ORDER
THIS CAUSE is before the Court on (1) Defendants’ Motion for Summary Judgment (Doc. 21; “Defendants’ Motion”), filed on May 11, 2015; and (2) Plaintiffs [sic] Motion for Summary Judgment and Supporting Memorandum of Law (Doc. 22; “Plaintiffs’ Motion”), also filed on May 11, 2015. Defendants — Jeh Johnson, Secretary of the Department of Homeland Security; Loretta Lynch,
I. Background
On February 10, 2000, Plaintiff Aurelija Gotautiene(now Caruso)
On August 22, 2007, before the United States Citizenship and Immigration Service (“USCIS”) decided Caruso’s 1-130 Petition, Aurelija and Caruso divorced, automatically terminating the petition. Tr. 792, 864. A little more than two months later, on November 2, 2007, Aurelija married Plaintiff Sigitas Brinklys. Tr. 782, 791. Brinklys filed an 1-130 Petition on Aureli-ja’s behalf on February 21, 2008, Tr. 782, and Aurelija filed form 1-485, Application to Register Permanent Residence or Adjust Status (“1-485 Application”), that same day, see Doc. 1 (“Complaint”) ¶ 17; Doc. 12 (“Answer”) ¶ 17.
On May 23, 2011, USCIS issued a Notice of Intent to Deny Alien Relative Visa Petition (“NOID”) indicating that it intended to deny Brinklys’s 1-130 Petition. Tr. 1, The NOID identified information that caused USCIS to “doubt the actual intentions of the marriages used for apply
In the memorandum, ICE described Au-relija and Kalinauskas’s history of joint property ownership as follows: On September 25, 2001, Aurelija purchased a residence on Arapahoe Court in Naperville, Illinois., Tr. 3, 883. She refinanced the property on March 18, 2002, at which time she listed herself and Kalinauskas as primary buyers. Tr. 3, 883. On February 19, 2003 — two days before her marriage to Caruso — Aurelija and Kalinauskas again refinanced the property, listing Kalinaus-kas as the primary buyer and Aurelija as secondary buyer. Tr. 3, 883. Later that year, on December 12, 2003, Aurelija and Kalinauskas purchased a residence on Isle Royal Circle in Plainfield, Illinois, as joint tenants. Tr. 3, 883. Property records listed the two as “husband and wife.” Tr, 3, 883. On February 18, 2004, Aurelija sold the Arapahoe Court property. Tr. 3, 883.
The memorandum also reflected that on December 4, 2004, Caruso entered into a one-year lease at an apartment complex on Bluff Street in Carol Stream, Illinois. Tr. 3, 882-83, 911-15. On the lease, Caruso indicated that he was single; his only prior residence was his mother’s house, where he lived from June 1994 to November 2004; and the only other expected tenant would be his son. Tr. 3, 912. The memorandum described a police report indicating that Caruso had been arrested on February 13, 2005,
The ICE memorandum discussed a police report from February 24, 2005, describing Illinois state law enforcement’s interactions with Aurelija and Kalinauskas during a criminal investigation at the Isle Royal Circle property. Tr. 2, 881. Officers interviewed and arrested Kalinauskas. Tr. 2, 882. They reported that, during the interview, Kalinauskas identified Aurelija as his girlfriend. Tr. 2, 882. The officers also interviewed Aurelija, who reportedly stated that she and Kalinauskas were “good friends”; that she had lived at that address with Kalinauskas since December 2003; that she was married to Caruso but did not live with him because he and Kali-nauskas did not get along; that she had known Kalinauskas for about eight years; that they had been in the United States for four to five years; that she did “not contribute any money to anything regarding the household”; that Kalinauskas paid the mortgage, household bills, and payments on three vehicles at the residence; and that she and Kalinauskas were trying to become U.S. citizens. Tr. 2, 881-82.
The memorandum described Aurelija and Caruso’s interview on Caruso’s 1-130 Petition at the Chicago USCIS office on September 13, 2005. Tr. 882. Both presented Illinois state identification reflecting their residence at the Isle Royal Circle property. Tr. 2, 882. Caruso’s identification card had been issued three days earlier, on September 10, 2005. Tr. 2, 882. According
The memorandum further stated that ICE agents interviewed Caruso’s mother, Mary Ann Caruso, on September 16, 2005. Tr. 3, 882. The agents asked her whether Caruso was married, and she responded that he was not, Tr. 3, 882. When the agents told her that he was in fact married, she responded that she was unaware of that fact. Tr. 3, 882. She said she saw Caruso on a weekly basis; that he lived with his son at the Bluff Street apartment; and that, prior to moving into that apartment, he lived with her. Tr. 3, 882. She recognized a photograph of Aurelija and explained that Aurelija was introduced to her as Caruso’s girlfriend about two years earlier. Tr. 882. Mrs. Caruso believed Caruso had stopped dating her “a long time ago.” Tr. 882. Mrs. Caruso also said that Caruso had never lived in Plainfield, Illinois. Tr. 882.
Additionally, the memorandum stated that an ICE agent interviewed Martinez, who stated that her marriage to Kalinaus-kas was a sham. Tr. 3, 883. She stated that Kalinauskas paid her about $1,700 to go through with the marriage and that they never lived together or consummated the marriage. Tr. 3, 883. She stated that, after she informed Kalinauskas that she would not attend Kalinauskas’s interview with USCIS, Kalinauskas visited her at her workplace and told her that he would report their sham marriage to the police if she did not attend. Tr. 3, 883. She stated that, several days later, a woman who she later identified by photograph as Aurelija visited her at her workplace, identified herself as Kalinauskas’s girlfriend, and asked Martinez to go to Kalinauskas’s interview. hfartinez stated that Aurelija began to cry and told Martinez that “she was messing up [Aurelija’s] family life.” Tr. 3, 883-84. Aurelija left after Martinez threatened to call the police. Tr.3, 883-84. Finally, Martinez stated that, several days after that encounter, she spoke with Aurelija on the telephone, and Aurelija offered to pay Martinez $5,000 or $10,000 to attend Kali-nauskas’s interview. Tr. 3, 884. Martinez still refused, and she did not hear from Aurelija again. Tr. 3, 884.
In the NOID, USCIS stated that the information described above “appears to make the paper evidence submitted in regards to [Caruso] and Aurelija’s marriage moot and useless in their attempt to reflect the marital relationship.” Tr. 3. The NOID further stated that Aurelija and Brinklys were interviewed in connection with Brinklys’s 1-130 Petition on July 17, 2008, and that Aurelija was informed of USCIS’s suspicion that her marriage to Caruso was fraudulent. Tr. 3. In response, Aurelija denied that allegation and explained that Kalinauskas was actually her step-brother and that her mother had adopted him when he was a child. Tr. 3. USCIS rejected that explanation as inconsistent with Aurelija’s reported statement to law enforcement that she had only known Kalinauskas for about eight years. Tr. 3.
USCIS also rejected additional evidence Aurelija submitted concerning her marriage to Caruso and her relationship with Kalinauskas. Tr. 3-5. It found her own statement and a letter from Caruso discussing the circumstances of their relationship to be “seriously lacking in any details,” and it observed that Caruso’s letter offered no means of contacting him to
Addressing Aurelija’s marriage to Brinklys, USCIS noted deficiencies in many of the documents provided to establish a bona fide marriage. Specifically, it observed that a life-insurance document was “merely an application” that did not indicate whether a policy was actually obtained; statements from various joint bank accounts did not show much financial activity; of the three photographs of them that were submitted, one was dated January 2004, when Aurelija was still married to Caruso; and a receipt from a furniture store in Chicago listed a Palm Coast, Florida, address for Aurelija and Brinklys, included no delivery fee, and stated that the customer would pick up the items. Tr. 4. USCIS noted that Aurelija had used a receipt from the same store as evidence of the genuineness of her marriage to Caruso. Tr. 4.
USCIS also noted that Brinklys was reluctant and hesitant during his interview. Tr. 4. It observed that Brinklys had submitted an affidavit in support of Kalinaus-kas’s attempt to gain immigration benefits; that he identified himself as Kalinauskas’s cousin; that he was identified as Kalinaus-kas’s boss and contact with the Florida Department of Corrections; and that Kali-nauskas had used Brinklys’s address for a criminal probation period. Tr. 5. USCIS observed that Brinklys had failed to disclose a third marriage that had taken place in Poland. Tr. 5. It observed that, according to automobile and property records, Brinklys had used at least three addresses since his marriage to Aurelija — one in Savannah, Georgia; one in Palos Hills, Illinois; and one in Palm Coast, Florida. Tr. 5. Finally, USCIS observed that Aurelija and Brinklys had not provided any information describing how they maintain their lives and finances and keep in contact while Brinklys is away from home working as a truck driver. Tr. 5. Based on those concerns, USCIS indicated that it also doubted the validity of Aurelija and Brinklys’s marriage. Tr. 3, 6. It gave Brinklys 30 days to respond to the concerns identified and cautioned that additional evidence would be “subject to verification as well as the possibility of an overseas verification of any foreign documents.” Tr. 6.
On June 16, 2011, Brinklys responded to the NOID. Tr. 402. He submitted a bank
Brinklys explained that Aurelija and Kalinauskas bought the Isle Royal Circle residence together because Caruso could not qualify, as he had recently received a bankruptcy discharge. Tr. 407, 411, 569-71. He stated that Aurelija had “no knowledge” that she and Kalinauskas were listed on property records as “husband and wife” and that she never told anyone she was married to Kalinauskas. Tr. 412. Brinklys explained that Aurelija and Caruso lived at the house and that Kalinauskas had a room there but was not there often because he was a truck driver and had another residence in Naperville, Illinois. Tr. 407. Brinklys again asserted that Kalinauskas was Aurelija’s brother by adoption and included many of the same documents referenced in the' NOID to support that assertion. Tr. 407-08, 549-67.
Concerning Aurelija’s and Kalinauskas’s statements to the police during the February 24, 2005, investigation, Brinklys contended that Kalinauskas had actually told law enforcement that Aurelija was his “female friend.” Tr. 408. He confirmed that Kalinauskas and Caruso did not get along because of Caruso’s drinking and gambling problems and that the men had only met once. Tr. 408. He stated that Aurelija denied telling the police that she had only known Kalinauskas for eight years, claimed she misunderstood the question, and asserted that she had also told officers that Kalinauskas was her brother. Tp. 408, 413. He confirmed that Kalinauskas paid the mortgage and bills at the Isle Royal Circle residence but contended that Aureli-ja paid for groceries and transportation costs. Tr. 408. He asserted that Aurelija and Caruso had been trying to save money at the time. Tr. 408. Brinklys confirmed that Kalinauskas paid for a Ford, a Dodge Ram, and a Mercedes found at the Isle Royal Circle residence on the date of the investigation but that Aurelija and Caruso also owned a 2005 Chrysler 300, a 1997 Ford Crown Victoria, and a 1995 Mercedes. Tr. 409. Brinklys also asserted that the fact that the 1-130 Petitions were filed on behalf of Kalinauskas and Aurelija on the same day was “just a coincidence” and so was “irrelevant and immaterial.” Tr. 409.
In his response.to the NOID, Brinklys also provided several explanations for Mrs. Caruso’s statements to the ICE agent. He explained that Mrs. Caruso “was never happy that [Caruso] didn’t marry an Italian-American or American girl” and that she “was upset that Aurelija refused to
Brinklys provided explanations for Caruso’s December 2004 lease of the Bluff Street apartment as well as his statements on the lease application. He explained that Caruso had rented the apartment during his separation from Aurelija with the hope that “this short time apart would clear their situation.” Tr. 410. He pointed to the joint bank statements and utility bills as evidence that Aurelija and Caruso continued to maintain common finances, and he pointed to a hotel receipt from July 2005 as evidence of a trip that Aurelija and Caruso took together. Tr. 410, 535-40. Brinklys explained that Caruso had listed only his mother’s house as a prior residence because Caruso “had no credit and had never before signed a lease or purchased a home.” Tr. 411. He asserted that Caruso listed his marital status as single because he and Aurelija were separated at the time. Tr. 411. With respect to Martinez, Brinklys stated that Aurelija denied ever meeting or speaking to her. Tr. 412.
As to Aurelija’s Illinois driver’s licen'se not matching her claim that she lived in Palm Coast with Brinklys, Brinklys explained that Aurelija was forced to obtain an Illinois driver’s license because she was unable to obtain a work permit, and Florida would not issue a driver’s license without a work permit. Tr. 413-14, 742-50. Brinklys also addressed the issues USCIS had identified concerning the documents Brinklys had filed to show that his marriage to Aurelija was genuine. Brinklys explained that the life-insurance application listed an Illinois driver’s license for Aurelija because she had been unable to obtain a Florida driver’s license. Tr. 415. He stated that the joint account statements do not reflect much activity because he and Aurelija do not make much money, and their finances are “simple.” Tr. 415, 420. He explained that one of the photographs of the two of them incorrectly shows a date of January 7, 2004, because Aurelija had not set the proper date on the camera. Tr. 415. He contended that they took the picture in April 2008. Tr. 415. To illustrate his point, he provided a picture from 2003 to show the difference in Aureli-ja’s appearance. Tr. 415, 581, 583, 585, 587-90. To address the receipt from the Chicago furniture store, Brinklys explained that the furniture store at issue “caters to the Lithuanian community in Chicago and has good prices,” and that he was able to deliver his own furniture while driving a truck during the course of his employment. Tr. 416.
Brinklys contended that he and Aurelija might have appeared hesitant during the USCIS interview because they “sometimes do not understand English as well as they want to” and wanted to ensure that théy understood the questions. Tr. 416. He further asserted that the interviewer was “abusive and unprofessional.” Tr. 416.
Brinklys argued that Aurelija’s letter about her relationship with Caruso provid
As to Brinklys’s statement on an affidavit that he was Kalinauskas’s “cousin,” Brinklys explained that he and Kalinaus-kas were good friends and that “[i]n certain countries and cultures, close Mends are often referred to as uncles, aunts, or by other familial designations.” Tr. 418. He asserted that Aurelija was not aware of his undisclosed marriage when she helped complete the 1-130 Petition and provided an affidavit to that effect. Tr. 419, 740. He stated that the Savannah, Georgia, address was actually his boss’s address and that he stayed there initially when he was relocated to Savannah before moving to a long-term motel. Tr. 419. And, he explained that the Palos Hills, Illinois, address is his sister’s residence, which he occasionally uses for deliveries and business so he can pick things up there when in Chicago for work. Tr. 419.
Finally, Brinklys submitted additional documents to further support his claim that his marriage to Aurelija was genuine. Those documents included bank statements, utility bills, automobile and property records, and joint income-tax filings. Tr. 420-21, 600-704.
On November 7, 2011, USCIS issued a decision denying Brinklys’s 1-130 Petition based op its findings that (1) Aurelija had previously entered into a marriage with Caruso for the sole purpose of evading immigration laws, and (2) Brinklys had failed to provide sufficient evidence to establish by a preponderance of the evidence that his marriage to Aurelija was bona fide. Tr. 10-17 (“USCIS Decision”). The bulk of USCIS’s discussion was taken from its NOID, but USCIS also explained its rejection of the additional arguments and evidence Brinklys had submitted. Specifically, the USCIS Decision stated that the bank statements offered to show the validity of Aurelija and Caruso’s marriage were insufficient because they reflected almost no activity. Tr. 14. It explained that the additional bills carried little weight because the bills related to the Royal Isle Circle residence, and Aurelija had previously stated that Kalinauskas paid all of the expenses for that residence. Tr. 14. And it explained that there was no evidence that Aurelija and Caruso were saving money at the time, as Aurelija claimed. Tr. 14.
As to the explanation regarding Caruso’s recently obtained identification, the USCIS Decision noted that Brinklys failed to provide any evidence substantiating the claim that Caruso’s original license had been suspended. Tr. 15. Similarly, it noted that there was no objective evidence supporting the explanation for Caruso’s December 2004 lease of the Bluff Street apartment, and that the explanations offered were “vague and inconsistent.” Tr. 15.
The USCIS Decision explained that Au-relija still failed to adequately explain why she had reported, to law enforcement that she had known Kalinauskas for only eight years but later claimed that he was her adoptive brother. Tr. 15. It observed that Brinklys failed to address the previously identified issues with the letters from Au-relija’s purported neighbors and the physician in Lithuania. Tr. 15. It further noted that the response to the NOID at one point referred to Kalinauskas and Aurelija as “good friend[s].” Tr. 15. And it observed that, despite being told of the deficiencies in Aurelija’s and Caruso’s letters, neither fever provided additional details or evidence. Tr. 15.
Turning to Brinklys’s marriage to Aure-lija, the USCIS Decision stated that Brink-lys offered “no credible reasoning why” he failed to tell. Aurelija about one of his prior marriages. Tr. 15. It found that Aurelija’s explanation for why she had an Illinois driver’s license at a time when she claimed to be living in Florida was insufficient because the fact remained that she “was presenting herself as a resident of another state at the same time she presents herself as residing with” .Brinklys in Florida. Tr. 15-16. Concerning the life-insurance application, the USCIS Decision noted that Brinklys still failed to provide any evidence that they ever submitted the application. It observed that none of the statements from the joint bank accounts showed any activity outside of Florida despite that Brinklys was frequently out of state on business. Tr. 16. Finally, it gave little weight to the property records based on Brinklys’s prior assertion that “having joint property with someone does nothing more than indicate possible credit issues.” Tr. 16.
Brinklys appealed the USCIS Decision to the Board of Immigration Appeals (“BIA”) on January 5, 2012. Tr. 100-24. He provided a significant amount of new evidence with his briefs. See Tr. 118-19, 121 (listing documents submitted for the first time with appellate brief “as the result of new allegations raised for the first time in the denial notice”). On August 26, 2014, the BIA affirmed the USCIS Decision on both grounds. Tr. 24-27. In doing so, it highlighted some of the findings in the USCIS Decision relating to its discussion of Aurelija’s marriage to Caruso. Specifically, the BIA focused on (1) the fact that Caruso had obtained his identification showing the Isle Royal Circle address three days before the USCIS interview; (2) Aurelija’s and Kalinauskas’s statements to law enforcement on February 24, 2005; (3) the property records relating to the Isle Royal Circle and Arapahoe Court properties; (4) Mrs. Caruso’s statements during the interview with ICE agents; and (5) the
The BIA specifically rejected several of Brinklys’s contentions. First, it rejected his assertion that the February 24, 2005, police report was unreliable because it recorded that Aurelija had stated both that she had known Kalinauskas since childhood and that they had been close friends for about eight years. Tr, 25. The BIA did not find those statements contradictory. Tr. 25. Further, it rejected Brinklys’s assertion that Aurelija’s poor English skills caused her to misspeak to law enforcement because there was no documentation of any such limitations in communication, either in the police report or through other evidence. Tr. 25. The BIA also rejected Brinklys’s complaint that he was not provided with copies of police reports, the ICE report on the marriage-fraud investigation, or property records. Tr. 26. It observed that 8 C.F.R. § 103.2(b)(16)(i) required USCIS to advise Brinklys of the derogatory information but did not require it to provide actual documents. Tr. 26-27. The BIA rejected Brinklys’s contention that USCIS would have denied Caruso’s I-130 Petition in 2005 if it really believed that the marriage was fraudulent, observing that there was no requirement that the prior petition be denied on such grounds. Tr. 27. It discounted Brinklys’s assertion that neither Aurelija nor Caruso had ever been informed that USCIS suspected that their marriage was fraudulent, explaining that Brinklys did not establish that USCIS was required to give such notice, or that Aurelija had been prejudiced by the lack of notice. Tr. 27. In the end, the. BIA also summarily affirmed the USCIS’s determination that Brinklys had failed to establish that his marriage to Aurelija was bona fide. Tr. 27.
Plaintiffs filed this case on October 6, 2014. See Complaint. They seek a writ of mandamus compelling Defendants to properly adjudicate Brinklys’s 1-130 Petition and Aurelija’s 1-485 Application, or, alternatively, review of the BIA’s decision under the Administrative Procedure Act, 5. U.S.C. §§ 702, 706 (“APA”). Complaint ¶¶ 12, 37. They allege that USCIS failed and refused to fully disclose the derogatory information on which it based its adverse decision in accordance with 8 C.F.R. § 103.2(b)(16), thereby violating Brinklys’s due-process rights. Id. ¶¶ 22-25. Additionally, they contend that USCIS’s denial of the 1-130 petition, and the BIA’s affir-mance of that decision, constituted a “legal wrong” within the meaning of the APA. Id. ¶31. And last, they assert that USCIS should not have denied Aurelija’s 1-485 Application at the same time it denied Brinklys’s 1-130 Petition because Brink-lys’s subsequent appeal of the denial of his petition precluded the USCIS Decision from being a “final decision” on which to base denial of the 1-485 Application. Id. ¶¶ 33-34.
II. Standard of Review
Ordinarily, Rule 56, Federal Rules of Civil Procedure (Rule(s)), governs the Court’s review of a motion for summary judgment. Under that standard, “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Rule 56(a),. However, “when a party seeks review of agency action under the APA, the district judge sits as an appellate tribunal,” and “[t]he ‘entire case’ on review is a question of law.” Am. Bioscience, Inc. v. Thompson,
The APA “sets forth the full extent of judicial authority to review executive agency action for procedural correctness.” FCC v. Fox Television Stations, Inc.,
where the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could notbe ascribed to a difference in view or the product of agency expertise.
Defenders of Wildlife,
III. Analysis
A. Legal Framework
The Immigration and Nationality Act, 8 U.S.C. §§ 1101-1537 (“INA”), establishes the process through which a United States citizen may bring an alien who is a close relative, such as a spouse, to reside lawfully in the United States. See 8 U.S.C. §§ 1161(b)(2)(A)®, 1154. To do so, the United States citizen (“the petitioner”) must file an 1-130 Petition on the alien relative’s behalf requesting that USCIS formally recognize the relationship and classify the alien (“the beneficiary”) as an “immediate relative.” 8 U.S.C. § 1154(a); 8 C.F.R. § 204.1(a)(1). The petitioner bears the burden of proving the validity of the claimed relationship by a preponderance of the evidence. 8 C.F.R. §§ 204.1(f), 204.2(a)(2); Matter of Pazandeh, 19 I. & N. Dec. 884, 887 (BIA 1989). The INA prohibits USCIS from approving an 1-130 Petition if the beneficiary has at any time entered into a marriage for the purpose of evading the immigration laws:
Notwithstanding the provisions of subsection (b) of this section no petition shall be approved if (1) 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 or the spouse of an alien lawfully admitted for permanent residence, by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws, or (2) 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.
8 U.S.C. § 1154(c); see Diaz v. U.S. Citizenship & Immigration Servs.,
B. Mandamus Relief
As an initial matter, Plaintiffs titled their Complaint as a “Complaint for Issuance of Writ of Mandamus,” and they requested a writ of mandamus compelling
Nevertheless, even if Plaintiffs have not abandoned their request for mandamus relief, they have not established that such relief is warranted. Mandamus is an extraordinary remedy available only upon a showing that the plaintiff has no other adequate remedy. Cash v. Barnhart,
Plaintiffs contend that USCIS did not adequately disclose the “derogatory information” on which it intended to rely in concluding that Aurelija’s marriage to Caruso was fraudulent. See Plaintiffs’ Motion at 5-12; Plaintiffs’ Response at 2-6. They contend that they were entitled to the documents themselves and that USCIS never provided the documents but instead merely summarized their contents. Defendants respond that USCIS complied with the applicable regulations by providing a detailed summary of the derogatory information. Defendants’ Response at 18-20.
. Under 8 C.F.R. § 103.2(b)(16), “[a]n applicant or petitioner shall be permitted to inspect the record of the proceeding which constitutes the basis for the decision.” Specific to Plaintiffs’ claim, 8 C.F.R. § 103.2(b)(16)(i) provides:
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 petitioner is unaware, he/she shall be advised of this fact and offered an opportunity 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 in behalf of the applicant or petitioner shall be included in the record of the proceeding.
“A determination of statutory eligibility shall'be based only on information contained in the record of proceeding which is disclosed to the applicant or petitioner, except [to the extent information relied on is classified in the interest of national security].” 8 C.F.R. § 103.2(b)(16)(ii).
Contrary to Plaintiffs’ assertions, § 103.2(b)(16) does not require USCIS to provide a petitioner with the original evidence underlying the derogatory information on which it intends to rely. “The plain language of § 103.2(b)(16)(i) requires that USCIS ’advise[]’ the petitioners whose claims are about to be denied of the ’derogatory information’ that forms the basis for the denial. ... [I]t does not require USCIS to provide documentary evidence of the information, but only sufficient information to allow the petitioners to rebut the allegations.” Mangwiro v. Johnson,
Plaintiffs cite Ghafoori v. Napolitano,
The plaintiff alleged that USCIS failed to comply with § 103.2(b)(16)(ii) because it did not provide copies of the x-rays. Id. at 878. The court in Ghafoori observed that several courts had interpreted subsection (i) as imposing no requirement that USCIS provide copies of the actual evidence to a petitioner. Id. at 880. Nevertheless, it pointed out that the plaintiff alleged a violation of subsection (ii) — not subsection (i) — and concluded that subsection (ii) “imposes the unambiguous requirement that the information be disclosed to the petitioner.” Id. Based on that conclusion, the court determined that USCIS violated subsection (ii) in failing to provide the x-rays to the plaintiff. Id. at 881.
Ghafoori directly conflicts with the Seventh Circuit’s decision in Ghaly v. I.N.S.,
Although neither Ghafoori nor Ghaly is binding on this Court, the Court finds the reasoning in Ghaly to be more persuasive. First, this case is factually more similar to Ghaly than Ghafoori: as in this case, Ghaly involved an individual’s statement, which the adjudicating agency summarized. Additionally, as previously noted, most courts have concluded that § 103.2(b)(16)(i) does not require USCIS to provide copies of derogatory evidence to a petitioner. The BIA has reached the same conclusion, albeit in unpublished opinions. See, e.g., In re: Liedtke, No. A070 656 080,
Moreover, although the court in Ghafoo-ri purportedly construed subsection (ii), its reasoning related more to subsection (i). The court stated:
Divorcing the doctor’s analysis from the medical records on which he relied creates an impossible burden for any petitioner attempting to rebut his conclusion. In the absence of the x-rays it interprets, the doctor’s letter is unimpeachable; it allows for no second opinion, and therefore no meaningful rebuttal. The right to rebut that the regulations explicitly confer would be nullified.
Ghafoori,
Plaintiffs also cite Matter of Estime, 19 I. & N. Dec. 450 (BIA 1987), for the proposition that “a petitioner must be given the specific information contained in a record of proceedings that forms the basis of an intention to deny a visa petition.”
[A] notice of intention to revoke must include a specific statement not only of the facts underlying the proposed action, but also of the supporting evidence .... Similarly, with respect to a decision to revoke, we ask whether the evidence of record at the time the decision was issued .... warranted such a denial. Where a notice of intention to revoke is based on an unsupported statement or unstated presumption, or. where the petitioner is unaware and has not been advised of derogatory evidence, revoca? tion of the visa petition cannot be sustained.
Estime, 19 I. & N. Dec. at 452 (emphasis added). Here, the NOID included a specific statement of the evidence on which the derogatory information was based (e.g., property records, the police report, and witness interviews). Tr. 2-3. Furthermore, the USCIS Decision was based on the Fraud Investigation Report, which was “evidence of record at the time the decision was issued.”
For the foregoing reasons, the Court concludes that USCIS adequately disclosed the derogatory information in the NOID, in accordance with 8 C.F.R. § 103.2(b)(16).
Plaintiffs also contend that the BIA violated Brinklys’s due-process rights in failing to consider the administrative record as a whole. Plaintiffs’ Motion at 12-20. Although they frame this argument as being based on a violation of substantive due process, they cite only the APA’s “arbitrary and capricious” standard and Defenders of Wildlife. See Plaintiffs’ Motion at 12-13. Defenders of Wildlife, in turn, also cites only the “arbitrary and capricious” standard and makes no mention of due process. See Defenders of Wildlife,
Plaintiffs take issue with USCIS’s rejection of the evidence they had submitted to rebut the derogatory information in the NOID. See Plaintiffs’ Motion at 14-16. However, the BIA provided its own rear soning for some parts of its decision and relied on USCIS’s reasoning for other parts. See Tr. 24-27. When the BIA provides an independent analysis on review, a court reviews only the BIA’s decision, except to the extent the BIA expressly adopts USCIS’s reasoning. See Jiang v. U.S. Attorney Gen.,
It appears that the BIA relied on USCIS’s reasons for rejecting Aurelija’s explanations for her statements to law enforcement concerning her relationship to Kalinauskas. See Tr. 25 (“We agree with
Far from ignoring evidence in the record, USCIS spent considerable time explaining why it gave little weight to the evidence and statements Plaintiffs presented concerning Aurelija’s relationship with Kalinauskas. See Tr. 11-16. Plaintiffs contend that USCIS’s wholesale rejection of the favorable evidence demonstrates an inherent bias against them and suggests that USCIS had prejudged the validity of the two relationships without giving Plaintiffs a meaningful opportunity to convince it otherwise. Plaintiffs’ Motion at 13-16; Plaintiffs’ Response at 8-10. But the Court cannot conclude based on the record before it that USCIS’s consideration of the evidence was inadequate or one-sided. Rather, USCIS’s decision reflects a deep skepticism of Aurelija’s credibility based on significant evidence of marriage fraud— particularly as to the Caruso marriage— which caused it to require convincing evidence explaining the serious issues the evidence before it had raised. That it found Brinklys’s subsequent explanation in responding to the NOID lacking does not demonstrate a failure to view the evidence as a whole, particularly when considering that, as discussed more fully infra, many of the proffered explanations were inconsistent, undocumented, and/or unveriflable. To the extent the BIA independently evaluated the evidence concerning whether Aurelija and Caruso lived together during their marriage, as they claimed, its discussion demonstrates that it considered and rejected Brinklys’s arguments as either unpersuasive or unsupported.
The only specific pieces of evidence Plaintiffs claim USCIS and the BIA “completely ignored” are a “detailed time-line regarding all pertinent events” and “detailed affidavits” from Brinklys, Aurelija, and several friends and family. See Plaintiffs’ Motion at 15 (citing Tr. 53-61, 125-40, 186-200, 208-18, 230-39, 244-45, 247-52, 254-56, 262-63, 267-68). But US-
Except for taking administrative notice of commonly known facts such as current events or the contents of official documents, the [BIA] will not engage .in factfinding in the course of deciding appeals. A party asserting that the [BIA] cannot properly resolve an appeal without further factfinding must file a motion to remand. If further factfinding is needed in a particular case, the [BIA] may remand the proceeding to the immigration judge or, as appropriate, [US-CIS]. ■
Consistent with this regulation, courts routinely reject claims based on evidence submitted for the first time to the BIA on appeal. See Aragoncillo v. Attorney Gen. of U.S.,
For those reasons, the Court concludes that the BIA and USCIS adequately considered the administrative record as a whole.
E. Sufficiency of the Evidence
Plaintiffs also contend that the evidence in the administrative record does not support the BIA and USCIS’s findings.
The Court concludes that the BIA and USCIS did not act arbitrarily or capriciously in determining that substantial and probative evidence supported finding the Caruso marriage to be fraudulent. First, the record contains ample evidence undermining, Aurelija’s claim that she lived with Caruso during their marriage. Specifically, Aurelija only ever owned property jointly with Kalinauskas, including the Isle Royal Circle property that they owned as “husband and wife.” Tr. 883. Caruso obtained an identification card with the purported marital address just three days before the September 13, 2005, USCIS interview. Tr. 882. Caruso’s November. 2004 lease application for the Bluff Street apartment indicated that he was single, had lived with his mother for the preceding 10 years, and intended to share the apartment with his son and no one else. Tr. 912. Upon his arrest on February 13, 2005, Caruso told law-enforcement officers that he resided at the Bluff Street apartment. Tr. 882. Mrs. Caruso told ICE agents in September 2005 that Caruso had lived with her immediately prior to moving in with his son at the Bluff Street apartment and that he had never lived in Plainfield, Illinois (where the Isle Royal Circle house was located). Tr. 882.
Brinklys attempted to rebut each of those facts. As to Aurelija’s joint property ownership with Kalinauskas, he explained that Caruso had filed for bankruptcy in 2002 and so was unable to qualify for a mortgage with Aurelija, so she purchased the Isle Royal Circle property with Kali-nauskas. Tr. 407-08, 411. He stated that Aurelija was unaware that property records listed her and Kalinauskas as “husband and wife.” Tr. 412. As to Caruso obtaining identification only a few days before the USCIS interview, Brinklys explained that Caruso learned that he would need current identification for the interview, and his driver’s license was suspended at the time. Tr. 405. As to Caruso’s statements on the lease application, Brink-lys explained that Caruso accurately listed his marital status as “single” because he and Aurelija were separated at the time, and Caruso did not list any prior residence other than his mother’s house because he had.never rented or owned any property before moving to the Bluff Street apartment. Tr, 410-11. Brinklys stated that Caruso told police he lived at the Bluff Street apartment because he and Aurelija were separated at the time. Tr. 410. Finally, Brinklys offered several potential explanations for Mrs. Caruso’s statements: (1) that Caruso never told her that he had married Aurelija because Mrs. Caruso had wanted him to marry and Italian-American or American woman; (2) that Mrs. Caruso was unhappy that Caruso had married Au-relija instead of an Italian-American or American woman and was angry with Au-relija for not bailing Caruso out of jail after his most recent DUI arrest; and (3) that Mrs. Caruso lied about Caruso’s residence to protect him because he had problems with the law in the past. Tr. 110-11, 410.
The BIA’s finding that Aurelija and Caruso never lived together was not arbi
In addition to the evidence indicating that Caruso and Aurelija had never lived together, the BIA relied on other evidence supporting a conclusion that their marriage was not genuine. Mrs. Caruso stated that she was unaware that Caruso was married at all and that she thought he and Aurelija had broken up much earlier. Tr. 26, 882. Kalinauskas told law enforcement that Aurelija was his girlfriend. Tr. 26, 882. And Aurelija told law enforcement that she had known Kalinauskas for only eight years. Tr. 11, 25. As discussed, Brinklys attempted to demonstrate that Aurelija and Kalinauskas did not have a romantic relationship but were actually siblings.
USCIS’s reasons for rejecting Brinklys’s evidence and assertions concerning the nature of Aurelija’s relationship with Kali-nauskas, which the BIA adopted, are not arbitrary or capricious. It rejected the letters from the neighbors and physician in Lithuania as unverifiable and lacking in detail. Tr. 4, 13-14. As to the neighbors’ letter, although it was notarized (thus providing some verification of the identities of the signatories), it stated nothing more than that they were Aurelija’s family’s neighbors and that they know Kalinauskas grew up with that family. Tr. 4, 14, 561. The letter provided the signatories’ address but did not explain where they lived in relation to Aurelija’s family. Tr. 4, 14, 561. The neighbors did not indicate how well they knew Aurelijá’s family or whether they interacted with them. See Tr. 561. And their letter provided no means for USCIS to follow up with them to fill in those details. See id. As to the physician’s letter, USCIS expressed skepticism that a physician would remember a patient from at least 20 years earlier or that the clinic where he worked would have maintained patient records for that length of time. Tr. 4,14. Brinklys explained that the physician was a relative of Aurelija’s and that Lithuanian law requires medical facilities to retain medical records permanently, but he provided no evidence substantiating either of those claims. See Tr. 417. As to the letter’ from Aurelija’s mother, USCIS questioned her general credibility by highlighting that her statement that she had lost touch with Kalinauskas was inconsistent with other evidence that Kalinauskas continuously lived with Aurelija when they moved to the United States, and that Au-relija’s mother had been to their shared residence when she visited the United States. Tr. 5,14. Finally, as to the purported custody order, USCIS observed that it
In light of all of that evidence, the BIA did not act arbitrarily or capriciously in determining that there was substantial and probative evidence that Aurelija married Caruso for the purpose of evading immigration laws. Although the evidence of shared bank accounts and financial responsibilities might have weighed in favor of the validity of that marriage, neither that evidence nor any other evidence or explanation Brinklys provided compels a conclusion contrary to that reached by USCIS and the BIA.
IV. Conclusion
In light of the foregoing, Defendants’ Motion is due to be granted, and Plaintiffs’ Motion is due to be denied. Accordingly, it is hereby
ORDERED:
1. Defendants’ Motion for Summary Judgment (Doc. 21) is GRANTED.
2. Plaintiffs [sic] Motion for Summary Judgment and Supporting Memorandum of Law (Doc. 22) is DENIED.
8. The Clerk of the Court is directed to enter JUDGMENT in favor of Defendants and against Plaintiffs and close the file.
DONE AND ORDERED in Jacksonville, Florida, on March 30, 2016.
Notes
. Loretta Lynch was sworn in as United States Attorney General on April 27, 2015. Pursuant to Rule 25(d), Federal Rules of Civil Procedure, she was automatically substituted as a Defendant in this, case in the place of former Attorney General Eric Holder.
. The record reflects that Plaintiff Aurelija Caruso was born Aurelija Liutkeviciute; married in 1988 and took the last name Stock-iene; and remarried in 1994 and took the last name Gotautiene. Tr. 793, 795. Because she apparently now goes by Aurelija Caruso, see Doc. 1 at 1, the Court refers to her as Aurelija to avoid confusion when discussing her and her first U.S,-citizen husband Frank Caruso.
. The NOID and USCIS Decision indicate that Caruso was arrested for a DUI on September IS, 2005. Tr. 3, 12. It appears that USCIS misread the memorandum, which stated that the ICE agent investigating Aureli-ja and Caruso's marriage received the report of the February 13, 2005, arrest on September 15, 2005. See Tr. 882. The BIA noted the error in its decision and found the error harmless. Tr. 26 n.4.
. The APA also allows a reviewing court to set aside agency actions that are "unsupported by substantial evidence.” 5 U.S.C. § 706(2)(E). However, that provision applies only to cases "subject to [5 U.S.C. §§ 556 and 557] or otherwise reviewed on the record of an agency hearing provided by statute.” Id. It is unclear whether the "substantial evidence” standard applies to review of the particular agency action involved in this case (denial of a petition seeking to establish an alien as an immediate relative of a U.S. citizen for immigration purposes). Some courts have cited both the "arbitrary and capricious” and "substantial evidence” standards in this context. See, e.g., Diaz v. U.S. Citizenship & Immigration Servs.,
. In the Complaint, Plaintiffs alleged that "mandamus is appropriate because there are no other remedies at law that would require the agency to act within its statutory mandate.” Complaint ¶ 38. For the reasons discussed below, that contention fails. The APA requires a reviewing court to both "compel agency action unlawfully withheld” and "hold unlawful and set aside” an action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(1), (2)(A).
. On January 11, 1994, the INS amended § 103.2(b) by redesignating subsection (3) as subsection (16), where the provision at issue remains in the current regulation. See Changes in Processing Procedures for Certain Applications and Petitions for Immigration Benefits, 59 Fed. Reg. 1455-01, 1461 (Jan. 11, 1994). The regulatory language on which the court relied in Ghaly is identical to the language in the current version of the regulation. See Ghaly,
. The Court notes that the continued persuasive value of Estime is unclear. The BIA issued its opinion in that case on August 12, 1987. On July 11, 1988, the INS revised § 103.2(b). See Powers and Duties of Service Officers; Availability of Service Records; Immigration; Adjudication of Application or Petition, 53 Fed. Reg. 26034, 26035 (July 11, 1988). Among other changes, that amendment revised the language in § 103.2(b)(3) to replace the word "evidence” with the word "information” in most places. Id. Although the INS did not explain the reason for that change, the change in wording casts doubt on the continued viability of at least those portions of Estime that required a specific statement of the evidence (in addition to the facts drawn from the evidence) on which a notice relied and inclusion of all such evidence in the administrative record. The regulation now only requires USCIS to advise a petitioner of derogatory information and include all such information in the record.
. Although Plaintiffs do not state when they received a copy of the Fraud Investigation Report, they suggest that they only recently received it. See Plaintiffs’ Motion at 7, 10. Even if true, it does not follow that the report was not in the administrative record when USCIS issued its decision. Moreover, Plaintiffs make no effort to explain whether or when they requested the entire administrative record, or when they received it, nor do they suggest when it should have been provided to them. See generally id. Indeed, they do not argue that the Fraud Investigation, Report should have been disclosed sooner. Instead, they argue only that they should have received the documents underlying the report in addition to the report itself. See id. at 7-12,
. Plaintiffs speculate that the Choicepoint report might have included evidence corroborating Aurelija’s statement that she and Caruso jointly maintained finances. See Plaintiffs' ■ Motion at 11-12. They similarly speculate that the September 13, 2005, USCIS interview of Aurelija and Caruso referenced in the NOID might have produced testimony corroborating or undermining their assertion that their marriage was genuine. Plaintiffs' Motion at 12; Plaintiffs' Response at 4-5. But § 103,2(b)(16)(i) only requires USCIS to advise a petitioner of "derogatory information” on which it intends to base its decision-and of which the petitioner is unaware, and § 103.2(b)(16)(ii) requires only that any decision be based on information disclosed to the petitioner. Neither provision requires USCIS to advise of or disclose information that is neither derogatory nor relied upon in its decision.
Moreover, Aurelija had previously provided a contrary account of the September 13, 2005, interview in responding to the NOID. Specifically, she asserted that she actually was not interviewed at all that day; that officials interviewed Caruso only about his connection to Kalinauskas; and that the officials never asked about the relationship between Aurelija and Caruso. Tr. 405, 409. Indeed, it appears that USCIS misread the discussion of the 2005 interview in the Fraud Investigation Report, which in fact tends to support Aureli-ja's assertion that she was not questioned individually. See Tr. 882 (stating that an ICE agent "interviewed Caruso separately from Gotautiene” but providing no indication that Aurelija was questioned separately or that she and Caruso were ever questioned together). It therefore is unclear why Plaintiffs now believe that any record of that interview would contain information regarding the relationship between Aurelija and Caruso.
.In the introduction to a different part of their motion, Plaintiffs contend that USCIS violated Brinldys’s substantive due process rights in failing to comply with § 103.2(b)(16). See Plaintiffs’ Motion at 12. Plaintiffs’ bare assertion of a due-process vio
Additionally, in responding to Defendants’ Motion, Plaintiffs question the government’s assertion of privilege as to the police reports by analogizing to the "law enforcement” exemption under the Freedom of Information Act, 5 U.S.C. § 552(b)(7). See Plaintiffs' Response at 2-4. This analogy is unavailing. Because the Court has determined that the applicable regulations did not require USCIS to disclose the reports at all, its reasons for withholding them are irrelevant.
. Because Plaintiffs separately argue that the record evidence was insufficient to support the adverse decision, see Plaintiffs’ Motion at 20-23, the Court construes this argument as being solely focused on whether Defendants ignored or inadequately considered evidence in the record. The Court will separately address the sufficiency of the evidence on which they relied in reaching the adverse decision.
. To the extent Plaintiffs argue that the BIA and/or USCIS erred in failing to mention the appropriate standard when evaluating Aureli-ja's marriage to Caruso — whether the two “inten[ded to] establish[] a life together,” see Plaintiffs’ Motion at 16 (citing McLat v. Longo,
. The parties frame this argument based on the "substantial evidence” standard. Plaintiffs’ Motion at 20; Defendants’ Motion at 19-22. As discussed supra at 18 n.4, the appropriate standard is whether the evidence was such that the BIA — and, to the extent it relied on the USCIS Decision, USCIS — acted arbitrarily or capriciously in reaching their decisions. In any event, as the Court observed, the "arbitrary and capricious” standard, when applied in the context of evaluating sufficiency of the evidence, is functionally equivalent to the "substantial evidence" standard.
. Notably, as to Kalinauskas’s statement, Brinklys asserted only that the report was incorrect and that Kalinauskas had actually referred to Aurelija as his "female friend.” Tr. 408. Setting aside the fact that phrasing could still suggest a romantic relationship, Brinklys provided no evidence — such as an affidavit from Kalinauskas — supporting that was what Kalinauskas actually said.
. USCIS rejected the evidence of joint expenses because most of the submitted documents concerned utilities and other services at the Isle Royal Circle address, and Aurelija had admitted that Kalinauskas actually paid all of the expenses associated with that property. Tr. 14. It also observed that Brinklys’s explanation for Aurelijá and Caruso’s failure to pay any of the expenses at that address— that the two were saving money at the time— was unsubstantiated. Tr. 14. USCIS also discussed the significant evidence of Kalinaus-kas’s own marriage fraud and the fact that the petitions for Aurelija and Kalinauskas were filed on the same day. Tr. 12-13. The BIA did not directly address that evidence, and it is unclear whether it adopted the USCIS Decision to the extent that USCIS discussed that evidence.