Edison Rivera v. Katherine Patterson, et al
ORDER granting 22 Motion for Summary Judgment. Signed by Judge Marcia G. Cooke on 11/14/2011. (tm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 10-23556-Civ-COOKE/TURNOFF
KATHERINE PATTERSON, Field Office Director,
USCIS, Miami, et al.,
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS MATTER is before me on the Defendants’ Motion for Summary Judgment.
(ECF No. 22). I have reviewed the arguments, the record, and the relevant legal authorities.
For the reasons provided, the Defendants’ Motion is granted.
Plaintiff Edison Rivera brings this action seeking judicial review of the Board of
Immigration Appeals’ (“BIA”) decision affirming the United States Citizenship and
Immigration Service’s (“USCIS”)1 denial of an I-130 Petition for Alien Relative (“I-130
petition”) filed on Plaintiff’s behalf. 2 Plaintiff alleges that the agency’s action, findings, and
conclusions were arbitrary, capricious, an abuse of discretion, or otherwise unlawful.
Administrative Procedures Act (“APA”), 5 U.S.C. § 706(2)(A).
Plaintiff also seeks
mandamus relief pursuant to the Mandamus Act, 28 U.S.C. § 1361. In specific, Plaintiff
As of March 1, 2003, Congress transferred most of the functions of the former Immigration and
Naturalization Service to the Department of Homeland Security. See 6 U.S.C. §557. The USCIS is a
component of the Department of Homeland Security.
A district court has jurisdiction to review the denial of an I-130 Petition application. See Rodriguez
v. U.S. Dep’t of Homeland Sec., 562 F.3d 1137, 1144-45 (11th Cir. 2009); Ruiz v. Mukasey, 552 F.3d
269, 275-76 (2d Cir. 2009); Ayanbadejo v. Chertoff, 517 F.3d 273, 278 (5th Cir. 2008).
argues that the USCIS’s denial of Erycka Rivera’s I-130 petition was not based on substantial
and probative evidence, and was arbitrary and capricious.
The parties agree on the material facts leading up to the USCIS’s denial of the I-130
petition at issue in this case.3 Plaintiff is a native and citizen of Colombia, who entered the
United States as a non-immigrant visitor for pleasure on June 25, 1991, and remained in this
country. On July 10, 1998, Plaintiff married Gesselle Giraldo, a U.S. citizen. On July 15,
1998, Giraldo filed an I-130 petition on Plaintiff’s behalf, as the spouse of a U.S. citizen. See
8 U.S.C. § 1154; 8 C.F.R. § 204.1(a)(1). In support of their marriage, Giraldo and Plaintiff
submitted photographs, one joint 1998 tax return, joint bank statements, Plaintiff’s tax returns
for 1995, 1996, and 1997, joint credit cards, and automotive insurance records. On November
22, 1999, Giraldo and Plaintiff appeared for an interview before the Immigration and
Naturalization Service (“INS”) on the I-130 petition.
On November 22, 1999, the INS issued to Giraldo a Notice of Intent to Deny
(“NOID”), alleging marriage fraud because of discrepancies between their respective
testimonies. In the NOID, the agency pointed to discrepancies regarding several issues,
including: (i) whether Giraldo’s daughter was present at their first date; (ii) whether Giraldo
was living alone or with her brother when she and Plaintiff moved in together; (iii) what items
Giraldo moved into the residence; including, whether Giraldo moved the baby’s crib into the
residence or whether Plaintiff purchased a new crib as a gift for Giraldo; (iv) the timing of the
marriage proposal; (v) the timing of the couple’s departure to their wedding; (vi) the person
who cared for Giraldo’s daughter; and (vii) Plaintiff’s normal, routine work schedule. In the
The facts set forth in Defendant’s Statement of Material Facts are deemed admitted to the extent that
they are supported by evidence in the record, and are not specifically disputed in Plaintiff’s opposing
statement of facts. S.D. Fla. L.R. 7.5(D); see also Gossard v. JP Morgan Chase & Co., 612 F. Supp.
2d 1242, 1245-1246 (S.D. Fla. 2009).
NOID, the agency asked Giraldo to respond with explanations and evidence. Neither Giraldo
nor Plaintiff’ responded to the NOID. Rivera contends that they did not receive the notice.
On June 26, 2000, the INS denied the I-130 petition, finding marriage fraud. Neither Giraldo
nor Plaintiff filed an appeal. On June 1, 2000, Giraldo and Plaintiff divorced.
On August 3, 2000, Plaintiff married Erycka Rivera, a U.S. citizen. On April 11,
2001, Erycka Rivera filed an I-130 petition on Plaintiff’s behalf, as the spouse of a U.S.
citizen. On August 4, 2003, the USCIS issued a NOID to Erycka Rivera informing her that
Plaintiff had previously sought to obtain an immigration benefit based on a fraudulent
marriage and asking that she provide additional documentation to explain why the petition
should not be denied on this ground. Neither Erycka nor Plaintiff responded to the NOID.
Plaintiff contends they did not receive the notice. On January 21, 2004, the USCIS denied the
I-130 petition, citing prior marriage fraud under 8 U.S.C. § 1154(c).
On September 31, 2007, Erycka Rivera filed a new I-130 petition on Plaintiff’s behalf.
On March 7, 2008, Plaintiff and Erycka Rivera appeared for an interview before the USCIS,
in connection with the new application. On November 18, 2009, the USCIS issued a NOID to
Erycka Rivera, citing prior marriage fraud under 8 U.S.C. § 1154(c). On December 17, 2009,
Plaintiff and Erycka Rivera responded to the NOID, and provided an affidavit seeking to
explain the discrepancies between Plaintiff’s and Giraldo’s testimonies in 1999. On January
8, 2010, the USCIS denied Erycka Rivera’s second I-130 petition on Plaintiff’s behalf. On
February 10, 2010, Plaintiff filed an appeal to the BIA. On September 3, 2010, the BIA
affirmed the USCIS’s denial of the petition and adopted the rationale set forth in the USCIS’s
Plaintiff subsequently filed the present lawsuit seeking judicial review of the
II. LEGAL STANDARDS
Summary judgment is appropriate when “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). The function of the trial court is not “to weigh the evidence and
determine the truth of the matter but to determine whether there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). “The moving party bears the
initial burden to show the district court . . . that there is no genuine issue of material fact that
should be decided at trial. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).
Only when that burden has been met does the burden shift to the non-moving party to
demonstrate that there is indeed a material issue of fact that precludes summary judgment.”
Id. Any inferences drawn from the underlying facts must be viewed in the light most
favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007).
“The focal point for judicial review of an administrative agency’s action should be the
administrative record.” Preserve Endangered Areas of Cobb’s History, Inc. v. U.S. Army
Corps of Eng’rs, 87 F.3d 1242, 1246 (11th Cir. 1996). “[E]ven in the context of summary
judgment, an agency action is entitled to great deference.” Id. “The role of the court is not to
conduct its own investigation and substitute its own judgment for the administrative agency's
decision.” Id. Instead, the reviewing court must apply “the appropriate standard of review to
the agency decision based on the record the agency presents to the reviewing court.” Id.
(internal quotations omitted).
Under the APA, a court must set aside an administrative agency’s final decision where
it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.
5 U.S.C. § 706(2)(A); Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 375-76 (1989).
“This standard of review provides the reviewing court with very limited discretion to reverse
an agency’s decision. The reviewing court may not substitute its judgment for that of the
agency but must, instead, defer to the agency’s technical expertise.” City of Oxford, Ga. v.
F.A.A., 428 F.3d 1346, 1352 (11th Cir. 2005) (internal citations omitted). In reaching a
decision, an agency “must examine the relevant data and articulate a satisfactory explanation
for its action including a rational connection between the facts found and the choice made.”
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43
(1983) (internal quotation marks omitted). Although a court may not “supply a reasoned basis
for the agency’s action that the agency itself has not given,” it must “uphold a decision of less
than ideal clarity if the agency’s path may reasonably be discerned.” Id.
As set forth above, this Court’s inquiry is limited to whether the BIA and the USCIS
arbitrarily and capriciously denied Erycka Rivera’s I-130 petition on the basis of prior
marriage fraud.4 Having conducted this limited inquiry, I find that the agency’s decision to
deny Erycka Rivera’s Petition was not arbitrary and capricious. Review of the administrative
record reveals that the agency’s decision was based on substantial and probative evidence.
The decisions articulate a satisfactory explanation for the denial, which shows a rational
connection between the facts and the agency’s findings.
The petitioner has the burden of proving the intended beneficiary is eligible for
immigration benefits. 8 U.S.C. § 1361. A petitioner is ineligible for immigration benefits if
he or she enters a marriage “for the primary purpose of circumventing the immigration laws,
Because the BIA’s decision affirming the USCIS’s denial of Rivera’s I-130 petition adopted the
rationale set forth in the USCIS’s decision, I will review both the BIA and the USCIS’s decisions. See
Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001); see also Koffi v. Holder, No. 09-2102, 2011
WL 2896049, at *7 n.2 (D. Conn. Jul. 18, 2011) (citing Emokah v. Mukasey, 523 F.3d 110, 116 (2d
referred to as a fraudulent or sham marriage.” Matter of Laureano, 19 I. & N. Dec. 1, 2
(1983). Further, an agency must deny a subsequent I-130 petition on behalf of an alien who
previously attempted or conspired to enter into a marriage for the purpose of evading the
immigration laws. See 8 U.S.C. § 1154(c); Matter of Kahy, 19 I. & N. Dec. 803, 805 n.2
(1988) (“Even if his current marriage is unquestionably bona fide, however, the visa petition
cannot be approved if the beneficiary sought to be accorded nonquota status based on a prior
“[W]here there is reason to doubt the validity of the marital
relationship, the petitioner must present evidence to show that the marriage was not entered
into for the purpose of evading the immigration law.” Laureano, 19 I. & N. at 3.
The USCIS “will deny a petition for immigrant visa classification filed on behalf of
any alien for whom there is substantial and probative evidence of such an attempt or
conspiracy, regardless of whether that alien received a benefit through the attempt or
conspiracy.” 8 C.F.R. § 204.2(a)(1)(ii). “Although it is not necessary that the alien have been
convicted of, or even prosecuted for, the attempt or conspiracy, the evidence of the attempt or
conspiracy must be contained in the alien’s file.” Id.
When the USCIS uses a prior marriage fraud finding as the basis for denying a
subsequent alien relative petition, it cannot rely solely on the prior finding but must conduct a
de novo review of the evidence.
Matter of Tawfik, 20 I. & N. Dec. 166, 168 (1990)
(“Ordinarily, the district director should not give conclusive effect to determinations made in
a prior proceeding, but, rather, should reach his own independent conclusion based on the
evidence before him.”).
In determining whether a petitioner entered into a fraudulent marriage, “[t]he central
question is whether the bride and groom intended to establish a life together at the time they
were married.” Laureano, 19 I. & N. at 2-3. “The conduct of the parties after marriage is
relevant to their intent at the time of marriage.” Id. at 3. Relevant evidence that establishes
intent includes: “proof that the beneficiary has been listed as the petitioner’s spouse on
insurance policies, property leases, income tax forms, or bank accounts; and testimony or
other evidence regarding courtship, wedding ceremony, shared residence, and experiences.”
The USCIS, in rendering its decision, did not simply rely on its prior finding of
marriage fraud, but properly conducted a de novo review of the evidence. See Tawfik, 20 I. &
N. Dec. at 168; cf. Avitan v. Holder, No. 10-03288, 2011 WL 499956, at *11 (N.D. Cal. Feb.
8, 2011). On appeal, the BIA also conducted a de novo review of the case. See 8 C.F.R.
§ 1003.1(d)(3)(iii). In its order affirming the USCIS’s decision, the BIA made clear that it
reviewed the record of the proceedings and the petitioner’s contentions on appeal. Cf. Koffi v.
Holder, No. 09-2102, 2011 WL 2896049, at **16-17 (D. Conn. Jul. 18, 2011).
In reaching is January 8, 2010 decision, the USCIS considered the entire record. The
record included Giraldo’s and Erycka Rivera’s I-130 petitions, the prior NOIDS, evidence
obtained in an interview with Plaintiff and Erycka Rivera on March 7, 2008, and Plaintiff and
Erycka Rivera’s response to the agency’s November 18, 2009 NOID, in which they provided
evidence to explain each discrepancy the agency identified in Plaintiff’s and Giraldo’s prior
As noted above, the USCIS found that Plaintiff and Giraldo provided
inconsistent testimony on major issues related to their marriage, such as information about
their first date and the wedding proposal, who took care of Giraldo’s child, knowledge of
routine work schedules, and facts concerning their moving in together. Upon consideration of
all of the evidence, the USCIS found that Plaintiff and Erycka Rivera failed to provide
suitable justifications for most of these discrepancies.
The BIA, upon review of all of the materials and evidence on record, agreed with the
USCIS’s finding that Plaintiff entered into a prior marriage that was for the purpose of
evading the immigration laws. The agency’s decision was based on substantial and probative
evidence. Cf. Simms v. U.S. Attorney Gen., No. 08-13146, 2009 WL 179621, at *2 (11th Cir.
Jan. 27, 2009); Tandel v. Holder, No. 09-01319, 2009 WL 2871126, at *5 (N.D. Cal. Sept. 1,
2009); Matter of Romero, 15 I. & N. Dec. 294, 295 (1975). Further, the BIA and the USCIS
adequately articulated the reasons for denying the petition. Because the agency’s decision
was based on substantial and probative evidence, and was not arbitrary and capricious, and I
will not disturb its denial of Erycka Rivera’s I-130 petition.
Having found that the USCIS did not act arbitrarily or capriciously when it denied
Erycka Rivera’s I-130 petition on Plaintiff’s behalf, and there being no claim or evidence that
the USCIS did not properly or timely process the application, mandamus relief is
For the foregoing reasons, it is ORDERED and ADJUDGED that Defendants’
Motion for Summary Judgment (ECF No. 22) is GRANTED. The Clerk is directed to
CLOSE this case. All pending motions, if any, are DENIED as moot.
DONE and ORDERED in chambers, at Miami, Florida, this 14th day of November
Moreover, because Plaintiff properly sought relief under the APA, mandamus relief is foreclosed.
See Serrano v. U.S. Attorney Gen., 655 F.3d 1260, 1260 (11th Cir. 2011) (because plaintiff had a
remedy under the APA, the district court properly dismissed his request for mandamus relief).
Copies furnished to:
William C. Turnoff, U.S. Magistrate Judge
Counsel of record