ROBERT J. CONRAD, JR., Chief Judge.
The plaintiff in this action, Mohammed Hossein Saeedi, is an Iranian national who has been granted political asylum by the United States. He sought an adjustment of status to permanent resident in July 2002. It took seven years for the United States Citizenship and Immigration Services (USCIS) to deny Saeedi's application. In denying the application, USCIS determined that Saeedi was inadmissible when he originally entered the United States in 1999, because he misrepresented a material fact, namely that he intended only to visit rather than remain in the United States, when he obtained a B-2 tourist visa.
The facts are largely undisputed. Saeedi was born on July 24, 1966, and raised in Iran. He immigrated to the United States in 1989 as an unmarried child of a permanent resident, and returned to Iran that same year.
Some time after returning to Iran, Saeedi became a member of a political organization. He later experienced the organization to be both corrupt and militant, so he distanced himself from that group. Saeedi received an invitation from his sister to visit her in the United States. Under perceived threats and feelings that he may be in grave danger because of alienating militant clerics, he traveled to Turkey and applied for a visitor's visa. He was denied in the first instance, but he was granted a visitor's visa upon his second application. During this period, Saeedi also sought to have his former status as a legal permanent resident reinstated, but this request was denied because he was now married.
Saeedi subsequently left Iran for the United States. He entered the United States on July 2, 1999, with a B-2 tourist visa, which held an expiration date of January 1, 2000. Roughly four months later, on November 4, 1999, Saeedi filed an application for asylum, citing fears of reprisal by the extremist political faction from which he had distanced himself, and fears of severe persecution by the Iranian government. An immigration judge in Atlanta granted Saeedi asylum on February 22, 2001.
Saeedi's wife and two young daughters were reunited with him in the United States in January 2002, receiving asylee status as his relatives. After waiting the required one-year period from the date he received asylum, Saeedi submitted an I-485 application for adjustment of status to permanent resident. The United States Immigration and Naturalization Service ("INS"), USCIS's predecessor, received
Saeedi received a notice from the Nebraska Service Center dated April 14, 2002, stating that "[i]t usually takes 300 to 330 days from the date of this receipt for us to process this type of case." (Doc. No. 14-3 at 5). More than three years later, in August 2005, the Nebraska Service Center transferred Saeedi's I-485 application to the Texas Service Center ("TSC") in Mesquite, Texas, purportedly to "speed processing" of the case. (Doc. No. 14-3 at 6: I-797C, Notice of Action).
Subsequently, the TSC requested more evidence from Saeedi. In a "Request for Initial Evidence" dated September 20, 2005, the TSC stated that the "office is unable to complete the processing of your application without further information. You must submit the information within twelve (12) weeks. Failure to do so may result in the denial of your application." The TSC requested three items: (1) a completed medical examination form (Form I-693); (2) a Supplemental Form to I-693 containing an analysis of Saeedi's vaccination history signed by a civil surgeon; and (3) and updated and completed Biographic Information Sheet, Form G-325-A.
Saeedi visited a civil surgeon and received the required vaccinations on October 11, 2005. He then provided all the information requested by the TSC on October 17, 2005, well-within the twelve-week time period. And there his application sat for roughly three and one half years.
Saeedi then received a letter from the TSC and signed by Roark, dated June 13, 2009, entitled "Request for Evidence." The letter begins, "This office is unable to complete the processing of your application without further information." (Doc. No. 14-4 at 9). It goes on to point out various discrepancies and inconsistencies between his I-485 application and statements in his asylum application. The letter requests that Saeedi submit a new completed Form I-485 without fee. On its second page, the letter states the following:
(Id. at 10) (emphasis in original). Finally, the letter informs Saeedi that his Report of Medical Examination and Vaccination Record (Form I-693), which he had submitted in October 2005, "does not indicate that the required tuberculin skin test was conducted." (Id.). The letter closes, "You must submit the requested information within thirty (30) days from the date of this letter. Failure to do so may result in the denial of your application." (Id.).
Thereafter, on July 16, 2009, Saeedi provided the requested tuberculin skin test, along with an extensive letter explaining the perceived discrepancies and why they were not incorrect. In the letter, Saeedi responds to the request for the I-602 waiver of inadmissibility by stating that he has been granted asylum, and that he has left the United States to travel and returned without any problem three times since. He did not submit the Form I-602, which would have required him to admit to fraud. Finally, the letter responds to USCIS's other requests from the most recent "Request For Evidence."
By letter dated December 17, 2009, USCIS sent notice to Saeedi that his case had been reopened and then subsequently denied that same day. The notice states, "Collectively the information established you misrepresented a material fact which allowed your entry to the United States and the opportunity of applying for Asylum on November 30, 1999. USCIS attempted to resolve this issue by allowing you the opportunity of requesting a waiver for this violation." (Doc. No. 1-3 at 9). This letter informed Saeedi that he would not lose his asylum status unless USCIS or the Executive Office for Immigration Review were to formally terminate it, and that he remained authorized to work in the United States incident to his asylum status. Finally, the letter makes clear that no appeal lies from the decision, and that it does not preclude the filing of a new Form I-485 with required supporting evidence and the proper fee.
Saeedi filed the instant lawsuit on January 27, 2010, naming David L. Roark, Director of the Texas Service Center, as the defendant in his official capacity.
The Administrative Procedure Act ("APA") provides for judicial review of final agency actions. See 5 U.S.C. §§ 702, 704. Under the APA,
Id. § 706(2)(A), (E). In this context, "a reviewing court must decide if the agency's decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.... Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one." Virginia Agr. Growers Ass'n, Inc. v. Donovan, 774 F.2d 89, 93 (4th Cir.1985). As a result, this Court does not have discretion to substitute its own judgment for the agency's. Rather, the error must be more serious. For example, an agency finding would normally be considered arbitrary and capricious
Motor Vehicle Manufacturers Ass'n, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). Further, "[s]ubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." United Seniors Ass'n v.
An asylee seeking an adjustment to permanent resident status must (1) "appl[y] for such adjustment"; (2) have "been physically present in the United States for at least one year after being granted asylum"; (3) "continue[] to be a refugee ... or a spouse or child of such a refugee"; (4) not be "firmly resettled in any foreign country"; and (5) be "admissible ... as an immigrant ... at the time of examination for adjustment." 8 U.S.C. § 1159(b).
Title 8, United States Code, Section 1182(a) provides in relevant portion: "Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this chapter is inadmissible." 8 U.S.C. § 1182(a)(6)(C)(i). "Findings of willful misrepresentation are reviewed under the substantial evidence standard...." Singh v. Gonzales, 413 F.3d 156, 161 (1st Cir.2005).
Where an asylee seeking an adjustment of status is determined to be statutorily inadmissible as an immigrant under § 1182(a)(6)(C)(i) for willfully misrepresenting a material fact, the asylee must file a Form I-602 application for waiver of grounds of excludability. Only if USCIS grants the waiver, in its discretion, will it then grant an adjustment of status pursuant to an I-485 application. See (Doc. No. 15-1 at 6: U.S. Dep't of Homeland Security, U.S. Citizenship & Immigration Servs., Interoffice Memorandum dated October 31, 2005). In such a situation, "an adjudicator must require the refugee-based adjustment applicant to file a Form I-602 with an explanation, and supporting documentation if available, demonstrating that the alien is eligible for and should be granted a waiver ... as a matter of discretion." (Id.) ("The grant of asylee ... status does not automatically waive any ground of inadmissibility.").
This entire case turns upon one question: Whether USCIS's determination that Saeedi is statutorily inadmissible was based on substantial evidence. If the decision was based on substantial evidence, then Saeedi's failure to file a Form I-602 application for waiver of grounds of excludability after USCIS requested it left the Defendant no choice but to deny his I-485 application. If the decision that Saeedi is statutorily inadmissible was not based upon substantial evidence, then the matter must be remanded for a new determination.
Saeedi claims USCIS manufactured a reason for his inadmissibility out of mere
Saeedi contends he intended only to visit when entered the United States in 1999.
USCIS relied on two main facts in concluding Saeedi intended to remain in the United Stated when he obtained the tourist visa. First, the Defendant points to Saeedi's application for asylum, where he referred to his "flight to freedom" and a man who helped him leave Iran "to the United States of America and freedom." (Doc. Nos. 14-3 at 16; 14-4 at 2). Second, the Defendant highlights that Saeedi had applied for reinstatement of his former status as a lawful permanent resident of the United States, and was denied, shortly before obtaining the tourist visa that enabled his entry into the United States in 1999. The Defendant argues that these two facts are substantial evidence supporting USCIS's determination that Saeedi intended to remain in the United States when he obtained the tourist visa. Thus, the Defendant argues, Saeedi committed fraud or willfully misrepresented a material fact when seeking to obtain the visa, which rendered him inadmissible at the time he entered the country in 1999 and ineligible for an adjustment to permanent resident status thereafter.
Saeedi provides little in the way of relevant argument or citations to record evidence. However, contrary to the Defendant's assertions, while the facts indicate Saeedi was intent on leaving Iran, there is nothing evidencing an intent to remain permanently in the United States at the time he obtained the visa. Rather, Saeedi's asylum application states that he received an invitation from his sister to "visit" her in the United States, not to live with her. Saeedi's wife and two young children remained in Iran. Saeedi still had a home in Iran where his family lived. His asylum application further portrays a father and husband yearning to return to his family:
(Doc. No. 14-4 at 5).
There is no good evidence of where Saeedi, at the time he secured the tourist visa, intended to go if he could not return to Iran upon the expiration of the visa. Statements in his asylum application regarding his "flight to freedom" are retrospective,
Further, the mere fact that Saeedi sought to have his status as a lawful permanent resident reinstate
Case law on the issue at hand is sparse, which is evidenced by the parties' inability to cite a single case on point. The cases finding petitioners inadmissible under § 1182(a)(6)(C)(i) for willfully representing a material fact generally involve clear misrepresentation or fraud. See Ymeri v. Ashcroft, 387 F.3d 12, 20 (1st Cir.2004) (holding use of false passports to pass through the country on transit without visa status violates § 1182(a)(6)(C)(i)); Joseph v. Gonzales, 200 Fed.Appx. 53 (2d Cir. 2006), at Kurt v. U.S. Atty. Gen., 252 Fed.Appx. 295, 298-99 (11th Cir.2007) (unpublished) (holding petitioner, who admitted he misrepresented his true intent when entering the country on transit without visa status, violated § 1182(a)(6)(C)(i)).
Here, there is no clear misrepresentation or fraud. Instead, there is a hazy uncertainty as to Saeedi's intent amidst a conspicuous lack of evidence. This lack of evidence leads to any host of possibilities. For instance, Saeedi had navigated through the United Arab Emirates and Turkey in seeking to obtain a visa to enter the United States in response to his sister's invitation to visit. These countries' closer proximity to Saeedi's wife and two daughters, who lived in Iran at the time, may make it more likely, absent any evidence otherwise, that he intended to immigrate to one of these other countries upon leaving the United States when the tourist visa expired. And while the Court does not suggest that Saeedi actually intended to immigrate to Turkey or the UAE, such speculation is exactly the sort of guesswork in which the Defendant engaged. While substantial evidence "may be somewhat less than a preponderance," United Seniors Ass'n, 423 F.3d at 404, the Defendant's guesswork falls far short of that standard.
Saeedi may even have entered the United States with the hope of remaining here, should he be received as a political asylee. However, such a hope, conditioned on the understanding that he may end up having to leave should his asylum application be denied, does not amount to a willful misrepresentation of a material fact. What is more, the record does not indicate whether Saeedi even hoped to remain in the United States when he initially entered the country, much less whether he intended to remain. A reasoning mind would not accept this lack of evidence as sufficient to support the conclusion that Saeedi willfully misrepresented a material fact when securing a B-2 tourist visa.
