Doe 1-4 v. United States Department of Homeland Security

Background

This was an immigration case seeking to require agency action under the Administrative Procedure Act. Plaintiffs Doe I, Doe II, Doe III, and Doe IV moved to complete the administrative record—the materials the agency considered when making its decisions.

USCIS approved Doe I’s petition for O-1 nonimmigrant status for January 2013 through January 2016. USCIS later approved Doe I’s immigrant petition for a worker of extraordinary ability and Doe I applied to become a lawful permanent resident. More than three years later, USCIS sent Doe I a notice that it intended to revoke the immigrant petition’s approval. Doe I submitted more than 150 pages of new evidence, but USCIS ultimately revoked the petition in June 2018. USCIS denied Doe I’s permanent-residence application on June 28, 2021.

A USCIS official certified that the administrative records for all four plaintiffs were true, correct, and complete. The plaintiffs argued that Doe I’s record did not explain the unusually long delay before the revocation or include communications from agency employees below the director of the Nebraska Service Center. The defendants argued that USCIS had authority to revoke the petition at any time and that the plaintiffs had not identified particular missing documents.

Legal standard

Judicial review of agency action generally is limited to the administrative record. The court may order the agency to complete that record when it has not submitted the whole record, including documents and materials considered directly or indirectly by agency decision-makers. An agency’s certification receives a presumption of regularity, but a plaintiff can overcome that presumption with clear evidence by identifying reasonable, non-speculative grounds for believing that considered documents were omitted and identifying the missing materials with sufficient specificity. The plaintiff does not have to show bad faith or an improper motive.

Court’s analysis

The court found that the plaintiffs met this standard. The record’s silence about the more-than-three-year delay—described as more than six times the typical processing time—and the reversal of earlier findings about Doe I’s qualifications provided reasonable, non-speculative grounds to believe that the record was incomplete. The court also found that the plaintiffs specifically identified potentially omitted communications from employees below the Nebraska Service Center’s director. The court rejected the defendants’ proposed requirement that the plaintiffs identify each particular missing document, reasoning that such a requirement could force them to already possess the materials they were seeking.

The court relied on an earlier decision addressing a delayed revocation of immigration status, while noting that the earlier decision had reached the merits and this motion concerned the administrative record. The court also explained that records need not be limited to documents that reached the agency’s most senior officials; the record must include materials considered directly or indirectly by the agency.

Deposition request

The plaintiffs alternatively asked the court to require USCIS to provide a knowledgeable person for a deposition if the defendants could not supplement the record with documents explaining the delay. The court deferred consideration of that request so it could review a more developed discovery request after the defendants complied with the order. The court did not decide whether a deposition would be required.

Order

The court granted the plaintiffs’ motion to complete the administrative record. It ordered the defendants to produce and include, by August 31, 2021, all documents directly or indirectly before the agency, including records from employees subordinate to the Nebraska Service Center’s director and records regarding any decision to review Doe I’s application, whether for the first time or later. The court deferred the deposition issue.