United States District Court, E.D. Wisconsin
MR. HAYAT SIKANDER, and MRS. CATHERINE SIKANDER, Plaintiffs,
LORETTA E. LYNCH, JEH JOHNSON, THOMAS CIOPPA, and KAY LEOPOLD, Defendants.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 12) AND DISMISSING CASE
PEPPER United States District Judge
plaintiffs filed this case under the Administrative
Procedures Act (“APA”), 5 U.S.C. §701,
et seq., challenging the United States Citizenship
and Immigration Services' (“USCIS”) denial of
the I-130 petition Catherine Sikander filed on her
husband's behalf. An I-130 petition establishes a United
States citizen's relationship to a relative wishing to
immigrate to the United States. The defendants moved for
summary judgment, arguing that there was no genuine issue of
material fact, and that the denial of the I-130 petition was
reasonable and not arbitrary or capricious, or otherwise
contrary to law. The defendants also argued that the
plaintiffs provided no evidence to support their Fifth
Amendment Due Process claim. At a hearing on October 18,
2017, the court granted the defendants' summary judgment
motion. This order provides the court's reasoning in more
Standard of review
APA governs judicial review of an agency's final
decision, Boutté v. Duncan, 348 Fed.Appx.
151, 154 (7th Cir. 2009), and the standards the court applies
on summary judgment in APA cases differ from those the court
applies in a typical civil case. J.N. Moser Trucking,
Inc. v. U.S. Dept. of Labor, 306 F.Supp.2d 774, 781
(N.D. Ill. 2004). The evidence to which the court looks in
deciding a summary judgment motion in an APA case is the
administrative record presented by the agency. See
Florida Power & Light Co. v. Lorion, 470 U.S.
729, 744-745 (1985).
may set aside an administrative agency's decision only if
it is “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.” 5 U.S.C.
§706(2)(A); Israel v. USDA, 282 F.3d 521, 526
(7th Cir. 2002). To determine whether the agency's
decision was arbitrary or capricious, the court considers
whether it was “‘based on a consideration of the
relevant factors and whether there has been clear error of
judgment.'” Ind. Forest Alliance, Inc.
v. United States Forest Serv., 325 F.3d 851, 858-59 (7th
Cir. 2003) (quoting Marsh v. Oregon Natural Res.
Council, 490 U.S. 360, 378 (1989)). Under this narrow,
highly deferential standard, the court upholds an
administrative decision so long as “the agency's
path may be reasonably discerned.” Mt. Sinai Hosp.
Med. Ctr. v. Shalala, 196 F.3d 703, 708 (7th Cir.1999)
(internal quotation marks and citation omitted). A court will
not vacate an agency's decision unless the agency has
relied on factors which Congress had not intended it to
consider, entirely failed to consider an important aspect of
the problem, offered an explanation for it decision that runs
counter to the explanation before the agency, or is so
implausible that it could not be ascribed to a difference in
view or the product of agency expertise.
Nat'l Ass'n of Home Builders v. Defenders of
Wildlife, 551 U.S. 644, 658 (2007) (citation omitted).
It is not enough that [the court] might have reached a
different conclusion; so long as a reasonable mind could find
adequate support for the [agency's] decision, it must
stand.” Ogbolumani v. Napolitano, 557 F.3d
729, 733 (7th Cir. 2009) (citation omitted).
other hand, a reviewing court may not defend a decision on a
new ground not set forth in the original decision. Lara
v. Lynch, 789 F.3d 800, 806 (7th Cir. 2015).
The Plaintiffs' Failure to Comply with the Rules
56(c)(1) of the Federal Rules of Civil Procedure requires a
party asserting that a fact is genuinely disputed to support
that assertion by
citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers or other materials
or “showing the materials cited do not establish the
absence . . . of a genuine dispute or that the adverse party
cannot produce admissible evidence to support the
fact.” Fed.R.Civ.P. 56(c)(1). Civil Local Rule
56(b)(2)(B)(i) requires that the party opposing the motion
file a concise response to the moving party's statement
of facts, with “specific references to the affidavits,
declarations, parts of the record and other supporting
materials relied upon.” Civ. L.R. 56(b)(2)(B)(i)(E.D.
plaintiffs have not complied with these rules. The plaintiffs
did not file their own proposed findings of fact. Instead,
they filed a document entitled “Plaintiffs'
Responses to Defendants' Proposed Findings of Facts in
Support of Summary Judgment.” Dkt. No. 18. This
document reproduces each of the defendant's proposed
findings of fact in paragraph form, then follows each
paragraph with language such as, “Response: Agree,
” or “Response: Deny and object as to relevance,
” or “Deny.” These bare assertions do not
comply with the requirements of the rules-they do not provide
the court with citations to the administrative record to
refute the facts they purport to deny.
plaintiffs also filed a brief in opposition to the motion for
summary judgment, in which they asserted certain facts. Dkt.
No. 16. The plaintiffs did not attach any excerpts of the
administrative record to the brief, and in many places, they
asserted facts without referencing any support for those
facts in the administrative record. For example, on page 7 of
the brief, in footnote 2, the plaintiffs state,
“Catherine was not living in Arizona for more than one
year as the government suggests.” Dkt. No. 16 at 7,
n.2. There is no cite to the record in support of this claim.
In other places, the plaintiffs cite to the record, but the
record does not support the fact they assert. For example, on
page 8 of their brief, the plaintiffs state that notes from
two USCIS interviews reflected that Catherine Sikander had
told the interviewer that Hyat Sikander had attended two
different mosques and that he attended church with her one
time. The brief cites to the administrative record at pages
224-226. But the notes state, “-Muslim, Kenosha, 60th
St. Hw C, Milwaukee, Every Friday, --Christian, went one time
in Kenosha *does not know when/where, Assembly of God. Over a
year since last time.” Dkt. No. 11-3 at 65-67. In other
places, the plaintiffs stated facts “upon information
and belief.” Dkt. No. 16 at 9, n.3.
plaintiffs failed to support their own arguments with
additional proposed findings, or with specific citations to
the record, as required by Fed.R.Civ.P. 56 and Civil L.R.
56(b)(2)(B)(ii). Accordingly, in deciding whether to grant or
deny the motion for summary judgment, the court looked only
to the ...