Yu v. Napolitano et al

Filing 20

ORDER granting 15 Motion for Summary Judgment; denying 16 Motion for Summary Judgment. Signed by Judge Edward J. Davila on 2/11/2014 (ejdlc3, COURT STAFF) (Filed on 2/11/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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United States District Court
For the Northern District of California

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YU AN,

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Plaintiff,
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v.
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JANET NAPOLITANO, SECRETARY OF THE )
DEPARTMENT OF HOMELAND SECURITY, )
ET AL.,
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Defendants.
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Case No. 5:13-CV-0600-EJD
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT AND DENYING
PLAINTIFF’S CROSS-MOTION FOR
SUMMARY JUDGMENT

[Re: Docket Item Nos. 15, 16]

In this action under the Administrative Procedure Act (“APA”), 5 U.S.C. § 702(2)(A),

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presently before the Court are Plaintiff Yu An’s (“Plaintiff”) and Defendant Secretary of the

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Department of Homeland Security, et al.’s (“Defendants”) cross-motions for summary judgment.

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See Docket Item Nos. 15, 16.

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I. BACKGROUND
A. Factual Background
Plaintiff is a naturalized U.S. citizen who has filed a petition for an immigrant visa on

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behalf of her mother, Zhao Qi Wang (“Ms. Wang”), under the Immigration and Nationality Act

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(“INA”) §204(a), 8 U.S.C. § 1154(a), by filing a Form I-130, Petition for Alien Relative. Ms.

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Wang, a Chinese national, was first admitted to the United States on October 9, 1996 as a B-1

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nonimmigrant visitor for business. Her B-1 status was extended through July 9, 1997. On June 9,

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Case No. 5:13-CV-0600-EJD
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND
DENYING PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT

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1997, Ms. Wang petitioned for a change of status to F-1 nonimmigrant student status, which was

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approved on January 7, 1998.

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On May 24, 1998, Ms. Wang married Chao Zhang Huang, a naturalized U.S. citizen. Mr.

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Huang filed a Form I-130 on behalf of Ms. Wang. At an interview before the U.S. Citizenship and

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Immigration Services (“USCIS”) on March 19, 2002 in San Francisco, the agency determined that

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the marriage was fraudulent. The interview was conducted through an interpreter and consisted of

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questions regarding Mr. Huang’s and Ms. Wang’s residency and marriage. Both parties were

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questioned separately under oath. The USCIS claims that the statements made by Mr. Huang and

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Ms. Wang were inconsistent, both with each other and with previous statements, self-contradictory,

United States District Court
For the Northern District of California

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and that both parties admitted in oral statements and written confessions that the marriage was

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fraudulent. The inconsistent testimony supported the finding of a fraudulent marriage.

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According to Mr. Huang’s testimony, he had lived in Florida since 1983, he came to

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California because his son wanted him to marry Ms. Wang, and he married Ms. Wang to help her

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stay in the United States. At first, Mr. Huang stated he had never seen Ms. Wang in Florida, but

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then said he guessed that he had seen her twice in Florida, and also stated that he came with Ms.

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Wang from Florida for the interview and intended to go back with her. He did not remember the

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last time they had seen each other and he did not seem to know where Ms. Wang lived or her

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phone number. Mr. Huang admitted that he and Ms. Wang were not staying with each other during

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his visit and that they had not slept together.

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Ms. Wang stated during her interview that she lived in Napa when she met Mr. Huang, that

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they had lived together in San Francisco for their first two years of marriage and then moved

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together to Napa. She also stated that they had both lived in San Francisco for one month after

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they got married and then moved to Napa and that Mr. Huang had never lived anywhere else. Ms.

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Wang stated that Mr. Huang went to Florida during Christmas to visit his daughter and that she had

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gone for a week to visit him. She told the interviewer that Mr. Huang had been in San Francisco

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for a week because their apartment in Napa was being remodeled. Ms. Wang stated that she

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planned to live in Florida.

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Case No. 5:13-CV-0600-EJD
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND
DENYING PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT

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In addition to inconsistencies about where they lived and how often they saw each other,

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there were also inconsistencies regarding Ms. Wang’s family. Ms. Wang stated that her ex-

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husband was living in China and had never been to the United States, while Mr. Huang stated that

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Ms. Wang’s ex-husband lived in Napa and owned a restaurant there. Furthermore, Mr. Huang

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could not remember Ms. Wang’s daughter’s name.

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At the conclusion of his interview, Mr. Huang wrote and signed an affidavit in Chinese, his

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native language, which stated, “I admit this is a fraudulent marriage . . . I have never had a marital

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relationship with this woman . . . .” The same day, he withdrew his Form I-130 petition. Ms.

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Wang was asked why she married Mr. Huang and her answers included the fact that Mr. Huang

United States District Court
For the Northern District of California

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needed someone to take care of him and that she wanted to bring her daughter from China.

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About three months after the interview, on June 7, 2002, Mr. Huang filed a second Form I-

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130 petition on behalf of Ms. Wang and both parties submitted affidavits recanting their admission

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of marriage fraud. Mr. Huang’s son, Wei Cong Huang, also submitted an affidavit in support of

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the petition. The government claims that the affidavits were written in English, Mr. Huang’s and

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Ms. Wang’s affidavits are nearly identical, and statements in the affidavits are inconsistent with

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statements made in the March 19, 2002 interview and documentary evidence submitted by the

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parties.

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Mr. Huang and Ms. Wang were scheduled to appear for an interview with the USCIS on

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June 16, 2003, but neither appeared for the interview. The next day, the USCIS received a call

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requesting to reschedule the interview. On August 14, 2003, USCIS denied the Form I-130

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petition due to abandonment. In a letter sent to Mr. Huang, the USCIS noted that the record

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reflected that Ms. Wang was an active participant in marriage fraud. Mr. Huang passed away on

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April 18, 2007.

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B. Procedural Background

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On April 25, 2008, Plaintiff filed her first Form I-130 petition on behalf of Ms. Wang. This

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form was initially denied by the USCIS on September 10, 2009 because the agency determined that

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Ms. Wang had previously engaged in marriage fraud to circumvent immigration laws. On October

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Case No. 5:13-CV-0600-EJD
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND
DENYING PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT

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8, 2009, Plaintiff filed a motion to reopen the Form I-130 petition. The motion was granted and the

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USCIS reissued its decision denying the petition on March 2, 2010 because Ms. Wang was

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determined to have previously entered into a marriage to avoid immigration laws. The USCIS

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based its decision on “[a]dmission, under oath, by both parties, that the marriage was fraudulent . . .

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marriage was never consummated . . . separate residencies throughout their marriage; forty years

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difference in the ages . . . lack of documents . . . ” and the fact that no evidence had ever been

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submitted to overcome the determination that the marriage was fraud, other than the affidavits

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dated March 27, 2002.

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On March 31, 2010, Plaintiff filed a Form EOIR-29, Notice of Appeal to the Board of

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For the Northern District of California

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Immigration Appeals (“BIA”). In support of the appeal, Plaintiff’s brief claimed that the video

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recording of the USCIS interview was incomplete because it did not show the circumstances

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surrounding Mr. Huang’s signing of the affidavit. The brief further alleged that the interpreter was

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impatient, biased, and disqualified. The BIA issued its decision dismissing Plaintiff’s

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administrative appeal on January 10, 2013. The BIA stated that the allegations made by Plaintiff

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were unsupported by the record and did not overcome the admissions of fraud.

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On February 12, 2013, Plaintiff brought an action in this Court under the APA asking for

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declaratory relief and a writ of mandamus asking the Court to hold unlawful and set aside the order

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of the BIA and decisions of the USCIS in this matter and direct them to grant Plaintiff’s Form I-

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130 petition. See Docket Item No. 1. Defendants filed the present Motion for Summary Judgment

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on June 28, 2013 and Plaintiff filed a cross-motion on July 29, 2013. See Dkt. Nos. 15, 16.

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Attached to her pleadings, Plaintiff included a new translation of the March 19, 2002 USCIS

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interview, as translated by Yu Chuen, a Mandarin translator and instructor at the Defense Language

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Institute of Monterey, California.

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II. LEGAL STANDARD
Under the APA, a reviewing court may set aside a final agency action if it is “arbitrary,

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capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. §

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706(2)(A). The Supreme Court has held that the standard of review under 5 U.S.C. § 706(2)(A) is

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ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND
DENYING PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT

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deferential, noting that a court is not empowered to substitute its judgment for that of the agency.

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Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Ins. Co., 463 U.S. 29, 43 (1983). The Court also

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noted that a reviewing court must conduct a searching and careful inquiry into the facts. Citizens

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to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971), overruled on other grounds by

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Califano v. Sanders, 430 U.S. 99, 105 (1977).
In reviewing an agency’s decision under section 706(2)(A), a court “must consider whether

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the decision was based on a consideration of the relevant factors and whether there has been a clear

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error of judgment.” Overton Park, 401 U.S. at 416. The agency must have considered the relevant

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data and “articulate a satisfactory explanation for its action including a ‘rational connection

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United States District Court
For the Northern District of California

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between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43

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(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). For an agency

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decision to be upheld under the arbitrary and capricious standard, a court must find that evidence in

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front of the agency provided a rational and ample basis for its decision. Nw. Motorcycle Ass’n v.

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U.S. Dept. of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). Under the APA, a district court’s review

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is limited to the administrative record to determine whether the federal agency considered relevant

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factors and reached conclusions that were not arbitrary or capricious. Id. at 1472.

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A motion for summary judgment may be used to review agency administrative decisions

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within the limitations of the APA. Id. at 1481. A motion for summary judgment should be granted

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if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a

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matter of law.” Fed. R. Civ. P. 56(a); Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir.

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2000). The moving party bears the initial burden of informing the court of the basis for the motion

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and identifying the portions of the pleadings, depositions, answers to interrogatories, admissions, or

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affidavits that demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett,

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477 U.S. 317, 323 (1986).

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In deciding whether to grant summary judgment in an APA challenge, the district court “is

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not required to resolve any facts in a review of an administrative proceeding.” Occidental Eng’g

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Co. v. I.N.S., 753 F.2d 766, 769 (9th Cir. 1985). The purpose of the district court “is to determine

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Case No. 5:13-CV-0600-EJD
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND
DENYING PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT

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whether or not as a matter of law the evidence in the administrative record permitted the agency to

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make the decision it did.” Id.
III. DISCUSSION

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Defendants move for summary judgment, arguing that there is substantial and probative

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evidence to support the USCIS’s decision. Defendants claim that Mr. Huang’s affidavit and Ms.

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Wang’s oral confessions prove the marriage was fraudulent. Furthermore, independent of the

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confessions, the contradictory statements made by the two parties show that they did not intend to

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establish a life together. To qualify as a bona fide marriage, a marriage must be based on an actual

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and legitimate relationship and the focus of any inquiry is whether the parties intended to establish

United States District Court
For the Northern District of California

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a life together. Nakamoto v. Ashcroft, 363 F.3d 874, 882 (9th Cir. 2004). The administrative

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record contains substantial evidence supporting the conclusion that the marriage was a fraud,

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including the forty year age difference between parties, the fact the marriage was never

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consummated, inconsistencies in testimony and documentation regarding residencies, the dearth of

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evidence demonstrating a shared life (only two joint bank account statements, two joint income tax

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returns, and the affidavits dated March 27, 2002), and factual inconsistencies between documents

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submitted to the USCIS and the parties’ statements during the March 19, 2002 interview. See

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Agyeman v. INS, 296 F.3d 871, 882-83 (9th Cir. 2002) (“Evidence of the marriage’s bona fides

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may include: jointly-filed tax returns; shared bank accounts or credit cards; insurance policies

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covering both spouses; property leases or mortgages in both names; documents reflecting joint

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ownership of a car or other property; medical records showing the other spouse as the person to

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contact; telephone bills showing frequent communication between the spouses; and testimony or

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other evidence regarding the couple’s courtship, wedding ceremony, honeymoon, correspondences,

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and shared experiences”).

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Additionally, Defendants claim that the parties’ confessions were voluntary and there was

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no coercion involved. Furthermore, Defendants argue that Plaintiff failed to present documentary

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evidence in a timely manner to support the assertion that the interpreter hampered effective

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communication during the interview and that even if there were errors in translation, they were

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ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND
DENYING PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT

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harmless errors. Finally, Defendants assert that Plaintiff’s request for a writ of mandamus fails

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because the USCIS does not have a non-discretionary duty to approve the Form I-130 petition.

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The Mandamus Act applies only where the official’s duty is non-discretionary. See Patel v. Reno,

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134 F.3d 929, 931 (9th Cir. 1997).

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Plaintiff cross-moves for summary judgment claiming the USCIS’s decision is not based on

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substantial and probative evidence. Plaintiff claims that the conduct of the interview and the

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demonstrated bias and misinterpretation on the part of the Mandarin interpreter at the interview

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undercut any claim that the interview was fair or in accord with the requirements of due process.

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The interpreter’s mistakes furthered the parties’ apparent contradictory statements, as the

United States District Court
For the Northern District of California

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interviewer’s questions were not properly interpreted. Plaintiff contends, for example, that when

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Ms. Wang told the interviewer that Mr. Huang has Alzheimer’s disease, which should have alerted

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the interviewer that Mr. Huang was mentally impaired, the interpreter told the interviewer that Mr.

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Huang was on medication but that Ms. Wang said it would not affect his thinking. When the

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interviewer asked Ms. Wang a series of questions, she asked the interpreter which part of the

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question she should answer and the interpreter told the interviewer Ms. Wang was asking her what

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to say, turning her question into a credibility damaging statement.

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Further, Plaintiff argues that while allowing Ms. Wang to stay in the U.S. was a factor in

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the couple’s decision to marry, it was not a dispositive factor. When the interviewer asked if that

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was a reason for the marriage, the parties agreed that it was, but also stated that they were husband

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and wife and lived together after the marriage. Finally, Plaintiff argues that although Mr. Huang

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was induced to sign a statement that his marriage was fraudulent, within two weeks he signed an

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affidavit repudiating his previous statement and explaining that his marriage was genuine.

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As discussed above, the standard for review of agency decisions under the APA is highly

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deferential. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)

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(“[w]e have long recognized . . . the principle of deference to administrative interpretations”).

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Especially in the context of immigration policy, the Ninth Circuit has determined that review is

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“especially deferential.” Jang v. Reno, 113 F.3d 1074, 1077 (9th Cir. 1997). 8 C.F.R. §

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ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND
DENYING PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT

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204.2(a)(1)(ii) mandates denial of a petition for immigrant visa classification filed on behalf of any

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alien for whom there is substantial and probative evidence of an attempt or conspiracy to commit

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marriage fraud. “Substantial evidence” is defined as “such relevant evidence as a reasonable mind

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might accept as adequate to support a conclusion.” Consol. Edison Co. of New York v. N.L.R.B.,

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305 U.S. 197, 229 (1938). To reverse a decision under this standard, “the evidence must be so

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compelling that no reasonable factfinder could fail to find the facts were as the alien alleged.”

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Singh v. Reno, 113 F.3d 1512, 1514 (9th Cir. 1997). When reviewing agency decisions, courts are

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limited to reviewing the closed administrative record, with few exceptions.1 Ctr. for Biological

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Diversity v. U.S. Fish & Wildlife Serv., 450 F.3d 930, 943 (9th Cir. 2006).

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For the Northern District of California

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Even without considering the written confession from Mr. Huang, the USCIS’s decision

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was supported by substantial evidence in the record, which permitted the agency to reach its

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decision. The Court must only decide whether there was an abuse of discretion, and here it finds

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that there was no such abuse because there is evidence in the record to support the USCIS’s

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decision. The inconsistent testimony given by the parties, the lack of evidence of an “intent to

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establish a life together”, the factual inconsistencies between submitted documents and parties’

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statements, no submission of any additional documentation in support of the marriage after the

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USCIS interview, plus the existence of a forty-year age difference and the fact that the marriage

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was never consummated, taken as a whole support the USCIS’s decision.

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In similar cases, this Court has upheld the USCIS’s decisions regarding marriage fraud. In

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Avitan v. Holder, petitioner made a written admission of marriage fraud during a USCIS interview,

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which she later retracted, claiming that her admission had been coerced under threat. Avitan v.

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Holder, No. C-10-03288, 2011 WL 499956, at *3 (N.D. Cal. Feb. 8, 2011). Petitioner filed two

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subsequent I-130 petitions, which were both denied. The USCIS offered evidence, other than her

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previous confession, to support the decision, including that petitioner did not show up to the final I-

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130 interview and did not submit any documentation substantiating her illness, petitioner did not

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The instances in which extra-record materials are allowed include: (1) if necessary to determine whether the agency
has considered all relevant factors; (2) when the agency has relied on materials outside the record; (3) when necessary
to explain technical terms or complex subject matter; or (4) when plaintiffs make a showing of agency bad faith. Ctr.
for Biological Diversity, 450 F.3d at 943.

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Case No. 5:13-CV-0600-EJD
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND
DENYING PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT