Atieh v. Riordan

United States Court of Appeals
For the First Circuit

No. 12-2314

RANIAH FATHI ATIEH
AND FUAD FAROUQ ATIEH,

Plaintiffs, Appellants,

v.

DENIS RIORDAN ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Howard, Selya and Thompson,
Circuit Judges.

Philip H. Mantis and Saher J. Macarius, with whom Audrey
Botros and Law Offices of Saher J. Macarius were on brief, for
appellants.
J. Max Weintraub, Senior Litigation Counsel, United States
Department of Justice, Civil Division, Office of Immigration
Litigation, with whom Stuart F. Delery, Acting Assistant Attorney
General, David J. Kline, Director, Office of Immigration
Litigation, and Colin A. Kisor, Deputy Director, Office of
Immigration Litigation, were on brief, for appellees.

June 24, 2013
 SELYA, Circuit Judge. The infrastructure of the

adjudicative process consists of rules, many of which are

procedural. Not surprisingly, then, the due administration of

justice typically requires both courts and litigants to give

fastidious attention to procedural regularity. When parties lead

a court down a path that ignores proper procedure, bad things often

happen.

This case illustrates the point: the parties presented

the matter to the district court in a posture inimical to that

required by the Administrative Procedure Act (APA), 5 U.S.C.

§§ 701-706, for judicial review of final agency decisions. The

district court took the bait and decided the case as the parties

had presented it. We vacate the resultant judgment and remand for

further proceedings.

The relevant facts and travel of the case lend themselves

to a succinct summary. Plaintiff-appellant Fuad Atieh is a

Jordanian national. In 1992, he entered the United States on a

six-month visitor's visa and overstayed. Roughly ten years later,

United States Citizenship and Immigration Services (USCIS) awakened

to Fuad's continued presence and placed him in removal proceedings.

While the removal proceedings were velivolant, Fuad — on

January 23, 2004 — married his first cousin, Jamileh Khudari, a

United States citizen. Shortly thereafter, Jamileh filed an I-130

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visa petition to Fuad's behoof.1 In a matter of months, however,

the couple separated, and Jamileh withdrew the petition. On

December 12, 2004 — less than a year after Fuad and Jamileh had wed

— the separation ripened into a divorce.

The following summer, Fuad married his second wife,

Raniah, who (like Jamileh) was a United States citizen. She too

filed an I-130 petition on Fuad's behalf.

On March 3, 2006, USCIS interviewed Fuad and Raniah in

connection with the new I-130 petition. The interviewer questioned

Fuad about his earlier marriage. Fuad explained that the marriage

was arranged by the couple's parents and that he was never in love

with Jamileh. During the interview, Fuad reportedly stated that he

and his parents had hoped that he would acquire lawful permanent

resident status through Jamileh.

On May 8, 2006, USCIS issued a notice of intent to deny

the I-130 petition pursuant to 8 U.S.C. § 1154(c), which authorizes

such action if the designated beneficiary (here, Fuad) has

previously entered into a marriage for the purpose of evading the

immigration laws. In response, the Atiehs submitted affidavits

from Fuad, Jamileh, Fuad's parents, and Jamileh's parents,

asserting that Fuad's first marriage was bona fide. USCIS

1
A United States citizen seeking an "immediate relative" visa
for his or her spouse, parent, or child is required to file a Form
I-130 Petition for Alien Relative with the Attorney General. See
8 U.S.C. § 1154(a)(1)(A)(i); 8 C.F.R. § 204.1(a)(1).

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nonetheless denied the I-130 petition, finding that, on the

totality of the record, Fuad had entered into a sham marriage with

Jamileh to evade the immigration laws.

The Atiehs appealed, but the Board of Immigration Appeals

(BIA) dismissed their appeal, thus affirming the denial of the I-

130 petition. The BIA concluded that the Atiehs had failed to

establish that Fuad's first marriage was bona fide. In reaching

this conclusion, the BIA stressed both Fuad's statement that his

parents had hoped that he would acquire lawful permanent resident

status through Jamileh2 and his pursuit of a romantic relationship

with Raniah prior to his first marriage.

The Atiehs repaired to the district court and sued to set

aside the BIA's decision.3 The district court wisely held this

suit in abeyance while Raniah pursued a renewed I-130 petition on

Fuad's behalf before the agency.

In due course, USCIS denied the renewed petition, and the

BIA again affirmed. This new round of administrative skirmishing

led to the filing of an amended complaint in the district court.

2
The BIA's decision cites Fuad's "express statement at his
interview that his parents had hoped he would acquire lawful
permanent resident status through his cousin." This is a slight
(but potentially significant) variance from USCIS's notice of
denial, which cites Fuad's testimony that "we all hoped I could get
my residence here through [Jamileh]."
3
At the time that suit was commenced, a motion for
reconsideration was apparently pending before the BIA (without the
administrative record we cannot tell). In any event, that motion
was subsequently denied.

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The amended complaint does not distinguish between the two BIA

decisions. We agree, however, with the district court that "the

denial of the first [I-130] petition was effectively superseded by

the denial of the second petition." Atieh v. Riordan, No. 09-

10977, 2012 WL 4498909, at *1 (D. Mass. Oct. 2, 2012).

The defendants, government officials sued as such, moved

to dismiss for failure to state a claim upon which relief could be

granted. See Fed. R. Civ. P. 12(b)(6). The district court allowed

the motion, see Atieh, 2012 WL 4498909, at *5, and this timely

appeal ensued.

Our analysis begins — and ends — with the irregular

manner in which this case was handled in the court below. Although

the amended complaint styles this case as an action for a

declaratory judgment, see 28 U.S.C. § 2201(a); Fed. R. Civ. P. 57,

that description is inapt. As all parties acknowledged in their

briefs and at oral argument, the district court's jurisdiction here

arises under the judicial review provisions of the APA, 5 U.S.C.

§ 706. This means, of course, that judicial review of the agency's

decision must proceed on the administrative record. Citizens to

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971);

Cousins v. Sec'y of the U.S. Dep't of Transp., 880 F.2d 603, 610

(1st Cir. 1989) (en banc).

This is a critical datum. The APA requires a reviewing

court to set aside an agency decision when the administrative

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record shows that the decision is "arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law." 5 U.S.C.

§ 706(2)(A). An agency decision fails to pass this test if the

administrative record reveals that "the agency relied on improper

factors, failed to consider pertinent aspects of the problem,

offered a rationale contradicting the evidence before it, or

reached a conclusion so implausible that it cannot be attributed to

a difference of opinion or the application of agency expertise."

Assoc'd Fisheries of Me., Inc. v. Daley, 127 F.3d 104, 109 (1st

Cir. 1997); see Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto.

Ins. Co., 463 U.S. 29, 43 (1983).

In the case at hand, neither side purposed to file a copy

of the administrative record with the district court. Instead, the

defendants sought dismissal on the basis of the plausibility

standard limned by the Supreme Court in Bell Atlantic Corp. v.

Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662

(2009). The Atiehs elected to meet fire with fire, resisting the

motion on the ground that their amended complaint satisfied the

plausibility standard. The district court, following the parties'

lead, examined the amended complaint for plausibility, found the

Atiehs' allegations of arbitrary and capricious decisionmaking

implausible, and dismissed their action. See Atieh, 2012 WL

4498909, at *4-5.

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 We think that the parties led the court down a primrose

path. The plausibility standard is a screening mechanism designed

to weed out cases that do not warrant either discovery or trial.

See, e.g., Grajales v. P.R. Ports Auth., 682 F.3d 40, 46 (1st Cir.

2012). To this end, the plausibility standard asks whether the

complaint "contain[s] sufficient factual matter . . . to 'state a

claim to relief that is plausible on its face.'" Iqbal, 556 U.S.

at 678 (quoting Twombly, 550 U.S. at 570).

APA review, however, involves neither discovery nor

trial. Thus, APA review presents no need for screening. It

follows that the plausibility standard has no place in APA review.

This makes perfect sense. The focal point of APA review

is the existing administrative record. See Camp v. Pitts, 411 U.S.

138, 142 (1973) (per curiam). Allowing the allegations of a

complaint to become the focal point of judicial review introduces

an unnecessary and inevitably unproductive step into the process.

The relevant inquiry is — and must remain — not whether the facts

set forth in a complaint state a plausible claim but, rather,

whether the administrative record sufficiently supports the

agency's decision. Cf. Mass. Dep't of Pub. Welfare v. Sec'y of

Agric., 984 F.2d 514, 525 (1st Cir. 1993) (explaining, in summary

judgment context, that "the real question is . . . whether the

administrative record, now closed, reflects a sufficient dispute

concerning the factual predicate on which [the agency] relied

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. . . to support a finding that the agency acted arbitrarily or

capriciously").

This paradigm dictates the outcome of the instant appeal.

We hold that the plausibility standard does not apply to a

complaint for judicial review of final agency action and that the

district court therefore erred in invoking it.4

Nor can we say that the district court's methodologic

error was harmless. For aught that appears, the parties neglected

to file the administrative record with the district court (or, for

that matter, with this court). Although the Atiehs submitted

various materials as attachments to their complaint and as addenda

to their appellate briefs, it would be sheer speculation to assume

that these submissions collectively constitute the full

administrative record. Indeed — even though the government argued

to the district court that the record as a whole undercut the

plausibility of the Atiehs' allegations — some portions of the

administrative record are obviously lacking. For example, the

materials on file do not contain any transcript or recording of the

crucial March 3, 2006 visa petition interview, despite the fact

4
This does not mean, however, that Rule 12(b)(6) can never be
in play in an APA appeal. Such a motion may be appropriate in
certain circumstances. For example (and without limiting the
generality of the foregoing), it is possible that such a motion
might lie where the agency claims that the underlying premise of
the complaint is legally flawed (rather than factually
unsupported). See, e.g., Zixiang Li v. Kerry, 710 F.3d 995, 1000-
01 (9th Cir. 2013). The case at hand is not such a case.

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that the parties and the district court cite statements purportedly

made by Fuad during this interview.

In all events, a court should not be required to guess at

whether or not it has the complete administrative record. The

customary practice is for the government to certify that the

administrative record is complete, and for the parties to file it

with the district court. See United States v. Menendez, 48 F.3d

1401, 1409-10 (5th Cir. 1995) (reversing and remanding for failure

of government to provide district court with a certified copy of

the administrative record); cf. 1st Cir. R. 17(b)(1) (delineating

similar filing requirement in connection with direct court of

appeals review of agency orders). When parties ignore this

customary practice, they undermine a court's ability to perform

meaningful review of agency action.

We need go no further. For the reasons elucidated above,

we vacate the judgment and remand to the district court for

additional proceedings consistent with the APA. We do not reach

the merits of this appeal and, therefore, take no view as to the

appropriate outcome of those additional proceedings.

Vacated and remanded. All parties shall bear their own costs.

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