 22 In December 2012, United States Citizenship and Immigration Services (“USCIS”) 23 approved a petition by Doe I for O-1 nonimmigrant status for January 2013 to January 2016. ECF 24 No. 1 (“Compl.”), Ex. 7. On November 24, 2014, Doe I submitted an I-140 Immigrant Petition 25 for Alien Worker, seeking designation as a noncitizen of extraordinary ability. ECF No. 23-1 26 (“Holtzman Decl.”) ¶ 2. On December 4, 2014, USCIS approved that application. Id. ¶ 3.1 In 27 1 January 2015, Doe I filed an I-485 application to become a lawful permanent resident. Id., Ex. 2. 2 Over three years later, on February 20, 2018, USCIS sent Doe I a Notice of Intent to Revoke 3 (“NOIR”) Doe I’s I-140 Petition approval and designation as a noncitizen of extraordinary ability. 4 Id. ¶ 5 & Ex. 3. Doe I responded to the NOIR with over 150 pages of new evidence on March 22, 5 2018. Id. ¶ 6. USCIS issued a final revocation of the I-140 petition around June 27, 2018. Id. 6 ¶ 10 & Ex. 8. Doe I’s I-485 application was denied three years later on June 28, 2021. Id. Ex. 9. 7 While contesting the NOIR for his first I-140 Petition, Doe I filed a second I-140 Petition 8 on April 25, 2018. Holtzman Decl. ¶ 7. USCIS responded on May 31, 2018, with a request for 9 evidence. Id. ¶ 8. Doe I submitted additional evidence on August 24, 2018. Id. ¶ 9. USCIS 10 denied Doe I’s second I-140 Petition on October 2, 2018. Id. ¶ 13. 11 B. Procedural History 12 Plaintiff filed suit on October 26, 2020. Compl. After Defendants answered, Plaintiff 13 moved to complete the administrative record on February 26, 2021. ECF No. 23. In response, on 14 June 23, 2021, Donald D. Moody, the Section Chief of USCIS’s Nebraska Service Center (where 15 Doe I’s application and petitions were processed), submitted a declaration to this Court certifying 16 to the best of his knowledge and belief that the administrative record constitutes “a true, correct, 17 and complete copy of the whole record that was before the adjudicating officer, including all 18 documents considered directly or indirectly, when the adjudicating officer revoked the November 19 2014 I-140 petition, denied Doe I’s I-485 application, and denied the April 2018 I-140 petition.” 20 ECF No. 33-1 (“Moody Decl. I”) ¶ 16. Moody also certified the completeness of the 21 administrative records for Does II-IV. Id. ¶ 16. 22 On August 4, 2021, the Court granted Plaintiff’s motion. ECF No. 41. The Court found 23 that the Plaintiffs had rebutted the presumption of administrative regularity because they identified 24 a complete absence of documentary explanation for the three-year delay in adjudicating Doe I’s I- 25 485 application. Id. at 3-6. Relying on Chaparro v. Navarro, ---F. Supp. 3d ----, 2020 WL 26 1557425 (N.D. Cal. Apr. 1, 2020), the Court found that Plaintiffs established that it was 27 reasonable and non-speculative for Plaintiffs to believe that there are documents in the record that 1 Id. at 5. The Court warned Defendants that if they could not complete the administrative record 2 with such documents, that they may be required to submit to a deposition. Id. at 6-7. 3 Defendants filed a notice of completion of the administrative record on September 30, 4 2021. ECF No. 54. Plaintiffs again sought relief from this Court by objecting to the completeness 5 of the record. See Obj. Defendants responded on October 26, 2021. See Opp. 6 II. LEGAL STANDARD 7 “Generally, judicial review of agency action is limited to review of the record on which the 8 administrative decision was based.” Thompson v. U.S. Dep’t of Labor, 885 F.2d 551, 555 (9th 9 Cir. 1989). “Courts, however, may grant a motion to complete the administrative record where the 10 agency has not submitted the ‘whole’ record.” Sharks Sports & Ent. LLC v. Fed. Transit Admin., 11 2020 WL 511998, at *1 (N.D. Cal. Jan. 31, 2020) (citing 5 U.S.C. § 706 (“the court shall review 12 the whole record or those parts of it cited by a party”)). The “whole” record “consists of all 13 documents and materials directly or indirectly considered by agency decision-makers and includes 14 evidence contrary to the agency’s position.” Thompson, 885 F.2d at 555 (citation omitted) 15 (emphasis in original); see also Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 16 420 (1971) (holding that courts must review “the full administrative record that was before the 17 [agency] at the time [it] made [the] decision”). “An agency may not exclude information it 18 considered on the grounds that it did not rely on that information.” Sharks Sports, 2020 WL 19 511998, at *1 (citing People ex rel. Lockyer v. U.S. Dep’t of Ag., 2006 WL708914, at *2 (N.D. 20 Cal. Mar. 16, 2006)). “An agency’s designation and certification of the administrative record is 21 treated like other established administrative procedures, and thus entitled to a presumption of 22 administrative regularity.” McCrary v. Gutierrez, 495 F. Supp. 2d 1038, 1041 (N.D. Cal. 2007) 23 (citations omitted). Plaintiffs must present clear evidence to the contrary to rebut this 24 presumption. Id. (citations omitted). Plaintiffs need not show bad faith or improper motive to 25 rebut the presumption of completeness. Sharks Sports, 2020 WL 511998, at *1 (citing Lockyer, 26 2006 WL 708914, at *2). 27 To meet the clear evidence standard, a plaintiff must (1) “identify reasonable, non- 1 included in the record,” and (2) “identify the materials allegedly omitted from the record with 2 sufficient specificity, as opposed to merely proffering broad categories of documents and data that 3 are ‘likely’ to exist as a result of other documents that are included in the administrative record[.]” 4 Gill v. Dep’t of Just., No. 14-CV-03120-RS (KAW), 2015 WL 9258075, at *5 (N.D. Cal. Dec. 18, 5 2015) (quoting Winnemem Wintu Tribe v. U.S. Forest Service, No. 2:09-CV-01072-KJM-KJN, 6 2014 WL 3689699, at * 10 (E.D. Cal. July 24, 2014) (citation omitted)). 7 III. DISCUSSION 8 To establish that the administrative record is incomplete, Plaintiffs must rebut the 9 presumption of administrative regularity with “clear evidence.” McCrary, 495 F. Supp. 2d at 10 1041. They have not done so. 11 Plaintiffs argue that the administrative record is incomplete because Defendants applied 12 the incorrect standard to determine the scope of the record. Obj. at 4-5. Plaintiff argues that 13 Defendants only included documents “considered by the adjudicating officer” rather than 14 documents before the deciding agency. Id. They say this improperly cabins the record to exclude, 15 for example, documents related to the involvement of Immigration and Customs Enforcement in 16 Plaintiffs’ cases. Defendants argue that Plaintiffs are incorrect and that the proper scope of the 17 record includes only documents directly or indirectly considered by agency decisionmakers. Opp. 18 at 4-5. 19 The Court agrees with Defendants that Plaintiffs seek to impermissibly expand the 20 administrative record. The administrative record “consists of all documents and materials directly 21 or indirectly considered by agency decision-makers.” Thompson, 885 F.2d at 555 (emphasis 22 added). Here, the agency decision-makers are at USCIS. It was USCIS that approved Doe I’s O-1 23 Petition and initial I-140 Petition, issued a NOIR his I-140 Petition, revoked the I-140 Petition, 24 denied his second I-140 Petition, and denied his I-485 application. As Section Chief Moody avers 25 in his declaration, the record contains “all of the documents considered directly or indirectly” by 26 the agency decision-makers who made those decisions, and the additional documents ordered to be 27 included by the Court to explain the reason for the three-year delay. Moody Decl. ¶ 6. 1 reasons for their decision to revoke Doe I’s I-140 Petition—the involvement of ICE and the 2 allegations of “fraud and ineligibility”—while also excluding documents relevant to that 3 involvement. Not so. This dispute concerns the decision made by USCIS to revoke Doe I’s 4 petitions and deny his application to adjust his status, not ICE’s reasons for asking USCIS to hold 5 Doe I’s application to adjust his status in abeyance. Plaintiffs cannot through this action challenge 6 a downstream agency’s reasoning for a decision that was separate from the adjudicating agency’s 7 decision that is at issue. The administrative record now reveals the reasons for USCIS’s three-year 8 delay in adjudicating Doe I’s petitions—the abeyance requests from ICE and discovery of 9 “potential fraud and ineligibility”—such that Plaintiffs can challenge the actual agency actions that 10 are disputed in this case: the revocations and denials of I-140s and I-485s. Plaintiffs are free to 11 argue on the merits that those decisions were arbitrary and capricious—and that the reasons for the 12 delay are further evidence of that—but they are not entitled documents in front of a different 13 agency underlying decisions made by that different agency. 14 Plaintiffs separately raise the issue of whether certain redactions in the administrative 15 record are appropriate. Obj. at 6. In particular, Plaintiffs highlight an email chain in which an 16 immigration officer requests a reevaluation of Doe I’s eligibility “given the information provided 17 above.” ECF No. 56-2 at 4. The substance of “the information provided above” is redacted 18 pursuant to a claim of law enforcement and deliberative process privilege. Id. Plaintiffs argue that 19 this demonstrates that the record is incomplete. Obj. at 6. But this is not an issue with the scope 20 of the record. Whether redactions in the existing administrative record are proper is an issue 21 separate from whether the scope of the record is proper. Plaintiffs and Defendants have each 22 reserved their rights regarding any challenges to privilege designations in the existing record. See 23 Obj. at 2 n.1; Opp. at 10 n.1. This ruling does not preclude Plaintiffs from raising challenges to 24 redactions present in the administrative record. If Plaintiffs wish to raise such challenges, they 25 would be referred to Magistrate Judge van Keulen. 26 IV. ORDER 27 For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiffs’ objection to the 1 file a stipulated schedule for summary judgment briefing for this Court’s approval. 2 3 Dated: November 2, 2021 tn) 4 Me

BETH LABSON FREEMAN

5 United States District Judge 6 7 8 9 10 11 a 12

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it

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