Koffi et al v. Attorney Gen

Filing 41

ORDER granting Defendant's 28 Motion for Summary Judgment and denying Plaintiffs' 30 Cross Motion for Summary Judgment. See attached memorandum of decision. The Clerk is further directed to close this action. Signed by Judge Vanessa L. Bryant on 7/18/2011. (Fernandez, Melissa)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
BRUNO NGORAN KOFFI,
GAYLE KAREN KOFFI,
PLAINTIFFS,

v.
ERIC H. HOLDER, JR., ATTORNEY
GENERAL OF THE UNITED STATES,
DEFENDANT.

:
:
:
: CIVIL ACTION NO. 3:09cv2102(VLB)
:
: JULY 18, 2011
:
:
:
:

MEMORANDUM OF DECISION GRANTING DEFENDANT’S [DOC. #28] MOTION
FOR SUMMARY JUDGMENT AND DENYING PLAINTIFFS’ CROSS [Doc.#30 ]
MOTION FOR SUMMARY JUDGMENT

Before the Court is a motion for summary judgment filed by the Defendant,
Eric H. Holder, JR. Attorney General of the United States and a cross motion for
summary judgment filed by Plaintiffs, Bruno Ngoran Koffi (“Koffi”) and his wife
Gayle Karen Koffi, nee Mischler (“Mischler”).1 Plaintiffs have filed a petition for
review of the Board of Immigration Appeal’s (“BIA”) decision to affirm the denial
of Plaintiffs’ I-130 petition to establish an immediate-relative relationship between
Koffi and his third wife American Mischler. In its decision, the BIA reasoned that
the record of evidence supported a finding that Koffi’s first marriage was

1

 Defendant argues that Plaintiffs’ cross motion for summary judgment is untimely

as it was filed three weeks after the deadline for dispositive motions and as such
it should be denied and its arguments only considered to the extent they bear on
whether Defendant is entitled to summary judgment. As the Court has ruled in
favor of Defendants, the Court need not address the Defendant’s argument
regarding the untimely filing of Plaintiffs’ cross motion for summary judgment.
The Court further notes that as this action does not involve counterclaims that
Plaintiffs’ cross motion for summary judgment is equivalent in many ways to a
response to Defendant’s motion for summary judgment which was timely filed.
1 

fraudulent and therefore 8 U.S.C. § 1154 (c) applied and served as a bar to
approval of the I-130 petition. Plaintiffs argue that the BIA’s decision was
arbitrary and capricious as there was no substantial and probative evidence to
support the BIA’s conclusion that Koffi’s first marriage was fraudulent, that the
BIA abused its discretion by failing to consider the marriage fraud allegations
when the 1-130 petition filed by Koffi’s second American wife was approved and
by not providing Koffi with a copy of a memorandum that detailed the criminal
investigation of Koffi’s former immigration attorney and her assistants for
operating a marriage fraud scheme which identified Koffi’s first marriage as
fraudulent. Plaintiffs further contend that the BIA failed to conduct a de novo
review and relied on the memorandum to the exclusion of all other evidence in an
abuse of discretion until the present action. On the other hand, Defendant
contends that the BIA did not abuse its discretion and that the BIA’s conclusions
were based on a reasoned review of all the evidence in the record and that it was
not arbitrary and capricious for the BIA to determine that Koffi’s first marriage
was fraudulent thereby denying Koffi’s current I-130 petition predicated on his
third marriage. For the reasons stated hereafter, Defendant’s motion for
summary judgment is granted and Plaintiffs’ cross motion for summary judgment
is denied.
Background and Facts
This action was originally filed with the Second Circuit of Appeals. On
December 17, 2009 the Second Circuit determined that it lacked jurisdiction to
hear the claim as 8 U.S.C. § 1252(a)(1) grants the Court of Appeals jurisdiction to
2 

review only final orders of removal and a denial of an I-130 petition does not
constitute a final order of removal. Ruiz v. Mukasey, 552 F.3d 269, 271 (2d Cir.
2009). In addition, the Second Circuit concluded that the District Court has
jurisdiction to hear the claim since the decision to deny an I-130 petition is not a
decision committed to the discretion of the Attorney General and therefore the
District Court is not barred from hearing such a cause of action under 8 U.S.C. §
1252 (a)(2)(B)(ii). Id.
The following facts relevant to both Defendant’s motion for summary
judgment and Plaintiffs’ cross motion for summary judgment are undisputed
unless otherwise noted. Plaintiff Koffi is a citizen and national of the Ivory Coast.
On July 8, 1990, he entered the Unites States on a J-1 exchange visa and
overstayed his visa. [Doc.# 23, Administrative Record (“AR”) at 306]. Koffi has
resided continuously in the United States except for one trip in 2000 back to the
Ivory Coast to attend his mother’s funeral. [Id. at 134]. Koffi has had three
different marriages to United States citizens and has attempted to obtain lawful
permanent status based on each of these marriages. [Doc. #28-2, Defendant’s
Local Rule 56(a)1 Statement].
In order for an alien to obtain lawful permanent status based on a marriage
to a United States citizen, the American spouse must first file an I-130 petition
and establish that there exists a bona fide spousal “immediate relative”
relationship. 8 U.S.C. § 1154 (a)(1)(A)(i). Once the I-130 petition is granted and
the alien is classified as an immediate relative of a United States citizen, the alien
becomes eligible to seek an adjustment of status to a lawful permanent resident
3 

by filing a Form I-485 Application to Register Permanent Resident or Adjust
Status. 8 U.S.C. § 1255 (a). In connection with an I-130 petition, the petitioner
carries the burden of proving the claimed relationship by a preponderance of the
evidence. Matter of Brantigan, 11 I. & N. Dec. 493, 495 (BIA 1966); Egan v. Weiss,
119 F.3d 106, 107 (2d Cir. 1997). Koffi has been married three times and each of
his American wives has filled an I-130 petition on his behalf.
On February 3, 1993, Koffi married his first wife Alexine Odom (“Odom”) in
Arlington, Virginia. [Doc. #23, AR at 326,337-347]. On February 8, 1993, Odom
filed a Form I-130 on behalf of Koffi, which was prepared and submitted by Koffi’s
immigration attorney, My Ling Duong Soland (“Soland”). Sometime afterward,
Koffi and Odom left the Alrington area and moved to Pittsburgh, Pennsylvania.
Koffi and Odom were interviewed by the legacy Immigration and Naturalization
Service (“INS”) on April 26, 1993 in connection with the I-130 petition and the
couple submitted several documents to establish the bona fide nature of their
marriage as required by 8 C.F.R. § 204.2(a)(1)(i)(B). They submitted (1) a letter
dated October 19, 1994 from the owner of their Pittsburgh residence, stating that
Koffi and Odam were tenants, but that Odom at the present time is away; (2) bills
and credit cards in both spouse’s names; and (3) documentation that Odom was
listed as the beneficiary on Koffi’s health insurance, life insurance, and dental
plans. [Doc. #23, AR at 358,360, 362].
In July 1994 while Koffi and Odom’s I-130 petition was pending, INS
commenced an investigation against Koffi’s immigration attorney Soland
culminating with criminal charges being brought against Soland and two of her
4 

assistants for arranging fraudulent marriages between foreign clients and United
State citizens. Soland’s foreign clients would pay a fee between approximately
$5,000 to $6,000 to be matched with a United States citizen and Soland’s
assistants helped her recruit United States citizens and arrange the fraudulent
marriages. Two of Soland’s assistants were criminally convicted for their role in
the marriage fraud scheme, but received reduced sentences for cooperating with
the government’s case. Soland’s assistants provided INS with information about
the marriages they had arranged including a list of over forty fraudulent
marriages including Koffi and Odom’s marriage. A memorandum, dated January
22, 1996, from the INS’s Office of Investigations (Washington D.C.) memorializing
the investigation was placed in Koffi’s agency file and specifically noted that Koffi
and Odom’s marriage had been identified as a fraudulent marriage arranged by
Soland. [Doc. #28-2]. On June 13, 1995, Soland plead guilty to a two-count
information charging her with Conspiracy to Commit Marriage Fraud and False
Statements, and Obstruction of Justice/Witness Intimidation.
On June 7, 1995, Koffi divorced Odom while Odom’s I-130 petition was still
pending. INS terminated Odom’s I-130 petition as Koffi could no longer be
qualified as a spousal immediate relative of Odom as a result of the divorce. Two
months later on August 31, 1995, Koffi married his second wife Ellean Trammel
(“Trammel”) in Pittsburgh and she filed an I-130 petition on Koffi’s behalf on
February 12, 1996 which was approved on March 30, 1996 or April 15, 1996. [Doc.
#28-2]. Koffi then filed a Form I-485 application for adjustment of status. In a
letter dated November 1, 1996, Koffi informed INS that he was having problems
5 

with his second marriage, that he and Trammel were living apart and requested
information on what procedure he needed to follow. On May 19, 1997, INS
interviewed Koffi and Trammel in connection with the Form I-485 application and
the couple testified that they had only cohabitated as husband and wife for three
months, having lived apart since November 1995 but that they were trying to work
things out. On September 15, 1997, INS received notice from Koffi that he alone
had moved from Pittsburgh to West Harford, Connecticut. [id.]. On January 9,
1998, INS issued a Notice of Intent to Revoke (“NOIR”) of the I-130 petition on the
basis that the couple was no longer living together. In a letter dated May 21,
1998, nearly three years after Koffi notified INS that he was estranged from her,
Trammel notified INS that she and Koffi had reconciled and were living together
in West Hartford. On May 18, 1999, Koffi and Trammel were interviewed by INS in
Connecticut in in connection with Trammel’s I-130 petition. [Id.].
On October 25, 1999, INS issued another NOIR in connection with the I-130
but this time the basis was that Koffi’s first marriage to Odom was fraudulent. In
the NOIR, INS explained that “a review of the beneficiary’s immigration file
reflects that beneficiary’s prior attorney was indicted for Conspiracy to Commit
Marriage Fraud and False Statements” and “the names of the beneficiary and a
prior spouse were provided as to one of the arranged marriages.” The NOIR also
provided that Koffi and his second wife Trammel had 30 days to respond and
rebut the allegations. [Doc. #28-2]. On November 16, 1999, they responded
denying that Koffi’s first marriage to Odom was fraudulent and provided evidence
of the bona fide nature of Koffi’s first marriage. Most of the evidence was
6 

duplicative of the material that Koffi had first submitted with his and Odom’s I-130
petition that was filed in February, 1993. However, Koffi also submitted a letter
from Soland dated October 25, 1994 forwarding a copy of Koffi’s file to his new
immigration attorney that Koffi engaged when he moved to Pittsburgh. Koffi
does not claim that Soland’s letter contained any statements supporting the
legitimacy of his marriage to Odom. On March 15, 2000, the INS officially
revoked its approval of the I-130 petition on the basis that it did not receive a
response to the NOIR. Koffi and Trammel did not appeal the decision. [Doc. #282].
In December 1999, Koffi traveled to the Ivory Coast to attend his mother’s
funeral. [Doc.# 23, AR at 134]. On June 17, 2000, Koffi illegally re-entered the
country on a tourist visa which he fraudulently obtained through using his
brother’s passport.
On October 26, 2004, Koffi obtained a divorce from Trammel his second
wife and less than a year later married his third wife Mischler on August 5, 2005.
Mischler filed an I-130 petition on June 5, 2007 and submitted documentation
supporting the bona fide nature of their marriage. Koffi and Mischler were
interviewed by U.S. Citizenship and Immigration Services (“USCIS”) in
connection with Mischler’s I-130 petition on November 19, 2007 and were asked
about the circumstances surrounding the marriage fraud allegations. Koffi again
denied that his first marriage to Odom had been arranged. Koffi asserts that he
met Odom at a wedding in November 1992 and only retained Soland after he was
married. [Doc. # 32]. On November 26, 2008 USCIS issued a Notice of Intent to
7 

Deny (“NOID”) the I-130 petition pursuant to Immigration and Nationality Act §
204 (c) 8 U.S.C. § 1554(c) stating that while Koffi and Mischler’s marriage appear
to be bona fide, Koffi’s first marriage to Odom appeared to be fraudulent based
on the information contained in the memorandum memorializing the investigation
and indictment of Soland and her assistants. [Doc.#28-2]. The NOID provided
Koffi with thirty days to respond and submit evidence. [Id.].
On December 22, 2007, Koffi responded to the NOID and provided the
following evidence of the bona fide nature of his first marriage: (1) a letter from
their attorney questioning whether the intended denial comported with due
process; (2) an affidavit from Koffi stating that his first marriage had not been
arranged and that he met Soland after he was married to Odom and that he
retained a new immigration attorney after he moved to Pittsburgh; (3) an affidavit
from Odom stating that her marriage to Koffi was not fraudulent and that she did
not receive any money from Soland; (4) the same letter from Koffi and Odom’s
landlord in Pittsburgh that Koffi and Odom had originally submitted in connection
with their I-130 petition stating that while Koffi and Odom were both tenants,
Odom was away; and (5) bills addressed to Koffi and Odom at the Pittsburgh
address. [Doc.# 28-2].
On December 24, 2008, USCIS denied Koffi and Mischler’s I-130 petition
pursuant to 8 U.S.C. §1154 (c) noting that the marriage had been identified by
Soland’s assistants as one of over forty marriages that Soland had arranged and
that Koffi divorced Odom in the same month that Soland had pled guilty to the
charges against her. In its reasoning, the USCIS also noted that since entering
8 

the U.S. in 1990 Bruno had married three different United States citizens. He
divorced Odom just two months before he married his second wife Trammel and
that in June 2000 he entered the United States illegally using his brother’s
passport and nonimmigrant visa. In June 2001, Koffi also applied for political
asylum. USCIS articulated that “[i]n short, [Koffi] appears to have been
remarkably diligent in his efforts to enter the U.S. and remain permanently in the
U.S. While it may be legal, of course, to have multiple marriages and to apply for
political asylum, [Koffi’s] particular immigration history in the U.S. does not
incline us to grant him the benefit of the doubt in the present proceedings
consisting largely of a he-said she-said controversy involving marriage fraud. In
summary, we will be guided by the conclusion of the marriage fraud investigation
involving Attorney Soland’s arrangement of fraudulent marriages.” [Doc.# 23, AR
at 128].
Under 8 U.S.C. §1154 (c), “[n]o [I-130] petition shall be approved if . . . the
Attorney General has determined that the alien has attempted or conspired to
enter into a marriage for the purpose of evading the immigration laws.” See also
Osakwe v. Mukasey, 534 F.3d 977, 979 (8th Cir. 2008) (“It goes without saying that
the CIS’s determination of marriage fraud carries great consequences as an alien
may be permanently ineligible to obtain an I-130 visa even if he subsequently
enters into a bona fide marriage with a U.S. citizen”) (citing 8 U.S.C. §1154 (c)).
On September 23, 2009, Plaintiffs requested USCIS to reopen the I-130
petition on their sua sponte authority based on new evidence, namely a
polygraph test completed by Koffi answering four questions regarding the nature
9 

of his first marriage. [Doc. #23, AR at 64-74]. The Court notes that new evidence
cannot be considered by the BIA on appeal and therefore the polygraph test was
not included as part of the record of evidence the BIA reviewed and accordingly
is not part of the administrative record before the Court. See Matter of Soriano,
19 I. & N. Dec. 764, 765 (BIA 1988).
Koffi and Mischler filed an appeal of the denial of the I-130 petition with the
BIA on January 20, 2009 asserting that they had established the bona fide nature
of Koffi’s first marriage and that the marriage fraud finding amounted to guilt by
association. [Doc. #28-2]. On May 15, 2008 the BIA dismissed the appeal and
stated that after reviewing “the record of proceedings, including the Director’s
decision; the November 6, 2008 [NOID]; the petitioner’s response to the NOID;
and the petitioner’s contentions on appeal. We affirm the decision of the Director
for the reasons set forth in the December 2008 decision and the November 2008
NOID. We agree with the Director that the record supports a finding that the
beneficiary entered into a prior marriage that was for the purpose of evading the
immigration laws.” [Doc. #23, AR at 6-7]. In addition, the BIA’s decision provides
a summary of the material contained in Koffi’s record that it reviewed in making
its determination. [Id. at n. 1].
On May 29, 2009, Koffi and Mischler filed a petition for review with the
Second Circuit of Appeals to challenge the BIA’s decision. On December 17,
2009 the Second Circuit found that it lacked jurisdiction to hear this claim and
transferred the action to this Court.

10 

Standard for Summary Judgment
Summary judgment should be granted “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). The moving party bears the burden of
proving that no factual issues exist. Vivenzio v. City of Syracuse, 611 F.3d 98,
106 (2d Cir. 2010). “In determining whether that burden has been met, the court is
required to resolve all ambiguities and credit all factual inferences that could be
drawn in favor of the party against whom summary judgment is sought.” Id.,
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Matsushita
Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). “If there is any
evidence in the record that could reasonably support a jury's verdict for the nonmoving party, summary judgment must be denied.” Am. Home Assurance Co. v.
Hapag Lloyd Container Linie, GmbH, 446 F.3d 313, 315-16 (2d Cir. 2006) (internal
quotation marks and citation omitted).
Analysis of Plaintiffs’ argument that Plaintiffs have met their burden to
show that Koffi’s first marriage was bona fide
Plaintiffs argue that they have met their burden to show that Koffi’s first
marriage was bona fide by a preponderance of the evidence. In particular,
Plaintiffs assert that the record contained extensive documentation to support a
finding that Koffi and Odom’s marriage was lawful and bona fide and that “this
evidence reflects a shared marital address, commingling of finances, and
evidence of the couple’s life together over the course of two years.” [Doc. #31 at

11 

9]. Further, Plaintiffs argue that “Defendant erred in failing to consider the
evidence of a bona fide marriage.” [Id.].
Pursuant to the Administrative Procedures Act (“APA”), agency action is
entitled to judicial deference unless it is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” Motor Vehicle Mfrs. Ass’n
of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 41 (1983). Courts
should engage in a “narrow” scope of review and refrain from “subsitut[ing[ its
judgment for that of the agency.” Id. at 43. “Agency conduct that rises to this
high level includes decisions that lack rational explanations, fail to consider
relevant evidence, depart without explanation from established policies, are
devoid of any reasoning, contain merely cursory or conclusory statements or are
based on irrational or bad-faith exercises of power.” Ruiz v. Dep’t of Homeland
Sec., 3:09-cv-95, 2010 WL 3257641, at *2 (D.Conn. Aug. 16, 2010) (internal
quotation marks and citations omitted). Courts “review an agency’s factual
findings under the substantial evidence standard, treating them as ‘conclusive
unless any reasonable adjudicator would be compelled to conclude to the
contrary.’” Emokah v. Mukasey, 523 F.3d 110, 116 (2d Cir. 2008) (citing 8 U.S.C. §
1252(b)(4)(B)).
Therefore the Court is mindful that its review is limited to assessing the
Defendant’s decision for abuse of discretion as opposed to conducting a de novo
review of the record of evidence itself and coming to an independent
determination that Plaintiffs’ have met their burden to prove the bona fides of
Koffi’s first marriage. The Court notes that it may not substitute its own judgment
12 

for that of the agency, even if it might arrive at a different conclusion and
therefore the Court cannot determine whether Plaintiff have met their burden in
the first instance. See Motor Vehicles Mfrs. Ass’n of the U.S., Inc., 463 U.S. at 43.
Rather the Court’s inquiry is limited to whether the BIA arbitrarily and in an abuse
of discretion determined that Plaintiffs did not meet their burden to show that
Koffi’s first marriage was bona fide.
As Plaintiffs argue they did present evidence which reflected that Koffi and
Odom “shared marital address, commingling of finances, and evidence of the
couple’s life together over the course of two years.” For example, Plaintiffs
provided a letter from Koffi and Odom’s Pittsburgh landlord, various bills and
bank statements addressed to the couple, and point to the fact that Odom is
listed as Koffi’s beneficiary on various medical and life insurance policies. [Doc.
#31 at 9].
However, the Court disagrees with Koffi’s assertion that Defendant “erred
in failing to consider the evidence of a bona fide marriage” as there is evidence in
the record that both the BIA and the USCIS2 considered Plaintiffs’ evidence in
their decisions to deny Mischler’s I-130 petition on behalf of Koffi. [Doc. #31 at 9].
The BIA in its May 2009 decision explicitly stated that it did review all the
evidence in the record: “We have reviewed the record of proceedings, including

2

 Since the BIA’s decision affirming the USCIS’s denial of Mischler’s I-130 petition
on behalf of Koffi adopted the reasons set forth in USCIS’s December 2008
decision and the November 2008 NOID, the Court will review both the BIA and the
USCIS’s decisions. Emokah v. Mukasey, 523 F.3d 110, 116 (2d Cir. 2008)
(“Because the BIA fully adopted the [Immigration Judge’s] decision, we review
the decisions of both the BIA and [Immigration Judge].”).

13 

the Director’s decision, the November 6, 2008 Notice of Intent to Deny (“NOID”);
the petitioner’s response to the NOID; and the petitioner’s contentions on
appeal.” [Doc.# 23, AR at 6]. Moreover, the BIA’s decision in a footnote also
provides a list of the materials contained in the record that were reviewed. [Id.].
See Tandel v. Holder, C-09-01319, 2009 WL 2871126, at *5 (N.D.Cal. Sept. 1, 2009)
(rejecting plaintiffs’ argument that USCIS’s decision should be reversed on the
basis that USCIS failed to consider Plaintiffs’ evidence in its decision to revoke
since USCIS’s revocation decision listed the evidence submitted by plaintiffs
demonstrating that the agency considered it). In USCIS’s December Decision, it
specifically listed out the evidence Plaintiffs provided to rebut Defendant’s
assertion of marriage fraud and explicitly stated that it had assessed the
reliability of such evidence. [Doc. #23, AR at 128]. Therefore Defendant did
consider Plaintiffs’ evidence regarding the bona fide nature of Koffi’s first
marriage.
Moreover, there is evidence that the BIA and USCIS did not abuse its
discretion in considering whether Plaintiffs have met their burden to show that
Koffi’s first marriage was bona fide. The BIA and the USCIS reasonably weighed
Plaintiffs’ evidence against other evidence in the record demonstrating that
Koffi’s first marriage was fraudulent in coming to its determination that Plaintiffs
had failed to meet their burden to prove the bona fides of Koffi’s first marriage.
Such evidence demonstrating the fraudulent nature of Koffi’s first marriage
included a memorandum dated January 22, 1996 from INS’s Office of
Investigations Washington, D.C. (the “1996 Memorandum”) which detailed the
14 

investigation and criminal conviction of Koffi and Odom’s former immigration
attorney Soland and her assistants and included a list provided by Soland’s
assistants of 40 fraudulent marriages which identified Koffi and Odom’s marriage
as fraudulent. In addition, Koffi’s illegal entry into the United States in June 2000
using his brother’s passport and his application for asylum also undermined
Plaintiffs’ evidence regarding the bona fides of Koffi’s first marriage. Finally,
Koffi’s landlord noted that Odom was away from which it was not unreasonable
to infer that despite being newlywed Koffi and Odom were not living together.
Lastly, Koffi’s history of repeated attempts to remain permanently in the
United States through a fast succession of multiple marriages to United States
citizens likewise undermined a finding that Koffi’s first marriage was bona fide.
On February 3, 1993, Koffi married his first wife Odom and just five days later
Odom filed an I-130 petition on Koffi’s behalf on February 8, 1993. A week before
Koffi and Odom’s immigration attorney Soland plead guilty to a charge of
Conspiracy to Commit Marriage Fraud and False Statements, and Obstruction of
Justice/Witness Intimidation, Koffi divorced Odom on June 7, 1995 which resulted
in Odom’s I-130 petition on behalf of Koffi being terminated. Two months later,
Koffi married his second American wife, Trammel, on August 31, 1995 and then
Trammel filed an I-130 petition on Koffi’s behalf on February 12, 1996. On
October 26, 2004, Koffi obtained a divorce from Trammel his second American
wife and less than a year later on August 5, 2005 Koffi married his third American
wife, Mischler, who then filed an I-130 petition on Koffi’s behalf on June 5, 2007.
Therefore, the BIA and the USCIS’s decision was based on relevant evidence
15 

which a reasonable mind would accept as adequate to support the conclusion
that Plaintiffs have failed to meet their burden to show the bona fides of Koffi’s
first marriage. Accordingly, the Court finds that the BIA and USCIS did not abuse
their discretion in concluding that Plaintiffs failed to meet their burden to show
that Koffi’s first marriage was bona fide.
Analysis of Plaintiffs’ argument that the record evidence supports a finding
that Koffi’s first marriage was bona fide
Plaintiffs assert not only that they met their burden to show by a
preponderance of the evidence that Koffi’s first marriage was bona fide but that
the “record contains extensive evidence to show that Mr. Koffi’s first marriage
was valid at inception” and that “Defendant has overlooked and failed to
adequately consider the evidence of a bona fide marriage.” [Doc. #31 at 10].
Plaintiff cites to the evidence Koffi and Odom submitted in support of
Odom’s original I-130 petition which included: “their marriage certificate (AR.
353), a letter from their landlord [stating they were not living together] (AR. 356), a
gas bill (Ar. 357), life insurance showing Ms. Odom as the beneficiary (AR. 285,
358), a dental plan for the couple (AR. 360), a US Healthcare change form listing
Ms. Odom as a beneficiary (AR. 362), retirement plans listing Ms. Odom as a
beneficiary (AR. 364, 373), Citibank cards and bank statements (AR. 368, 284,
288), a JCPenny account statement (AR. 290), and an income tax return from
1993. (AR. 377). In addition, Ms. Odom included a copy of her birth certificate and
social security card. (AR. 352).” [Doc.# 31 at 11]. In addition, Plaintiffs cite to the
evidence Koffi and Trammel submitted in connection with Trammel’s I-130

16 

petition on Koffi’s behalf in response to the 1999 NOIR to rebut the marriage fraud
allegations including an affidavit from Odom explaining the circumstances how
she and Koffi met, stating that she did not know Attorney Soland prior to her
marriage to Koffi, stating that Koffi retained Soland because she “professional
and courteous. She was a very friendly person and she spoke French fluently,”
and explaining the circumstances regarding her divorce from Koffi. [Id.].
Plaintiffs argue that “[o]n its face, the evidence is more than sufficient to
meet the Plaintiffs’ burden to prove Mr. Koffi’s lawful, bona fide marriage to Ms.
Odom.” [Doc.# 31 at 11]. However, this argument is premised on an assessment
of just the evidence that Plaintiffs presented. Plaintiffs are essentially asking the
Court to look only at the evidence submitted in support of the bona fide nature of
Koffi’s first marriage and nothing else. If the record before the BIA and USCIS
only included the evidence that Plaintiffs submitted and relied on and nothing
else, a reasonable person could conclude that Koffi’s first marriage was bona
fide. However, the record of evidence before the BIA and USCIS also included
substantial evidence regarding the fraudulent nature of Koffi’s first marriage as
noted above. Therefore, the Court cannot ignore the fact that such other
evidence existed particularly since this other evidence was the basis upon which
the BIA and USCIS determined that the record evidence did not support a finding
that Koffi’s first marriage was bona fide.
As explained above, while Plaintiffs presented such evidence that
supported the bona fide nature of Koffi’s first marriage, there was also
substantial evidence in the record that demonstrated that Koffi’s first marriage
17 

was fraudulent such as the fact that Odom and Koffi were not living together, the
1996 Memorandum and the timeline of Koffi’s three marriages to American
women within months of each other. Both the BIA and the USCIS took into
consideration the evidence Plaintiffs submitted demonstrating the bona fide
nature of Koffi’s first marriage as well as the evidence that supported a finding
that Koffi’s first marriage was fraudulent. The BIA and USCIS assessed the
credibility of and weighed such evidence and ultimately concluded that the
evidence demonstrating the fraudulent nature of Koffi’s first marriage outweighed
the evidence to the contrary. The USCIS articulated that “[i]n short, [Koffi]
appears to have been remarkably diligent in his efforts to enter the U.S. and
remain permanently in the U.S. While it may be legal, of course, to have multiple
marriages and to apply for political asylum, [Koffi’s] particular immigration
history in the U.S. does not incline us to grant him the benefit of the doubt in the
present proceedings consisting largely of a he-said she-said controversy
involving marriage fraud. In summary, we will be guided by the conclusion of the
marriage fraud investigation involving Attorney Soland’s arrangement of
fraudulent marriages.” [Doc.# 23, AR at 128]. Therefore, the BIA and the USCIS’s
decision was based on relevant evidence which a reasonable mind would accept
as adequate to support the conclusion that the record evidence did not support a
finding that Koffi’s first marriage was bona fide.
Plaintiffs also argue that their evidence is sufficient because the “same
type of evidence was relied upon to approve the I-130 Petition filed by Mr. Koffi’s
second wife, Ellean [Trammel] Koffi, and to recognize the bona fides of the
18 

current marriage to Gayle [Mischler] Koffi.” [Doc. # 31 at 12]. However, the
record of evidence that was before the INS when it approved Trammel’s I-130
petition in spring of 1996 and concluded that Trammel’s marriage to Koffi was
bona fide was substantially different than the record of evidence before the BIA
and USCIS when it denied Mischler’s I-130 petition and concluded that Odom’s
marriage to Koffi was fraudulent. While, it is true that Koffi and Trammel
submitted similar types of evidence to support the bona fides of their marriage as
Plaintiffs submitted to support the bona fides of Koffi and Odom’s marriage, there
was no evidence in the record that suggested that Koffi and Trammel’s marriage
was fraudulent as was the case with Koffi and Odom’s marriage. For example,
when the BIA and USCIS assessed Koffi’s and Odom’s marriage in 2007, there
was substantial evidence which cast significant doubt on the bona fide nature of
the marriage including the 1996 Memorandum, Koffi’s illegal reentry into the
Unites States, Koffi’s application for asylum, and Koffi’s pattern of quick
successive marriages. When INS assessed Koffi and Trammel’s marriage there
was simply no equivalent evidence that casted doubt on the bona fide nature of
that marriage. For example, Koffi and Trammel’s marriage had not been identified
as fraudulent pursuant to a criminal investigation, in 1996 Koffi had not yet
applied for asylum or illegally reentered the United States on his brother’s
passport, and Koffi at that point had only one prior marriage so there was not an
established pattern of successive marriages. Since the facts and evidence were
substantially different in connection with INS’s assessment of the bona fides of
Trammel and Koffi’s marriage than from the BIA and USCIS’s assessment of the

19 

bona fides of Koffi and Odom’s marriage, the Court finds Plaintiffs’ argument that
they presented sufficient evidence because the “same type of evidence was
relied upon to approve the I-130 Petition filed by [Trammel]” unpersuasive.
Plaintiff also argues that they have provided sufficient evidence of the bona
fides of Koffi and Odom’s marriage because “the same type of evidence was
relied upon .. to recognize the bona fides of the current marriage to [Mischler]”.
[Doc. # 31 at 12]. The USCIS in its November 2008 NOID noted that while
Mischler’s marriage to “Bruno Koffi appears to be bona fide” that they intended
to deny the I-130 petition based on their conclusion that Koffi’s first marriage to
Odom was fraudulent. [Doc. #23, AR at 125]. As explained above, there was also
no evidence in the record with regard to Mischler’s marriage to Koffi which
suggested that it was fraudulent. However, there was ample evidence in the
record which supported a finding that Odom’s marriage to Koffi was fraudulent.
Accordingly, Plaintiffs’ argument in this regard is likewise unpersuasive.
Analysis of Plaintiffs’ argument that there is not substantial and probative
evidence to support a finding of marriage fraud
Plaintiffs argue that “[t]he Defendant has not shown substantial and
probative evidence to support the allegation of a fraudulent marriage between Mr.
Koffi and his first wife, Ms. Odom.” [Doc. # 31 at 13]. Plaintiffs further argue that
“Defendant attempts to rely on the 1996 Memorandum as his sole basis for a
marriage fraud finding.” [Id.]. However, as explained above, the BIA and the
USCIS did not rely solely on the 1996 Memorandum in concluding that Koffi’s first
marriage was fraudulent, but considered and weighed all of the evidence in the

20 

record. In the December 2008 Decision, USCIS explicitly summarized and
assessed all of the evidence that Koffi had submitted to rebut the marriage fraud
allegations and the BIA also summarized and noted the evidence in the record
that it reviewed and assessed. [Doc.# 23, AR at 128, 6-7]. In addition, the USCIS
also explicitly articulated and enumerated the other evidence beyond the 1996
Memorandum that supported a finding of marriage fraud: “In our assessment of
the reliability of your rebuttal to our notice of intent to deny, we note the
following. Since entering the U.S. as a J-l exchange visitor in 1990, Bruno has
been married to three U.S. citizen women, and divorced from two. Approximately
two months after his June 1995 divorce from Alexine [Odom], he married his
second U.S. citizen wife. In June 2000, he apparently entered the U.S. illegally,
using his brother's passport and nonimmigrant visa. In June 2001, he applied for
political asylum.” [Id.]. Therefore, the Court finds that the BIA and the USCIS did
not rely solely on the 1996 Memorandum but rather assessed and weighed all the
evidence in the record. Moreover as explained above, this evidence in
conjunction with the 1996 Memorandum presented substantial evidence from
which a reasonable mind could conclude that Koffi’s first marriage was
fraudulent.
Plaintiff also argues that the 1996 Memorandum is not credible or probative
evidence of marriage fraud noting that in a similar case In re Azzab, A79053230,
2007 WL 3301607 (BIA 2007), “the Board of Immigration Appeals (‘Board’) found
that evidence obtained by the government's secret informants does not meet this
standard because it is unreliable.” [Doc. # 31 at 13]. However, the facts of Azzab
21 

are inapposite to the present case. In Azzab, the BIA reviewed a determination of
marriage fraud based on information gathered from a secret informant who called
INS claiming that the beneficiary’s prior marriage was a sham. The secret
information was corroborated by three other unnamed individuals which were
described in the Notice of Intent to Deny as “testimony obtained from these
individuals and the ‘observances … [of these] sources … do not reflect the usual
sharing of experiences of a couple who marry out of love and affection.” The BIA
concluded that such evidence was unreliable as it was based on
four secret informants, the only evidence of their ‘testimony’ is contained
in the undated, handwritten notes of an [INS] officer whose own name
nowhere appears on the notes. There is no tape or formal transcript to
refer to in interpreting these handwritten notes, either. Secondly, there is
no indication that any of this so-called ‘testimony’ was obtained following
the administration of an oath… Thirdly the notes themselves are simply
incoherent, unclear, and ambiguous… There is no official source who
could, at a minim how this derogatory information was gathered. In re
Azzab, 2007 WL 3301607 at *3.
Conversely, the information that was included in the 1996 Memorandum
was not obtained from secret informants nor based on telephone calls. Instead,
the 1996 Memorandum summarized the results of a criminal investigation by
INS’s Office of Investigations Washington, D.C. which culminated in the criminal
convictions of Soland and her two assistants. The 1996 Memorandum was not
incoherent or handwritten but instead a detailed, coherent, professional and
unambiguous report. In order to arrest Soland or her assistants, INS officers
would have had to sign affidavits detailing their basis for concluding there was
probable cause for the arrest and present that affidavit to a judge for the issuance
of the warrant. There are therefore many indicators regarding the reliability of the

22 

1996 Memorandum which were missing in Azzab and accordingly the Court finds
that it was not an abuse of discretion for Defendant to consider the 1996
Memorandum nor was it an abuse of discretion for Defendant to find that the 1996
Memorandum provided credible evidence supporting a finding of marriage fraud.
Plaintiffs also cite another case to support their proposition that the 1996
Memorandum was unreliable. Plaintiffs note that in In re: Abdallah M.H. Alawneh,
2009 WL 2981756, at *2 (BIA 2009) “the Board found that there was not
‘substantial and probative evidence of fraud’ when the report of a ‘home
investigation’ was not part of the record and the ‘vague assertion[s]’ were
contradicted by a sworn affidavit.” [Doc. #31 at 14]. However, the facts of
Abdallah are also inapposite to the present case as the BIA concluded that it
could not rely on the results of the home inspection report itself in coming to a
finding regarding marriage fraud as the report was not a part of the record before
the BIA. However, in the present case the 1996 Memorandum was a part of the
BIA’s record. Moreover, the contents of the 1996 Memorandum were not vague
assertions but instead contained specific and detailed information that was the
result of a criminal investigation which lead to the convictions of Koffi and
Odom’s former immigration attorney and assistants. The fact that Odom and
Koffi each provided sworn affidavits contradicting the 1996 Memorandum is
simply not analogous to the affidavits in Abdallah as the BIA had before it a
credible, specific, and detailed memorandum summarizing the results of a
criminal investigation as opposed to in Abdallah where all the BIA had before it

23 

was USCIS’s vague description of a home inspection report. Nor do these
affidavits obviate the memorandum and require the BIA to disregard it.
Plaintiffs further cite to Azzab for the principle that “the evidence obtained
from the government’s secret informant does not meet this standard because it is
… deprives the petitioner of any meaningful opportunity to confront and rebut the
derogatory information.” [Doc. #31 at 14]. Plaintiff also cite to Matter of
Obaigbena, 19 I&N Dec. 533 (BIA 1988) and 8 C.F.R. § 103.2 (b)(16)(i) for the
proposition that INS is required to inform a petitioner of derogatory information to
be used against him or her and must give the petitioner a reasonable amount of
time to rebut that information. [Id.]. Plaintiffs seem to be suggesting Defendant’s
consideration of the 1996 Memorandum deprived them of a “meaningful
opportunity to rebut the derogatory information” contained in the memorandum.
However, it is undisputed that Plaintiffs were notified of the derogatory
information and given the opportunity to rebut the derogatory information in
connection with the 1999 NOIR and again in connection with the 2007 NOID.
[Doc. #28-2]. In the 1999 NOIR, INS informed Koffi of the details of the
investigation and conviction of Koffi’s former immigration attorney Soland and
her assistants, which included the facts that the investigation revealed that at
least 40 marriages had been arranged by Soland and that Koffi’s first marriage
had been identified by Soland’s assistants as fraudulent. [Id.]. It is also
undisputed that Koffi and Trammel were given thirty days to respond to the
marriage fraud allegations raised in the 1999 NOIR and did so on November 16,
1999. It is also undisputed that USCIS issued a NOID on November 6, 2008 on the
24 

basis of the marriage fraud allegation and also provided a detailed summary of
the investigation and allegations. [Id.]. It is likewise undisputed that Plaintiffs
were given thirty days to respond to the NOID and provide rebuttal evidence
which they did on December 27, 2007. [Id.].
Plaintiffs also argue that the 1996 Memorandum does not meet the
standard to be considered substantial or probative evidence as “it relies upon a
secret investigation and Memorandum whose contents were only vaguely
referred to for the first time in the Notice of Intent to Revoke the I-130 Petition of
Ellean Koffi in 1999. (AR 30). Subsequently, in 2008 the Memorandum was finally
referred to in more detail, but the Defendant did not provide a copy of the
Memorandum for adequate rebuttal. (AR 125).” [Doc. 31 at 17]. As the Court
explained above, Defendant did provide sufficient notice of the marriage fraud
allegations in the 1999 NOIR and the 2007 NOID. In the 1999 NOIR, USCIS
specifically stated “a review of the beneficiary’s immigration file reflects that
beneficiary’s prior attorney was indicated for Conspiracy to Commit Marriage
Fraud and False Statements” and “the names of the beneficiary and a prior
spouse were provided as to one of the arranged marriages.” [Doc. #23, AR at 30].
The 1999 NOIR therefore provided a specific description of the allegations and
the basis for those allegations and therefore the Court disagrees with Plaintiffs
that the NOIR only vaguely referred to the contents of the Memorandum. The
1999 NOIR and 2007 NOID both provided sufficient information to alert Plaintiffs
that Koffi’s first marriage was identified as fraudulently arranged by his former
immigration attorney who was indicted for conspiracy to commit marriage fraud.
25 

Plaintiffs have not identified what specific information in the actual 1996
Memorandum that was not provided in the 1999 NOIR or 2007 NOID was critical to
their ability to rebut the marriage fraud allegations. As Defendant points out,
Plaintiffs have not demonstrated how receiving a copy of the 1996 Memorandum
would have altered their response and or changed the type of evidence that they
would have presented to rebut the marriage fraud allegations. Nor do the
Plaintiffs contend that Koffi sought and was denied information relative to the
investigation, prosecutions, and convictions referenced in the 1996
Memorandum.
Lastly, Plaintiffs argue that Defendant’s conclusion that Koffi’s first
marriage was fraudulent was undermined by the fact that “Mr. Koffi and Ms.
Odom have not been indicted or charged with any form of marriage fraud, as
regularly occurs when persons enter into a marriage for the purpose of evading
immigration laws.” [Doc. #31 at 15]. However, the fact that Defendant exercised
his prosecutorial discretion and did not indict or charge Koffi or Odom with
marriage fraud does not support an inference that Koffi’s first marriage was not
fraudulent. A decision not to prosecute cannot be inferred to be a determination
on the merits of Koffi’s first marriage.
Plaintiffs reiterate that “Defendant has not pointed to substantial and
probative evidence in the record. The only evidence relied upon by the
Defendants - in denying the I-130 Petition and in filing their Motion for Summary
Judgment – is the 1996 Memorandum. (AR. 034-39; 162)(Doc. No. 28-2). This
singular piece of evidence is not substantial when considered against all
26 

conflicting evidence. (AR 68-70, 140-41, 143-161).” [Doc. #31 at 15]. As explained
above, Defendant has not relied solely on the 1996 Memorandum in its
determination and further the Court does not find it an abuse of discretion to
consider the 1996 Memorandum credible evidence regarding the fraudulent
nature of Koffi’s first marriage. Lastly as explained above, the Court finds that a
reasonable mind might accept that the weight of the evidence demonstrating the
fraudulent nature of Koffi’s first marriage outweighed Plaintiffs’ evidence to the
contrary. Plaintiffs have not provided such overwhelming evidence regarding the
bona fides of Koffi’s first marriage such that a reasonable fact-finder would have
to conclude that Koffi’s first marriage was bona fide based on a consideration of
all the evidence in the record.
Analysis of Plaintiffs’ argument that the 1996 Memorandum cannot receive
more weight than any other evidence in the record
Plaintiffs recast their prior argument slightly and argue that the Defendant
“abused his discretion in relying solely on the 1996 Memorandum to the
exclusion of other evidence” and that “[i]t is arbitrary and capricious to give the
1996 Memorandum more weight than other evidence in the record.” [Doc. #31 at
15-16]. However as explained above, the BIA and USCIS clearly weighed and
considered all the evidence in the record including Plaintiffs’ evidence as well as
other evidence suggesting Koffi’s first marriage was fraudulent in addition to the
1996 Memorandum.
Further, the Court finds no evidence that Defendant gave the 1996
Memorandum more weight than other evidence in the record as the USCIS

27 

weighed the other evidence beyond the 1996 Memorandum that supported a
conclusion that Koffi’s first marriage was fraudulent in determining whether to
rely on the 1996 Memorandum in the first place and give credence to its
allegations of marriage fraud: “[i]n short, [Koffi] appears to have been remarkably
diligent in his efforts to enter the U.S. and remain permanently in the U.S. While it
may be legal, of course, to have multiple marriages and to apply for political
asylum, [Koffi’s] particular immigration history in the U.S. does not incline us to
grant him the benefit of the doubt in the present proceedings consisting largely
of a he-said she-said controversy involving marriage fraud. In summary, we will
be guided by the conclusion of the marriage fraud investigation involving
Attorney Soland’s arrangement of fraudulent marriages.” [Doc.# 23, AR at 128]
(emphasis added).
Plaintiffs also recast their prior argument regarding the credibility of the
1996 Memorandum by arguing that “Defendant cannot verify any information
concerning or within said Memorandum” and that “absent from the record is any
evidence as to how the investigation was conducted or any other information to
support the validity of the investigation.” [Doc. # 31 at 16-17]. However, the 1996
Memorandum does detail how the criminal investigation was initiated including
specific details regarding the progression of the investigation such as the fact
that INS executed a search warrant at Soland’s office in Falls Church, VA. [Doc.
#23, AR at 34-35]. Moreover, the fact that arrest and search warrants were
obtained and INS indicted Soland and her two assistants also attests to the
validity of the investigation as INS had to have presented evidence supporting
28 

probable cause in order to have obtained such warrants and then provided
substantial evidence to obtain such convictions.
Plaintiffs further argue that in the 1996 Memorandum there is “no way of
knowing whether the list of alleged fraudulent marriages is a general list of
suspected fraudulent marriages or whether someone with personal knowledge
gave first-hand testimony; whether the information was obtained from a person
who worked directly with the alleged fraudulent spouses or from someone who
believed they knew the names of people involved solely from handling files.”
[Doc. #31 at 16-17]. However, the 1996 Memorandum states that Soland’s
assistants who were criminally convicted “provided INS with approximately 30
marries they had arranged…the marriages that have been identified as fraudulent
are listed as” [Doc. #23, AR at 35]. Therefore, the 1996 Memorandum clearly
states that the list of fraudulent marriages was provided by someone with
personal knowledge who gave first-hand testimony.
Lastly, Plaintiff argues that “the 1996 Memorandum can only be given its
proper weight – that of a self-serving report without supporting evidence in the
record.” [Doc. #31 at 17]. However, as explained above it was not an abuse of
discretion to consider the 1996 Memorandum as reliable and credible evidence
regarding marriage fraud and Defendant reasonably weighed the memorandum in
its determination that Koffi’s first marriage was fraudulent.
Analysis of Plaintiffs’ argument that the agency abused its discretion in
failing to raise the bona fides of Koffi’s first marriage when it adjudicated
the second I-130 petition, not raising the issues until 1999 and not

29 

providing a copy of memorandum until 2010 thereby preventing Plaintiffs
from adequately responding

Plaintiffs argue that “Koffi did not have any meaningful opportunity [to]
rebut the [derogatory] information because the Memorandum was not released to
the Petitioner until this lawsuit in 2010” and that “[t]he late disclosure of the
Memorandum is not adequate grounds for denying the I-130 Petition because it
deprived the petitioner of any meaningful opportunity to confront and rebut the
derogatory information.” [Doc. #31 at 17]. However Plaintiffs’ arguments are
belied by the record, which demonstrates that Plaintiffs had ample opportunity to
present evidence in support of the bona fide nature of Koffi’s first marriage to
rebut the allegations of marriage fraud which were sufficiently described in both
the 1999 NOIR and the 2007 NOID. Koffi was first given the opportunity to present
evidence after USCIS issued the NOIR in connection with Trammel’s I-130 petition
on October 25, 1999 and then given another opportunity to present evidence after
USCIS issued the NOID in connection with Mischler’s I-130 petition on December
22, 2007. Plaintiffs responded to both the NOIR in 1999 and the NOID in 2007
with additional evidence to rebut the marriage fraud allegations. See Ayanbadejo
v. Napolitano, H-06-1177, 2009 WL 2996992, at *8 n.10 (S.D. Tex. Sept. 15, 2009)
(rejecting Plaintiffs’ argument that they were denied due process in connection
with their I-130 petition since they were not afforded with the opportunity to
present evidence including live witnesses, to cross-examine, the right to
subpoena witnesses and documents, [and] the right to inspect the record of
proceedings and concluding that Plaintiffs “were afforded with ample opportunity

30 

to present evidence in support of both the initial I-130 Petition and the second I130 Petition.”); Dhillon v. Mayorkas, C-10-0723, 2010 WL 1338132, at *10 (N.D.
Cal. April 5, 2010) (finding that plaintiffs “did have the opportunity to present any
evidence in support of their case. In this case at least, it should not have been
difficult to provide some rebuttal to the government’s evidence because
[plaintiffs] should have had possession, custody, or control of evidence to
support the claimed legitimacy [of a prior] marriage”).
Moreover as discussed above, Plaintiffs have not demonstrated how
receiving a copy of the 1996 Memorandum would have would have altered their
response and or changed the type of evidence that they would have presented to
rebut the marriage fraud allegations nor have they identified what information is
contained in the 1996 Memorandum but not provided in the 1999 NOIR and the
2007 NOID that is crucial to their rebuttal. In addition, as Defendant argues, it is
also well established that the immigration agency was not required to physically
turn over the 1996 Memorandum before issuing an adverse decision. See 8
C.F.R. § 103.2 (b)(16)(i) (stating that an alien must be advised if the decision will
be adverse and is based on derogatory information considered by the service and
of which the applicant is unaware); In re Liedtke, A070656080, 2009 WL 5548116,
at *1 (BIA 2009) (explaining that 8 C.F.R. § 103.2 (b)(16)(i) does not require that the
actual documents containing derogatory evidence be provided to petitioner but
only requires that the petitioner be advised of the derogatory evidence). In
accordance with 8 C.F.R. § 103.2, Defendant advised Plaintiff of the derogatory
information in the 1999 NOIR and the 2007 NOID and then provided an
31 

opportunity for Koffi to rebut the derogatory information. Further, Koffi could
have requested additional information regarding the criminal investigation and
conviction of Soland and her assistants when he was initially informed of those
allegations in connection with the 1999 NOIR. Plaintiffs do not contend that Koffi
sought and was wrongfully denied such information in 1999 or at any later time.
For the reasons stated above, the Court finds that Koffi was not unduly
prejudiced by the failure to provide the actual memorandum until 2010 and
accordingly the Court does not find that it was an abuse of discretion to not
provide the 1996 Memorandum until the present action.
Plaintiffs also cite to the Matter of Singh, 2006 WL 1558783 (BIA 2006) to
support their argument that they were deprived of the opportunity to rebut the
derogatory information. In Singh the BIA found that since the NOID did not make
any allegation that the marriage was a fraud, the petitioner was therefore deprived
of the opportunity to provide rebuttal evidence to the marriage fraud allegation.
The facts of Singh are inapposite as the 1999 NOIR and the 2007 NOID both not
only asserted allegations of marriage fraud but also described that the basis for
those allegations was the criminal investigation and conviction of Soland and her
assistants.
Plaintiffs also argue that “[b]y waiting to attack the validity of the first
marriage until October 1999, the Defendant has effectively barred Mr. Koffi from
obtaining additional documentation in support of his first marriage.” [Doc. # 31 at
18]. In particular, Plaintiffs argue that “[b]y failing to raise an issue regarding the
first marriage during adjudication of the second I-130 in 1996, the Defendant has
32 

precluded Plaintiff Koffi from obtaining additional documentation that would have
been available at that time.” [Id.]. Plaintiffs further note that “same information
was available in January 1996 – prior to the Defendant‟s decision on Mr. Koffi‟s
second I-130 Petition. (AR 030). By failing to raise an issue regarding the first
marriage during adjudication of the second I-130 in 1996, the Defendant has
precluded Plaintiff Koffi from obtaining additional documentation that would have
been available at that time.” [Id.]. However, Plaintiffs do not provide any
explanation of the type of evidence that they no longer possess or how that
evidence would rebut the marriage fraud allegations or altered Defendant’s
conclusion regarding the bona fides of his first marriage. For example, Plaintiffs
could have listed out the type of evidence they no longer have access to such as
photographs of shared trips or events that would have enabled them to better
rebut the marriage fraud allegations.
In addition, the Court does not find it unreasonable or an abuse of
discretion for the INS to have approved the Trammel’s I-130 petition in 1996 and
then in 1999 become aware of the marriage fraud allegations which warranted a
revocation of the petition as Plaintiff suggests. Odom filed an I-130 petition on
Koffi’s behalf in Arlington which was then terminated when Koffi divorced Odom
on June 7, 1995. Koffi then married Trammel two months later and Trammel filed
an I-130 petition in Pittsburg on February 12, 1996 which was approved on March
30, 1996 or April 15, 1996. The 1996 Memorandum was issued by INS’s Office of
Investigations in Washington DC and dated January 22, 1996. [Doc. # 28-2]. It is
unclear from the record when the memorandum was actually placed in Koffi’s file
33 

and whether in spring of 1996 the Pittsburgh INS office had been notified of the
1996 Memorandum. The Court therefore does not find it unreasonable that the
Pittsburgh, Pennsylvania INS officials processing the Trammel petition would
have approved her I-130 petition on behalf of Koffi without knowledge of the fact
that not more than four months earlier the Arlington, Virginia INS officials
processing the Odom petition on behalf of Koffi had placed the January 22, 1996
Memorandum in the Odom file.
In addition, Koffi’s separation from Trammel also contributed to the fact
that it wasn’t until 1999 that INS issued the NOIR based on the marriage fraud
allegation. On November 1, 1997 Koffi informed INS that he and Trammel were
living apart and on May 19, 1997 Koffi and Trammel were interviewed by INS and
testified they were living apart. On January 9, 1998 INS issued a NOIR on the
basis that Trammel and Koffi were no longer living together. Trammel then
notified INS in letter dated May 21, 1998 that they had reconciled and were living
in West Hartford, Connecticut. Therefore it wasn’t until spring of 1998 when
Trammel notified INS that she and Koffi had reconciled that INS really had the
opportunity and occasion to review Koffi’s file and therefore it was Koffi’s
conduct and not the omission of INS which delayed disclosure of the 1996
Memorandum.
Analysis of Plaintiffs’ argument that Defendant failed to conduct a de novo
review
Plaintiffs argue that “[i]t is misleading for the Defendant to state that “the
agency conducted a de novo assessment of the relevant factors, independent of

34 

the earlier marriage fraud finding to conclude that the first marriage was a
‘sham.’” [Doc. # 31 at 19]. However, Plaintiffs present no evidence to support this
assertion beyond its conclusory statement alleging there was not a de novo
review. As discussed above, this assertion is wholly without merit as the BIA in
its May 2009 decision explicitly stated that it did review all the evidence in the
record: “We have reviewed the record of proceedings, including the Director’s
decision, the November 6, 2008 Notice of Intent to Deny (“NOID”); the petitioner’s
response to the NOID; and the petitioner’s contentions on appeal.” [Doc.# 23, AR
at 6]. See Tandel v. Holder, C-09-01319, 2009 WL 2871126, at *5 (N.D.Cal. Sept. 1,
2009).
Plaintiffs further contend that “[i]n its motion for summary judgment, the
Defendant does not point to any evidence that it relied upon in conducting a ‘de
novo assessment.’ In fact, the Defendant simply relied on the 1996 Memorandum
and did not conduct a new investigation into the marriage fraud.” [Id.]. As
explained above, it is evident that both the BIA and USCIS reviewed and assessed
all the evidence in the record in coming to its conclusion that Koffi’s first
marriage was fraudulent. In addition, Plaintiffs suggest that under a de novo
review, the BIA was obligated to “conduct a new investigation into the marriage
fraud.” However, a de novo review only requires the BIA to independently
consider the evidence in the record, which included the 1996 Memorandum, and
determine the weight to give that evidence in deciding whether Mischler’s I-130
petition should be denied on the basis of 8 U.S.C. § 1154 (c). See Bose Corp. v.
Consumers Union of U.S., Inc., 466 U.S. 485, 514 n.31 (1984) (noting that in a de
35 

novo review, “a reviewing court makes an original appraisal of all the evidence to
decide whether or not it believes that judgment should be entered for the
plaintiff”); see also Ping Wang v. Mukasey, 269 F. App’x. 43, 45 (2d Cir. 2008)
(noting that the BIA conducts a de novo review when it independently assesses
portions of the record). As the BIA stated in its opinion, it independently
considered all the evidence in the record, including the 1996 Memorandum
among other items, and determined that the USCIS’s decision to deny Plaintiffs’ I130 petition was warranted. [Doc. #23, AR at 6-7].
Plaintiffs also recast their prior argument and contend “that [a] de novo
review, independent of the earlier marriage fraud finding, would most certainly
have led to the conclusion that Mr. Koffi‟s first marriage was a lawful one
because the same type of evidence was provided for Mr. Koffi‟s subsequent
wives, and the corresponding marriages were found bona fide. ” [Doc. # 31 at 19].
As discussed above, Plaintiffs’ argument is premised on an assessment of just
the evidence in the record that Plaintiff relies upon and Plaintiffs are asking the
Court to ignore the other evidence in the record that supported a finding a
marriage fraud which Defendant relied upon. Further, as discussed above the
evidence and circumstances before Defendant in connection with Koffi’s
subsequent wives was significantly different than the evidence before Defendant
in connection with Koffi’s first marriage to Odom and therefore the Court finds
this argument unpersuasive. Moreover, this argument is somewhat misplaced as
it really is not contending that Defendant did not conduct a de novo review but
rather contends that Defendant’s decision was not supported by substantial
36 

evidence. As discussed above, the Court finds that Defendant’s decision was in
fact supported by substantial evidence such that a reasonable mind would accept
as adequate the conclusion that Koffi’s first marriage was fraudulent.
Lastly, Plaintiffs argue that “contrary to the Defendant’s assertion, Mr.
Koffi’s divorce from Ms. Odom did not ‘actively obstruct[] the immigration agency
from issuing an adverse decision.’ Mr. Koffi should not be expected to continue
in a marriage simply because the government has not issued a decision on an I130 Petition. In fact, that is exactly the purpose of 1154(c): to permit the
government to challenge the validity of a prior marriage that has since ended.”
[Doc. #31 at 20]. It appears to the Court that Plaintiffs are misinterpreting
Defendant’s argument as it does not appear that Defendant is suggesting that
Koffi should have continued in his marriage to Odom. Instead, Defendant
appears to be explaining why the marriage fraud allegations only came to light in
1999 instead of sometime earlier. When Koffi divorced Odom that resulted in
Odom’s I-130 petition on behalf of Koffi being terminated and as explained above
it was not until years later in connection with Trammel’s I-130 petition on behalf
of Koffi that INS had the opportunity review Koffi’s file and the information
regarding the investigation of Soland and her assistants came to light. As
discussed above, the Court does not find it unreasonable or an abuse of
discretion for the marriage fraud allegations to come to light when Defendant
issued the 1999 NOIR and not any time sooner. In the final analysis, the Court is
mindful that its role is not to weigh the evidence itself but to determine if
Defendant had abused his discretion in doing so and for the foregoing reasons
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the Court finds there was relevant evidence in the record to support Defendant’s
conclusion that Koffi’s first marriage was fraudulent warranting the denial
Mischler’s I-130 petition on behalf of Koffi.
Conclusion
Based upon the above reasoning, the Defendant’s [Doc. #28] motion for
summary judgment is GRANTED and Plaintiffs’ [Doc. #30] cross motion for
summary judgment is DENIED.

IT IS SO ORDERED.

________/s/_________
Hon. Vanessa L. Bryant
United States District Judge

Dated at Hartford, Connecticut: July 18, 2011

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