Leyla Rojas v. Secretary, Department of Homel, et al

Filing

Opinion issued by court as to Appellant Leyla Rojas. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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Date Filed: 01/17/2017

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-12204
Non-Argument Calendar
________________________
D.C. Docket No. 8:13-cv-02474-MSS-TGW

LEYLA ROJAS,
Plaintiff - Appellant,
versus
SECRETARY, DEPARTMENT OF HOMELAND SECURITY,
ALEJANDRO MAYORKAS,
Director, Citizenship and Immigration Services,
KAREN FITZGERALD, Director,
Vermont Service Center,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(January 17, 2017)
Before TJOFLAT, JORDAN, and JILL PRYOR, Circuit Judges.
PER CURIAM:

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Leyla Rojas seeks lawful permanent residence in the United States. To
obtain this status, she filed a Form I-360 “Petition for Amerasian, Widow, or
Special Immigrant” in which she asked the United States Citizenship and
Immigration Service to classify her as an abused or battered spouse of a United
States citizen. The USCIS denied her petition because she had tried to obtain
United States citizenship through a prior marriage that had been fraudulently
entered into for the purpose of evading immigration law.
Ms. Rojas filed suit in the district court, claiming that the USCIS’ denial was
erroneous. Both sides moved for summary judgment and the district court granted
summary judgment in favor of the government. On appeal, Ms. Rojas contends
that the USCIS’ determination that she had previously entered into a sham or
fraudulent marriage and its denial of her I-360 petition on that ground were not
based on substantial evidence. After reviewing the record, we affirm.
I
Because we write for the parties, we assume their familiarity with the
underlying facts of the case and recite only what is necessary to resolve this appeal.
Ms. Rojas was previously married to Henry Correa, a United States citizen.
The two began dating in August of 2006 and were married two months later.
Approximately one month after the marriage, Mr. Correa filed a Form I-130
“Petition for Alien Relative” on Ms. Rojas’ behalf, seeking to have her classified

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as an immediate relative of a United States citizen. At the same time, Ms. Rojas
filed an “Application to Register Permanent Residence or Adjust Status”
predicated on the I-130 petition.

In addition to submitting documentation

evidencing the marriage, Mr. Correa and Ms. Rojas were also interviewed by
immigration officers.
During an interview in March of 2007, Mr. Correa executed a sworn
affidavit in which he made several statements admitting that his marriage with Ms.
Rojas was fraudulent. More specifically, Mr. Correa admitted that (1) he did not
live with Ms. Rojas but instead lived with his girlfriend, to whom he was engaged
and planning to marry in 2007; (2) Ms. Rojas asked him to marry her so she could
obtain a residence card; (3) he agreed to marry Ms. Rojas as a favor; (4) he did not
know Ms. Rojas’ current address; (5) he and Ms. Rojas never consummated the
marriage; and (6) he and Ms. Rojas submitted a residential lease agreement listing
them as residing together in order to “prove that [they were] married.” Following
execution of the sworn affidavit, Mr. Correa withdrew the I-130 application,
admitting that “[he] entered into the marriage with [Ms. Rojas] for the purpose of
circumventing the Immigration Laws of the United States.” As a result, the USCIS
denied Ms. Rojas’ application to adjust status.
Mr. Correa filed for divorce from Ms. Rojas in June of 2007, and the divorce
was finalized on October 11, 2007. In January of 2008, after Mr. Correa withdrew

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his I-130 petition, the government commenced removal proceedings against Ms.
Rojas due to the sham marriage, but those proceedings were later terminated after
an immigration judge found that the government failed to meet its burden of
showing that Ms. Rojas engaged in marriage fraud.
On December 1, 2009, Mr. Correa recanted his initial affidavit. He did so
with a second sworn affidavit. The second affidavit was short and nowhere as
detailed as his first. In it Mr. Correa alleged that immigration officers coerced him
into executing the initial affidavit by threatening him with incarceration and taking
his children away. According to Mr. Correa, “[he] felt [he] had no choice but to
sign a document pushed in front of [him] or have [Ms. Rojas] locked up
somewhere.”
Ms. Rojas married Mohammad Waliagha on December 8, 2009, a few days
after Mr. Correa executed the second affidavit. Mr. Waliagha then filed an I-130
via petition on her behalf in January of 2010. But on September 27, 2011, Mr.
Waliagha withdrew the I-130 petition, indicating that he had filed for divorce from
Ms. Rojas.
On October 28, 2011, Ms. Rojas filed the I-360 petition underlying this
action, in which she sought classification as a battered spouse of Mr. Waliagha.
On June 20, 2013, the USCIS notified Ms. Rojas of its intent to deny her petition
because she had previously entered into a sham marriage for the purpose of

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evading United States immigration laws, and invited her to submit additional
evidence in rebuttal.

In response, Ms. Rojas submitted the second affidavit

executed by Mr. Correa in December of 2009.

On August 21, 2013, after

reviewing her supporting documentary evidence, as well as the evidence
concerning her first I-130 petition, the USCIS denied Ms. Rojas’ I-360 petition.
In the district court, Ms. Rojas argued that the USCIS’ determination was
not supported by substantial evidence, that the USCIS had incorrectly based its
decision on Mr. Correa’s first affidavit without considering all the relevant
information, and that the government had previously failed to establish that her
marriage to Mr. Correa was fraudulent. The district court, adopting the magistrate
judge’s report and recommendation, granted summary judgment in favor of the
government, concluding that Ms. Rojas failed to demonstrate that the USCIS’
determination was not based on substantial evidence.
II
We review the district court’s grant of summary judgment de novo. See
Shuford v. Fid. Nat. Prop. & Cas. Ins. Co., 508 F.3d 1337, 1341 (11th Cir. 2007).
Summary judgment is appropriate “if 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).

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Under the Administrative Procedure Act, the USCIS’ denial of Ms. Rojas’
visa petition may be set aside only if it is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law,” or “unsupported by
substantial evidence.” 5 U.S.C. § 706(2)(A), (E). See also Sanchez Jimenez v.
U.S. Atty. Gen., 492 F.3d 1223, 1230 (11th Cir. 2007) (“[We] must affirm the
[agency’s] decision if it is supported by reasonable, substantial, and probative
evidence on the record considered as a whole.”). We may not “conduct [our] own
investigation and substitute [our] own judgment for the administrative agency’s
decision.” Preserve Endangered Areas of Cobb’s History, Inc. v. U.S. Army Corps
of Eng’rs., 87 F.3d 1242, 1246 (11th Cir. 1996). “[T]he mere fact that the record
may support a contrary conclusion is not enough to justify a reversal of the
administrative findings.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir.
2004) (en banc).
III
The alien spouse of an abusive United States citizen may self-petition for
classification as an immediate relative or a preference immigrant by filing a Form
I-360. See 8 C.F.R. § 204.1(a)(3). Regardless of the merits of such a petition,
however, federal law prohibits the USCIS from approving a visa petition if it
determines “that the alien has attempted or conspired to enter into a marriage for
the purpose of evading the immigration laws.” 8 U.S.C. § 1154(c). The petitioner

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bears the burden of proving her eligibility for relief by a preponderance of the
evidence. See 8 U.S.C. § 1361. See also Matter of Pazandeh, 19 I. & N. Dec. 884,
887 (BIA 1989). So, “where 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 laws.”

Matter of

Laureano, 19 I. & N. Dec. 1, 3 (BIA 1983).
The USCIS must consider any credible evidence relevant to the petition. See
8 U.S.C. § 1154(a)(1)(J); INA § 204(a)(1)(J); 8 C.F.R. § 204.1(f)(1). But the
determination of which evidence is more credible, and the weight to be given to
that evidence, is committed to the sound discretion of the USCIS. See 8 U.S.C.
§ 1154(a)(1)(J).
The USCIS denied Ms. Rojas’ I-360 petition because it determined, after
considering the totality of the evidence, that Ms. Rojas had previously married Mr.
Correa in order to evade United States immigration laws. On this record, we see
no basis for overturning the district court’s grant of summary judgment in favor of
the government.
Ms. Rojas’ primary argument is that the USCIS erroneously overemphasized
Mr. Correa’s first affidavit.

She contends that Mr. Correa’s second affidavit

cancels out the first one, and that the rest of the evidence she submitted
demonstrates that their marriage was not fraudulent. According to Ms. Rojas, had

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the USCIS properly ignored Mr. Correa’s first affidavit, it would have had no
substantial evidence from which to conclude that their marriage was fraudulent.
Ms. Rojas also argues that the USCIS should have considered the outcome of the
failed removal proceeding, in which an immigration judge determined that the
government had failed to show that Ms. Rojas’ marriage to Mr. Correa was
fraudulent. As we explain, Ms. Rojas’ arguments fail.
For starters, the outcome of the removal proceeding does not mandate a
decision in Ms. Rojas’ favor. First, the USCIS is required to make its own,
independent determination. See Matter of Tawfik, 20 I. & N. Dec. 166, 168 (BIA
1990) (explaining that the agency must make an “independent conclusion based on
the evidence [in the record]”). Second, the burden in a removal proceeding rests
with the government, whereas the burden for obtaining relief here rests with Ms.
Rojas. See Adefemi, 386 F.3d at 1027 & n.9.
In addition, and contrary to Ms. Rojas’ contention, it is clear that the USCIS
considered other evidence besides Mr. Correa’s first affidavit. In its August 2013
letter, the USCIS explicitly cited to various documents submitted by Ms. Rojas and
explained why it found those documents unconvincing.

Ms. Rojas had an

opportunity, by way of the USCIS’ June 2013 letter, to submit additional evidence
to convince the USCIS that its initial conclusion that the marriage was fraudulent
was incorrect.

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The USCIS could properly conclude that Mr. Correa’s recantation did “not
overcome the exceedingly detailed [initial] statement.” D.E. 1-2 at 10. Courts
have consistently recognized that a generalized recantation that fails to refute
earlier admissions does not undermine the initial confession. See, e.g., Ghaly v.
I.N.S., 48 F.3d 1426, 1433 (7th Cir. 1995) (discounting ex-wife’s subsequent
statement because it “never refuted any of the facts described in her earlier sworn
statement”). Though Mr. Correa’s second affidavit generally disavows his initial
admissions, it does not address several compromising facts disclosed in the initial
affidavit, such as his engagement to another woman, the couple’s failure to
consummate the marriage, the circumstances under which he and Ms. Rojas met,
and Ms. Rojas’ overture that they marry so she could obtain permanent residency.
These glaring omissions could certainly render the second affidavit suspect. See
id. at 1432 (explaining that a recantation may not directly refute a previous sworn
statement because “such a denial might be considered perjury or false swearing”).
Ms. Rojas is also incorrect that Mr. Correa’s initial affidavit is completely
uncorroborated such that, but for that affidavit, the USCIS’ denial would not be
based on substantial evidence. Several other facts extrinsic to the initial affidavit
corroborate Mr. Correa’s admissions, including the short-lived nature of the
couple’s relationship and the fact that Mr. Correa did not know Ms. Rojas’
whereabouts after their divorce, forcing him to effectuate service of the divorce by

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publication. Cf. Rodriguez Del Carmen v. Gonzales, 441 F.3d 41, 43 (1st Cir.
2006) (holding sham-marriage finding supported by substantial evidence where
spouse could not “recall important details of her putative married life, such as the
address of her joint habitation with [her husband]”).
Ms. Rojas, in effect, argues that the USCIS should have viewed the evidence
differently.

Though some documentary evidence submitted by Ms. Rojas,

including joint tax returns, bank accounts, and insurance documents, admittedly
suggests a bona fide marriage, the USCIS considered much of that evidence and
found it insufficient. Given the standard of review, we are statutorily precluded
from reweighing the evidence.

See 8 U.S.C. § 1154(a)(1)(J); 8 C.F.R.

§ 204.1(f)(1).
Finally, Mr. Correa’s generalized claim of duress, by itself, is insufficient to
compel a different result. See Matter of Isber, 20 I. & N. Dec. 676, 679 (BIA
1993) (explaining that the spouse’s “general claim of duress is insufficient to
retract her detailed admissions as to the fraudulent nature of her marriage”). See
also Sehgal v. Lynch, 813 F.3d 1025, 1030–31 (7th Cir. 2016) (finding that
allegations of coercion, including being threatened “with all kinds of things” and
being forced to sign a statement without first reading it, were too vague to
undermine a prior confession that the marriage had been fraudulent). This is

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especially true where, as here, the statement in which the coercion allegation is
made does not specifically deny or explain away the initial facts admitted.
IV
Because the USCIS’ decision is supported by substantial evidence, we
conclude that the district court did not err in granting summary judgment in favor
of the government.
AFFIRMED.

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