Nwankwere v. Jaddou ( 2023 )

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 THERESA NWANKWERE, Case No. 1:22-cv-01212-SKO 13 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, 14 v. AND GRANTING DEFENDANT’S CROSS MOTION FOR SUMMARY 15 UR M. JADDOU, Director, United States JUDGMENT Citizenship & Immigration Services, 16 (Docs. 20, 21) Defendant. 17 _____________________________________/ 18 19 Plaintiff Theresa Nwankwere brings this action challenging the denial of a Petition to 20 Classify Orphan as an Immediate Relative, U.S. Citizenship and Immigration Services (USCIS) 21 Form I-600 (the “Form I-600” or the “Petition”), filed by Plaintiff and her husband on behalf of 22 D.A.C., a child they adopted abroad.1 (See Doc. 1.) Pending before the Court are Plaintiff’s motion 23 for summary judgment and Defendant’s cross motion for summary judgment. (Docs. 20, 21.) 24 Plaintiff filed an opposition to Defendant’s motion on June 1, 2023, and Defendant filed a reply 25 brief on June 22, 2023. (See Docs. 23, 27.) The Court deemed the matters suitable for decision 26 without oral argument pursuant to Local Rule 230(g) and vacated the hearing set for July 27, 2023. 27 (Doc. 28.) 28 1 For the reasons set forth below, the Court denies Plaintiff’s motion for summary judgment, 2 and grants Defendant’s cross motion for summary judgment.2 3 I. BACKGROUND 4 A. Relevant Factual Background 5 Plaintiff is a United States citizen residing in Coracan, California, with her husband. 6 (Administrative Record (“AR”) 31, 120, 251, 287, 317.) In February 2018, Plaintiff and her husband 7 wrote to the Director of the Ministry of Gender Affairs and Social Development, Owerri, Imo State, 8 Nigeria3 (“the Ministry”) expressing their intent to apply for adoption of a baby through the 9 Ministry. (AR 31.) 10 On June 6, 2019, the Family Court Unit, Magistrate Court, Owerri Imo State (“the Family 11 Court”) issued an order finding that D.A.C., a female child from Love Care Child Centre, an 12 orphanage in Owerri (“Love Care” or “the Orphanage”), should be placed under Plaintiff’s and her 13 husband’s foster and care “for all good intents and purposes” (“the Foster Order”). (AR 278–79.) 14 The Family Court also directed a Child Development Officer to carry out an investigation to assist 15 the Court in assessing the couple’s suitability for an adoption order. (Id.) 16 On October 9, 2019, upon evaluating Plaintiff’s application and the report made by the Child 17 Development Officer and the Ministry, the Family Court issued an adoption order (“the Adoption 18 Order”). (AR 280.) The Court ordered as follows: the child will be placed for adoption by Plaintiff 19 and her husband; the child shall be known as D.A.C.; the adopters reserved the right to travel with 20 the adoptee to their place of residence in the United States; and the period of three months of 21 consecutive fostering was waived “because of the inconvenience this will cause to the child.” (AR 22 280–81; see also AR 248–52.) 23 B. Procedural Background 24 1. Plaintiff’s Form I-600 25 On January 7, 2020, Plaintiff filed a Form I-600 with USCIS seeking to classify D.A.C. as 26 her immediate relative. (AR 1, 119–32.) The form indicated D.A.C. was an orphan because she 27 28 2 The parties consented to the jurisdiction of a U.S. Magistrate Judge for all purposes. (See Doc. 26.) 1 had only one sole or surviving parent who was incapable of providing proper care and who 2 irrevocably released the child for emigration and adoption in writing. (AR 123.) The form also 3 listed the date of adoption as October 9, 2019, the date of the Adoption Order. (AR 124.) 4 2. USCIS’s First Request for Evidence and the U.S. Consulate’s I-604 Investigation 5 6 On February 11, 2020, USCIS issued its first Request for Evidence (“RFE”), seeking 7 evidence of the following information: (1) irrevocable consent of the sole or surviving parent to 8 release the orphan for emigration and adoption as required by 8 C.F.R. § 204.3(d)(1)(C); (2) that 9 D.A.C. met the definition of an “orphan” as set forth in Section 101(b)(1)(F)(i) of the Immigration 10 and Naturalization Act (“INA”); (3) abandonment by both parents; and (4) that Plaintiff and her 11 husband were present at court at the time of adoption, so there was no proxy adoption. (AR 235– 12 37.) USCIS forwarded Plaintiff’s case to the U.S. Consulate in Lagos, Nigeria, for the mandatory 13 I-604 Determination on Child for Adoption.4 (See AR 55, 134.) Plaintiff timely submitted evidence 14 in response to the first RFE. (See AR 238–63.) 15 Following an investigation, the U.S. Consulate in Lagos issued a memorandum stating it was 16 unable to conclude that D.A.C.’s claimed origins were legitimate. (AR 67–74.) The memorandum 17 concluded as follows: 18 Consulate General Lagos is now returning the I-604 as not clearly approvable on the basis that there is no credible evidence that this child is an orphan as defined by 19 under INA § 101(b)(1)(F). The involvement of [the Director of Love Care, Chief 20 Mrs. Lauretta A. Madu (“the Director”)], who has fabricated the origins of an orphan to facilitate international adoption in the past, casts serious doubts onto the 21 legitimacy of this child's origin. Furthermore, inconsistencies contained within the documentation, including differing explanations of whether the child was 22 abandoned or relinquished, and when the [prospective adoptive parents (“PAPs”)] were actually in Nigeria, and consistently poor record keeping at both the Ministry 23 and this orphanage further call into question the credibility of this child's purported 24 orphanhood. These concerns, coupled with the serious child trafficking and baby- racketeering problems in Imo state, as admitted by Ministry officials, means that 25 Consulate General Lagos cannot accept the purported origins of the child as genuine and is returning the I-604s as Not Clearly Approvable. 26 27 4 As explained more fully below, the Form I-600 triggers an investigation by a consular officer, or an “I-604 28 investigation.” See C.F.R. § 204.3(k)(1)–(2). I-604 investigations must be completed in every orphan case, and can 1 (AR 70.) 2 3. USCIS’s Second Request for Evidence 3 On June 7, 2021, USCIS issued its second RFE. (AR 134–40.) The RFE contained a 4 summary of the U.S. Consulate’s I-604 report, and specifically, that the U.S. Consulate returned 5 Plaintiff’s petition because “they found, among other things, serious inconsistencies and 6 discrepancies in the submitted evidence such that it found no credible evidence supports petitioners’ 7 claim [that] the child is an orphan by reason of abandonment or under any other subdefinition of 8 INA [§] 101(b)(1)(F).” (AR 136.) The RFE listed the following inconsistencies: (1) Plaintiff and 9 her husband had provided evidence that the child was relinquished at birth by a named biological 10 mother, but a letter from the Ministry indicated the child was born to an unknown birth mother; (2) a 11 document from the Nigeria Police Force recorded the birth mother’s relinquishing affidavit as dated 12 on May 8, 2019, whereas the affidavit from the birth mother, Ngozi Obijuru, was dated May 7, 13 2019; (3) a letter from the Director and the post-adoption birth certificate indicated that the child 14 was lifted from the Orphanage by Plaintiff and her husband on May 22, 2019, but this date is two 15 weeks before the issuance of the Foster Order; (4) Plaintiff’s travel itinerary and passport stamps 16 show that she was not in Nigeria on May 22, 2019, and she arrived no earlier than May 30, 2019; 17 and (5) another letter from the Director showed that Love Care, and not the Ministry, placed the 18 child with Plaintiff and her husband. (AR 136.) 19 To overcome these issues, USCIS requested that Plaintiff submit (1) the child’s birth 20 certificate containing the names of the biological mother and father, or if that is not available, “an 21 explanation together with secondary evidence for proof of identity, birth parent(s), and age, as 22 required by 8 CFR 204.3(d)(1)(ii);” (2) evidence of orphanhood as defined by Section 23 101(b)(1)(F)(i) of the INA; and (3) evidence of a “full and final adoption” completed pursuant to 24 the laws of Nigeria as required by 8 C.F.R. § 204.3(d)(1)(C)(iv). (AR 136–39.) 25 Plaintiff timely submitted evidence in response to the second RFE, including a letter from 26 the Ministry sent to the U.S. Department of Homeland Security. (See AR 141–234.) In this letter, 27 the Ministry explained that it “not only authorizes the placement of children with approved [PAPs] 28 prior to the fostering order, it recommends such action as being in the child’s best interest.” (AR 1 160.) The Ministry stated that by placing the child with Plaintiff and her husband “for a trial period 2 prior to the court-issued fostering order,” Love Care and the couple “were acting in accordance with 3 the policies of the Ministry.” (Id.) Plaintiff also provided explanations for the other discrepancies 4 identified by USCIS, and described how no original birth certificate exists for D.A.C., so she 5 submitted secondary evidence of the child’s identity, including her passport, national identity 6 management enrollment transaction slip, and medical record. (AR 143–46; see also AR 169–94.) 7 4. USCIS’s Denial of Plaintiff’s Form I-600 8 On January 31, 2022, USCIS denied Plaintiff’s Form I-600 without prejudice. (AR 55–60.) 9 After summarizing all of the evidence submitted by Plaintiff, USCIS stated as follows: 10 The U.S. Consulate's two not-clearly-approvable determinations includes significant discussion and commentary about the past unreliability of documents 11 coming out of the Orphanage. The discussion includes a past case of the Orphanage 12 director fabricating the origin of a supposedly orphaned child while in her capacity as an official with the Ministry. The U.S. Consulate also discusses past site visits 13 to the Ministry and the Orphanage which revealed a significant lack of oversight by the Ministry and a lack of record-keeping by the Orphanage so severe that the 14 Orphanage could not consistently corroborate the origins of any of its children. USCIS finds the documents you have provided to support the origins of the child 15 and [her] orphanhood are undermined by the U.S. Consulate's reporting on in- 16 country conditions in general and the haphazard submission of important evidence over three different filing opportunities in particular. The evidence you provided 17 is also called into question by its content, which betrays a lack of contemporaneous business purpose and points to after-the-fact creation of documents. The 18 documents most contemporaneous with the child's relinquishment consistently 19 omit the child's name when other documents state the child was named at the orphanage and the name was used (see Exhibit N). The same documents also tend 20 to lack mentioning your name as the adoptive parents when that would have been highly appropriate. 21 Moreover, the evidence submitted shows that you worked directly with the 22 Orphanage in placing and receiving custody of the child, without involvement from the Ministry, before you had acquired a foster order or were even present in the 23 country. You never provided a copy of an application for adoption from you to the 24 Ministry. Instead, the Orphanage relates in a letter to the Ministry that the Orphanage has “screened” applications and “found” eligible parents (see Exhibit 25 H) and otherwise relates that you were advised to visit the Ministry for other documentation and to apply to the magistrate court for proper orders (see Exhibit 26 H, N). Likewise, the Ministry writes in a letter to the Orphanage to be sure to send you to the Ministry to complete the necessary paperwork (see Exhibit M). This is 27 the lack of oversight by the Ministry described by the U.S. Consulate in its 1-604 28 determinations. The result is to cast significant doubt on the origins of the child 1 of the evidence. 2 (AR 59.) 3 USCIS determined that the Ministry’s letter to the U.S. Department of Homeland Security 4 provided no substantive information, and the Ministry’s statement that it authorizes the placement 5 of children with approved PAPs prior to the formal fostering order constituted an “after-the-fact” 6 justification. (AR 60.) USCIS noted that there was no explanation for why Plaintiff was not in the 7 country at the time of placement, and the Ministry’s explanation was not credible, but rather, 8 continued to leave the child’s identity in “significant doubt.” (AR 60.) 9 5. Plaintiff’s Form I-290B and USCIS’s Denial 10 On April 26, 2022, Plaintiff filed a Form I-290B (“the “Form I-290B” or the “Motion to 11 Reconsider”) as to USCIS’s denial of her Form I-600. (AR 11–16.) Plaintiff submitted several 12 documents in support of her motion, including the transcript of an interview of the Director 13 conducted by Plaintiff’s attorney in Nigeria, proof of Plaintiff’s attempts to search for the birth 14 mother, Ngozi Obijuru, on Facebook and through the newspaper, and an undated social welfare 15 investigation report conducted by the Ministry. (AR 17–54.) 16 During the interview with Plaintiff’s attorney, the Director clarified that the child did not 17 leave the Orphanage on May 22, 2019, the date on which Love Care indicated she was “lifted,” but 18 instead left Love Care with the PAPs on June 6, 2019. (AR 26.) The Director explained that “lifted” 19 meant matching PAPs with the baby, and the child was not named in the Orphanage’s initial letter 20 to the Ministry because she had not been named yet. (AR 26, 28.) 21 On July 12, 2022, USCIS ordered that Plaintiff’s Motion to Reconsider be dismissed, and 22 the decision to deny the Form I-600 was affirmed. (AR 1–6.) USCIS found that the evidence 23 submitted with the motion did not overcome the grounds for denial for several reasons. (AR 4.) 24 USCIS did not find the interview with the Director to be persuasive or probative, given that, inter 25 alia, her redefining of the term “lifted” conflicted with the common meaning of the word that 26 custody of the child was transferred to another party, and there was no corroborating evidence that 27 the child “was merely matched, rather than physically removed from the Orphanage.” (AR 4.) 28 USCIS also noted that the social welfare investigation report conducted by the Ministry had not 1 been previously produced until the instant motion was filed, though it would have been responsive 2 to the second RFE. (AR 5.) It appeared to USCIS that the report had been created “after the fact 3 and submitted to fill a noted gap in the evidence.” (AR 5.) USCIS also did not consider Plaintiff’s 4 efforts to locate Ngozi Obijuru to have been conducted in good faith, as these efforts “were 5 attempted almost three years after the child was purportedly abandoned” when it was “unlikely to 6 yield information about the person in question.” (AR 5.) 7 6. Plaintiff’s Complaint 8 On September 23, 2022, Plaintiff filed a complaint in federal court against Defendant Ur M. 9 Jaddou, Director of USCIS, seeking declaratory and injunctive relief under the Administrative 10 Procedure Act (“APA”) to set aside USCIS’s denial of her petition to classify D.A.C. as her 11 immediate relative. (Doc. 1 (“Compl.”).) Plaintiff asserts four claims in the complaint: (1) several 12 of USCIS’s conclusions were arbitrary and capricious under the APA, 5 U.S.C. § 706(2)(A) 13 (Compl. ¶¶ 91–106); (2) USCIS failed to act in accordance with the law by misapplying the 14 regulatory definitions of “abandonment” and “desertion” in violation of the APA, 5 U.S.C. 15 § 706(2)(A)5 (Compl. ¶¶ 107–12); (3) USCIS failed to comply with regulatory disclosure 16 requirements regarding derogatory information under 8 C.F.R. § 103.2(b)(16) (Compl. ¶¶ 113–20); 17 and (4) USCIS abused its discretion by improperly ignoring or setting aside evidence in violation of 18 the APA, 5 U.S.C. § 706(2)(A) (Compl. ¶¶ 121–27). 19 C. Statutory and Regulatory Framework 20 The INA provides that a citizen of the United States may file an application on behalf of an 21 orphaned child adopted abroad. 8 U.S.C. §§ 1154(a)(1)(A)(i), 1101(b)(1)(F)(i). “The application, 22 known as the I-600 petition, requests that the orphaned child be classified as an ‘immediate relative’ 23 and granted a visa to permanently reside in the United States.” Skalka v. Kelly, 246 F. Supp. 3d 24 147, 149 (D.D.C. 2017) (citing 8 U.S.C. § 1154(a)(1)(A)(i)). 25 The goal of the I-600 petition is to determine whether the child meets the statutory definition 26 of an “orphan.” Skalka, 246 F. Supp. 3d at 150. In relevant part, the INA defines a “child” as 27 28 5 The complaint cites 5 U.S.C. § 702(2)(A) as to the second cause of action (see Compl. ¶ 112), but this appears to be 1 follows: 2 [A] child, under the age of sixteen at the time a petition is filed in his behalf to accord a classification as an immediate relative under [8 U.S.C § 1151(b)], who is 3 an orphan because of the death or disappearance of, abandonment or desertion by, 4 or separation or loss from, both parents, or for whom the sole or surviving parent is incapable of providing the proper care and has in writing irrevocably released the 5 child for emigration and adoption; who has been adopted abroad by a United States citizen and spouse jointly, or by an unmarried United States citizen who is at least 6 25 years of age, at least 1 of whom personally saw and observed the child before or during the adoption proceedings . . . . 7 8 8 U.S.C. § 1101(b)(1)(F)(i). 9 8 C.F.R. § 204.3 sets forth the regulatory framework for an orphaned child adopted from 10 Nigeria, a country which is not a party to the Hague Convention, to be classified as an immediate 11 relative for immigration purposes. The petitioner may submit the Form I-600 to USCIS along with 12 supporting documentation to demonstrate that the child meets the statutory definition of an orphaned 13 child. See 8 C.F.R. § 204.3(a)(1)(i)–(ii). Such supporting documentation includes the “orphan’s 14 birth certificate, or if such a certificate is not available, an explanation together with proof of identity 15 and age,” evidence that the child is an orphan, and evidence of a full and final adoption abroad. See 16 8 C.F.R. § 204.3(d)(1). “The non-existence or other unavailability of required evidence creates a 17 presumption of ineligibility.” 8 C.F.R. § 103.2(b)(2)(i). 18 As described in Skalka, 19 The I–600 petition triggers a consular officer to conduct what is called an I–604 investigation into the veracity of the child being orphaned (i.e., verifying 20 documentation, researching the child's age, hometown, etc.). By regulation, a 21 consular officer must complete this investigation “in every orphan case,” and “[d]epending on the circumstances surrounding the case, the I–604 investigation 22 shall include, but shall not necessarily be limited to, document checks, telephonic checks, interview(s) with the natural parent(s), and/or a field investigation.” 8 23 C.F.R. § 204.3(k)(1). The timing of such an investigation is not specified except that it must be completed “before a[n I–600] petition is adjudicated.” Id. If the 24 consular officer conducts a favorable I–604 investigation, he may approve the I– 25 600 petition and the adoptive parents may apply for and obtain a visa for the child. If the officer determines the application is “not clearly approvable” based on his 26 investigation, he refers it to the USCIS office in the jurisdiction. 8 C.F.R. § 204.3(k)(2). The I–604 investigation form declares that if there are “allegations 27 or indications of fraud, child buying or other non–bona fide intent” the consular officer must “attach report and results of anti-fraud investigation to Form 1–604 28 1 opportunity to present contrary evidence. 2 Skalka, 246 F. Supp. 3d at 150. 3 II. DISCUSSION 4 Plaintiff contends she is entitled to summary judgment because (1) USCIS’s denial of her 5 Form I-600 was arbitrary and capricious under the APA, and (2) USCIS failed to meet its disclosure 6 obligations under 8 C.F.R. § 103.2(b)(16). (Doc. 20 at 24–32.) Defendant responds that denial of 7 the Form I-600 was reasonable and supported by the evidence in the record, and that the agency’s 8 action is entitled to deference under the APA. (Doc. 21 at 18–32.) Defendant also asserts that 9 USCIS did not violate its regulatory disclosure requirements. (Id. at 27–30.) 10 A. Summary Judgment Standard in Administrative Review 11 “In the context of a case where a party is seeking review of an administrative decision, ‘[a] 12 district court is not required to resolve any factual issues when reviewing administrative 13 proceedings.’” Naiker v. U.S. Citizenship and Immigr. Servs., 352 F. Supp. 3d 1067, 1072 (W.D. 14 Wash. 2018) (citing Occidental Eng’g Co. v. I.N.S., 753 F.2d 766, 769 (9th Cir. 1985)). Instead, 15 “[t]he function of the district court is to determine whether or not as a matter of law the evidence in 16 the administrative record permitted the agency to make the decision it did.” US Citrus Sci. Council 17 v. U.S. Dep’t of Agric., 312 F. Supp. 3d 884, 894 (E.D. Cal. 2018). Thus, summary judgment “is an 18 appropriate mechanism for deciding the legal question of whether the agency could reasonably have 19 found the facts as it did.” Occidental, 753 F.2d at 770. 20 In deciding a motion for summary judgment challenging a final administrative decision 21 under the APA, “the district court’s review of an agency’s decision is usually limited to the 22 administrative record.” US Citrus Sci. Council, 312 F. Supp. 3d at 894 (citing 5 U.S.C. § 706). 23 Accordingly, “the usual ‘genuine dispute of material fact’ standard for summary judgment normally 24 does not apply in an APA case.” Id. (citing San Joaquin River Grp. Auth. v. Nat’l Marine Fisheries 25 Serv., 819 F. Supp. 2d 1077, 1083–84 (E.D. Cal. 2011)). “Put another way, in the context of 26 reviewing an administrative decision under the APA, there are normally no ‘disputed facts that the 27 district court must resolve.’” Id. (citing Occidental, 753 F.2d at 769). 28 /// 1 Two, and Four) 2 1. Legal Standard 3 The APA subjects to judicial review any “final agency action for which there is no other 4 adequate remedy in a court.” 5 U.S.C. § 704. Under the APA, a reviewing court “shall . . . hold 5 unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, 6 an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). This 7 “standard of review is a narrow one,” demanding a “searching and careful” inquiry that assesses 8 “whether the decision was based on a consideration of the relevant factors and whether there has 9 been a clear error of judgment.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 10 416 (1971), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 105 (1977). “The 11 court is not empowered to substitute its judgment for that of the agency.” Id. Nor is the court 12 required to resolve any facts where relief is sought under the APA. Occidental, 753 F.2d at 769. 13 Rather, the court’s task is to determine whether the evidence in the administrative record permitted 14 the agency to make the decision it did. Id. at 769–70. 15 In reviewing agency action, the agency’s factual findings are reviewed under the substantial 16 evidence standard. Monjaraz-Munoz v. I.NS., 327 F.3d 892, 895 (9th Cir. 2003), amended by 339 17 F.3d 1012 (9th Cir. 2003). “[S]ubstantial evidence constitutes more than a mere scintilla. It means 18 such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. If 19 the evidence is susceptible of more than one rational interpretation, [the Court] must uphold [the 20 agency’s] findings.” Bear Lake Watch, Inc. v. F.E.R.C., 324 F.3d 1071, 1076 (9th Cir. 2003). 21 Courts should not “disturb the agency’s findings under this deferential standard ‘unless the 22 evidence presented would compel a reasonable finder of fact to reach a contrary result.’” Family 23 Inc. v. U.S. Citizenship and Immigr. Servs., 469 F.3d 1313, 1315 (9th Cir. 2006) (emphasis in 24 original). The court should uphold the agency’s decision even if it is “of less than ideal clarity,” so 25 long as “the agency’s path may reasonably be discerned.” Northwest Motorcycle Ass’n v. U.S. Dep’t 26 of Agric., 18 F.3d 1468, 1478 (9th Cir. 1994) (citing Motor Vehicle Mfr. Ass’n v. State Farm Mutual 27 Ins. Co., 463 U.S. 29, 43 (1983)). The agency need only show “a rational connection between the 28 facts found and the choices made.” Id. “[The court’s] review is especially deferential in the context 1 of immigration policy.” Jang v. Reno, 113 F.3d 1074, 1077 (9th Cir. 1997). 2 2. Analysis 3 Plaintiff raises a number of challenges to USCIS’s decision under the APA. First, in Claims 4 One and Four, Plaintiff contends that USCIS improperly ignored or failed to evaluate several pieces 5 of evidence, including documentary evidence of D-A-C-‘s identity and orphanhood, the Family 6 Court’s Foster Order and Adoption Order, and the affidavit from Plaintiff’s brother regarding the 7 origin of D-A-C-‘s birth certificate. (Compl. ¶¶ 95–99, 102–103, 124–25.) Plaintiff asserts that 8 USCIS improperly discounted this documentary evidence based on general country conditions in 9 Nigeria and the past conduct of Love Care and the Ministry. (Compl. ¶¶ 96, 100, 125.) She contends 10 that USCIS’s failure to consider or meaningfully respond to relevant evidence constituted arbitrary 11 and capricious decision-making and an abuse of discretion. (Compl. ¶¶ 104, 126–27.) Second, in 12 Claims One and Two, Plaintiff contends USCIS erroneously found that Plaintiff’s specific evidence 13 did not meet the regulatory definitions of abandonment or desertion. (Compl. ¶¶ 105, 111–12.) 14 Having reviewed the administrative record in this case, the Court finds that there was a 15 rational relationship between USCIS’s findings and its decision to deny Plaintiff’s Form I-600. 16 Accordingly, USCIS did not violate the arbitrary and capricious standard under the APA, and 17 Defendant is entitled to summary judgment on Claims One, Two and Four. The Court will address 18 each of Plaintiff’s arguments in turn. 19 a. USCIS’s Evaluation of the Evidence Was Not Arbitrary or Capricious 20 Here, USCIS considered the totality of the evidence in denying Plaintiff’s Form I-600 and 21 her Motion to Reconsider. The agency’s denial of Plaintiff’s Form I-600 contains a summary of all 22 of the evidence that had been submitted by Plaintiff at that point in the proceedings. (See AR 55– 23 59.) USCIS then discussed four main pieces of evidence in favor of its holding: (1) the I-604 24 investigation report’s findings as to past unreliability of documents coming out of the Orphanage; 25 (2) the content of the documents submitted by Plaintiff indicating “a lack of contemporaneous 26 business purpose and point[ing] to after-the-fact creation of documents;” (3) suggestions in the 27 documentary evidence that Plaintiff worked directly with the Orphanage to receive custody of the 28 child, without the involvement of the Ministry, which confirmed the lack of oversight described by 1 the U.S. Consulate in its I-604 determinations; (4) and multiple instances where the evidence called 2 the child’s identity into question. (See AR 59–60.) Upon denying Plaintiff’s Motion to Reconsider, 3 USCIS similarly summarized all of the evidence and found that the entirety of the evidence, 4 including the new documents submitted by Plaintiff, did not overcome the grounds for denial of the 5 Form I-600. (See AR 1–5.) 6 Under the highly deferential standard applicable to reviewing the agency’s action, the Court 7 finds that the record is sufficient to support USCIS’s finding that Plaintiff’s Form I-600 failed to 8 demonstrate that D.A.C. failed to meet the statutory definition of an “orphan.” USCIS showed “a 9 rational connection between the facts found and the choices made,” such that “the agency’s path 10 may reasonably be discerned.” Northwest Motorcycle Ass’n, 18 F.3d at 1478. 11 In the RFEs and in the denial of Plaintiff’ Form I-600 and Motion to Reconsider, USCIS 12 cited several inconsistencies in the evidence suggesting the creation of documents “after-the-fact,” 13 and thus, the evidence called into question the veracity of D.A.C.’s adoption. For example, Plaintiff 14 and her husband provided evidence that D.A.C. was relinquished at birth by a named biological 15 mother, but a letter from the Ministry dated November 28, 2019, indicated the child was born to an 16 unknown birth mother. (AR 136; see AR 282.) USCIS also noted that the Director’s “Intake Report 17 of a Baby Girl” and post-adoption birth certificate indicated D.A.C. was lifted from the Orphanage 18 by Plaintiff and her husband on May 22, 2019, but this date is two weeks before the Foster Order. 19 (AR 136; see AR 275–79.) The administrative record contains an affidavit from Plaintiff’s brother 20 indicating that, prior to the issuance of any order by the Family Court, he applied for the birth 21 certificate with the names of the PAPs because he believed, in good faith, that the birth certificate 22 was necessary for processing by the Ministry. (AR 32.) The birth certificate was executed that 23 same day and listed Plaintiff and her husband as D.A.C.’s father and mother. (AR 275.) In a 24 subsequent letter titled “Intake Report of a Baby Girl,” the Director certified that Plaintiff and her 25 husband fostered a baby girl whose mother brought her to Love Care. (AR 276.) The intake stated 26 that the child was under the Orphanage’s care until she was lifted by the couple on May 22, 2019, 27 and there was no birth certificate for the baby. (AR 276–77.) 28 USCIS also reasoned that the documents “most contemporaneous with the child's 1 relinquishment consistently omit the child's name when other documents state the child was named 2 at the [O]rphanage and the name was used,” and “[t]he same documents also tend to lack mentioning 3 [Plaintiff and her husband’s names] as the adoptive parents when that would have been highly 4 appropriate.” (AR 59–60.) USCIS also found that the Ministry’s statement that it authorizes the 5 placement of children with approved PAPs prior to the formal fostering order constituted an “after- 6 the-fact” justification. (AR 60; see AR 160.) USCIS noted that the social welfare investigation 7 report for adoption conducted by the Ministry had not been previously produced until the Motion to 8 Reconsider was filed even though it would have been responsive to the second RFE, and it appeared 9 that the report had been created “after the fact and submitted to fill a noted gap in the evidence.” 10 (AR 5; see also AR 41–43.) 11 USCIS also highlighted the numerous instances where it appeared Plaintiff improperly 12 worked directly with the Orphanage, and not the Ministry, to receive custody of D.A.C., evidencing 13 the lack of oversight identified by the U.S. Consulate in its I-604 investigation. For example, the 14 Director’s letter dated May 17, 2019, showed that Love Care, and not the Ministry, placed the child 15 with Plaintiff and her husband. (AR 136; see AR 245.) USCIS also noted that Plaintiff never 16 provided a copy of an application to the Ministry for adoption. (AR 59.) USCIS then highlighted 17 how in a letter to the Ministry, Love Care stated it had “screened” applications and “found” eligible 18 parents, and then the Orphanage advised Plaintiff and her husband to visit the Ministry for other 19 documentation and to apply to the Family Court for proper orders. (Id. (citing AR 245).) Later, the 20 Ministry directed the Orphanage to “ensure” that the adoptive parents be directed to the Ministry to 21 complete the necessary paperwork. (AR 59 (citing AR 178).) 22 The Court cannot find that the evidence summarized above would compel a reasonable 23 finder of fact to reach a contrary result. Family Inc., 469 F.3d at 1315; see, e.g., Alabed v. Crawford, 24 No. 1:13–cv–2006–SKO, 2015 WL 1889289, at *15 (E.D. Cal. Apr. 24, 2015) (citing Singh v. Reno, 25 113 F.3d 1512, 1514 (9th Cir. 1997) (to reject a decision by USCIS under the substantial evidence 26 standard, “the evidence must be so compelling that no reasonable factfinder could fail to find the 27 facts were as the alien alleged.”)). Plaintiff’s contention that USCIS ignored or failed to evaluate 28 some of the documentary evidence, and instead, relied solely on general country conditions in 1 Nigeria and the past conduct of Love Care and the Ministry, “is but one interpretation of the 2 evidence.” Stoll v. U.S. Citizenship and Immigr. Servs., No. 1:20-cv-666-BAM, 2021 WL 780309, 3 at *14 (E.D. Cal. Mar. 1, 2021). Here, the USCIS’s decision makes clear that the agency did not 4 rely only on Nigeria’s general country conditions, but instead considered the evidence specific to 5 D.A.C.’s fostering and adoption. Based on this evidence, USCIS found that Plaintiff did not 6 sufficiently demonstrate that D.A.C. met the definition of an “orphan” such that she should be 7 classified as Plaintiff’s immediate relative. Even if the evidence “is susceptible of more than one 8 rational interpretation,” the Court must uphold USCIS’s decision. Bear Lake Watch, Inc., 324 F.3d 9 at 1076; see also Alabed, 2015 WL 1889289, at *15 (“The USCIS’ consideration of and its reasons 10 for rejection of this evidence were rational, and the USCIS’ decision will not be overturned.”). 11 In her motion for summary judgment, Plaintiff contends that USCIS’s adverse credibility 12 determination regarding her submitted evidence rests on improper speculation. (Doc. 20 at 27–32.) 13 It is up to USCIS, however, to weigh the credibility of Plaintiff’s evidence against the other evidence 14 in the record. See Stoll, 2021 WL 780309, at *15. USCIS considered the totality of the evidence, 15 including the documents submitted by Plaintiff, and found that the evidence was insufficient to 16 overcome the concerns and lack of legitimacy surrounding D.A.C.’s adoption. The agency 17 articulated “a rational relationship between its factual findings and its decision,” and thus, USCIS 18 did not violate the arbitrary and capricious standard. Id. (quoting Fence Creek Cattle Co. v. U.S. 19 Forest Serv., 602 F.3d 1125, 1132 (9th Cir. 2010)). 20 The Court also rejects Plaintiff’s arguments that USCIS ignored evidence she submitted 21 throughout the duration of the proceedings. See, e.g., Singh v. Cissna, No. 1:18-cv-00782-SKO, 22 2019 WL 3412324, at *7 (E.D. Cal. July 29, 2019). An agency “is not required ‘to discuss each 23 piece of evidence submitted.’” Pirir-Boc v. Holder, 750 F.3d 1077, 1086 (9th Cir. 2014). When 24 the record does not clearly indicate otherwise, even “a ‘general statement that [the agency] 25 considered all the evidence before [it]’ may be sufficient.” Cole v. Holder, 659 F.3d 762, 771 (9th 26 Cir. 2011). Here, USCIS went beyond a general statement that it considered all of the evidence 27 before it. Both in its denial of Plaintiff’s Form I-600 and her Motion for Reconsideration, USCIS 28 explicitly mentioned much of the submitted evidence and explained why it was unconvincing. (See 1 AR 1–6, 55–60.) Thus, USCIS’s decision was neither arbitrary nor capricious, but was instead 2 supported by substantial evidence and carefully explained. See, e.g., Singh, 2019 WL 3412324, at 3 *7 (“Not only was USCIS’s decision that Plaintiff Singh and Ms. Williams previously entered into 4 a sham marriage not arbitrary, it was very well supported by the evidence and thoroughly 5 explained.”). 6 By asking this Court to draw different inferences from those reasonably drawn by USCIS, 7 Plaintiff misapprehends the nature of the Court’s review. Stoll, 2021 WL 780309, at *15. “The 8 Court may not substitute its judgment for the reasonable judgment of the [agency], even if this Court 9 may have a different view of the evidence.” Id.; see also Bear Lake Watch, Inc., 324 F.3d at 1076. 10 Because the administrative record reflects a rational basis for USCIS’s decision, Defendants are 11 entitled to summary judgment on Plaintiff’s contentions in Claims One and Four of the complaint. 12 b. USCIS’s Evaluation of Whether Plaintiff’s Evidence Met the Definitions of Desertion or Abandonment Was Not Arbitrary or Capricious 13 14 Similarly, given the highly deferential standard of review this Court must apply in reviewing 15 USCIS’s decision, the Court cannot say that the agency’s finding that Plaintiff’s evidence failed to 16 meet the regulatory definitions of “desertion” and “abandonment” was arbitrary or capricious. In 17 particular, there were discrepancies in the evidence as to whether D.A.C. was abandoned, deserted, 18 or relinquished as defined by 8 C.F.R. § 204.3(b). 19 i. Legal Standard 20 8 C.F.R. § 204.3(b) distinguishes between “abandonment,” “relinquishment,” and 21 “desertion.” “Abandonment” is defined as follows: 22 Abandonment by both parents means that the parents have willfully forsaken all parental rights, obligations, and claims to the child, as well as all control over and 23 possession of the child, without intending to transfer, or without transferring, these 24 rights to any specific person(s). Abandonment must include not only the intention to surrender all parental rights, obligations, and claims to the child, and control over 25 and possession of the child, but also the actual act of surrendering such rights, obligations, claims, control, and possession. 26 27 Id. In contrast, “relinquishment” is defined as follows: 28 A relinquishment or release by the parents to the prospective adoptive parents or 1 relinquishment or release of the child by the parents to a third party for custodial 2 care in anticipation of, or preparation for, adoption does not constitute abandonment unless the third party (such as a governmental agency, a court of competent 3 jurisdiction, an adoption agency, or an orphanage) is authorized under the child welfare laws of the foreign-sending country to act in such a capacity. A child who 4 is placed temporarily in an orphanage shall not be considered to be abandoned if the parents express an intention to retrieve the child, are contributing or attempting 5 to contribute to the support of the child, or otherwise exhibit ongoing parental 6 interest in the child. A child who has been given unconditionally to an orphanage shall be considered to be abandoned. 7 Id. Lastly, the regulation sets forth the following definition for “desertion”: 8 Desertion by both parents means that the parents have willfully forsaken their child 9 and have refused to carry out their parental rights and obligations and that, as a result, the child has become a ward of a competent authority in accordance with the 10 laws of the foreign-sending country. 11 Id. 12 ii. Analysis 13 Here, there was conflicting evidence in the record as to whether D.A.C. was abandoned, 14 deserted, or relinquished under the regulatory definitions set forth above. Specifically, there was 15 evidence that the child’s birth mother relinquished D.A.C. into the care of the Orphanage. For 16 example, the birth mother, Ngozi Obijuru, executed and signed an “Affidavit of Fact” attesting that 17 she handed over the child to Love Care, gave her consent to the Orphanage to give this child “to any 18 suitable person or couple for the purpose of adoption,” and she fully understood that the implication 19 of giving this child to Love Care was that she had “willingly relinquished all of [her] parental rights 20 to the [Orphanage] or anyone who may wish to adopt [the child].” (AR 239.) That same day, the 21 Director submitted a letter to the Ministry indicating the presence of a baby girl that “was willingly 22 given out to [Love Care] by the biological mother who claims that she is indigent and incapable to 23 take care of the child.” (AR 240.) 24 Similarly, there was evidence suggesting D.A.C. had been abandoned or deserted. For 25 example, the same day the birth mother executed and signed the “Affidavit of Fact,” the Director 26 titled a letter to the Ministry titled “Report to Keep Custody of an Abandoned Baby Girl.” (AR 240 27 (emphasis added).) The Ministry then conveyed approval to the Director for Love Care to keep 28 1 custody of the “abandoned baby girl.” (AR 244.) A few months later, the Ministry issued a letter 2 stating D.A.C. had an “unknown birth mother” who had abandoned her at Love Care, and the only 3 birth certificate that existed for the child was post-adoption and listed the adoptive parents’ names. 4 (AR 282; see also AR 275.) The Ministry then issued another letter indicating the child was 5 willingly given up for adoption by her birth mother because adoption was in the child’s best interests 6 (AR 283), and later found that the child was considered abandoned, orphaned, and qualified to be 7 adopted (AR 284). 8 USCIS repeatedly highlighted the inconsistencies in the evidence as to the child’s identity 9 and its concerns regarding the legitimacy of the child’s claims origins. The agency then explained 10 how the conflicting evidence failed to meet the regulatory definitions of “abandonment,” 11 “relinquishment,” and “desertion.” (See AR 1–6, 59–60, 136–139, 235–37.) “The non-existence or 12 other unavailability of required evidence creates a presumption of ineligibility.” 8 C.F.R. 13 § 103.2(b)(2)(i). The agency articulated a rational relationship between its factual findings and its 14 decision, and these decisions were supported by substantial evidence. “In the immigration context, 15 the substantial-evidence standard means that a reviewing court ‘must affirm the [agency’s] order 16 when there is such relevant evidence as reasonable minds might accept as adequate to support it, 17 even if it is possible to reach a contrary result on the basis of the evidence.’” Zerezghi v. U.S. 18 Citizenship and Immigr. Servs., 955 F.3d 802, 814–15 (9th Cir. 2020) (quoting Oropeza-Wong v. 19 Gonzales, 406 F.3d 1135, 1147 (9th Cir. 2005)) (emphasis in original). The Court does not find that 20 the evidence would compel a reasonable fact finder to reach a contrary result. Stoll, 2021 WL 21 780309, at *15. Accordingly, Defendants are entitled to summary judgment on Plaintiff’s 22 contentions in Claims One and Two of the complaint. 23 In sum, the Court finds Defendant is entitled to summary judgment on Plaintiff’s APA claims 24 and proceeds to consider Plaintiff’s regulatory disclosure claim. 25 C. Defendant is Entitled to Summary Judgment on Plaintiff’s Regulatory Disclosure Claim (Claim Three) 26 27 Plaintiff contends that USCIS failed to meet its disclosure requirements under 8 C.F.R. 28 § 103.2(b)(16), specifically, disclosure of the report of the I-604 investigation conducted by the 1 consular officer, which constituted derogatory information relied upon by USCIS in denying her 2 Form I-600 petition. (Doc. 20 at 26–27.) Defendant responds that USCIS complied with the 3 applicable regulations regarding the disclosure of derogatory information in this case. (Doc. 21 at 4 27–30.) Defendant emphasizes that in the second RFE, USCIS provided Plaintiff with a detailed 5 summary of the I-604 investigation report and its findings, and contends that Plaintiff was afforded 6 an adequate opportunity to respond. (Id.) 7 1. Legal Standard 8 Under 8 C.F.R. § 103.2(b)(16), “[a]n applicant or petitioner shall be permitted to inspect the 9 record of proceeding which constitutes the basis for the decision.” 10 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 11 petitioner is unaware, he/she shall be advised of this fact and offered an opportunity 12 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 13 in behalf of the applicant or petitioner shall be included in the record of proceeding. 14 8 C.F.R. § 103.2(b)(16)(i). A determination of statutory eligibility shall be based only on 15 information contained in the record of proceeding which is disclosed to the applicant or petitioner, 16 except [to the extent information relied upon is classified in the interest of national security].” 8 17 C.F.R. § 103.2(b)(16)(ii). 18 Federal courts have rejected arguments that the language of section 103.2(b)(16) requires 19 USCIS to provide petitioners with all of the evidence and documentation that forms the basis of a 20 denial. See, e.g., Brinklys v. Johnson, 175 F. Supp. 3d 1338, 1353 (M.D. Fla. 2016) (“Contrary to 21 Plaintiffs’ assertions, § 103.2(b)(16) does not require USCIS to provide a petitioner with the original 22 evidence underlying the derogatory information on which it intends to rely” where UCSIS never 23 provided the documents at issue, but instead, merely summarized their contents); Mangwiro v. 24 Johnson, 554 Fed. Appx. 255, 261 (5th Cir. 2014) (“The plain language of § 103.2(b)(16)(i) requires 25 that USCIS ‘advise[]’ the petitioners whose claims are about to be denied of the ‘derogatory 26 information’ that forms the basis for the denial. As many of our sister circuits have recognized, it 27 does not require USCIS to provide documentary evidence of the information, but only sufficient 28 information to allow the petitioners to rebut the allegations.”) (footnote omitted); Diaz v. U.S. 1 Citizenship and Immigr. Servs., 499 Fed. Appx. 853, 856 (11th Cir. 2012) (USCIS complied with 2 section 103.2(b)(16)(i) by issuing the petitioner’s wife a notice of intent to deny, indicating “her 3 petition would be denied based on the discrepancies at the interview, and specifically gave her the 4 opportunity to provide rebuttal evidence and to explain the discrepancies.”); Ogbolumani v. 5 Napolitano, 557 F.3d 729, 735 (7th Cir. 2009) (section 103.2(b)(16)(i) “does not require USCIS to 6 provide, in painstaking detail, the evidence of fraud it finds.”). 7 2. Analysis 8 Here, Plaintiff was aware of the inconsistencies in her submitted evidence and provided 9 ample opportunity to address and cure the identified deficiencies. USCIS’s second RFE contained 10 a summary of the U.S. Consulate’s I-604 report, and specifically, that the U.S. Consulate returned 11 Plaintiff’s petition because “they found, among other things, serious inconsistencies and 12 discrepancies in the submitted evidence such that it found no credible evidence supports petitioners’ 13 claim [that] the child is an orphan by reason of abandonment or under any other subdefinition of 14 INA [§] 101(b)(1)(F).” (AR 136.) The RFE then listed several of these particular inconsistencies 15 in Plaintiff’s submitted evidence. (Id.) USCIS specified the additional evidence Plaintiff would 16 have to submit in order to overcome these issues and then provided Plaintiff with a chance to submit 17 such evidence. (See AR 136–39.) 18 Plaintiff timely submitted evidence in response to the second RFE, including documents 19 previously submitted, a number of new documents, and a letter brief providing explanations for the 20 inconsistencies raised by USCIS. (See AR 141–234.) After summarizing all of Plaintiff’s submitted 21 evidence, USCIS denied her Form I-600 without prejudice. (AR 55–60.) In its denial, USCIS 22 described how the evidence showed that Plaintiff “worked directly with the Orphanage in placing 23 and receiving custody of the child, without involvement from the Ministry, before [she] acquired a 24 foster order or [was] even present in the country.” (AR 59.) The agency cited specific discrepancies 25 in the evidence and explicitly explained that “[t]his is the lack of oversight by the Ministry described 26 by the U.S. Consulate in its 1-604 determinations.” (Id.) Plaintiff then filed a Motion to Reconsider 27 and submitted additional evidence further addressing the issues raised by USCIS, including an 28 interview of the Director conducted by Plaintiff’s attorney in Nigeria and proof of her efforts to 1 locate D.A.C.’s birth mother. (See AR 11–54.) Accordingly, by summarizing the contents of the I- 2 604 investigation report by the consular officer, and by affording Plaintiff the opportunity to provide 3 rebuttal evidence and explain the discrepancies identified by the agency in the submitted evidence, 4 USCIS adequately disclosed the derogatory information in accordance with section 103.2(b)(16). 5 Brinklys, 175 F. Supp. 3d at 1353; Diaz, 499 Fed. Appx. at 856. 6 Plaintiff contends that if she had been given an opportunity to examine the consular report, 7 she could have confronted the Director or taken further action to address USCIS’s concerns 8 regarding the recordkeeping of D.A.C.’s custody and adoption. (Doc. 20 at 26–27.) The record in 9 this case, however, indicates that even without disclosure of the I-604 investigation report, Plaintiff 10 was afforded an opportunity to confront the Director. Namely, Plaintiff’s attorney directly 11 questioned the Director regarding several of the inconsistencies in the evidence previously raised 12 by USCIS. (See, e.g., AR 25–26, 28.) And throughout the course of the RFEs and the denial of her 13 Form I-600, Plaintiff received multiple notifications regarding the discrepancies in her submitted 14 evidence and the administrative record as a whole, which ultimately led to the denial of her Petition 15 and Motion to Reconsider. (See, e.g., AR 55–60, 134–40, 235–37.) Therefore, by advising Plaintiff 16 as to the derogatory information that ultimately formed the basis for the denial of her Form I-600, 17 and by providing her with an opportunity to rebut the allegations, USCIS adequately complied with 18 section 103.2(b)(16). 19 In sum, the Court finds that USCIS did not violate its disclosure requirements under section 20 103.2(b)(16) by failing to provide Plaintiff with the I-604 investigation report. Accordingly, 21 Defendant is entitled to summary judgment on Claim Three of the complaint. 22 III. CONCLUSION AND ORDER 23 For the reasons stated above, IT IS HEREBY ORDERED THAT: 24 1. Plaintiff’s Motion for Summary Judgment (Doc. 20) is DENIED; 25 2. Defendant’s Cross Motion for Summary Judgment (Doc. 21) is GRANTED; and 26 3. The Clerk of the Court is directed to enter judgment against Plaintiff and for 27 Defendant, and to close the file. 28 1 2 Dated: September 7, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28