Anna Brown, et al v. Janet Napolitano

Filing

Case: 09-40921

Document: 00511196558

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Date Filed: 08/06/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
August 6, 2010 N o . 09-40921 S u m m a r y Calendar Lyle W. Cayce Clerk

A N N A BROWN; BUNHEANG CHHEANG, Plaintiffs­Appellants v. J A N E T NAPOLITANO, In her official capacity as Secretary of the D e p a r t m e n t of Homeland Security, D e fe n d a n t ­ A p p e lle e

A p p e a l from the United States District Court for the Eastern District of Texas U S D C No. 6:08-cv-00277

B e fo r e BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges. P E R CURIAM:* A n n a Brown and Bunheang Chheang appeal the district court's grant of s u m m a r y judgment in favor of Janet Napolitano (the "Government") on their a p p e a l of the United States Citizenship and Immigration Services' ("USCIS") d e n ia l of Brown's Petition for Alien Relative, Form I-130. Brown filed the form I - 1 3 0 on behalf of Chheang, her husband. The district court found that

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Case: 09-40921

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No. 09-40921 s u b s t a n t ia l evidence supported the USCIS's conclusions that (1) Brown and C h h e a n g failed to prove a bona fide marriage by a preponderance of the e v id e n c e , and (2) the Government succeeded in proving that, in the alternative, B r o w n and Chheang entered into their marriage for the purpose of conferring im m ig r a t io n benefits on Chheang. Because we agree, we affirm the district c o u r t's grant of summary judgment in favor of the Government. I. FACTUAL AND PROCEDURAL BACKGROUND I n November 2002, Chheang, a native and citizen of Cambodia, entered t h e United States on a non-immigrant student visa to study English at Stephen F . Austin State University in Nacogdoches, Texas. Chheang's visa expired in F e b r u a r y 2003. According to Chheang, he met Brown in June 2003, began d a t in g her shortly thereafter, and became engaged to her by September 2003. In November 2003, Chheang and Brown married. I n December 2003, Brown filed a Form I-130 on behalf of Chheang. A U S C I S officer interviewed the couple in July 2005 after requesting that Brown a n d Chheang bring documentary evidence of their cohabitation to the interview. In response to the USCIS officer's request for documentation, Brown and C h h e a n g produced their marriage license, records of a joint checking account fr o m February 2005 through June 2005 that reflected one or two transactions p e r month, Brown's 2004 tax return which she filed as married, and photographs w it h Brown's father from their wedding. Despite this evidence, the USCIS o ffic e r found several issues concerning the legitimacy of their marriage: s p e c ific a lly , that Brown moved out of their marital home after her father died in January 2004; that at the time of the interview, Brown and Chheang saw each o t h e r every two to three weeks; and that there existed little to no evidence that B r o w n and Chheang had commingled their assets. Based on Brown and Chheang's failure to document their cohabitation a d e q u a t e ly , the USCIS issued a Request for Evidence ("RFE"), which granted 2

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No. 09-40921 B r o w n and Chheang the opportunity to provide additional documentary evidence o f their cohabitation from the commencement of their marriage. The USCIS also s p e c ific a lly requested Brown's 2003 income tax return, evidence of Brown and C h h e a n g 's employment, additional evidence of cohabitation, copies of Chheang's I -2 0 s ,1 and transcripts for all schools attended. B r o w n and Chheang responded to the RFE with Brown's 2003 income tax r e t u r n , which she filed as single rather than married; Brown's income tax return fo r 2004, which she filed as married; additional records from their joint bank a c c o u n t ; a residential lease agreement with a deposit receipt; a natural gas u tilit y contract with a deposit receipt; a receipt indicating that Brown and C h h e a n g purchased furniture for their residence in November 2003; and p h o to g r a p h s of the two together. After considering all the evidence Brown and C h h e a n g provided and their testimony under oath, the USCIS issued a Notice o f Intent to Deny Visa Petition ("NOID"). T h e NOID stated that Brown had not "sufficiently established the e lig ib ilit y of [Chheang] to be accorded the benefit sought"; or, in other words, t h a t Brown failed to establish that her marriage was bona fide, which would r e n d e r Chheang eligible to receive an immediate relative visa. The USCIS s p e c ific a lly referenced that Brown had filed her income tax return as single in 2 0 0 3 and that Chheang provided inconsistent addresses for the time period r u n n in g from November 2002 to November 2003. Alternatively, the NOID s t a t e d that Brown and Chheang entered into the marriage with the sole in t e n t io n of conferring immigration benefits to Chheang, rendering their m a r r ia g e a "sham." Although the USCIS advised Brown and Chheang of their in t e n t to deny the petition, it provided Brown and Chheang with thirty days to

A Form I-20 is a form used by a school to certify to the federal government that a student is eligible to receive a student visa.

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No. 09-40921 r e b u t the USCIS's findings and submit additional evidence in support of their m a r r ia g e . In response to the NOID, Brown and Chheang provided the USCIS with a ffid a v it s from Chheang and Chheang's uncle; Brown and Chheang's jointly-filed 2 0 0 4 tax income return; and 2004 W-2s from both Brown and Chheang, which d id not match the amount of income claimed in their 2004 income tax return. Chheang's affidavit described his courtship and marriage to Brown, and e x p la in e d that Brown moved out of their marital home after her father passed a w a y in January 2004 so that she could be with her mother. Brown did not offer a n y affidavit of her own. In December 2005, the USCIS issued a Notice of Denial of Visa Petition, fin d in g that Brown had failed to demonstrate that her marriage was bona fide, t h u s rendering Chheang ineligible to receive an immediate relative visa. Alternatively, the USCIS found that Brown and Chheang had entered into their m a r r ia g e solely to obtain an immigration benefit for Chheang, rendering it a " s h a m " marriage. Based on these two findings, the USCIS denied Brown's p e t it io n . The Board of Immigration Appeals ("BIA") affirmed the denial without o p in io n . Brown and Chheang filed the instant suit in the Eastern District of Texas, a lle g in g that the USCIS's denial of Brown's petition violated the Administrative P r o c e d u r e Act ("APA") because it was arbitrary, capricious, and not in a c c o r d a n c e with the law. The parties filed cross-motions for summary judgment, w h ic h the district court granted in favor of the Government and denied as to B r o w n and Chheang. Specifically, the district court found that substantial e v id e n c e supported the USCIS's finding that Brown and Chheang had failed to p r o v e a bona fide marriage by a preponderance of the evidence, and that s u b s t a n t ia l evidence supported the USCIS's alternative finding that Brown and C h h e a n g 's marriage was a sham. The district court relied on the following facts: 4

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No. 09-40921 (1 ) Brown and Chheang's joint bank account reflected very few transactions after t h e first few months, (2) Brown filed her 2003 tax return as single and had never a m e n d e d it; (3) Brown's 2004 joint tax return was not an official IRS copy and t h e total amount claimed was off by $1,336 from the W-2s Brown and Chheang p r o v id e d ; and (4) little evidence existed of their relationship after January 2004, d e s p it e their joint lease and furniture receipts. Brown and Chheang timely a p p e a le d . II. STANDARD OF REVIEW " W e review the district court's grant of summary judgment de novo, a p p ly in g the same standard as the district court." Chaney v. Dreyfus Serv. C o r p ., 595 F.3d 219, 228­29 (5th Cir. 2010) (citing Golden Bridge Tech., Inc. v. M o to r o l a , Inc., 547 F.3d 266, 270 (5th Cir. 2008)). Summary judgment is

a p p r o p r ia te "if the pleadings, the discovery and disclosure materials on file, and a n y affidavits show that there is no genuine issue as to any material fact and t h a t the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 5 6 (c )(2 ). We must, however, apply the same "highly deferential" standard of review o f an agency decision that the district court applied. See Pension Ben. Guar. C o r p . v. Wilson N. Jones Mem'l Hosp., 374 F.3d 362, 366 (5th Cir. 2004) (citation o m it t e d ). "Under the Administrative Procedure Act, agency action is reviewed s o le ly to determine whether it is arbitrary, capricious, an abuse of discretion, or o t h e r w is e not in accordance with law." Defensor v. Meissner, 201 F.3d 384, 386 (5 t h Cir. 2000) (citing 5 U.S.C. § 706). We consider an agency's action arbitrary a n d capricious: " [ I ] f the agency has relied on factors which Congress has not in t e n d e d it to consider, entirely failed to consider an important a s p e c t of the problem, offered an explanation for its decision that r u n s counter to the evidence before the agency, or is so implausible

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No. 09-40921 t h a t it could not be ascribed to a difference in view or the product of a g e n c y expertise." Tex. Oil & Gas Ass'n v. U.S. E.P.A., 161 F.3d 923, 933 (5th Cir. 1998) (quoting M o to r Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1 9 8 3 )). The APA also mandates that we "set aside agency action, findings, and c o n c lu s io n s found to be . . . unsupported by substantial evidence." 5 U.S.C. § 706(2)(E). "Substantial evidence is more than a scintilla, less than a

p r e p o n d e r a n c e , and is such relevant evidence as a reasonable mind might accept a s adequate to support a conclusion." Hames v. Heckler, 707 F.2d 162, 164 (5th C ir . 1983); see also Omagah v. Ashcroft, 288 F.3d 254, 258 (5th Cir. 2002) ("The s u b s t a n t ia l evidence standard requires only that the BIA's decision be supported b y record evidence and be substantially reasonable.") (citation omitted). In the c o n t e x t of BIA determinations, we have held that "[t]o obtain a reversal of the b o a r d 's decision . . . the alien must show that the evidence he presented was so c o m p e llin g that no reasonable fact-finder could fail to arrive at his conclusion," a n d that "[t]he evidence must not merely support the alien's conclusion but must c o m p e l it." Silwany-Rodriguez v. I.N.S., 975 F.2d 1157, 1160 (5th Cir. 1992) (c it a t io n s omitted). III. ANALYSIS O n appeal, Brown and Chheang challenge the district court's findings that s u b s t a n t ia l evidence existed to support both of the USCIS's2 conclusions: that (1) B r o w n and Chheang failed to prove a bona fide marriage by a preponderance of t h e evidence, and (2) the Government proved that Brown and Chheang entered in t o a "sham" marriage for the purpose of conferring immigration benefits. As

Generally, we only have the authority to review the decision of the BIA. Where, as here, however, the BIA affirms the USCIS's decision without opinion, we review the USCIS's decision. See Majd v. Gonzales, 446 F.3d 590, 594 (5th Cir. 2006) (citing Mikhael v. I.N.S., 115 F.3d 299, 302 (5th Cir. 1997)).

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No. 09-40921 t o both, conclusions, however, Brown and Chheang make identical arguments: t h e record contained compelling evidence of their good faith at the time of their m a r r ia g e , and is void of any evidence demonstrating otherwise. Although

s im ila r , the party bearing the burden of proof in front of the USCIS differs with r e g a r d to the USCIS's alternative findings, and we address each individually. A. B o n a Fide Marriage B r o w n and Chheang had the burden of demonstrating to the USCIS that C h h e a n g was an eligible recipient of a visa as Brown's "immediate relative." See 8 U.S.C. § 1361. This required Brown and Chheang to show, by a preponderance o f the evidence, that they "intended to establish a life together at the time of t h e ir marriage," Matter of Pazandeh, 19 I&N Dec. 884, 887 (BIA 1989) (citation o m i t t e d ) , and that their marriage was not entered into with "the primary p u r p o s e of circumventing immigration laws." Matter of Phillis, 15 I&N Dec. 385, 3 8 6 (BIA 1975). To obtain a reversal of the USCIS's decision, Brown and

C h h e a n g bear the burden of showing "that the evidence [they] presented was so c o m p e llin g that no reasonable fact-finder could fail to arrive at [their] c o n c lu s io n ." See Silwany-Rodriguez, 975 F.2d at 1160 (citation omitted). In determining whether Brown and Chheang intended to establish a life t o g e t h e r , the USCIS was at liberty to consider such factors as joint ownership o f property, joint tenancy of a common residence, commingling of financial r e s o u r c e s , birth certificates of children born to the pair, affidavits of third parties h a v i n g knowledge of the bona fides of the marital relationship, or any other r e l e v a n t documentation. See 8 C.F.R. § 204.2(a)(1)(iii)(B).3 In response to the U S C I S 's various requests for substantiation of the bona fides of their marriage,

Although these factors pertain to instances in which a petitioner seeks to classify an alien as an immediate relative based on a marriage that occurred while in removal proceedings, the BIA also looks to these factors to determine whether a petitioner has met his or her burden of showing a bona fide marriage by a preponderance of the evidence. See, e.g., Phillis, 15 I&N Dec. at 387.

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No. 09-40921 B r o w n and Chheang produced a marriage license, records from a rarely-used j o i n t checking account, a 2004 joint income tax filing, a residential lease they b o th signed, a contract for natural gas, a receipt for furniture, and affidavits fr o m both Chheang and Chheang's uncle. This evidence did not, however, assuage the suspicions of the USCIS, w h ic h were raised by the fact that the couple lived together for approximately t w o months, were seeing each other only once every two or three weeks, and did n o t file a joint income tax statement in 2003 despite their marriage. Brown and C h h e a n g have failed to demonstrate evidence "so compelling that no reasonable fa c t -fin d e r could fail to arrive at [their] conclusion." Silwany-Rodriguez, 975 F .2 d at 1160 (citation omitted). We thus find that the USCIS's conclusion that t h e ir marriage was not bona fide was not arbitrary and capricious, and was s u p p o r t e d by substantial evidence. B. S h a m Marriage In contrast to the bona fide nature of Brown and Chheang's marriage, the G o v e r n m e n t had the burden in front of the USCIS of showing, by "substantial a n d probative evidence," that Brown and Chheang's marriage was a sham from it s inception. See 8 C.F.R. § 204.2(a)(1)(ii). "A marriage that is entered into for t h e primary purpose of circumventing the immigration laws, referred to as a fr a u d u le n t or sham marriage, has not been recognized as enabling an alien s p o u s e to obtain immigration benefits." Matter of Laureano, 19 I&N Dec. 1, 2 (B IA 1983) (citing, inter alia, Lutwak v. United States, 344 U.S. 604 (1953)). The U S C I S must deny a petition if it determines that a marriage is fraudulent. See 8 U.S.C. § 1154(c)(2). Courts have held that a marriage is "a sham if the bride and groom did not in t e n d to establish a life together at the time they were married." Bark v. I.N.S., 5 1 1 F.2d 1200, 1201 (9th Cir. 1975). "Evidence to establish intent could take m a n y forms, including, but not limited to, proof that the beneficiary has been 8

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No. 09-40921 lis t e d as the petitioner's spouse on insurance policies, property leases, income t a x forms, or bank accounts; and testimony or other evidence regarding c o u r ts h ip , wedding ceremony, shared residence, and experiences." Laureano, 19 I & N Dec. at 2 (citation omitted). The USCIS is permitted to consider conduct a ft e r the marriage, but "only to the extent that it bears upon their subjective s t a t e of mind at the time they were married." Bark, 511 F.2d at 1202 (citation o m it t e d ). Brown and Chheang argue that the district court's grant of summary ju d g m e n t was erroneous because the USCIS based its denial solely on their s u b s e q u e n t separation. The USCIS's determination on this issue was neither arbitrary and c a p r ic io u s nor unsupported by substantial evidence. As noted by the district c o u r t, the lack of transaction history for their joint checking account, lack of c o h a b it a t io n starting approximately two months after their marriage, and lack o f any evidence supporting an attempt to sustain their marriage once their very b r ie f cohabitation ended, supports the reasonableness of the USCIS's conclusion t h a t Brown and Chheang's marriage was fictitious from its inception. Because t h e USCIS's finding that Brown and Chheang's marriage was a sham was not a r b it r a r y and capricious and was supported by substantial evidence, we will not d is t u r b its decision. I V . CONCLUSION T h e district court correctly found that the USCIS did not act arbitrarily a n d capriciously by denying Brown's petition on either of its alternative grounds, a n d correctly found that both decisions were supported by substantial evidence. We therefore affirm the district court's grant of summary judgment in favor of t h e Government. A F F IR M E D .

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