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Sok v. Nielsen

United States District Court, W.D. Washington, Seattle

January 3, 2020

SOK et al, Petitioners,
v.
NIELSEN et al, Respondents.

          ORDER DENYING RESPONDENTS' MOTION FOR SUMMARY JUDGMENT; GRANTING RESPONDENTS' MOTION FOR SUMMARY JUDGMENT

          Marsha J. Pechman United States District Judge

         THIS MATTER comes before the Court on the Parties' Cross Motions for Summary Judgment. (Dkt. Nos. 19, 20.) Having reviewed the Motions, Petitioner's Reply (Dkt. No. 23), and all related papers, the Court DENIES Petitioners' Motion and GRANTS Respondents' Motion.

         Background

         On March 4, 2014, Petitioner Samnang Sok submitted a Form I-130 Petition (“I-130”), the first step in helping her adopted son in Cambodia immigrate to the United States. (Dkt. No. 19, Ex. 2 at 1.) Respondent, United States Citizenship and Immigration Services (“USCIS”), denied Petitioner's I-130 on June 18, 2014, explaining that intercountry adoptions from Cambodia were suspended under the Hague Convention on the Protection of Children. (Dkt. No. 19, Ex. 2 at 4.) The Board of Immigration Appeals (“BIA”) reversed and remanded the record to the USCIS on September 18, 2015, finding that because Petitioner is not a citizen, the Hague Convention suspension does not apply to her petition. (Dkt. No. 19, Ex. 2 at 4.)

         On July 24, 2018-nearly three years after the BIA's decision and four years after Petitioner Sok filed her I-130-Petitioner Sok, along with her husband, Petitioner Sakhoeun Hing, filed a complaint with this Court, seeking a writ of mandamus ordering Respondents to adjudicate their Petition. (Dkt. No. 1.) Five months later, USCIS once again denied Petitioner Sok's I-130. (Dkt. No. 21, Declaration of Kristin B. Johnson (“Johnson Decl.”), Ex. A at 1.) During this period, the average processing times for Form I-130 Petitions ranged between six and 10.5 months. (Dkt. No. 19, Ex. 2 at 6.)

         Petitioner appealed the denial on March 11, 2019 but USCIS did not provide the Record of Proceedings to the BIA until October 10, 2019-nearly seven months after the appeal and three weeks after Petitioner filed the present Motion for Summary Judgment. (Siegl Decl., ¶¶ 6-7.)

         On August 29, 2019, Petitioners filed an amended Complaint, seeking a writ of mandamus to compel USCIS to forward the record of proceedings to the BIA, as statutorily required. (Dkt. No. 18, ¶ 30.) Several months later, on October 31, 2019, Respondents filed a Motion to Supplement the Pleadings, submitting evidence that the BIA received a copy of Petitioner's appeal on October 10, 2019. (Dkt. No. 24; Dkt. No. 25, Exs. A, B.)

         Although USCIS adjudicated the I-130 and forwarded the record, USCIS informed the BIA that Petitioners did not file a brief with their appeal, leading Petitioners to believe- justifiably-that USCIS did not include their brief in the record. (Johnson Decl., Ex. B.) Petitioners also assert that they called Respondents to confirm the brief had been received at least eight times between April 24, 2019 and August 28, 2019, without receiving a response. (Dkt. No. 19, Ex. B, Declaration of Grant T. Manclark (“Manclark Decl.”) at 2; Dkt. No. 23 at 3.) As a result, Petitioners argued that that the Respondents should be ordered to show evidence that their brief was included in the record and until they did so “it is not absolutely clear that the case is moot.” (Dkt. No. 23 at 4.)

         On December 18, 2019, the Court entered a Minute Order, ordering the Parties to submit evidence regarding the whereabouts of Petitioners' appeal brief. (Dkt. No. 26.) In response, Respondents submitted evidence that the BIA received Petitioners' brief with the record on October 10, 2019. (Dkt. Nos. 28, 29.)

         The Parties have agreed that Petitioners' claims can be decided on cross motions for summary judgment. (Dkt. No. 16 at 2.)

         Discussion

         A. Motion to Supplement

         Respondents have filed a Motion to Supplement the Pleadings, seeking to add the BIA's acknowledgment that on October 10, 2019 the BIA received a copy of Petitioner's appeal. (Dkt. No. 24; Dkt. No. 525, Exs. A, B.) Rule 15(d) of the Federal Rules of Civil Procedure sets the relevant standard for the motion before the Court:

On motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented. The court may permit supplementation even though the original pleading is defective in stating a claim or defense. The court may ...

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