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NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MILLICENT AMPONSAH,

 

 Plaintiff,

 

 v.

WILLIAM BARR, Attorney General of the 

United States, et al., 

 Defendants.

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 No. 20 C 4639

 Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiff Millicent Amponsah is challenging the denial of the I-130, Petition for Immediate 

Relative, she filed on behalf of her husband, Moses Kwabena Owusu. Plaintiff alleges that 

Defendants violated the Administrative Procedures Act (“APA”) by taking an action that was 

arbitrary and capricious, an abuse of discretion, not in accordance with law, failed to observe a 

procedure required by law, and that violated the Fifth Amendment’s Due Process Clause. 

However, the Court may only weigh in on an agency action that is “final” within the meaning of 

the law. Defendant United States Citizenship and Immigration Services (“USCIS”) has re-opened 

the adjudication of the petition and vacated its earlier decisions, and therefore there is no final 

agency for this Court to review. Accordingly, Defendants’ Motion to Dismiss [Dkt. 11] is granted

without prejudice. 

BACKGROUND

The following factual allegations are taken from Amponsah’s Complaint (Dkt. 1) and are 

assumed true for the purposes of this motion. W. Bend Mut. Ins. Co. v. Schumacher, 844 F.3d 670, 

675 (7th Cir. 2016). Millicent Amponsah is a United States citizen. (Dkt. 1 ¶ 1). She married 

Moses Owusu, a native and citizen of Ghana, on November 19, 2011 in Joliet, Illinois. (Id. ¶¶ 5, 

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14). On December 6, 2012, Amponsah filed an I-130, Petition for Alien Relative, on behalf of 

Owusu, to classify him as the spouse of a U.S. citizen. (Id. ¶ 15). Amponsah filed a number of 

supporting documents to her petition to show that Owusu was her lawful spouse. (Id. ¶ 16). 

Amponsah and Owusu also participated in interviews as part of their petition. (Id. ¶¶ 17–19). On 

June 26, 2017, USCIS issued a Notice of Intent to Deny (“NOID”) Petition for Alien Relative, 

denying the petition after two interviews and several site visits that included an interview with a 

co-tenant of the couple and anonymous neighbors who raised suspicion about whether the couple 

were living together. (Id. ¶¶ 22–29). The 2017 NOID also states that Amponsah and Owusu “did 

have some consistent testimony, on such topics as your respective employment and employment 

hours, where your respective wedding rings were purchased, the date you moved into the address 

of record, and how you celebrated the beneficiary’s last birthday,” but then noted nine alleged 

discrepancies between Amponsah and Owusu’s testimony at the second interview and finding a 

lack of evidence of a bona fide marriage. (Id. ¶ 33). On July 26, 2017, Amponsah, through 

counsel, timely responded to the NOID and rebutted the above NOID. (Id. ¶ 34). On March 28, 

2019, then-Director Martha Medina issued a Decision to deny the petition, finding that Amponsah 

did not satisfactorily explain the discrepancies. (Id. ¶ 36). The couple then elected to withdraw 

their petition and file a Second I-130 petition (hereinafter “Second I-130 petition”). (Id. ¶ 37). 

On May 16, 2019, Amponsah, through counsel, filed their Second I-130 petition. (Id. ¶ 

38). Amponsah and Owusu appeared for an interview at USCIS and brought numerous documents 

demonstrating the validity of their marriage. (Id. ¶¶ 40–41). On December 19, 2019, Acting Field 

Office Director Mike Klinger issued a Notice of Intent to Deny Petition for Alien Relative 

(hereinafter “2019 NOID”) that was largely reiterative of the 2017 NOID. (Id. ¶ ¶ 42–45). On 

January 17, 2020, Amponsah, through counsel, timely responded to the 2019 NOID, stating that 

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the couple clearly met their burden of proof with the evidence submitted in connection with. 

Amponsah’s Second I-130 petition, “especially given that they already submitted four inches of 

evidence at their October 28, 2019 interview.” (Id. ¶ 50). On March 9, 2020, Field Office Director 

Kevin Riddle issued a Decision to deny Amponsah’s Second I-130 petition (hereinafter “2020 

Denial”). (Id. ¶ 55). The 2020 Denial discredited the additional evidence of the bona fide nature 

of the marriage submitted in response to the Second NOID, and then includes the same language 

contained in the first NOID issued on June 26, 2017, specifically the language discussing the 

USCIS site visits on October 5, 2016 and October 24, 2016. (Id. ¶ 56). On August 6, 2020, 

Plaintiff filed the instant complaint, alleging that the 2020 Denial “constitutes final agency action.” 

(Id. ¶ 60). 

LEGAL STANDARD

A motion to dismiss for failure to state a claim under Rule 12(b)(6) challenges the 

sufficiency of the complaint. Berger v. National Collegiate Athletic Association, 843 F.3d 285, 

289–90 (7th Cir. 2016). When considering a motion to dismiss under Federal Rule of Civil 

Procedure 12(b)(6), the Court must construe the complaint “in a light most favorable to the 

nonmoving party, accept well-pleaded facts as true, and draw all inferences in the non-moving 

party’s favor.” Bell v. City of Chicago, 835 F.3d 736, 738 (7th Cir. 2016). The complaint must 

contain a “short and plain statement of the claim showing that the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2). This statement must give the defendant fair notice of what the claim is and 

the grounds upon which it rests. Erickson v. Pardus, 551 U.S. 89, 93 (2007). A party need not 

plead “detailed factual allegations,” but “labels and conclusions” or a “formulaic recitation of the 

elements of a cause of action will not do.” Bell Atlantic Corp. v. Twonbly, 550 U.S. 544, 555 

(2007). A complaint must contain sufficient factual matter that when “accepted as true . . . ‘state

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a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

DISCUSSION

Arbitrary and capricious review is “highly deferential” and an administrative decision 

should be upheld “‘as long as the agency’s path may be reasonably discerned.’” Sierra Club v. 

U.S. Environmental Protection Agency, 774 F.3d 383, 393 (7th Cir. 2014) (citing Mt. Sinai Hosp. 

Med. Ctr. v. Shalala, 196 F.3d 703, 708 (7th Cir.1999)). Review under the arbitrary and capricious 

standard is principally concerned with ensuring the Agency examined the relevant data and 

articulated a satisfactory explanation for its action. Id. (citing Bluewater Network v. EPA, 370 

F.3d 1, 11 (D.C. Cir. 2004)). 

This deferential judicial review is conducted “only over ‘final agency action for which 

there is no other adequate remedy in a court.’” Dhakal v. Sessions, 895 F.3d 532, 539 (7th Cir. 

2018) (quoting 5 U.S.C. § 704). Two conditions must be met before an agency action is considered 

final. See U.S. Army Corp. of Eng’r v. Hawkes Co., Inc., 136 S.Ct. 1807, 1813 (2016). “First, the 

action must mark the consummation of the agency's decisionmaking process—it must not be of a 

merely tentative or interlocutory nature. And second, the action must be one by which rights or 

obligations have been determined, or from which legal consequences will flow.” Id. (citing 

Bennett v. Spear, 520 U.S. 154, 177 – 78 (1997).

This Court may not review the USCIS’s decision because it is not a final agency action. 

On September 17, 2020, the USCIS issued a decision to reconsider the denial of the Second I-130 

petition. (See Dkt. 11-2). That decision notified Plaintiff in accordance with 8 C.F.R. § 103.5 and

informed Plaintiff that the motion to re-open “supersedes and vacates the decision issued 

September 10, 2020, as well as the previous denial issued March 9, 2020.” (Id. at 2). The notice 

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states that “the previous decision, issued March 9, 2020, is re-opened for review” and that the 

agency was affording her 30 days to submit a brief” to respond to the agency’s position. Id.

Because the adjudication has been re-opened and the prior decision vacated, the decision 

that Amponsah is challenging no longer marks “the consummation of the agency's decisionmaking 

process,” and no legal consequences will flow from the prior decisions. Hawkes, 136 S.Ct. at 

1813. Plaintiff cites to a number of cases that discuss how “typically, courts hold that agency 

action is ‘non-final’ where an agency ‘re-opens’ its proceedings, especially in the immigration 

context.” Mantena v. Hazuda, No. 17cv5142, 2018 WL 3745668, *6 (S.D.N.Y. Aug. 7, 2018). 

As noted in Mantena, “courts often tie these decisions to whether an agency requests more 

evidence and actually conducts further investigation upon re-opening.” Here, the USCIS has 

requested further briefing and stated that it will re-evaluate Amponsah’s petition “[b]ased on new 

information and/or re-evaluation of the existing record.” (Dkt. 11-2 at 2).1 Amponsah presumes 

that the USCIS’s decision will not change from a denial, but there is simply no support for that 

inference in the USCIS’s notice of re-opening. As it stands, the agency decision is not final and 

will not be until the USCIS renders its final decision after reconsidering Amponsah’s petition.

1 The Court notes that Amponsah cites a number of out-of-Circuit decisions where an agency decision was not 

considered final. See e.g. Mantena, 2018 WL 3745668, at *6; RELX, Inc. v. Baran, 397 F. Supp. 3d 41, 47 (D.D.C. 

2019). The circumstances in these cases simply do not parallel the facts here. As Amponsah discusses in her 

Response, Mantena involved a case where the agency re-opened a decision several times without further 

investigation, indicating some level of gamesmanship. 2018 WL 3745668, at *6. In RELX, the agency re-opened its 

decision right before the summary judgment stage, when litigation had been ongoing and the agency failed to follow 

the regulation that provided them with authority to re-open a petition by filing a motion to do so, the employer and 

worker were not notified of the decision to re-open the petition until the date the plaintiffs' motion for summary 

judgment was due, and the government failed to proffer any reason for why it re-opened the petition other than it 

was in response to plaintiffs' lawsuit. 397 F. Supp. 3d at 51–52. The gamesmanship in these cases does not accord 

to the present facts, where the USCIS is soliciting further information from Plaintiff. 

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CONCLUSION

Because the agency action is not final within the meaning of the APA, Defendants’ Motion

to Dismiss [Dkt. 11] is granted without prejudice. Should the USCIS’s decision become final,

Plaintiff may re-file her claim.

____________________________________

Virginia M. Kendall

United States District Judge

Date: December 11, 2020

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