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

Background

Doe I challenged the revocation of approval of his Form I-140 petition, the denial of a second Form I-140 petition, and the denials of Forms I-485 filed by Doe I, his spouse, and his two minor children, Does II–IV. The case involved petitions for an employment-based immigrant visa for a person claiming extraordinary ability.

The Government had approved Doe I’s first Form I-140 petition in December 2014. While the family’s Forms I-485 applications were pending, the agency paused their adjudication during an investigation and later reconsidered Doe I’s approved petition. In February 2018, the agency issued a Notice of Intent to Revoke. That notice analyzed the ten regulatory criteria and concluded that Doe I met none of them. It stated that the agency would not perform the second-stage “final merits determination” because Doe I had not met at least three criteria. Doe I submitted additional evidence.

In June 2018, the agency revoked the approved petition, but it reached a different conclusion at the first stage: it found that Doe I had satisfied three criteria. The agency then conducted the final merits determination and concluded that Doe I had not shown sustained national or international acclaim or that he was among the small percentage at the top of his field. Because the first petition was revoked, the agency also denied the family’s Forms I-485. Doe I and the other plaintiffs brought this case under the Administrative Procedure Act and filed a motion for summary judgment. The Government filed a cross-motion for summary judgment.

Court’s analysis

The court reviewed the agency’s final action under the Administrative Procedure Act’s arbitrary-and-capricious standard. Under that standard, a court generally upholds an agency decision unless it was unreasonable, an abuse of discretion, or otherwise unlawful. The court emphasized that it was reviewing whether the administrative record legally permitted the agency’s decision, rather than resolving disputed facts or substituting its judgment for the agency’s.

The court did not reach the parties’ arguments about the agency’s three-year delay in revoking the petition or the strength of Doe I’s evidence. Instead, it decided the notice issue first. The governing statute and regulation required the agency to notify the petitioner of the grounds for revocation and give him an opportunity to submit evidence supporting the petition and opposing those grounds.

The court held that the notice and the final revocation decision were not based on the same grounds. The notice said Doe I failed to satisfy at least three of the ten criteria and expressly stated that the agency would not conduct a final merits determination. The final decision, however, found that Doe I satisfied three criteria and revoked the petition after conducting the final merits determination. The court concluded that Doe I was not given an opportunity to respond to the actual reason the agency ultimately used for revocation.

The court rejected the Government’s argument that general references to the final merits determination in the notice provided adequate warning. It also rejected the argument that a Request for Evidence concerning Doe I’s second petition supplied the missing notice, because that request came after Doe I’s opportunity to respond to the revocation notice had already ended. The court declined to find that Doe I had waived the notice argument because his complaint and briefing had challenged the adequacy of the revocation notice under the governing statute and regulation.

Remedy and disposition

The court found the revocation arbitrary and capricious. Because the denials of Doe I’s and Does II–IV’s Forms I-485 were based solely on that revocation, the court found those denials arbitrary and capricious as well.

The court declined the plaintiffs’ requests for broader relief, including limiting the remand to the final merits stage, completely vacating the agency decisions, restoring an earlier immigration status, and requiring new immigration documents. It concluded that the appropriate remedy was a narrow remand to the agency.

The court ordered remand to U.S. Citizenship and Immigration Services for proceedings consistent with the order. The agency was directed to issue a new post-notice communication concerning Doe I’s approved Form I-140 petition within 60 days after judgment, with communications concerning the family’s Forms I-485 to follow the final decision on the Form I-140 petition. The court ordered that the plaintiffs’ motion for summary judgment was granted in part and denied in part, the Government’s motion for summary judgment was denied, and the clerk was directed to close the case. The court also denied the Government’s administrative motion referenced in the opinion.