United States District Court, D. Nevada
ORDER MOTIONS FOR SUMMARY JUDGMENT (ECF NOS. 49 AND
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.
the Court is Plaintiff's Second Motion for Summary
Judgment (ECF No. 49) and Defendants' Second Motion for
Summary Judgment (ECF No. 50). For the reasons discussed
below, Defendants' motion is granted and Plaintiff's
motion is denied.
filed a Complaint in this case on January 1, 2014. ECF No. 1.
The case was initially assigned to Judge Robert C. Jones and
Magistrate Judge Carl W. Hoffman. ECF No. 2. The case was
reassigned to Judge Richard F. Boulware, II on August 12,
2014. ECF No. 13. Plaintiff filed a Motion for Summary
Judgment on August 30, 2014. ECF No. 15. Defendants filed a
Cross Motion for Summary Judgment on September 16, 2015. ECF
No. 17. Plaintiff filed a Motion to Amend/Correct Complaint
on October 6, 2014. ECF No. 21. At a hearing on September 23,
2015, the Court denied without prejudice the Motions for
Summary Judgment (ECF Nos. 15 and 17) and ordered Plaintiff
to file a Motion to Amend that complied with local rules by
attaching the proposed Amended Complaint. Plaintiff filed the
revised Motion to Amend on October 7, 2015, which was granted
at a hearing on December 16, 2015. ECF Nos. 31, 36. The
Amended Complaint was filed on December 21, 2015. ECF No. 37.
Defendants filed an Answer to the Amended Complaint on
February 16, 2016. ECF No. 40. Defendants filed a Motion to
Dismiss for Lack of Prosecution on January 27, 2017. ECF No.
43. On June 23, 2017, the Court held a hearing in which it
denied the Motion to Dismiss for Lack of Prosecution and
ordered that dispositive motions were due by August 25, 2017.
ECF No. 48. Plaintiff and Defendants filed the instant Second
Motions for Summary Judgment on August 25, 2017. ECF Nos. 49,
deciding a motion for summary judgment challenging a final
agency action, the function of the reviewing court is to
determine whether, as a matter of law, the evidence in the
administrative record permitted the agency to make the
decision it did. Occidental Engineering Co. v. INS,
753 F.2d 766, 769 (9th Cir. 1985). The standard of review set
forth in Fed.R.Civ.P. 56 is not applicable, but instead, the
entire case on review under the Administrative Procedure Act
(APA) is a question of law. Id. at 770. Summary
judgment involving review of agency action does not require
fact-finding by the district court. Rather, the court's
review is limited to the administrative record. Northwest
Motorcycle Ass'n. v. Dep't of Agriculture, 18
F.3d 1468, 1472 (9th Cir. 1994).
the APA, a Court may only hold unlawful and set aside an
agency action that it finds to be “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with the law.” 5 U.S.C. § 706(2)(A);
Ariz. Cattle Growers' Ass'n v. U.S. Fish &
Wildlife, 273 F.3d 1229, 1236 (9th Cir. 2001).
“Agency action should be overturned only 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 or the product of agency expertise.”
Safari Aviation Inc. v. Garvey, 300 F.3d 1144, 1150
(9th Cir. 2002) (internal citations and quotations omitted).
Although a court's review under the APA should be
“searching and careful, ” it is not de
novo. Marsh v. Oregon Natural Resources
Council, 490 U.S. 360, 378 (1989). A district court may
not substitute its judgment for that of the agency.
agency's factual findings are reviewed under the
substantial evidence standard. Ramos-Vasquez v. INS,
57 F.3d 857, 861 (9th Cir. 1995). “Substantial evidence
constitutes more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. If the evidence is
susceptible of more than one rational interpretation, we must
uphold [the agency's] findings.” Bear Lake
Watch, Inc. v. FERC, 324 F.3d 1071, 1076 (9th Cir. 2003)
(internal citations omitted).
following facts are taken from the administrative record in
husband and the intended beneficiary of her I-130 petition,
Alayne Ferreira, married his first wife, Irsa Pedrosa, on
June 8, 2007 in Orlando, Florida. On June 25, 2007, Pedrosa
signed an I-130 Petition on Ferreira's behalf, which was
filed on July 30, 2007 along with Ferreira's I-485
Application. On June 9, 2008, Ferreira and Pedrosa appeared
for a United States Citizenship and Immigration Services
(USCIS) interview regarding their marriage, where they both
claimed, under oath, that they were residing together in a
bona fide marital relationship.
September 27, 2008, two USCIS Officers, Carol Lazaro and
Ilene Valenzuela, conducted an unannounced site visit at the
address on file for Ferreira and Pedrosa. The fraud
verification memorandum created by Officer Lazaro is the only
record of this event and provides the following information:
Plaintiff Tkacz answered the door and told the officers she
was living there as a roommate, and that Pedrosa and Ferreira
were at work. Officer Lazaro then called Ferreira's
cellular telephone number. Ferreira answered and told Officer
Lazaro that he and his wife are the only residents at the
address, and that his wife was at home that day. Officer
Lazaro then explained to Ferreira that she knew Plaintiff was
living at his home and that Pedrosa was not living in Las
Vegas. Shortly after the phone call, Ferreira arrived at his
house and spoke with the officers in person. The memorandum
summarizes the interaction between Ferreira and the officers:
When Mr. FERREIRA arrived home, he invited myself and officer
Valenzuela into his home. Jessica [Tkacz] did not seem
pleased with our presence and went upstairs. Mr. FERREIRA,
SIO Valenzuela and myself all sat down at the kitchen table
to talk. Mr. FERREIRA was able to provide a current telephone
number for Irsa PEDROSA, which was , but was unaware of her
current address, although he stated he believed she was
either living in Florida or Puerto Rico. He stated Irsa
PEDROSA had come to Las Vegas for the interview and then left
town. He stated he just wanted to make a life in the United
States and that Irsa had married him to help him. Mr.
FERREIRA stated that about two months after filing the Form
I-485, Application for Adjustment of Status, He met his
current girlfriend Jessica TKACZ. They have been in a
relationship ever since. At one point Jessica had become
pregnant but had lost the baby.
March 26, 2009, USCIS issued Ferreira and Pedrosa a Notice of
Intent to Deny (NOID) their I-130 petition. A copy of the
NOID was sent to Pedrosa's last known address, which was
returned as “undeliverable, ” and to her attorney
of record, John Doechung Lee. USCIS did not ...