Farshchin v. Bondi et al

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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
MOHAMMAD FARSHCHIN,
Plaintiff,
v.
PAMELA BONDI, et al.,
Defendants.
Case No. 25-cv-07146-JCS
ORDER RE JOINT DISCOVERY
LETTER
Re: Dkt. No. 42
I. INTRODUCTION
The parties seek the Court’s assistance in connection with a discovery dispute, namely,
whether Defendants are required to amend the Certified Administrative Record (“CAR”) to
include in it all records of the U.S. Department of State (“DOS”) relating to Plaintiff’s visa
application or at a minimum, (1) Plaintiff’s Form DS-160, Online Nonimmigrant Visa Application
(“DS-160”), and (2) the NIV Applicant Detail, including the consular case notes and entries in the
Consular Consolidated Database (“CCD”) system. In response to Plaintiff’s request for these
records, Defendants’ counsel initially informed Plaintiff’s counsel that USCIS was “working with
DOS to get these documents together for production[,]” adding: “We apologies [sic], they aren’t
sure why they weren’t originally included in the CAR.” Dkt. no. 42-1 (July 15, 2026 email from
Defendants’ counsel to Plaintiff’s counsel). Subsequently, however, Defendants have taken the
position that USCIS is not required to include DOS records in the CAR. The parties have engaged
in extensive meet-and-confer efforts but have been unable to resolve the dispute. Therefore, they
have filed a joint discovery letter (“Joint Letter”) under the procedures set forth in the Court’s
standing order concerning discovery disputes.
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II. CONTENTIONS OF THE PARTIES
A. Plaintiff’s Position
Plaintiff contends the DOS records relating to his visa application should be included in
the CAR because an applicant for naturalization must establish that he or she was lawfully
admitted to the United States for permanent residence. 8 U.S.C. §§ 1429, 1445(b); 8 C.F.R. §
316.2(a)(2). Thus, according to Plaintiff, “[t]o determine lawful admission, USCIS is required to
investigate each applicant, and that investigation must include, at a minimum, a review of all
pertinent records.” Joint Letter at 2 (citing 8 U.S.C. §§ 1446(a); 8 C.F.R. § 335.1). Furthermore,
“[o]fficers may . . . corroborate information by reviewing USCIS and other government files,
systems, and databases.” Id. Therefore, Plaintiff contends, “[a]n applicant’s entry and admission
records are necessarily among the records pertinent to whether LPR status was lawfully obtained,
and USCIS therefore considered them, directly, or indirectly, in adjudicating Plaintiff’s
naturalization application.” Id.
Plaintiff argues that the two “record-rule” cases Defendants cite in support of their position
— Sharks Sports & Entm't LLC v. Fed. Transit Admin., No. 18-cv-04060-LHK (SVK), 2020 WL
511998, *9 (N.D. Cal. Jan. 31, 2020) (“Sharks Sport”) and Doe I v. United States Dep't of
Homeland Sec., No. 20-cv-07517-BLF, 2021 WL 5121169, *3 (N.D. Cal. Nov. 2, 2021) (Doe I”)
— “govern review confined to an agency’s administrative record; they do not limit the evidence
available in a de novo determination under 8 U.S.C. § 1447(b).” Id. Instead, he contends,
discovery in this case is governed by the standard under Federal Rule of Civil Procedure 26(b)(1):
“whether the DOS records are relevant to any party’s claim or defense and proportional to the
needs of the case.” Id. Under that standard, the documents Plaintiff seeks should be produced, he
asserts, because “the DS-160 sets forth the information on which Plaintiff’s visa was issued,
including his disclosures regarding military service. And the CCD notes are the consular officer’s
contemporaneous record of the admissibility determination, which would reflect how the officer
understood Plaintiff’s military service and the governing law.” Id.
Furthermore, Plaintiff asserts, even under the “record-rule” standard that was applied in
Sharks Sports and Doe I, these documents must be produced in order to complete the record
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because “the CAR itself shows that USCIS considered these records.” Id. In particular, Plaintiff
states:
In the Eligibility Assessment recommending denial, the USCIS
officer recorded under “Systems Checked”: “CCD: checked his NIV
[nonimmigrant visa] (2012185 607 0001) and of his parents and
wife.” CAR 339. The officer relied on the contents of that
nonimmigrant visa application in describing Plaintiff’s military
history, CAR 338, and cited CCD entries as the source of Plaintiff’s
education history, CAR 335. These are not “broad categories of
documents” that are merely “likely to exist”—they are specific
records, identified by number, that the decisionmaker looked at and
relied on. That is exactly the showing Defendants’ own authority
finds sufficient.
Id.
Finally, Plaintiff rejects Defendants’ assertion that to the extent he seeks discovery under
Rule 26 his request fails because he did not issue a formal request for production of documents
under Rule 34 of the Federal Rules of Civil Procedure. Id. at 3. Plaintiff notes that Defendants
raised this issue for the first time in the Joint Letter, “after more than fifteen email exchanges and
two video conferences about these records, and after Defendants’ counsel represented that the
agency was ‘working with DOS to get these documents together for production.’ ” Id. (citing
Exhibit A). According to Plaintiff, “Defendants never suggested a formal request was required.”
Id. He further asserts that “[t]hese records are within Defendants’ ‘possession, custody, or
control,’ Fed. R. Civ. P. 34(a)(1): the USCIS officer accessed Plaintiff’s NIV record directly.” Id.
(citing CAR 339). Therefore, Plaintiff contends, “[r]equiring a thirty-day response period and a
second joint letter to resolve the same dispute would serve no purpose and would only needlessly
delay.” Id. (citing Fed. R. Civ. P. 1).
B. Defendants’ Position
Defendants do not address the merits Plaintiff’s assertion that this dispute is governed by
Rule 26(b)(1) rather than the record-rule standard that is set forth in Sharks Sports and Doe I,
arguing only that if it is, Defendants have “no obligation to produce [the DOS records], because
Plaintiff has not served Defendant[s] with a request for production of documents under FRCP 34.”
Id. at 3. Defendants do not dispute that the records Plaintiff seeks would meet the relevance and
proportionality requirements of Rule 26(b)(1). Nor do they dispute Plaintiff’s assertion that the
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records are within their “possession, custody or control.” See Fed.R.Civ.P. 34(a)(1).
In the alternative, Defendants argue that if the dispute is governed by the record review
standards in Sharks Sports and Doe I, then Plaintiff has not met that standard because he has
“presented no evidence that the requested documents were considered” by USCIS in the
adjudication of Plaintiff’s naturalization petition that has occurred thus far. Id. at 4. Defendants
also state that “[t]o the extent the CAR references [the documents Plaintiff seeks] (though Plaintiff
has not provided citations to the CAR),1 that is not enough to include them.” Id.
III. DISCUSSION
A. Applicable Standard
In order to resolve the parties’ dispute, the Court must first decide what standard applies to
discovery where the Court is conducting a de novo review of a naturalization application pursuant
to 8 U.S.C. § 1447(b). Defendants primarily rely on the standards that are applied to judicial
review of agency action under the Administrative Procedures Act (“APA”) whereas Plaintiff
contends the broader standards under Rule 26(b)(1) apply. The Court concludes that Plaintiff is
correct.
The APA authorizes a reviewing court to set aside agency action only if it was “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
Thus, “[g]enerally, judicial review of agency action is limited to review of the record on which the
administrative decision was based.” Thompson v. U.S. Dep't of Lab., 885 F.2d 551, 555 (9th Cir.
1989). “The whole administrative record, however, is not necessarily those documents that the
agency has compiled and submitted as ‘the’ administrative record.” Id. (internal quotations and
citations omitted). “The ‘whole’ administrative record . . . consists of all documents and materials
directly or indirectly considered by agency decision-makers and includes evidence contrary to the
agency’s position.” Id. (internal quotations and citations omitted) (emphasis in original).
Applying these principals, the court in Doe I, relying in part on Sharks Sports, set forth the
following standards for addressing a motion to complete the administrative record:
1 Defendants are incorrect on this point as Plaintiff does, in fact, provide citations to the CAR in
the Joint Letter.
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“An agency may not exclude information it considered on the grounds
that it did not rely on that information.” Sharks Sports, 2020 WL
511998, at *1 (citing People ex rel. Lockyer v. U.S. Dep't of Ag., 2006
WL708914, at *2 (N.D. Cal. Mar. 16, 2006)). “An agency's
designation and certification of the administrative record is treated
like other established administrative procedures, and thus entitled to
a presumption of administrative regularity.” McCrary v. Gutierrez,
495 F. Supp. 2d 1038, 1041 (N.D. Cal. 2007) (citations omitted).
Plaintiffs must present clear evidence to the contrary to rebut this
presumption. Id. (citations omitted). Plaintiffs need not show bad faith
or improper motive to rebut the presumption of completeness. Sharks
Sports, 2020 WL 511998, at *1 (citing Lockyer, 2006 WL 708914, at
*2).
To meet the clear evidence standard, a plaintiff must (1) “identify
reasonable, non-speculative grounds for the belief that the documents
were considered by the agency and not included in the record,” and
(2) “identify the materials allegedly omitted from the record with
sufficient specificity, as opposed to merely proffering broad
categories of documents and data that are ‘likely’ to exist as a result
of other documents that are included in the administrative record[.]”
Gill v. Dep't of Just., No. 14-CV-03120-RS (KAW), 2015 WL
9258075, at *5 (N.D. Cal. Dec. 18, 2015) (quoting Winnemem Wintu
Tribe v. U.S. Forest Service, No. 2:09-CV-01072-KJM-KJN, 2014
WL 3689699, at * 10 (E.D. Cal. July 24, 2014) (citation omitted)).
Doe I, 2021 WL 5121169, at *2.
The scope of the Court’s review of naturalization applications under 8 U.S.C. § 1447(b), in
contrast to the deferential standard of the APA, is de novo. See United States v. Hovsepian, 359
F.3d 1144, 1162 (9th Cir. 2004) (finding that 8 U.S.C. § 1421(c) “requires the district court to
undertake the same analysis that it must make under § 1447(b),” and that under both “the district
court has the final word and does not defer to any of the INS’s findings or conclusions.”).
Although the case law is scant as to what this means for discovery in Section 1447(b) cases, a
number of cases addressing de novo review under Section 1421(c) shed light on the standard
applicable to 1447(b) cases.2 Those cases support the conclusion that discovery in connection
with de novo judicial review under Section 1447(b) is governed by the standards set forth in the
Federal Rules of Civil Procedure.
2 Section 1421(c) “allows unsuccessful naturalization applicants to ask the district court to review
the INS’s denial of their applications.” United States v. Hovsepian, 359 F.3d 1144, 1162 (9th Cir.
2004). The Ninth Circuit has explained that Ҥ 1447(b) is best viewed as a mechanism by which
naturalization applicants who are impatient with INS delay may skip the agency's analysis of their
application and proceed directly to the step in which the district court conducts a de novo review
of the application.” Id.
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In Gonzalez v. Napolitano, No. CIV.A. 2:09-03426, 2010 WL 3522789 (D.N.J. Sept. 2,
2010), the court found that the plaintiff was not entitled to an order limiting the discovery the
government could conduct in connection with judicial review under 8 U.S.C. § 1421(c), providing
a detailed analysis of whether discovery in connection with de novo review under 8 U.S.C. §
1421(c) was governed by the Federal Rules of Civil Procedure or if, instead, the more limited
review permitted under the APA circumscribed the scope of discovery. The court acknowledged
that Section 1421 incorporates the procedures of the APA, providing for review “in accordance
with chapter 7 of title 5[,]” and recognized that “in most contexts, judicial review of agency
decision-making (under the APA or otherwise) limits the field of review to the agency’s record.”
2010 WL 3522789, at *2. Nonetheless, it concluded that this limitation did not apply to judicial
review under Section 1421 for three reasons.
First, the court pointed to Rule 81 of the Federal Rules of Civil Procedure:
. . . Federal Rule of Civil Procedure 81 states: “These rules apply to
proceedings for admission to citizenship to the extent that the practice
in those proceedings is not specified in federal statutes and has
previously conformed to the practice in civil actions.” Fed.R.Civ.P.
81(a)(3). It appears that application of the Federal Rules of Civil
Procedure is “the norm under the current naturalization provision ...
and was the norm under the prior law, under which the district courts
had sole authority for determining eligibility for naturalization....”
Chan v. Gantner, 464 F.3d 289, 296 (citing Tutun v. United States,
270 U.S. 568, 577 (1926) (stating that petitions for naturalization
were “instituted and ... conducted ... according to the regular course
of judicial procedure”)). Likewise, Petitioner points to no federal
statute “specif[ying]” a different result. That is some reason to apply
the broad discovery rules of the Federal Rules without limitation.
Because Rule 81 is express law, the federal common law of judicial
review of agency decision-making would appear to give way. Cf.
Rules Enabling Act, 28 U.S.C. § 2072 (mandating that in matters of
“practice and procedure,” the Federal Rules shall govern, and “[a]ll
laws in conflict with such rules shall be of no further force or effect”);
City of Milwaukee v. Illinois, 451 U.S. 304, 313-14, (“[F]ederal
common law . . . is resorted to [only] in absence of an applicable Act
of Congress.”).
Id. at *2.
Second, the court pointed to the fact that “the scope of the Court’s review [was] de novo.”
Id. at *3. The court explained:
De novo review of agency decision-making is rare, if not unique to
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the naturalization context. Appellate authority has held that the
district courts are not limited to the administrative record in this
context under this standard of review. See Aparicio v. Blakeway, 302
F.3d 437, 445 (5th Cir.2002) (“Judicial review of naturalization
denials is always available and is de novo, and is not limited to any
administrative record but rather may be on facts established in and
found by the district court de novo.”).
Id.
Finally, the court reasoned that “mandated de novo review cannot be meaningfully applied
if the Court is limited to the record below. De novo review requires this Court to determine the
facts based on what it hears, not on what the [agency] heard and concluded in regard to contested
facts.” Id.
Other courts have agreed that de novo review means that the reviewing court is not limited
to the administrative record. See, e.g., Aparicio v. Blakeway, 302 F.3d 437, 445 (5th Cir. 2002)
(“Judicial review of naturalization denials is always available and is de novo, and is not limited to
any administrative record but rather may be on facts established in and found by the district court
de novo.”); Miriyeva v. U.S. Citizenship & Immigr. Servs., 436 F. Supp. 3d 170, 184 (D.D.C.
2019), aff'd sub nom. Miriyeva v. United States Citizenship & Immigr. Servs., 9 F.4th 935 (D.C.
Cir. 2021); Colic v. Barr, No. 19-CV-01511-NYW, 2019 WL 13195513, at *3 (D. Colo. Aug. 30,
2019) (“While this court notes that Plaintiff asserted that this action could be determined by the
court through review of the administrative record alone . . . , it is not clear to this court that
Defendants could or should be precluded from seeking further discovery in this matter given the
de novo standard that applies and the questions related to the potential marriage fraud identified by
the USCIS.”).
The Court finds the reasoning of the cases discussed above, and particularly Gonzalez, to
be persuasive. Furthermore, limiting discovery to materials that the agency considered and
applying a presumption of regularity as to an agency’s creation of the certified record is
inconsistent with the de novo standard of review that applies under Section 1447(b), which “does
not defer to any of the [agency’s] findings or conclusions.” United States v. Hovsepian, 359 F.3d
at 1162. Therefore, the Court concludes that Plaintiff’s request for his DOS records is governed
by the Federal Rules of Civil Procedure rather than the more limited standards that govern
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discovery in cases involving judicial review of agency action under the APA.
B. Whether Plaintiff is Entitled to DOS Records under the Federal Rules of Civil
Procedure
Under Rule 26, parties “may obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P.
26(b)(1). Traditionally, the relevance requirement of Rule 26(b)(1) has been construed broadly.
Fed. Trade Comm'n v. DIRECTV, Inc., No. 15-CV-01129-HSG(MEJ), 2015 WL 8302932, at *3
(N.D. Cal. Dec. 9, 2015). In determining whether discovery is proportional to the needs of the
case, courts consider “the importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and whether the burden or expense of the
proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). “Information within this
scope of discovery need not be admissible in evidence to be discoverable.” Id.
As discussed above, Defendants did not argue in the Joint Letter that the DOS records in
dispute are not discoverable under this standard even though Plaintiff directly raised this issue.
Therefore, any objections on this ground are waived. See O. L. v. City of El Monte, No.
220CV00797RGKJDEX, 2021 WL 926105, at *3 (C.D. Cal. Jan. 11, 2021) (“Generally, a party
who fails to make timely objections to a discovery request waives those objections. . . . Similarly,
objections asserted in discovery responses but not raised in briefing on a discovery motion are also
waived.”). In any event, the Court finds that the records are both relevant and proportional to the
needs of the case.
With respect to relevance, Plaintiff explains:
Plaintiff disputes that his compulsory military service constitutes
“membership” in the IRGC and further disputes that the IRGC was a
terrorist organization prior to its formal designation in April 2019.
The Court has described the “sole disputed issue” as “whether his
mandatory military service in Iran provides a legally sufficient reason
for denying his application for naturalization.” Dkt. 27 at 7. The DS-
160 and CCD notes are the contemporaneous record of how that
service was disclosed, described, and assessed by the U.S.
government when Plaintiff first sought admission. They bear directly
on that issue.
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Defendants also assert that Plaintiff’s adjustment of status to lawful
permanent residence “was not based on” his student visa. But
adjustment of status under 8 U.S.C. § 1255(a) requires that the
applicant have been “inspected and admitted or paroled into the
United States.” Plaintiff’s admission in F-1 status—on the visa DOS
issued on the basis of his DS-160—is the statutory predicate for the
very grant of permanent residence Defendants now contend was
unlawful.
The Court finds Plaintiff’s theory of relevance to be more than adequate to satisfy the
requirements of Rule 26(b)(1). Furthermore, Defendants nowhere suggest that the materials
Plaintiff seeks are voluminous, that the documents are not within their possession or control, or
that producing them will impose a burden on Defendants. Therefore, the proportionality
requirement is also met.
The only question, then, is whether Plaintiff’s request for his DOS records should be
denied because he did not make a formal request for production under Rule 34 of the Federal
Rules of Civil Procedure. Rule 34 permits parties to seek production of documents “within the
scope of Rule 26(b)” and sets forth specific procedures governing the content of such requests and
the time and manner in which the party to which the request is directed may respond. Courts tend
to deny motions to compel the production of documents where the movant failed to make a formal
discovery request under Rule 34. See James v. Wash Depot Holdings, Inc., 240 F.R.D. 693, 695
(S.D. Fla. 2006) (citing cases). In Sithon Mar. Co. v. Holiday Mansion, the court warned that “[t]o
treat correspondence between counsel as formal requests for production under Rule 34 would
create confusion and chaos in discovery.” No. CIV. A. 96-2262-EEO, 1998 WL 182785, at *2 (D.
Kan. Apr. 10, 1998). The undersigned shares this concern. Nonetheless, courts have sometimes
found that the specific facts supported treating an informal request for production as sufficient
under Rule 34. See, e.g., Lindholm v. BMW of N. Am., LLC, No. 3:15-CV-03003-RAL, 2016 WL
1643832, at *4 (D.S.D. Apr. 25, 2016) (finding that informal request for documents in email from
counsel was sufficient where response from opposing counsel sought 30 days to respond under
Rule 34, which could have led party seeking discovery to believe opposing party had accepted
informal request, thus resulting in waiver of right to enforce formal request requirement under
Rule 34); Emps. Ins. Co. of Wausau v. Nationwide Mut. Fire Ins. Co., No. CV 2005-0620 (JFB)
(MD), 2006 WL 1120632, at *2 (E.D.N.Y. Apr. 26, 2006) (finding that oral request for document
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at deposition followed up by a letter was sufficient under Rule 34 and observing, “While some
courts have refused to entertain a motion to compel in the absence of a formal request for
documents, plaintiffs have not cited, nor is this Court aware of any decision by a court in the
Eastern or Southern Districts of New York denying a motion to compel on the basis that the
moving party did not make a formal request for production of documents. In fact, it is a
commonplace practice among attorneys in these two districts to utilize less formal methods for
making discovery requests and, in particular, to follow-up oral requests for documents made at a
deposition with a confirming letter.”); Swope v. Nat'l Presto Indus., Inc., No. CIV. A. 89-2731,
1990 WL 149203, at *2 (E.D. Pa. Oct. 3, 1990) ) (finding oral request for document at deposition
was sufficient under Rule 34 where it was “clear from the transcript submitted as an exhibit that
the parties . . . knew what document was being requested[,] . . . that plaintiffs’ counsel responded
affirmatively to the request[,] [and that] Plaintiffs never thereafter, by letter, motion, or response to
defendant’s motion, objected to the request.”); Dixon v. Cappellini, 88 F.R.D. 1 (M.D. Pa. 1980)
(finding oral request for documents at deposition, followed by an exchange of letters regarding the
request between counsel satisfied Rule 34 in “spirit,” although the procedure did not, because the
request described the documents “with reasonable particularity, and . . . both parties were aware
which documents were involved”).
In Trask v. Olin Corp., the court offered the following observations regarding courts’
treatment of informal requests for production of documents under Rule 34:
The Court notes that the inconsistent case law on the degree of
formality required for a Rule 34 Request for Production to be
enforced through a Motion to Compel under Rule 37, likely reflects
one of the fundamental rules governing discovery: discovery is within
the trial court's sound discretion. Harris v. Pa. Bd. of Prob. & Parole,
Civ. No. 3:cv–12–0674, 2013 WL 5551206, *2 (M.D.Pa. Oct. 8,
2013) (citing Wisniewski v. Johns–Manville Corp., 812 F.2d 81, 90
(3d Cir.1987)). The Court’s review of case law involving informal
Rule 34 requests also highlights that courts conduct a fact-specific
analysis into the course of discovery, the exchanges between counsel,
and the judicial interests in both expediting litigation and promoting
fair trial. See Dixon, 88 F.R.D. at 2; Swope, 1990 WL 149203, at *2;
Employers Insurance, 2006 WL 1120632, at *2; Sithon, 1998 WL
182785, at *2; Suid, 203 F.R.D. at 228. Additionally, the case law
indicates that where parties are both aware of the documents being
informally requested, courts are more likely to find that the request
satisfies Rule 34. Id.
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298 F.R.D. 244, 260 (W.D. Pa. 2014).
Here, the Court finds that under the specific facts of this case, Plaintiff’s failure to seek the
disputed documents by way of a formal request for production does not preclude him from
obtaining an order compelling their production. First, Plaintiff requested these documents months
ago and Defendants initially appeared to agree to their production. See Swope, 1990 WL 149203,
at *2. Furthermore, Defendants do not dispute that they never raised this objection during the
parties’ extensive meet and confer efforts. Second, the record reflects that Defendants have been
aware of the documents Plaintiff seeks since this issue arose, many months ago, and there is no
suggestion that Plaintiff’s request was in any way unclear to Defendants. Finally, as discussed
above, the question of whether the documents at issue are discoverable under Rule 26(b)(1) was
squarely raised by Plaintiff in the joint discovery letter and Defendants did not respond, thus
waiving any objection to production of those documents under Rule 26(b) that Defendants might
seek to assert in response to a formal request for production under Rule 34. Under those
circumstances, requiring Plaintiff to issue a formal Rule 34 request before ruling on his discovery
request would elevate “form over substance[,]” Emps. Ins. Co. of Wausau v. Nationwide Mut. Fire
Ins. Co., 2006 WL 1120632, at *2, and merely result in unnecessary delay. Therefore, the Court
finds that Plaintiff’s informal request for these documents is sufficient.
IV. CONCLUSION
For the reasons stated above, Defendants are ordered to produce an amended certified
administrative record (“amended CAR”) that includes: (1) Plaintiff’s Form DS-160, Online
Nonimmigrant Visa Application; and (2) the NIV Applicant Detail, including all consular case
notes and entries in the Consular Consolidated Database system related to Plaintiff’s visa
application. Pursuant to the parties’ stipulation, dkt. no. 45, the amended CAR shall be produced
within seven (7) days of the date of this Order.
IT IS SO ORDERED.
Dated: October 16, 2026
______________________________________
JOSEPH C. SPERO
United States Magistrate Judge
Case 3:25-cv-07146-JCS Document 46 Filed 10/16/26 Page 11 of 11