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Immigration lawsuits filed under the Administrative Procedures Act (APA) – to challenge processing delays or USCIS denials – usually don’t involve discovery. That is because judicial review of such claims are typically limited to the facts in the administrative record already in existence. Court will generally not allow new facts to be added. As a result, it can be very difficult to use the discovery process to help prosecute these claims.
However, there are narrow exceptions to this. These exceptions can be quite valuable since they can expand the universe of the facts and materials your judge can use in deciding your case. In some instances, the administrative record can be supplemented with information obtained through a Freedom of Information Act (FOIA) demand. Courts have allowed supplementation where the plaintiff puts forth evidence that the documents they seek to add to the record were before agency decision makers when the challenged decision was made (or where the decision is delayed). Marcum v. Salazar, 751 F.Supp.2d 74, 78 (D.D.C. 2010).
In the event the administrative record does not provide enough detail for the court to properly review the claims, the court can compel affidavits or testimony from the government to expand the record.
According to the Supreme Court case, Citizens to Preserve Overton Park v. Volpe:
“Since the bare record may not disclose the factors that were considered or the Secretary’s construction of the evidence, it may be necessary for the District Court to require some explanation in order to determine if the Secretary acted within the scope of his authority and if the Secretary’s action was justifiable under the applicable standard. The court may require the administrative officials who participated in the decision to give testimony explaining their action.”
While this type of inquiry is usually not encouraged, it “may be that the only way there can be effective judicial review is by examining the decisionmakers themselves.”
Lower courts have also allowed discovery in the form of requiring document production where it appears that the deciding agency relied on documents that were not included in the administrative record.
