Pulotov v. US Citizenship And Immigration Services et al

MOTION for Summary Judgment

E.D. Pa.June 23, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA NEMAT PULOTOV, § § Plaintiff, § § v. § CIVIL ACTION NO. 2:16-cv-06067-JHS § U.S. CITIZENSHIP AND § IMMIGRATION SERVICES, et al., § § Defendants. § ___________________________________ § [PROPOSED] ORDER AND NOW, this _______ day of __________________________, 20_______, upon consideration of Defendants’ Motion for Summary Judgment and Memorandum in Support thereof, as it is hereby ORDERED that: (1) Defendants’ Motion is GRANTED; and (2) Plaintiff’s Motion for Summary Judgment is DENIED. ________________________________ The Honorable Joel H. Slomsky United States District Judge Case 2:16-cv-06067-JHS Document 14 Filed 06/23/17 Page 1 of 22 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA NEMAT PULOTOV, § § Plaintiff, § § v. § Civil Action No. 2:16-cv-06067-JHS § U.S. CITIZENSHIP AND § IMMIGRATION SERVICES, et al., § § Defendants. § ___________________________________ § DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Defendants U.S. Citizenship and Immigration Services (“USCIS”); Executive Office for Immigration Review (“EOIR”); John F. Kelly, Secretary of Homeland Security; James McCament, Acting Director, USCIS; Jefferson B. Sessions, III, Attorney General; and James McHenry, Acting Director, EOIR;1 by and through counsel, and in accordance with the Court’s Scheduling Order (ECF No. 11), hereby move the Court for summary judgment in favor of Defendants under Federal Rule of Civil Procedure 56(a), for the reasons set forth in the accompanying Memorandum of Law.2 1 Under Federal Rule of Civil Procedure 25(d), current Secretary of Homeland Security John F. Kelly is substituted for former Secretary Jeh Johnson; current Acting Director of USCIS James McCament is substituted for former Director Leon Rodriguez; current Attorney General Jefferson B. Sessions, III, is substituted for former Attorney General Loretta Lynch; and current Acting Director of EOIR James McHenry is substituted for former Director Juan Osuna. 2 The Court’s Scheduling Order required the parties to file cross-motions for summary judgment on the administrative record by June 23, 2017, and responses to the opponents’ motions are due on July 21, 2017. Plaintiff filed his Motion for Summary Judgment on June 2, 2017 (ECF No. 13). Although Defendants refer in their Memorandum to Plaintiff’s Motion and Memorandum if appropriate, Defendants only set forth herein their own affirmative Motion for Summary Judgment. Defendants will file a separate opposition to Plaintiff’s Motion in accordance with Case 2:16-cv-06067-JHS Document 14 Filed 06/23/17 Page 2 of 22 2 Date: June 23, 2017 CHAD A. READLER Acting Assistant Attorney General Civil Division WILLIAM C. PEACHEY Director, Office of Immigration Litigation GISELA A. WESTWATER Assistant Director, Office of Immigration Litigation By: s/ Katherine J. Shinners KATHERINE J. SHINNERS Trial Attorney Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Tel.: (202) 598-8259 Fax: (202) 305-7000 katherine.j.shinners@usdoj.gov Counsel for Defendants this Court’s schedule. Case 2:16-cv-06067-JHS Document 14 Filed 06/23/17 Page 3 of 22 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA NEMAT PULOTOV, § § Plaintiff, § § v. § CIVIL ACTION NO. 2:16-cv-06067-JHS § UNITED STATES CITIZENSHIP and § IMMIGRATION SERVICES, et al., § § Defendants. § ___________________________________ § MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT I. INTRODUCTION Plaintiff Nemat Pulotov (“Pulotov”) asks the Court to set aside the denial of his Form I- 765, Application for Employment Authorization (“Form I-765 Application”) by Defendant U.S. Citizenship and Immigration Services (“USCIS”) under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. See generally Complaint (“Compl.”, ECF No. 1) ¶¶ 13, 47-52 & Prayer for Relief ¶¶ 1-2. Pulotov is an alien unlawfully present in the United States. When the Department of Homeland Security, Immigration and Customs Enforcement (“DHS/ICE”) placed him in removal proceedings after several years of unlawful residence in this country, Pulotov filed a Form I-589, Application for Asylum and Withholding of Removal (“Form I-589 Application”). Pulotov then caused his removal proceedings—and, consequently, his Form I-589 Application— to be placed on hold. Yet he now claims that he should receive employment authorization on the basis of that Form I-589 Application. Because such a result is precluded by statute and regulation and the agency has acted in accordance with the law, the Court must uphold USCIS’s Case 2:16-cv-06067-JHS Document 14 Filed 06/23/17 Page 4 of 22 2 denial of Pulotov’s application for employment authorization and grant summary judgment in favor of Defendants. II. FACTUAL AND PROCEDURAL BACKGROUND Pulotov is a national and citizen of Uzbekistan who came to the United States on January 21, 2006, on a P-3 non-immigrant visa that was set to expire four days later. Statement of Undisputed Facts (“SUF”) ¶¶ 1-3. Pulotov never left the United States, however. See SUF ¶¶ 3-4. Instead, he remained and was eventually placed in removal proceedings in October of 2014 before the Philadelphia Immigration Court of the Executive Office for Immigration Review (“EOIR”). SUF ¶ 4. On May 6, 2015, Pulotov filed his Form I-589 Application seeking asylum and/or withholding of removal with the Immigration Court. SUF ¶ 5. Less than four months later, he and the DHS/ICE attorney jointly requested administrative closure of his removal proceedings. SUF ¶ 6. The immigration judge presiding over the removal proceedings granted the parties’ joint request and closed the proceedings on September 2, 2015. SUF ¶ 6. At that time, Pulotov was represented by counsel in his removal proceedings. SUF ¶ 7. On July 14, 2016, Pulotov filed his Form I-765 Application with USCIS, seeking employment authorization under 8 C.F.R. § 274a.12(c)(8). SUF ¶ 8. That regulation governs the eligibility of asylum and withholding applicants to apply for and receive employment authorization. See infra Part III at pp. 4-5. On September 16, 2016, USCIS denied that Form I- 765 Application, stating: USCIS records indicate that your Application for Asylum and Withholding of Removal, Form I-589, filed on May 06, 2015, was administratively closed by the Immigration Judge on September 02, 2015. The Immigration Judge stopped the asylum application’s processing clock with the administrative closure of your asylum case. As of the date of this letter, the Immigration Case 2:16-cv-06067-JHS Document 14 Filed 06/23/17 Page 5 of 22 3 Judge has not restarted the clock in regards to processing of your asylum application. Therefore, you are not eligible for employment authorization under 8 CFR 274a.12(c)(8), as the required 180 days have not elapsed. SUF ¶¶ 10-11. On November 18, 2016, Pulotov filed the instant Complaint, which asks this Court to declare that USCIS’s denial of his Form I-765 Application was arbitrary and capricious, an abuse of discretion, and in violation of the statute, regulations, and due process, and to order readjudication of Plaintiff’s application. See Compl., Prayer for Relief. Defendants answered the Complaint on January 27, 2017. See ECF No. 5. Defendants filed and served the Administrative Record of the adjudication of Plaintiff’s I-765 Application on April 21, 2017. See ECF No. 12. The parties’ cross-motions for summary judgment are due on or before June 23, 2017; their responses to those motions are due July 21, 2017. See Scheduling Order, ECF No. 11. III. STATUTORY AND REGULATORY BACKGROUND Generally, aliens present in or seeking admission to the United States may seek asylum or withholding of removal if they claim fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1158(a)(1) (setting forth authority for applying for asylum); 8 U.S.C. § 1158(b)(1)(A) (stating that applicant for asylum must establish that he or she is a refugee within the meaning of 8 U.S.C. § 1101(a)(42)(A)); 8 U.S.C. § 1231(b)(3) (stating the grounds for withholding of removal to a particular country). An alien seeking asylum must apply for asylum within one year of arrival in the United States, absent changed circumstances or extraordinary circumstances relating to the delay in filing the application. 8 U.S.C. § 1158(a)(1)(B), (D). Case 2:16-cv-06067-JHS Document 14 Filed 06/23/17 Page 6 of 22 4 Aliens apply for asylum and withholding of removal in different ways. If an alien—like Pulotov—is placed in removal proceedings, he or she may file what is called a “defensive” application for asylum or withholding of removal with the Immigration Court. See “Obtaining Asylum in the United States,” at https://www.uscis.gov/humanitarian/refugees- asylum/asylum/obtaining-asylum-united-states (last visited June 20, 2017); 8 C.F.R. § 1208.4(b)(3)(i); 8 C.F.R. § 1208.16(a). The Immigration Judge presiding over those proceedings then has jurisdiction to adjudicate the asylum claim and the request for withholding of removal. 8 C.F.R. § 208.16(a); 8 C.F.R. § 1208.1(a)(1); 8 C.F.R. § 1208.2(b); 8 C.F.R. § 1208.16(a). The Immigration and Nationality Act requires that, in the absence of exceptional circumstances, the initial administrative adjudication of an asylum application shall be completed within 180 days after the date the application is filed. 8 U.S.C. § 1158(d)(5). The time period within which the asylum application must be adjudicated under Section 1158(d)(5) does not include “any delay requested or caused by the applicant.” 8 C.F.R. § 208.7(a)(2); 8 C.F.R. § 1208.7(a)(2). Congress chose not to entitle asylum applicants to employment authorization. See 8 U.S.C. § 1158(d)(2). Instead, it empowered the federal government to promulgate regulations allowing such employment authorization, provided that an applicant “shall not be granted such authorization prior to 180 days after the date of filing of the application for asylum.” Id. In accordance with the statute, under the promulgated regulations applicants for asylum and withholding are not initially eligible to apply for or receive employment authorization. Instead, under 8 C.F.R. § 274a.12(c)(8), “[a]n alien who has filed a complete application for asylum or withholding of deportation or removal pursuant to 8 C.F.R. part 208” and whose application has not yet been decided may apply for employment authorization if he/she “is Case 2:16-cv-06067-JHS Document 14 Filed 06/23/17 Page 7 of 22 5 eligible to apply for employment authorization under [8 C.F.R.] § 208.7 … because the 150-day period set forth in that section has expired.” 8 C.F.R. § 274a.12(c)(8)(i). The 150-day period is set forth in 8 C.F.R. § 208.7, which provides: [A]n applicant for asylum who is not an aggravated felon shall be eligible pursuant to [8 C.F.R.] §§ 274a.12(c)(8) and 274a.13(a) … to request employment authorization. … [T]he application shall be submitted no earlier than 150 days after the date on which a complete asylum application . . . has been received. … An applicant whose asylum application has been denied by an asylum officer or by an immigration judge within the 150-day period shall not be eligible to apply for employment authorization. If an asylum application is denied prior to a decision on the application for employment authorization, the application for employment authorization shall be denied. If the asylum application is not so denied, [USCIS] shall have 30 days from the date of filing of the request [for] employment authorization to grant or deny that application, except that no employment authorization shall be issued to an asylum applicant prior to the expiration of the 180-day period following the filing of the asylum application filed on or after April 1, 1997. 8 C.F.R. § 208.7(a)(1). That regulation further provides that “any delay requested or caused by the applicant shall not be counted as part of” the “time periods within which the alien may not apply for employment authorization and within which USCIS must respond to any such application.” 8 C.F.R. § 208.7(a)(2). In other words, an asylum or withholding applicant whose application is still pending is only eligible to apply for an employment authorization document (“EAD”) if his asylum application has been pending for at least 150 days; such application cannot be granted unless his asylum application is still pending after 180 days. The counting of those 150-day and 180-day time periods are also referred to herein as the “Asylum EAD Clock.” As noted, these time periods that count toward eligibility to apply for and receive employment authorization do not include “any delay requested or caused by the applicant.” 8 C.F.R. § 208.7(a)(2); 8 C.F.R. § Case 2:16-cv-06067-JHS Document 14 Filed 06/23/17 Page 8 of 22 6 1208.7(a)(2); see also Carballo v. Meissner, No. 00-cv-2145, 2000 WL 1741948, at *2 (N.D. Cal. Nov. 17, 2000). As explained in Gjondrekaj v. Napolitano, 801 F. Supp. 2d 1344 (M.D. Fla. 2011), these waiting periods for eligibility for employment authorization were implemented as part of asylum reform in the 1990s. Id. at 1346. Prior to that reform, aliens were permitted to file for employment authorization applications at the same time they filed an application for asylum; if their asylum application was deemed “not frivolous, the EAD application was routinely approved, and an EAD was issued.” Id. The current statutory scheme evidences congressional intent to change the prior regime and to preclude employment authorization that is based solely on having filed an asylum or withholding application, unless that application is pending longer than 180 days. IV. LEGAL STANDARD The arbitrary and capricious standard of review under the Administrative Procedure Act (“APA”) governs the Court’s review of an agency’s decision in immigration matters and mandates that a district court shall overturn agency action, findings, and conclusions only if they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see also Yeboah v. U.S. Dep’t of Justice, 345 F.3d 216, 221 (3d Cir. 2003); Friedman v. Sebelius, 686 F.3d 813, 827 (D.C. Cir. 2012). The Third Circuit has explained: Under the arbitrary and capricious standard, a court’s scope of review is narrow, and a court is not to substitute its judgment for that of the agency. A reviewing court may not supply a reasoned basis for the agency’s action that the agency itself has not given, but it can uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned from the record. We reverse an agency’s decision when it is not supported by substantial evidence, or the agency has made a clear error in judgment. United States v. Reynolds, 710 F.3d 498, 509–10 (3d Cir. 2013) (internal quotations omitted). Case 2:16-cv-06067-JHS Document 14 Filed 06/23/17 Page 9 of 22 7 “[S]ummary judgment is the proper mechanism for deciding, as a matter of law, whether an agency action is supported by the administrative record and consistent with the APA standard of review … .” Uddin v. Mayorkas, 862 F. Supp. 2d 391, 399 (E.D. Pa. 2012); see also Loma Linda Univ. Med. Ctr. v. Sebelius, 684 F. Supp. 2d 42, 52 (D.D.C. 2010). But due to the limited role the Court plays in reviewing an agency’s action, the typical summary judgment standards set forth in Federal Rule of Civil Procedure 56 are not applicable. See Uddin, 862 F. Supp. 2d at 399; Stuttering Found. of Am. v. Springer, 498 F. Supp. 2d 203, 207 (D.D.C. 2007). Rather, “[u]nder the APA, it is the role of the agency to resolve factual issues to arrive at a decision that is supported by the administrative record, whereas ‘the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.’” Id. (quoting Occidental Eng’g Co. v. INS, 753 F.2d 766, 769-70 (9th Cir. 1985)). In other words, when a party seeks review of an agency’s decision, the district court judge sits as an appellate tribunal, and the entire case on review is a question of law. Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) (footnote and citations omitted). The burden is on the party seeking review of an agency action to show that the agency’s decision is arbitrary and capricious. See Lujan v. Nat’l Wildlife Fed., 497 U.S. 871, 884-85 (1990). “An agency’s decision should only be reversed when the evidentiary record is ‘so compelling that no reasonable factfinder could fail to find’ to the contrary.” See Byrne v. Beers, 2014 WL 2742800, at *3 (E.D. Pa. June 17, 2014) aff'd sub nom. Byrne v. Sec’y U.S. Dep't of Homeland Sec., 618 F. App’x 143 (3d Cir. July 13, 2015) (citing I.N.S. v. EliasZacarias, 502 U.S. 478, 483–84 (1992)). Case 2:16-cv-06067-JHS Document 14 Filed 06/23/17 Page 10 of 22 8 V. ARGUMENT In this case, the Administrative Record (“AR” or “Record”) and the law governing the agency’s decision make clear that USCIS’s decision is correct. The Record demonstrates, and Plaintiff does not dispute, that the Asylum EAD Clock had not reached 180 days at the time Pulotov’s removal proceedings were closed at his and the government’s joint request. There is also no dispute that, so long as these proceedings remain administratively closed, Pulotov’s Form I-589 Application cannot be adjudicated. Accordingly, because Pulotov jointly requested administrative closure, the administrative closure is applicant-caused delay that does not count toward the 180-day EAD Asylum Clock. Only when Plaintiff recommences pursuit of his Form I-589 Application will the 180-day EAD Asylum Clock begin to run again. Pulotov claims that, despite the administrative closure, USCIS should have determined that the EAD Asylum Clock continued to run and that he is now eligible for employment authorization. But this result would be directly contrary to the language and purpose of the governing regulation, as well as to the publicly-available guidance regarding computation of the 180-day period. Thus, USCIS’s denial of Pulotov’s Form I-765 Application must be upheld because it is in accordance with the governing law and regulations, USCIS policy, and the Fifth Amendment’s Due Process Clause, and is not arbitrary or capricious. See Compl. ¶ 50; 5 U.S.C. § 706(2)(A).3 The Court should, therefore, grant Defendants’ Motion for Summary Judgment. 3 As no discretion was involved in USCIS’s decision, the APA’s “abuse of discretion” review is not implicated here. See 5 U.S.C. § 706(2)(A). Case 2:16-cv-06067-JHS Document 14 Filed 06/23/17 Page 11 of 22 9 A. USCIS Correctly Determined that Plaintiff Was Not Eligible for Employment Authorization Under the Governing Statute and Regulations. Pulotov is not entitled to relief under the APA because the plain language of the statute and regulation precluded USCIS from granting Pulotov’s Form I-765 Application. Pulotov applied for employment authorization under 8 C.F.R. § 274a.12(c)(8) as an applicant for asylum and/or withholding of removal. As explained, eligibility for employment authorization under that section is contingent on the passage of 180 days—not counting any delays requested or caused by the applicant—from the filing of the application. See 8 U.S.C. § 1158(d)(2); 8 C.F.R. § 274a.12(c)(8); 8 C.F.R. § 208.7. Here, that 180-day period had not passed at the time of USCIS’s decision. USCIS simply, and correctly, determined that (1) the immigration judge’s administrative closure of Pulotov’s removal proceedings stopped the running of the Asylum EAD Clock; (2) at the time of administrative closure, the 180-day period had not yet elapsed; and (3) at the time of USCIS’s decision, the immigration judge had not “restarted the clock in regards to processing of [Pulotov’s] asylum application.” SUF ¶ 11. USCIS’s decision is in accord with the facts of record; indeed, Plaintiff does not dispute the principal facts underlying this decision. As noted, Pulotov was in removal proceedings and filed his Form I-589 Application with the Immigration Court on May 6, 2015. SUF ¶ 5; Compl. ¶ 1; Plaintiff’s Mem. in Supp. of Mot. for Summ. J. at p. 6, Statement of Material Facts ¶ 12. On September 2, 2015, the immigration judge presiding over those removal proceedings—and who has exclusive jurisdiction over the adjudication of Pulotov’s Form I-589 Application, see 8 C.F.R. § 1208.2(b)—administratively closed the proceedings at the joint request of Pulotov and Case 2:16-cv-06067-JHS Document 14 Filed 06/23/17 Page 12 of 22 10 DHS/ICE. SUF ¶ 6. Accordingly, at the time of administrative closure, at most 119 days had passed on the Asylum EAD Clock since the filing of Pulotov’s application.4 USCIS’s decision is also in accordance with the law, because the joint request for administrative closure constitutes applicant-caused delay that must stop the running of the Asylum EAD Clock. First, there is no real question that administrative closure generally effects an adjournment, or “delay” (sometimes a quite prolonged one) in the adjudication of proceedings. As explained by the Board of Immigration Appeals in Matter of Avetisyan, 25 I. & N. Dec. 688 (BIA 2012), administrative closure of immigration proceedings does not constitute a termination of proceedings. Id. at 695. Instead, it is similar to a continuance, except that instead of keeping the case on the immigration judge’s active calendar, it “temporarily remove[s] a case from an Immigration Judge’s active calendar,” often to “await an action or event that is relevant to immigration proceedings but is outside the control of the parties or the court and may not occur for a significant or undetermined period of time.” Id. at 692. The parties may at any time move to re-calendar the case. Id. at 695. In other words, administrative closure is like a stay or a continuance and, like a stay or continuance, adjourns and delays proceedings unless and until the case is reopened at the behest of one or both parties or the Immigration Court. See id. at 692 (noting that administrative closure is a method to “defer further action”).5 Accordingly, 4 The Administrative Record does not contain facts sufficient to determine whether Pulotov requested a continuance on May 6, 2015, and thus whether the Asylum EAD Clock was even running between May 6, 2015, and September 2, 2015. Such facts, however, are not necessary to uphold USCIS’s decision, which was based on the correct premise that, regardless of whether the Asylum EAD Clock was running at the time of administrative closure, a joint request for administrative closure constitutes applicant-requested delay that stops the Asylum EAD Clock. 5 Federal Courts similarly treat administrative closures like a type of stay or extended continuance. See Penn West Assocs., Inc. v. Cohen, 371 F.3d 118, 127-28 (3d Cir. 2004) (describing legal effect of administrative closing; citing Lehman v. Revolution Portfolio, LLC, 166 F.3d 389, 392 (1st Cir. 1999), in which the district court administratively closed a case Case 2:16-cv-06067-JHS Document 14 Filed 06/23/17 Page 13 of 22 11 administrative closure that is requested by the asylum applicant—as Pulotov requested here— undoubtedly constitutes an applicant-requested delay. Pulotov nonetheless argues that administrative closure should have no effect on the running of the Asylum EAD Clock. See Compl. ¶ 31. But he confuses the question of whether administrative closure has the legal effect of dismissal or termination of the case (which it does not), with the question of whether administrative closure constitutes delay of proceedings (which it does). The non-precedent USCIS Administrative Appeals Office decision cited by Plaintiff is not to the contrary. See AR at 21-25 (“AAO Decision”). That AAO Decision did not address whether administrative closure constituted applicant-requested delay that would toll the running of the Asylum EAD Clock. The applicant in that case had filed for asylum and withholding on October 5, 2006, and her immigration proceedings were administratively closed on May 8, 2008. AR at 23. The decision noted that the applicant had previously received work authorization and, at the time of the administrative closure, wanted to “continue to receive work authorization.” AR at 23 (emphasis added); see also AR at 23 n. 3 (“[T]he only issue to be discussed on notice of certification concerns whether the applicant’s administratively closed asylum proceeding maintains her eligibility for employment authorization” (emphasis added)). Accordingly, it must be presumed that the 180-day period had already passed at the time of administrative pending bankruptcy proceedings in lieu of a stay, so the parties would not have to appear at periodic status conferences); Mire v. Full Spectrum Lending Inc., 389 F.3d 163, 167 (5th Cir. 2004) (“The effect of an administrative closure is no different from a simple stay, except that it affects the count of active cases pending on the court's docket; i.e., administratively closed cases are not counted as active.”); Johnson v. Oldcastle Precast, Inc., 522 F. Supp. 2d 739, 741 (D. Md. 2007) (noting that “federal courts often administratively close cases when circumstances require that they be stayed”); Atkins v. HCA-HealthONE, LLC, No. 15-CV-00037, 2015 WL 1298507, at *2 (D. Colo. Mar. 19, 2015) (stating that “administrative closure is the practical equivalent of a stay” (internal citations and quotations omitted)). Case 2:16-cv-06067-JHS Document 14 Filed 06/23/17 Page 14 of 22 12 closure and that the applicant in the AAO case was already eligible at the time of administrative closure to receive work authorization under 8 C.F.R. § 274a.12(c)(8). Here, Pulotov’s case had not yet reached the 180-day mark at the time of administrative closure and the AAO Decision is inapposite. Indeed, the AAO Decision never analyzed the effect of administrative closure on the 180-day clock, but instead analyzed whether the administrative closure meant that the applicant’s asylum application was still “undecided,” as is required to grant employment authorization on that basis. AR at 24, 25. The AAO determined that the “joint request administratively closing the asylum request appears to make the asylum application remain ‘undecided’ within the meaning of 8 C.F.R. § 274a.12(c)(8) because the [immigration judge] has made an interlocutory or non-final order rather than dismissing the case.” AR at 25. For these reasons, the AAO’s decision (even if it were precedential) does not support Pulotov’s claim.6 Finally, USCIS’s decision is also in accordance with publicly available USCIS guidance. USCIS and EOIR have co-published a document titled “The 180-Day Asylum EAD Clock Notice,” that is available on USCIS’s website. The version in effect at the time of the 6 Indeed, Plaintiff’s argument that the AAO Decision announces USCIS policy or binds the agency is incorrect. See Compl. ¶¶ 41, 42, 48. As explained in the AAO Practice Manual: The AAO generally issues non-precedent decisions. … The decision is binding on the parties to the case, but does not create or modify agency guidance or practice. The AAO does not announce new constructions of law or establish agency policy through non-precedent decisions. AAO Practice Manual § 3.15(a) (last updated May 4, 2016), https://www.uscis.gov/about- us/directorates-and-program-offices/administrative-appeals-office-aao/practice-manual/chapter- 3-appeals#3.15; see also R.L. Inv. Ltd. Partners v. INS, 86 F. Supp. 2d 1014, 1025 (D. Haw. 2000), aff'd, 273 F.3d 874 (9th Cir. 2001) (“Only when the agency specifically designates a decision as precedent can it bind future decisions. See 8 C.F.R. § 103.3(c) (1999).”). Case 2:16-cv-06067-JHS Document 14 Filed 06/23/17 Page 15 of 22 13 administrative closure of Pulotov’s case and the USCIS decision contains a “chart listing reasons for case adjournments and whether these reasons are applicant-caused delays.” See “The 180- Day Asylum EAD Clock Notice” (December 2, 2013), https://www.uscis.gov/sites/default/files/USCIS/Humanitarian/Refugees%20%26%20Asylum/As ylum/Asylum_Clock_Joint_Notice.pdf (attached as Exhibit 1 hereto). That list of adjournment codes makes clear that a joint request for a delay is delay that is attributable to the alien. See id. at p. 4. Accordingly, USCIS guidance echoes its decision in this case and the logical reading of the regulation, which is that a joint request for an adjournment constitutes applicant-requested delay. U.S. Immigration and Customs Enforcement (“ICE”) has also interpreted 8 C.F.R. § 208.7(a)(2) in accord with USCIS’s decision in this case. In a 2011 Memorandum, ICE specifically noted that a joint request for administrative closure stops the Asylum EAD Clock. See U.S. Immigration and Customs Enforcement, “Case by Case Review of Incoming and Certain Pending Cases” (Nov. 17, 2011), https://www.ice.gov/doclib/foia/prosecutorial- discretion/case-by-case-review-incoming-certain-pending-cases-memorandum.pdf (attached as Exhibit 2 hereto). The Memorandum states that DHS/ICE attorneys may agree to the administrative closure of removal proceedings of individuals with pending asylum applications, but that “[u]pon the filing of such a joint request, however, the individual will be subject to 8 CFR 208.7(a)(2) which tolls the 180-day clock for employment authorization eligibility.” Id. at p. 3 n.5.7 Accordingly, the Court must uphold USCIS’s decision under the deferential APA standard because it is the correct interpretation of the regulation. But even if the regulation were 7 Although this particular memorandum has been rescinded, nothing in superseding memoranda casts doubt on this interpretation. Case 2:16-cv-06067-JHS Document 14 Filed 06/23/17 Page 16 of 22 14 ambiguous, all that is necessary is that USCIS’s position is not plainly erroneous or inconsistent with the regulation—and that standard is easily met here. Chase Bank, N.A. v. McCoy, 562 U.S. 195, 208 (2011) (holding that the court “defer[s] to an agency’s interpretation of its own regulation, advanced in a legal brief, unless that interpretation is ‘plainly erroneous or inconsistent with the regulation’”); see also Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 557 U.S. 261, 284 (2009) (applying the same level of deference to agency interpretations of regulations in an internal memorandum). USCIS’s decision is perfectly consistent with the language of the regulation, which indicates that applicant-requested delay cannot count toward the 180-day Asylum EAD Clock. Under these standards, USCIS did not act arbitrarily or capriciously and acted in accordance with the law in denying Plaintiff’s Form I- 765 Application. See 5 U.S.C. § 706(2)(A). B. There Is No Due Process Violation. Pulotov also argues that USCIS’s denial was not in accordance with the Due Process Clause because Pulotov allegedly did not receive adequate notice of or opportunity to contest the effect of the administrative closure on his future Form I-765 Application. Compl. ¶¶ 49, 50, 52. This claim is not supported by fact and is legally untenable. As an initial matter, Plaintiff does not allege he has been deprived of the requisite “life, liberty, or property, without due process of law.” U.S. Const. Amend. V. To succeed on a claim for violation of procedural due process, a plaintiff must show that the Government deprived him of a constitutionally-protected liberty or property interest. Hernandez v. Gonzales, 437 F.3d 341, 345 (3d Cir. 2006). The Complaint and the Administrative Record do not evidence any deprivation of a protected interest. This claim is premised primarily on Pulotov’s allegation that he was deprived of an opportunity to “cure” EOIR’s stoppage of his Asylum EAD Case 2:16-cv-06067-JHS Document 14 Filed 06/23/17 Page 17 of 22 15 Clock at the time of administrative closure of his case. See Compl. ¶ 49. As any stoppage of the clock was correct, however, there was no defect to cure. To the extent that Pulotov is arguing that he was deprived of the ability to make “an informed decision” as to whether or not to administratively close his case because he was not specifically “advised that the IJ’s order would stop his asylum clock” (Compl. ¶¶ 37, 49), he does not explain how these facts, if true, implicate deprivation of a protected property interest. Further, he can seek to reopen his removal proceedings at any time, see Avetisyan, 25 I. & N. Dec. at 695, and thus has a post- deprivation remedy that will allow him to pursue his asylum application and cause the Asylum EAD Clock to run. See Crawford v. Miller, 269 F. App’x 178, 181 (3d Cir. 2008) (“Where, as here, the complained of conduct is ‘random and unauthorized,’ post-deprivation process is all that is due.” (quoting Brown v. Muhlenberg, 269 F.3d 205 (3d Cir. 2001))); O’Keefe v. Gist, 908 F. Supp. 2d 946, 951 (C.D. Ill. 2012) (“[W]here the deprivation is random and unauthorized, a post-deprivation hearing or a common-law tort remedy for wrongful deprivation satisfies procedural due process requirements.” (citing Zinermon v. Burch, 494 U.S. 113 (1990)). Accordingly, Plaintiff has not cited any actionable deprivation, let alone a deprivation that cannot be remedied by post-deprivation procedures. In any event, Pulotov—who was represented by counsel in his removal proceedings (SUF ¶ 7)—was afforded notice of the effect of the administrative closure on his eligibility for employment authorization. The regulations themselves are public, and they make clear that applicant-requested delay does not count toward the 180-day period. The public USCIS website explains how the Asylum EAD Clock works and clearly explains that delays requested by the applicant do not count toward the 180-day period: “Th[e] 180-day period, … commonly referred to as the 180-day asylum EAD Clock, does not include any delays applicants request or cause Case 2:16-cv-06067-JHS Document 14 Filed 06/23/17 Page 18 of 22 16 while their applications are pending with an asylum office or immigration court.” See “The ABT Settlement Agreement,” https://www.uscis.gov/humanitarian/refugees-asylum/asylum/abt- settlement-agreement (last visited June 19, 2017). USCIS’s and EOIR’s joint guidance in effect at the time that Pulotov administratively closed his case also makes clear that an adjournment at the joint request of the parties constitutes an adjournment that is charged to the applicant. See Ex. 1 at p. 4. And, as shown above, there is no question that administrative closure stays the pending case and therefore creates a delay in the adjudication of the asylum application. Accordingly, Pulotov was on notice of the likely effect of the administrative closure on his Asylum EAD Clock and his ability to receive employment authorization. Moreover, Pulotov’s “counsel could freely have inquired as to the probable effect of [the administrative closure] on [Pulotov’s] asylum clock.” See Carballo, 2000 WL 1741948, at *3. Finally, Pulotov’s Complaint claims that USCIS’s denial of his Form I-765 Application violated due process, but it does not even allege that any due process violations occurred in the context of that denial. Further, Pulotov’s Form I-765 Application does not include any facts regarding the Complaint’s allegations that Plaintiff was not fully informed of the potential effect of his administrative closure. Compare Compl. ¶ 37 with AR at 8-45. To the extent Pulotov claims that he was somehow misinformed as to the effects of the administrative closure, those facts, if true, were not before USCIS when it made its decision and are not relevant to this Court’s determination as to whether the decision is supported by the record. See Uddin, 862 F. Supp. 2d at 399; Springer, 498 F. Supp. 2d at 207; Christ the King Manor, Inc. v. Sec’y U.S. Dep't of Health & Human Servs., 730 F.3d 291, 305 (3d Cir. 2013) (“Our review must also be based on the administrative record [that was] already in existence before the agency, not some Case 2:16-cv-06067-JHS Document 14 Filed 06/23/17 Page 19 of 22 17 new record made initially in the reviewing court … .” (internal quotations and citations omitted)). V. CONCLUSION For the foregoing reasons, this Court should grant the Defendants’ motion for summary judgment and enter judgment in Defendants’ favor. Case 2:16-cv-06067-JHS Document 14 Filed 06/23/17 Page 20 of 22 18 Date: June 23, 2017 CHAD A. READLER Acting Assistant Attorney General Civil Division WILLIAM C. PEACHEY Director, Office of Immigration Litigation GISELA A. WESTWATER Assistant Director, Office of Immigration Litigation By: s/ Katherine J. Shinners KATHERINE J. SHINNERS Trial Attorney Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Tel.: (202) 598-8259 Fax: (202) 305-7000 katherine.j.shinners@usdoj.gov Counsel for Defendants Case 2:16-cv-06067-JHS Document 14 Filed 06/23/17 Page 21 of 22 19 CERTIFICATE OF SERVICE I hereby certify that on June 23, 2017, I electronically filed the foregoing motion and memorandum with the clerk of the U.S. District Court for the Eastern District of Pennsylvania by using the CM/ECF system. Counsel for Plaintiffs, Tatiana S. Aristova, participates in the CM/ECF system, and will be served by the CM/ECF system. Dated: June 23, 2017 s/ Katherine J. Shinners KATHERINE J. SHINNERS Trial Attorney U.S. Department of Justice Office of Immigration Litigation District Court Section Case 2:16-cv-06067-JHS Document 14 Filed 06/23/17 Page 22 of 22 EXHIBIT 1 Case 2:16-cv-06067-JHS Document 14-1 Filed 06/23/17 Page 1 of 5 Executive Office for Immigration Review THE 180-DAY ASYLUM EAD CLOCK NOTICE What is the 180-day Asylum EAD Clock? The “180-day Asylum EAD Clock” measures the time period during which an asylum application has been pending with the U.S. Citizenship and Immigration Services (USCIS) asylum office and/or the Executive Office for Immigration Review (EOIR). USCIS service centers adjudicate the Form I-765, Application for Employment Authorization, and use the 180-day Asylum EAD Clock to determine eligibility for employment authorization. Asylum applicants who applied for asylum on or after January 4, 1995, must wait 150 days before they can file a Form I-765. USCIS cannot grant employment authorization for an additional 30 days, for a total 180-day waiting period. This 180-day Asylum EAD Clock does not include any delays applicants request or cause while their applications are pending with an asylum office or immigration court. What Starts the 180-day Asylum EAD Clock? For asylum applications first filed with an asylum office, USCIS calculates the 180-day Asylum EAD Clock starting on the date that a complete asylum application is received by USCIS, in the manner described by the Instructions to the Form I-589, Application for Asylum and for Withholding of Removal. If an asylum application is referred from the asylum office to EOIR, the applicant may continue to accumulate time toward employment authorization eligibility while the asylum application is pending before an immigration judge. For asylum applications first filed with EOIR, USCIS calculates the 180-day Asylum EAD Clock in one of two ways: 1) If a complete asylum application is “lodged” at the immigration court window, the application will be stamped “lodged not filed” and the applicant will start to accumulate time toward eligibility for employment authorization on the date of lodging, or 2) If the asylum application is not “lodged,” the applicant generally will start to accumulate time toward eligibility for employment authorization on the date that a complete asylum application is filed at a hearing before an immigration judge. Applicants who lodge an application at an immigration court window must still file the application with an immigration judge at a later hearing. What stops the 180-day Asylum EAD Clock? The 180-day Asylum EAD Clock does not include any delays requested or caused by an applicant while his or her asylum application is pending with USCIS and/or EOIR. For cases pending with an asylum office: Delays requested or caused by an applicant may include: • A request to transfer a case to a new asylum office or interview location, including when the transfer is based on a new address; • A request to reschedule an interview for a later date; • Failure to appear at an interview or fingerprint appointment; • Failure to provide a competent interpreter at an interview; • A request to provide additional evidence after an interview; and • Failure to receive and acknowledge an asylum decision in person (if required). If an applicant is required to receive and acknowledge his or her asylum decision at an asylum office, but fails to appear, his or her 180-day Asylum EAD Clock will stop until the first master calendar hearing with an immigration judge after the case is referred to EOIR. If an applicant fails to appear for an asylum interview, the 180-day Asylum EAD Clock will stop on the date of the missed interview, and the applicant may be ineligible for employment authorization unless he or she makes a written request to the asylum office to reschedule the interview within 45 days and demonstrates “good cause” for missing the interview. A request to reschedule an interview with the asylum office that is made after 45 days from the missed interview must demonstrate “exceptional circumstances,” which is a higher standard than good cause. If the applicant has established exceptional circumstances for missing the asylum interview, and is currently in removal Case 2:16-cv-06067-JHS Document 14-1 Filed 06/23/17 Page 2 of 5 proceedings before an immigration judge, the asylum office cannot reopen the asylum application or reschedule the applicant for an interview unless the immigration judge dismisses the removal proceedings. If the asylum office determines that an applicant’s failure to appear for an interview was due to lack of notice of the interview appointment, the asylum office will not attribute a delay to the applicant and the asylum office will reschedule the interview. For more information about reschedule requests and missed asylum interviews, see “Preparing for Your Asylum Interview” on the Asylum Division’s website at www.uscis.gov/Asylum. For cases pending with EOIR: Asylum cases pending with EOIR are adjudicated at hearings before an immigration judge. At the conclusion (or “adjournment”) of each hearing, the immigration judge will determine the reason for the adjournment. If the adjournment is requested or caused by the applicant, the applicant will stop accumulating time toward the 180-day Asylum EAD Clock until the next hearing. If the adjournment is attributed to the immigration court or the Department of Homeland Security, the applicant will continue accumulating time. Common reasons why an asylum applicant may stop accumulating time toward the 180-day Asylum EAD Clock include: • An applicant asks for the case to be continued so he or she can get an attorney; • An applicant, or his or her attorney, asks for additional time to prepare the case; and • An applicant, or his or her attorney, declines an expedited asylum hearing date. Additionally, if an asylum applicant files a motion between hearings that delays the case, such as a motion to continue or a motion to change venue, and that motion is granted, the applicant may stop accumulating time toward the 180-day Asylum EAD Clock. The last page of this notice contains a chart listing reasons for case adjournments and whether these reasons are applicant-caused delays. Additional information regarding codes used by the immigration courts that affect the 180-day Asylum EAD Clock can be found at the Operating Policy and Procedures Memorandum (OPPM) 13-02, The Asylum Clock, available at www.justice.gov/eoir. Further, the accumulation of time toward the 180-day Asylum EAD Clock stops on the date an immigration judge issues a decision on the asylum application. An applicant whose asylum application is denied before 180 days have elapsed on the 180-day Asylum EAD Clock will not be eligible for employment authorization. However, if the decision is appealed to the Board of Immigration Appeals (Board) and the Board remands it (sends it back) to an immigration judge for adjudication of an asylum claim (including Board remands to an immigration judge following an appeal to a U.S. Court of Appeals), the applicant’s 180-day Asylum EAD Clock will be credited with the total number of days between the immigration judge’s decision and the date of the Board’s remand order. The applicant will continue to accumulate time on the 180-day Asylum EAD Clock while the asylum claim is pending after the remand order, excluding any delays requested or caused by the applicant. How do I find more information about the 180-day Asylum EAD Clock? Asylum applicants in removal proceedings before EOIR may call the EOIR hotline at 1-800-898-7180 to obtain certain information about their 180-day Asylum EAD Clock. The EOIR hotline generally reports a calculation of the number of days between the date an asylum application was filed with an asylum office or at a hearing before an immigration judge, and the date the immigration judge first issued a decision on the application, not including delays requested or caused by the applicant. However, in some cases, an applicant may have accumulated more time on the 180-day Asylum EAD Clock than the number of days reported on the EOIR hotline. The number of days reported on the hotline does not include: • The time an applicant accumulates toward the 180-day Asylum EAD Clock when the applicant has lodged an asylum application at an immigration court window prior to filing the application at a hearing before an immigration judge; or • The time that USCIS may credit to an applicant’s 180-day Asylum EAD Clock if the asylum application was remanded to an immigration judge by the Board for further adjudication of an asylum claim. To determine the number of days on an applicant’s 180-Day Asylum EAD Clock, an applicant may rely on the number of days reported by the EOIR hotline if the applicant has not lodged his or her application at an immigration Case 2:16-cv-06067-JHS Document 14-1 Filed 06/23/17 Page 3 of 5 court window or if the asylum application was not remanded from the Board for further adjudication of an asylum claim. Applicants who lodged an application at an immigration court window should add the number of days between the date of lodging of the application and when the application was filed at a hearing before an immigration judge (or the current date if the applicant has not yet had a hearing at which the application could be filed). Applicants whose cases were remanded from the Board for further adjudication of the asylum claim should add the number of days from the immigration judge’s initial decision on the asylum application to the date of the Board’s order remanding the case. These applicants continue to accumulate time toward the 180-day Asylum EAD Clock after the case is remanded, excluding delays requested or caused by the applicant. For more information on whether a delay is requested or caused by the applicant, please see the previous section. What if I think there is an error in the calculation of time on my 180-Day Asylum EAD Clock? For questions regarding time accumulated on the 180-day Asylum EAD Clock when an applicant’s asylum application is pending with an asylum office, please contact the 180-day Asylum EAD Clock point of contact at the asylum office with jurisdiction over the case. The points of contact can be found on the Asylum Division Web page at www.uscis.gov/Asylum under “Asylum Employment Authorization and Clock Contacts.” For cases before EOIR, asylum applicants should address questions to the immigration judge during the hearing, or to the court administrator, in writing, after the hearing. Applicants should not file motions related to the 180-day Asylum EAD Clock. If an applicant believes the issue has not been correctly addressed at the immigration court level, the applicant may then contact the Assistant Chief Immigration Judge for the appropriate immigration court in writing. For cases on appeal, applicants may contact EOIR’s Office of General Counsel in writing. Please refer to OPPM 13-02 for more details. What if I think there is an error in the adjudication of my Form I-765, Application for Employment Authorization? USCIS service centers adjudicate the Form I-765. Applicants may contact a USCIS service center through the National Customer Service Center hotline at 1-800-375-5283. Inquiries that cannot be resolved by a customer service representative will be routed to the service center where the Form I-765 was filed. Applicants should receive a response from the service center within 30 days. If more than 30 days pass without a response, applicants may email the appropriate USCIS service center at one of the following addresses: California Service Center: csc-ncsc-followup@uscis.dhs.gov Vermont Service Center: vsc.ncscfollowup@uscis.dhs.gov Nebraska Service Center: nscfollowup.ncsc@uscis.dhs.gov Texas Service Center: tsc.ncscfollowup@uscis.dhs.gov If applicants do not receive an email response from the service center address above within 21 days, applicants may email the USCIS Headquarters Office of Service Center Operations at SCOPSSCATA@uscis.dhs.gov. What is the ABT Settlement Agreement? On April 12, 2013, USCIS and EOIR entered into a settlement agreement in the class action litigation B.H., et al. v. USCIS, et al., also referred to as the ABT Settlement Agreement. Under the terms of the ABT Settlement Agreement, USCIS and EOIR agreed to change certain practices related to asylum cases and the calculation of time for employment authorization eligibility. The ABT Settlement Agreement has a separate review process for asylum applicants who believe they have not received relief described in the ABT Settlement Agreement. Applicants who believe they have been denied relief under the Agreement should consult the ABT Settlement Agreement and associated documents, and follow the Individual ABT Claim Review process described in the Agreement to resolve their claims. For more information about the ABT Settlement Agreement, visit www.uscis.gov or www.justice.gov/eoir. How do I apply for work authorization? For instructions on how to apply for employment authorization, visit the USCIS website at www.uscis.gov/i-765 and see the Instructions to Form I-765, Application for Employment Authorization. Case 2:16-cv-06067-JHS Document 14-1 Filed 06/23/17 Page 4 of 5 ADJOURNMENT CODES December 2, 2013 Description Code Clock Description Code Clock Alien to Seek Representation 01 S Preparation – DHS 03 R Preparation – Alien/Attorney/Representative 02 S DHS or DHS Administrative File Unavailable for Hearing 04 R Alien to File for Asylum 05 S DHS Application Process – DHS Initiated 7B R Alien to File Other Application 06 S Alien in DHS/Corrections Custody not Presented for Hearing 09 R DHS Application Process – Alien Initiated 7A S Alien Released From DHS/Corrections Custody 16 R DHS Adjudication of I-130 7C S DHS to Provide Biometrics Check 24 R DHS Adjudication of I-140 7D S DHS Request for an In-Person Hearing 27 R DHS Adjudication of I-730 7E S DHS Investigation 37 R DHS Adjudication of I-751 7F S DHS Forensic Analysis 43 R 1966 Cuban Adjustment 7G S Cooperating Witness/Law Enforcement 44 R Pending Naturalization of Petitioning Relative 7H S New Charge Filed by DHS 47 R No-show by Alien/Alien’s Attorney/Representative 11 S Juvenile Home Study 49 R Alien/Alien’s Attorney/Representative Request 12 S Quarantine – Detained Cases 50 R Supplement Asylum Application 21 S DHS Request for Certification of Mental Competency 53 R Alien or Representative Rejected Earliest Possible Vertical Prosecution – DHS Cause Delay 56 R Asylum Hearing 22 S DHS Vertical Prosecution Date Not Accommodated 58 R Asylum Application Withdrawn/Reset for Other Issues 23 X Alien Request for an In-Person Hearing 26 S Consolidation with Family Member 30 S Preparation of Records/Biometrics Check/ Overseas Investigation by Alien 36 S Illness of Alien 38 S Insufficient Time to Complete Hearing 13 R Illness of Atty/Representative 39 S MC to IC – Merits Hearing 17 R Illness of Witness 40 S IJ Request for an In-Person Hearing 28 R Alien Requested Forensic Analysis 42 S RC to SC Merits Hearing 31 R Joint Request of Both Parties 45 S Unplanned IJ Leave – Sick/Annual 34 R Contested Charges 51 S Unplanned IJ Leave – Detail/Other Assignment 35 R Jurisdiction Rests with the BIA 52 S Interpreter Appeared But IJ Rejected 48 R Alien Claim to U.S. Citizenship 54 S Reserved Decision RR R DHS Vertical Prosecution Date Not Accommodated 57 S IJ Completion (Prior to Hearing) 8A S TeleVideo Malfunction 46 R State Department Response not in File 08 R Hearing Deliberately Advanced 55 N Notice Sent/Served Incorrectly 10 R October 2013 Government Shutdown 59 R Other Operational/Security Factors 14 R Court-Ordered Mental Competency Evaluation 60 R Allow for Scheduling of Priority Case 25 R Court-Appointed Attorney 61 R Concurrent Application 29 R Case Severed from Lead – Hearing Adjourned 96 R No Interpreter – Not Ordered 32 R Case Joined to Lead – Hearing Adjourned 97 R No Interpreter – Ordered but FTA 33 R Data Entry Error 99 N ALIEN – RELATED ADJOURNMENTS DHS – RELATED ADJOURNMENTS IJ – RELATED ADJOURNMENTS OPERATIONAL ADJOURNMENTS CLOCK CODES S = Stops R = Runs X = Eliminates N = Neutral Case 2:16-cv-06067-JHS Document 14-1 Filed 06/23/17 Page 5 of 5 EXHIBIT 2 Case 2:16-cv-06067-JHS Document 14-2 Filed 06/23/17 Page 1 of 4 Case 2:16-cv-06067-JHS Document 14-2 Filed 06/23/17 Page 2 of 4 Case 2:16-cv-06067-JHS Document 14-2 Filed 06/23/17 Page 3 of 4 Case 2:16-cv-06067-JHS Document 14-2 Filed 06/23/17 Page 4 of 4