Oyekoya v. Secretary, Department of Homeland Security et al

Cross MOTION for summary judgment

M.D. Fla.August 15, 2016

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION Adebola Iretiola Oyekoya, X Plaintiff, X X v. X X Jeh Johnson, Secretary, Department of X Case No. 8:15-cv-1439 Homeland Security; Loretta Lynch, X U.S. Attorney General X Leon Rodriguez, Director, X Citizenship and Immigration Services X Juan P. Osuna, Director, Executive Office X For Immigration Review, X Defendants X _____________________________________/ PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND SUPPORTING MEMORANDUM OF LAW I. INTRODUCTION Plaintiff moves for summary judgment under Federal Rule of Civil Procedure 56(a) asserting there is no genuine dispute as to any material fact and Plaintiff is entitled to judgment as a matter of law. See Fed. R. Civ. Pro. 56(a). Plaintiff asserts that Defendants' decision denying the Form I-130, Petition for Alien Relative (“Form I-130”), seeking to accord her father with an immigrant visa was “arbitrary and capricious and contrary to law and fact” in violation of the Administrative Procedure Act (“APA”). II. STATUTORY AND REGULATORY FRAMEWORK Plaintiff filed a Form I-130 with US Citizenship and Immigration Services (“USCIS”) seeking to accord her father, Olusanya Oyekoya (“Beneficiary”), an immigrant visa as the father of a citizen of the United States (“USC”) in accordance with 8 U.S.C. §1151(b)(2)(A)(i). This petition was filed with the administrative agency on September 17, 2012. USCIS denied the visa petition on January 28, 2014 and pursuant to 8 U.S.C. §1154(c), concluding that the approval of the petition was prohibited by virtues of what it Case 8:15-cv-01439-MSS-TGW Document 34 Filed 08/15/16 Page 1 of 14 PageID 200 2 concluded was previous marriage fraud committed by the Beneficiary. Plaintiff exercised her right to file an administrative appeal pursuant to 8 C.F.R. §1003.1(b)(5) and this filing was made on or about February 26, 2014. The Board of Immigration Appeals (“Board”) issued a decision on November 18, 2014 dismissing Plaintiff’s appeal, thus affirming the decision made by USCIS. Plaintiff thereafter filed a complaint in the District Court on June 18, 2015 seeking review of the agencies’ orders under the APA. III. FACTS AND COURSE OF PROCEEDINGS Plaintiff submits that the pertinent facts at issue herein are as follows. Plaintiff is a USC and the Beneficiary is her biological father. Plaintiff filed a Form I-130, seeking to accord the Beneficiary an immigrant visa as an “immediate relative.” Beneficiary is a native and citizen of Nigeria. On or about June 14, 1985, Beneficiary married Norma Washington (“Norma”), also a USC. Shortly thereafter, Norma filed a Form I-130 with the legacy Immigration and Naturalization Service on Beneficiary’s behalf. That same day, Norma is alleged to have filed a Withdrawal of Immediate Relative Visa Petition stating her marriage to be a “sham” and entered into for the purpose of helping the Beneficiary remain in the United States. In Norma’s sworn statement she stated she was trying to help the Beneficiary obtain his immigration status. She did not love him, the marriage had never been consummated, they did not live together and she was offered $1,200 for her “assistance.” Beneficiary, also allegedly provided a sworn statement on October 3, 1985 (the same date Norma submitted the Form I-130 on behalf of Beneficiary). In his sworn statement, the Beneficiary stated it was his idea to offer Norma money to marry him and help him resolve his immigration status. He further stated the two never lived together and his only wish was to return home to Nigeria. Additionally, he wished to forgo deportation proceedings and he had a plane ticket available for his return to Nigeria. On June 30, 1987, the Beneficiary and Regina Louise Oyekoya (“Regina”) were married. Regina was a USC and filed a Form I-130 on behalf of the Beneficiary in 1994. Regina later withdrew this Form I-130. No further actions were taken until Plaintiff filed Form I-130 on behalf of her father on January 27, 2008. USCIS approved the Form I-130 initially on June 11, 2008. Case 8:15-cv-01439-MSS-TGW Document 34 Filed 08/15/16 Page 2 of 14 PageID 201 3 However, on October 20, 2011, USCIS issued a notice of intent to revoke (“NOIR”) stating the visa petition was barred pursuant to 8 U.S.C. §1154(c) because the Beneficiary had previously entered a fraudulent marriage. Plaintiff responded to the NOIR after which USCIS revoked and denied the petition on February 17, 2012. On appeal before the Board, Plaintiff argued that USCIS had failed to establish marriage fraud by the requisite “substantial and probative evidence” required by case law. On November 8, 2013, the Board remanded the record to USCIS with instructions to incorporate all evidence of prior marriage fraud and make an independent determination as to whether 8 U.S.C. §1154(c) applied. USCIS affirmed its decision on January 17, 2014. In the interim Plaintiff filed another Form I-130, on September 17, 2012. On January 28, 2014, USCIS again denied the petition stating approval was barred under 8 U.C.S. §1154(c). On February 27, 2014, the Petitioner filed a timely appeal of the Director’s finding. The Board dismissed the appeal on November 18, 2014. These proceedings are based on the Form I-130 Petitioner filed on behalf of the Beneficiary in 2012. IV. ARGUMENT A. Statement of Jurisdiction This is a civil action brought pursuant to 28 U.S.C. §1331 and §1361 to redress the deprivation of rights, privileges and immunities secured to Plaintiff, by which jurisdiction is conferred, to compel Defendants to perform duties owed to Plaintiff. Jurisdiction is also conferred by 5 U.S.C. §704. Plaintiff is aggrieved by adverse agency action in this case, as the Administrative Procedure Act requires in order to confer jurisdiction on the District Courts, 5 U.S.C. §§702 et seq. B. Standard of Review Summary judgment is appropriate if the movant shows there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a); Roberts v. Spielman, 643 F.3d 899, 901 (11th Cir. 2011). A genuine issue of material fact exists only if a reasonable jury could return a favorable verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The burden is on the moving party to demonstrate the absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). When the Case 8:15-cv-01439-MSS-TGW Document 34 Filed 08/15/16 Page 3 of 14 PageID 202 4 court is considering a summary judgment motion regarding agency action, its role is “to determine whether or not as a matter of law, evidence in the administrative record permitted the agency to make the decision it did.” Forest Serv. Employees for Envtl. Ethics v. U.S. Forest Serv., 689 F. Supp. 2d 891, 895 (W.D. Ky. 2010) (internal quotations and citations omitted). C. The Administrative Procedure Act requires that agency action be set aside where it is found to be arbitrary and capricious The Court reviews the Agency’s final action under the arbitrary and capricious standard of the APA. See Afl-Cio v. Federal Election Com’n, 177 F. Supp. 2d 48, 54 (D.D.C., 2001). The APA provides that “the reviewing court shall … hold unlawful and set aside agency action, findings, and conclusions found to be … arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. §706(a)(A). In applying this standard, the Court must consider whether the Service has made “findings that support its decision and those findings must be supported by substantial evidence.” Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962). An agency abuses its discretion when it actions are deemed “arbitrary and capricious.” The United States Supreme Court has determined an agency action is arbitrary and capricious when “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 not be ascribed to a difference in view of the product of agency expertise.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). The agency also abuses its discretion when it inexplicably departs from prior precedent, departs from tis own regulations, fails to consider all relevant factors, or considers irrelevant factors. INS v. Yang, 519 U.S. 26, 32 (1996) (“Though an agency’s discretion is unfettered at the outset, if it announces and follows- by rule or settled course of adjudication-a general policy by which its exercise of discretion will be governed, an irrational departure from that policy (as opposed to an avowed alteration of it) could constitute action that must be overturned as ‘arbitrary, capricious, [or] an abuse of discretion”). Plaintiff sets forth the legal issues that have been presented and litigated Case 8:15-cv-01439-MSS-TGW Document 34 Filed 08/15/16 Page 4 of 14 PageID 203 5 previously in the federal courts and before the administrative agencies in question, USCIS and the Board. These questions are: (1) how far must USCIS go when it is required to disclose derogatory information in accordance with 8 C.F.R. §103.2(b)(16); and (2) whether the government violates a visa petitioner’s substantive due process when it fails to provide information upon which adverse action is taken by the agency. D. How far must USCIS go when it discloses derogatory information in accordance with 8 C.F.R. §103.2(b)(16)? The first issue presented is whether USCIS has complied with the mandatory disclosure requirements set forth in 8 C.F.R. §103.2(b)(16). That provision states, in pertinent part, that “(i) Derogatory information unknown to petitioner or applicant. 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, except as provided in paragraphs (b)(16)(ii), (iii), and (iv) of this section. Any explanation, rebuttal, or information presented by or in behalf of the applicant or petitioner shall be included in the record of proceeding. (ii) Determination of statutory eligibility. 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 as provided in paragraph (b)(16)(iv) of this section. (iii) Discretionary determination. Where an applicant may be granted or denied in the exercise of discretion, the decision to exercise discretion favorably or unfavorably may be based in whole or in part on the classified information not contained in the record and not made available to the applicant, provided the USCIS Director or his or her designee has determined that such information is relevant and is classified under Executive Order No. 12356 (47 FR 14874; April 6, 1982) as requiring protection from unauthorized disclosure in the interest of national security. (iv) Classified information. An applicant or petitioner shall not be provided any information contained in the record or outside the record which is classified under Executive Order No. 12356 (47 FR 14874; April 6, 1982) as requiring protection from unauthorized disclosure in the interest of national security, unless the classifying authority has agreed in writing to such disclosure. Whenever he/she believes he/she can do so consistently with safeguarding both the information and its source, the USCIS Director or his or her designee should direct that the applicant or Case 8:15-cv-01439-MSS-TGW Document 34 Filed 08/15/16 Page 5 of 14 PageID 204 6 petitioner be given notice of the general nature of the information and an opportunity to offer opposing evidence. The USCIS Director’s or his or her designee’s authorization to use such classified information shall be made a part of the record. A decision based in whole or in part on such classified information shall state that the information is material to the decision.” 8 U.S.C. §103.2(b)(16)(i), (ii), (iii), and (iv). For purposes of this action, Plaintiff will assume that the “derogatory information” that is at issue is described at 8 U.S.C. §103.2(b)(16)(i). Plaintiff has no reason to believe any of the “derogatory information” that was relied upon to deny her Form I-130 was “classified” within the meaning of 8 U.S.C. §103.2(b)(16)(iv). Moreover, Plaintiff would submit that no evidence of record would support the conclusion that any of the “derogatory information” relied upon to deny the Form I-130 was “classified.” In Matter of Estime, 19 I&N Dec. 450 (BIA 1987), the Board discussed a case involving a notice of intent to revoke a previously approved visa petition. In its decision, the Board indicated that “[t]hose portions of the regulation relating to evidentiary requirements in visa petition proceedings apply, of course, to the revocation of approved visa petitions. Thus, with exceptions relating to classified information, the petitioner must be permitted to inspect the record of proceedings, must be advised of derogatory evidence of which he is unaware, and must be offered an opportunity to rebut such evidence and to present evidence in his behalf. Any such explanation, rebuttal, or evidence must be included in the record of proceedings. A determination of statutory ineligibility is not valid unless based on evidence contained in the record of proceedings.” The Board went on to state that “the 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 (e.g., the investigative report). Similarly, with respect to a decision to revoke, we ask whether the evidence of record at the time the decision was issued (including any explanation, rebuttal, or evidence submitted by the petitioner … warranted such a denial. Where a notice of intention to revoke is based on an unsupported statement or an unstated presumption, or where the petitioner is unaware and has not been advised of derogatory evidence, revocation of the visa petition cannot be sustained, even if the petitioner did not respond to the notice of intention to revoke.” Id. Case 8:15-cv-01439-MSS-TGW Document 34 Filed 08/15/16 Page 6 of 14 PageID 205 7 The regulations and the case law make clear 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. Furthermore, that the petitioner must be afforded a reasonable period of time upon which to offer a rebuttal evidence in response to an intention to deny a visa petition. Plaintiff submits that USCIS has failed to timely disclose the “derogatory evidence” upon which it denied Plaintiff’s Form I-130. On the issue of whether disclosure is required by8 C.F.R. §103.2(b)(16), Plaintiff urges this Court to consider Ghafoori v. Napolitano, 713 F. Supp. 2d 871 (N.D. Cal. 2010). “[a] second regulation, governing the “[i]nspection of evidence,” provides that a petitioner “shall be permitted to inspect the record of proceeding which constitute the basis for the decision, except as provided in” four subsequent paragraphs. 8 C.F.R. §103.2(b)(16). The first of those exceptions is for “derogatory information” unknown to the petitioner; when an adverse decision will be based on such information, the petitioner “shall be advised of this fact and offered an opportunity to rebut the information…, except as provided in” the next three paragraphs. Id. §103.2(b)(16)(i). The following paragraph-characterized as an exception to both paragraphs previously cited-is the provision that Plaintiff claims the Service violated: “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 as provided in paragraph (b)(16)(iv) of this section.” Id. §103.2(b)(16)(ii). The last two paragraphs permit reliance on classified information, which a petitioner is not permitted to access. Id. §103.2(b)(16)(iii)-(iv). [The government] stress[es] that §103.2(b)(16)(ii) is an “exception” to disclosure. The regulation’s pattern of exceptions is puzzling, because there is nothing inconsistent between paragraph (ii) and the previous two provisions from which it is excepted. Allowing the petitioner to “inspect the record,” §103.2(b)(16), is consistent with advising him of derogatory information, §103.2(b)(16)(i), and relying only on “information contained in the record” to determine statutory eligibility, §103.2(b)(16)(ii). The pattern of “exceptions” can be understood only when read collectively: paragraphs (i) and (ii) set out the standards for disclosure, whereas (iii) and (iv) limit disclosure where decisions are based on classified information on which a determination of statutory eligibility is based. [The government] also attempt[s] to draw support from a handful of circuit and administrative decisions interpreting 8 C.F.R. §103.2(b)(16)(i). In Hassan v. Chertoff, the Ninth Circuit addressed a petitioner’s claim that his due process rights were violated by the government’s failure to comply Case 8:15-cv-01439-MSS-TGW Document 34 Filed 08/15/16 Page 7 of 14 PageID 206 8 with paragraph (i) in denying, for national security reasons, his application to adjust status. The court dismissed that argument: “Hassan was aware of the information against him. He was questioned about his involvement in the terrorist organization. He was given the opportunity to explain his association during the course of that questioning. The regulation that Hassan cites requires no more of the government.” Hassan v. Chertoff, 593 F.3d 785, 789 (9th Cir. 2010). The Seventh Circuit, also considering paragraph (i), found that “the regulation does not require USCIS to provide, in painstaking detail, the evidence … it finds.” Ogbolumani v. Napolitano, 557 F.3d 729, 735 (7th Cir. 2009). The Board of Immigration Appeals has similarly held-in unpublished opinions cited by [the government]-that paragraph (i) does “not place upon USCIS a requirement that the actual documents be provided to a petitioner in order to comply with due process.” In re Liedtke, 2009 WL 5548116 (BIA Dec. 31, 2009); see also In re Firmery, 2006 WL 901430 (BIA Feb. 28, 2006) (concluding that there is “no statutory or regulatory requirement that” DHS turn over “the reports which formed the basis for denying” a visa petition). However, those opinions all deal with paragraph (i), which Plaintiff does not allege was violated. Paragraph (ii), however, imposes the unambiguous requirement that the information be disclosed to the petitioner. In Plaintiff’s case, the Service failed to do so. [The government] argues that the Service complied because its decision was based on the doctor’s letter interpreting the x- rays, and not the x-rays themselves. However, that reading is irreconcilable with the regulations. 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. On a literal level, the Service may be correct that it-having no medical expertise of its own- relied only on the doctor’s letter. However, its determination can only be based on information that is “in the record of proceeding,” and the information on which it relied-an analysis of the x-rays-is incomplete without the x-rays analyzed. The Service therefore violated its own regulations by failing to disclose the x-rays on which it relied-by way of the doctor’s assessment-in denying Plaintiff’s petition.” The factual issue confronted in Ghafoori was the age of the beneficiary of an application for an immigration benefit. The petitioner (Plaintiff in Ghafoori) claimed that the beneficiary was under 21 years of age, yet the government conducted its own independent analysis and determined that the beneficiary had already turned 21. This determination was based on the medical opinion of a doctor working for the government Case 8:15-cv-01439-MSS-TGW Document 34 Filed 08/15/16 Page 8 of 14 PageID 207 9 and when the petitioner asked to see the medical evidence upon which the government physician relied in providing his opinion, the government refused to provide that evidence (x-rays). In making this argument, Plaintiff acknowledge numerous reported decisions concluding that the government is only required to “advise” the petitioner of the derogatory information upon which an adverse determination is based rather than being required to “provide” the adverse information to the petitioner. See e.g. Koffi v. Holder, 487 Fed. Appx. 658 (2d Cir. 2012) (affirming District Court’s determination that government was not required to provide the actual derogatory evidence to the petitioner). With that said, Plaintiff acknowledges that the government has now disclosed the statements made by the Beneficiary and Norma Washington. Record at 1408; 1412. It would appear the details of these statements form the basis of the government’s denial of Plaintiff’s Form I-130. However, this information was not provided to Plaintiff until these proceedings were instituted. Because Norma’s statement and the Beneficiary’s statement were not provided until recently, the decision reached by USCIS and the Board make evident Plaintiff’s inability to have previously provide a reasoned rebuttal to the “evidence” upon which the government relied to assess whether the Beneficiary was statutorily eligible to seek the underlying benefit. Like the District Court opined in Ghafoori, the government’s analysis must withstand scrutiny when reports upon which an adverse determination is based is separated from the “evidence” upon which the report is based. In other words, a real opportunity to rebut an adverse determination regarding statutory ineligibly for the benefit sought must come either from the evidence itself or other sources of evidence made part of the record that corroborate the government’s conclusions. For example, in Ghafoori, the only evidence upon which the adverse determination was based was a physician’s report based upon available medical evidence, x-rays. As the District Court concluded in Ghafoori, the petitioner could never rebut the conclusions made therein without access to the same evidence because the petitioner could not provide his own reasoned analysis without access to that same evidence. While the factual determinations herein are different from Ghafoori, the lack of access to the evidence upon which the denial here was based creates the same scenario, notice of the Case 8:15-cv-01439-MSS-TGW Document 34 Filed 08/15/16 Page 9 of 14 PageID 208 10 evidence employed to make an adverse decision and an opportunity to provide a reasoned rebuttal. The issue presented is that the government has possession of information that it intends on employing to deny an application for an immigration benefit. If the petitioner need only be provided “notice” of that information, then the agency is free to “cherry pick” that which it will use to deny a benefit. Permitting the agency to do this frustrates the intent of the regulation which is to provide the petitioner with notice of the evidence upon which an adverse determination is based and to further provide the petitioner with a reasonable opportunity to respond to the same. Plaintiff submits the statements made by the Beneficiary, were the portion of the record upon which the adverse decision was made and that this evidence was only disclosed in these proceedings. These are proceedings providing the Court an opportunity to review the agency’s decision under the APA, not proceedings where evidence is to be introduced. Plaintiff further submits she was not able to properly respond to the allegations upon which the denial was made because she was not provided with these statements. As such, the agency violated the APA by failing to provide Plaintiff with the information upon which it based its denial pursuant to 8 C.F.R. §§103.2(b)(16)(i) and (ii). The remedy is to order the agency’s decision vacated and to remand these proceedings to the agency with instructions that it provide Petitioner with an opportunity to respond to its legal position that the approval of the Form I-130 is prohibited by virtue of 8 U.S.C. §1154(c). Case 8:15-cv-01439-MSS-TGW Document 34 Filed 08/15/16 Page 10 of 14 PageID 209 11 E. By failing to provide the information upon which the denial was based the agencies violated Plaintiff’s rights to substantive due process The Board, in Matter of Obaigbana, addresses the issue of due process in responding to a denial. Matter of Obaigbana, 19 I&N Dec. 533 (BIA 1998). The government alleged its intent to deny a visa petition upon its belief the petitioner and the beneficiary of the petition had entered a marriage solely for the purposes of evading the immigration laws. Id. at 534. The issue discussed by the Board was whether the government provided a reasonable opportunity to for rebuttal of the allegations made in the notice of intent to deny (“NOID”). Id. at 536. In its decision, the Board stated [i]nasmuch as the intended purpose of a notice of intention to deny is to provide due process to the petitioner, such purpose is defeated when the petitioner is not given a reasonable opportunity to respond. We therefore conclude that the petitioner must be afforded a reasonable opportunity to rebut the derogatory evidence cited in the notice of intention to deny and to present evidence in his behalf before the decision is rendered.” Id. The issue in Obaigbana is one of substantive due process. Not only does substantive due process involve providing a petitioner reasonable opportunity to respond to allegations made in the NOID (Record at 689-91), it also involves providing the petitioner adequate notice of the derogatory information to which the government seeks rebuttal. Here Plaintiff was not provided with the documentation upon which the denial was determined and therefore was not provided with an objectively reasonable opportunity to rebut the allegations upon which the denial was made. Likewise, the issue in the present matter is also one of due process. Here, Plaintiff’s Form I-130 was denied because the government concluded that the Beneficiary and Norma entered into a marriage with the intent to evade immigration laws. Until now USCIS had denied Plaintiff the right to inspect the documentation upon which it had based its decision. As stated above, “the standard under the APA is whether the agency’s action is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. §706(2)(A). As stated above, the arbitrary and capricious standard is “exceedingly deferential.” The court is not authorized to substitute its judgment for the Case 8:15-cv-01439-MSS-TGW Document 34 Filed 08/15/16 Page 11 of 14 PageID 210 12 agency as long as the agency’s conclusions are rational. “However, an agency action may be found arbitrary and capricious: 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 not be ascribed to a difference in view of the product of agency expertise.” In Hassan v. Chertoff, 593 F.3d 785, 789 (9th Cir. 2010), Plaintiff argued the government had acted arbitrarily and capriciously by failing to follow its own regulations pursuant to 8 C.F.R. §103.2(b)(16)(i) and thus violated his rights to substantive due process. Specifically, he contended he did not have an opportunity to respond to “derogatory information” upon which the government had based its denial. Hassan, 593 F.3d at 789. The Court held that Plaintiff’s argument failed because he was aware of the information upon which the denial was based, and moreover, he was given an opportunity to explain to the government his involvement in the information used against him. Id. Unlike the Hassan case where the petitioner was aware of the information the government relied upon, Plaintiff has only been provided as much “notice” of this information as the agency has decided to provide. Here the agencies relied upon statements that only became known to Plaintiff when the certified administrative record was provided in the instant proceedings. Thus, this case can be distinguished from Hassan because Appellant has never been provided with the actual “evidence” employed by the agency and provided a reasonable opportunity to respond to the allegations made from this evidence. As discussed in detail above, Petitioner submits the agencies acted arbitrarily and capriciously in failing to follow their own regulations pursuant to 8 C.F.R. §§103.2(b)(16)(i) and (ii). Specifically, she submits the agencies are required to provide her with the documentation upon which the denial of the Form I-130 was based. Failure to provide these documents does not provide Plaintiff with sufficient notice or a reasonable opportunity to respond. Permitting the agencies to do otherwise placed Plaintiff in the untenable position of being told that the agencies have “something” striking at the heart of her eligibility for the immigration benefit she seeks and then Case 8:15-cv-01439-MSS-TGW Document 34 Filed 08/15/16 Page 12 of 14 PageID 211 13 asking her to respond to that “something” based only on as much of that “something” that the agency decides to share. While this may be permissible when the “something” is “classified” as set forth at §103.2(b)(16)(iv). Here, there exists no evidence of record to suggest that this “something” is so “classified.” Prohibiting Plaintiff from seeing that “something” strikes at her right to notice and to an opportunity to respond in a manner inconsistent with her rights to substantive due process in these proceedings. V. CONCLUSION Based on the forgoing, Plaintiff submits the agency acted arbitrarily and capriciously in making its determination. The agencies have failed to provide Plaintiff with the information required pursuant to 8 C.F.R. §§103.2(b)(16)(i) and (ii), upon which the denial of Form I-130 was based. USCIS violated its own regulations when it failed to disclose evidence deemed “derogatory” and used to determine Plaintiff’s statutory ineligibility for the immigration benefit sought. Moreover, the agencies violated Plaintiff’s substantive rights to due process when they failed to provide Plaintiff with the required evidence resulting in inadequate notice and no reasonable opportunity to respond. WHEREFORE, Plaintiff respectfully requests that this Court GRANT Plaintiff’s Motion for Summary Judgment and enter any other order it deems just and proper. Dated: August 15, 2016 Respectfully submitted, /s/ David Stoller /s/ David Stoller, Esquire Attorney for Plaintiff Florida Bar #92797 4445 South Conway Road Orlando, Florida 32812 Phone : (407) 999-0088 Fax : (407) 382-9916 Case 8:15-cv-01439-MSS-TGW Document 34 Filed 08/15/16 Page 13 of 14 PageID 212 14 CERTIFICATE OF SERVICE I, David Stoller, certify that on August 15, 2016, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to the following : Hans Harris Chen, Esquire US Department of Justice Office of Immigration Litigation Ben Franklin Station P.O. Box 868 Washington, DC 20044 /s/ David Stoller /s/ David Stoller, Esquire Attorney for Plaintiff Case 8:15-cv-01439-MSS-TGW Document 34 Filed 08/15/16 Page 14 of 14 PageID 213