Ringgold v. Beers et al

Filing 44

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, AND DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT re 29 , 31 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 8/25/2014. "Plaintiffs' motion for summary judgment is denied, and Defendants' motion for summary judgment is granted. This order disposes of all matters raised in this action. The Clerk of Court is directed to enter judgment in favor of Defendants and to close this case." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
DIANA JONETTE RINGGOLD, et
al.,

)
)
)
Plaintiffs,
)
)
vs.
)
)
JEH JOHNSON, et al.
)
)
Defendants.
)
)
_____________________________ )

CIVIL NO. 13-00479 SOM/KSC
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT,
AND DENYING PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, AND
DENYING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
I.

INTRODUCTION.
Before the court are cross-motions for summary judgment

filed by Plaintiffs Diana Jonette Ringgold (“Ringgold”) and
Victor Mazliah (“Mazliah”) (collectively, “Plaintiffs”) and by
Defendants Jeh Johnson, in his official capacity as Secretary of
the United States Department of Homeland Security; Lori
Scialabba, in her official capacity as Acting Director of the
United States Citizenship and Immigration Services (“USCIS”); and
David Gulick, in his official capacity as USCIS District Director
for Honolulu, Hawaii (collectively, “Defendants”).

The court

grants Defendants’ motion and denies Plaintiffs’ motion.
II.

FACTUAL BACKGROUND.
Plaintiffs challenge USCIS’s denial of Plaintiff Diana

Ringgold’s I-130, Petition of Alien Relative, and Plaintiff
Victor Mazliah’s I-485, Application to Register Permanent

Residence or Adjust Status.

ECF No. 14, PageID # 77.

Ringgold, a U.S. citizen, met Mazliah, a citizen of
Israel, in June 2009.

Administrative Record (“AR”) at 83, 93.

Ringgold was 21 years old at the time, and Mazliah was about
three years older.

Id.

Ringgold says they began living together

a few months later, then got married on October 24, 2009.

Id.

At the time they got married, Mazliah was in the United States on
a visitor visa set to expire in about a month.

Id. at 622.

On December 4, 2009, Ringgold filed a Form I-130 with
USCIS seeking to establish her marital relationship with Mazliah
for immigration purposes.
78.

Id. at 76-77; ECF No. 14, PageID # 77-

Mazliah filed a Form I-485 with USCIS on the same date,

seeking to adjust his status to that of a permanent resident
given his marriage to a U.S. citizen.

AR at 434, 622-25.

On February 24, 2010, Ringgold and Mazliah were
interviewed by USCIS.

AR at 66.

During the interview, Ringgold

and Mazliah indicated that they had met in June 2009 and had
gotten married on October 24, 2009.

Id.

According to Ringgold

and Mazliah, at the end of the interview, the examiner informed
them that their “case is approved.”

ECF No. 31-1, PaageID # 294.

As support, Ringgold and Mazliah cite to a copy of Mazliah’s I485 in which the “Approved Visa Petition” box is checked.
at 622.

See AR

Although this copy is in USCIS’s file for Mazliah,

Mazliah does not say this document was ever sent to him with that

2

check mark.
After waiting more than a year and a half without
getting a decision, Mazliah asked for an appointment with USCIS.
Id. at 66.

During a meeting on November 9, 2011, Mazliah noted

that Ringgold had made multiple trips to Australia because she
had obtained discounts from her ex-boyfriend that allowed her to
travel for only $150 per plane ticket.

Id. at 67.

On December 22, 2011, Ringgold and Mazliah were again
interviewed by USCIS. Id.

According to USCIS, Ringgold and

Mazliah indicated that they had not lived together for most of
2011; Ringgold had been living in Australia while Mazliah had
been living in Hawaii.

Id.

During the interview, Ringgold said

she was not in frequent contact with her father.

Id.

On March 14, 2012, USCIS issued a Notice of Intent to
Deny Ringgold’s I-130, stating that she had failed to meet her
burden of proof regarding her relationship with Mazliah.
58-60.

Id. at

Plaintiffs’ counsel responded to the Notice of Intent to

Deny on April 16, 2012.

Id. at 2-14.

On May 3, 2012, USCIS interviewed Ringgold’s father.
Id. at 70.

He indicated that, although he maintained steady

contact with his daughter, he had not been aware until his
interview with USCIS that she had gotten married.

Id.

He also

stated that Ringgold had brought her boyfriend Patrick to a
Thanksgiving gathering in November 2011, and that the two were

3

together until approximately March 2012.

Id.

Ringgold’s father

indicated that she had previously dated an Australian man, had
lived with that man in Australia, and had intended to marry him.
Id.
On December 28, 2012, Ringgold’s father and stepmother
were interviewed by USCIS.

Id. at 71.

They indicated that

Ringgold and her father had a good relationship; that Ringgold
had worked in Australia for a year as a nanny; that Mazliah was
introduced to them in July 2012 but not as Ringgold’s husband;
that Ringgold’s father had not known she was married until his
interview on May 3, 2012; that other relatives were unaware of
Ringgold’s marriage; that Ringgold’s father was not sure if
Ringgold loved Mazliah or if she lived with him; and that
Ringgold had recently expressed a desire to move in with them.
Id.
On January 22, 2013, Ringgold’s stepmother indicated
that Ringgold was not living with Mazliah.

Id.

On September 18, 2013, Plaintiffs met with a USCIS
official.

Id.

They asked when a decision would be made on

Ringgold’s petition, which had been pending since December 2009.
Id. at 72; ECF No. 31-1, PageID # 299.

The USCIS official

responded that the issue was better left to the end of the
interview.

AR at 72.

The USCIS official told Plaintiffs that

the official wanted to interview them separately, but they

4

refused, citing their frustration with the process and the
humiliation of being interviewed separately.

Id.

The official

told them that if they refused to be interviewed separately,
USCIS would make a decision based on the evidence already
obtained.

Id.

Defendants’ position is that, by refusing to be

interviewed separately, Plaintiffs waived the opportunity to be
confronted with, and to rebut, adverse evidence obtained after
the Notice of Intent to Deny issued.

ECF No. 30, PageID # 252.

On September 20, 2013, Plaintiffs filed a Verified
Complaint for Mandamus and for Declaratory Relief.

ECF No. 1.

On November 27, 2013, USCIS denied Ringgold’s I-130,
stating that Ringgold had failed to meet her burden of proof
regarding her relationship with Mazliah.

AR at 63, 66-75.

USCIS

cited the following evidence as contributing to its finding that
a bona fide marriage did not exist: (1) the rapidity of the
marriage after the parties first met; (2) time the parties spent
apart while Ringgold lived in California for approximately four
months and in Australia for eight months; (3) evidence that the
parties were living apart while in Hawaii, including statements
by multiple individuals that they recognized photos of either
Ringgold or Mazliah, but not both; (4) evidence that Ringgold had
lived with her mother until November 2011; (5) indications of
relationships with other individuals outside of the marriage,
including information that Mazliah was regularly seen with a

5

girlfriend, information from Ringgold’s father that Ringgold had
brought a man named Patrick, identified as her boyfriend, to a
family Thanksgiving gathering in 2011 and that she had dated
Patrick until March 2012, and information from Ringgold’s father
that Ringgold had been dating an Australian man that she went to
Australia to live with; (6) contradictory accounts about
Ringgold’s relationship with her father; (7) Ringgold’s
concealing of her marriage from her father; (8) Ringgold’s claim
that her mother knew about the marriage but was unwilling to
prepare a statement to that effect; (9) information from
Ringgold’s father that Ringgold’s relatives did not know about
her marriage; (10) information from Ringgold’s father and
stepmother that Ringgold was living in Waikiki in late 2012 and
had asked to live with them; (11) inconsistencies regarding the
reason Ringgold spent time in Australia; and (12) Ringgold’s
failure to inform her family about her travel to Israel until
after her return.

Id. at 73.

On November 27, 2013, USCIS denied Mazliah’s I-485
based on the denial of Ringgold’s I-130 and on Mazliah’s failure
to demonstrate entitlement to a visa on any other grounds.

ECF

No. 14-4.
On March 12, 2014, Plaintiffs filed their First Amended
Complaint for Declaratory Relief, seeking a declaration that the
denial of Ringgold’s I-130 and Mazliah’s I-485 was “arbitrary,

6

capricious, not supported by the evidence and violative of
Plaintiffs’ due process rights under the United States
Constitution and not in accordance with law and applicable
implementing regulations governing marriages between aliens and
United States citizens.”

ECF No. 14, PageID # 77.

Plaintiffs

contest USCIS’s view of their marriage, denying, among other
things, that they had relationships with other people after they
got married.
Both parties seek summary judgment on Plaintiffs’
claims.
III.

See ECF No. 29; ECF No. 31.
STATUTORY FRAMEWORK.
A U.S. citizen seeking classification of a noncitizen

spouse as an “immediate relative” may file a Form I-130, Petition
for Alien Relative, with USCIS.

8 C.F.R. § 204.1(a)(1).

The

petitioner bears the burden of establishing his or her spouse’s
eligibility.

8 C.F.R. § 103.2(b)(1); Avitan v. Holder, No.

C-10-03288-JCS, 2011 WL 499956, at *7 (N.D. Cal. Feb. 8, 2011).
If the I-130 is approved, the noncitizen spouse may seek
adjustment to permanent resident status through a Form I-485.
An I-130 must not be approved if the marriage upon
which the petition is based was entered into for the purpose of
evading immigration laws.

8 U.S.C. § 1154(c); Vasquez v. Holder,

602 F.3d 1003, 1014 (9th Cir. 2010) (“A marriage that is entered
into for the primary purpose of circumventing the immigration

7

laws, referred to as a fraudulent or sham marriage, does not
enable an alien spouse to obtain immigration benefits.” (brackets
and internal quotation marks omitted)).
A marriage is considered a sham “if the bride and groom
did not intend to establish a life together at the time they were
married.”

Bark v. Immigration & Naturalization Serv., 511 F.2d

1200, 1201 (9th Cir. 1975).

“Evidence relevant to their intent

includes, but is not limited to, proof that [the beneficiary] was
listed on [the petitioner’s] insurance policies, property leases,
income tax forms or bank accounts, and testimony or other
evidence regarding their courtship, wedding ceremony and whether
they shared a residence.”
(9th Cir. 2004).

Damon v. Ashcroft, 360 F.3d 1084, 1088

Conduct of the parties after their marriage is

relevant “to the extent that it bears upon their subjective state
of mind at the time they were married.”

Bark, 511 F.2d at 1202.

“Substantial and probative evidence” that the marriage
was entered into to evade the immigration laws must exist for an
I-130 to be rejected on that basis.
Avitan, 2011 WL 499956, at *7.

Damon, 360 F.3d at 1088;

To reverse a decision under the

substantial evidence standard, “the evidence must be so
compelling that no reasonable factfinder could fail to find the
facts were as the alien alleged.”
1514 (9th Cir. 1997).

8

Singh v. Reno, 113 F.3d 1512,

IV.

STANDARD.
Under the Administrative Procedure Act (“APA”), agency

action that is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law” must be set aside.

5

U.S.C. § 706; see also Butte Envtl. Council v. U.S. Army Corps of
Eng’rs, 620 F.3d 936, 945 (9th Cir. 2010).

Review under the

arbitrary and capricious standard is “highly deferential,
presuming the agency action to be valid and affirming the agency
action if a reasonable basis exists for its decision.”

Sacora v.

Thomas, 628 F.3d 1059, 1068 (9th Cir. 2010) (internal quotation
marks and citation omitted).

“A reasonable basis exists where

the agency considered the relevant factors and articulated a
rational connection between the facts found and the choices
made.”

Arrington v. Daniels, 516 F.3d 1106, 1112 (9th Cir. 2008)

(internal quotation marks and citation omitted).

An agency’s

decision will be set aside only if:
[I]t has relied on factors which Congress had
not intended it to consider, entirely failed
to consider an important aspect of the
problem, offered an explanation for its
decision that runs counter to the evidence
before the agency, or is so implausible that
it could not be ascribed to a difference in
view or the product of agency expertise.
Butte, 620 F.3d at 945 (internal quotation marks and citation
omitted).

A court may not “infer an agency’s reasoning from mere

silence,” but “[e]ven when an agency explains its decision with
less than ideal clarity, a reviewing court will not upset the
9

decision on that account if the agency’s path may reasonably be
discerned.”

Crickon v. Thomas, 579 F.3d 978, 982 (9th Cir. 2009)

(internal quotation marks and citation omitted).

Review of

agency action under the APA is generally limited to “the record
that was before the agency at the time the challenged decision
was made.”

Greater Yellowstone Coal., Inc. v. Servheen, 665 F.3d

1015, 1024 n.2 (9th Cir. 2011).1
In reviewing an administrative decision under the APA,
“there are no disputed facts that the district court must
resolve.”

Occidental Eng’g Co. v. I.N.S., 753 F.2d 766, 769 (9th

Cir. 1985).

Instead, “the function of the district court is to

determine whether or not as a matter of law the evidence in the
administrative record permitted the agency to make the decision
it did.”

Id.; see also City & Cnty. of San Francisco v. United

States, 130 F.3d 873, 877 (9th Cir. 1997).

“[S]ummary judgment

is an appropriate mechanism for deciding the legal question of
whether the agency could reasonably have found the facts as it
did.”

Occidental, 753 F.2d at 770.

V.

ANALYSIS.
A.

Defendants Are Entitled to Summary Judgment Under
the APA.

Plaintiffs fail to show that USCIS’s denials of

1

Plaintiffs’ papers include materials that are not part of
the administrative record. Even if the court were to consider
those materials, they would not establish that USCIS’s decision
should be vacated.
10

Ringgold’s I-130 and Mazliah’s I-485 must be set aside under the
APA.

Because the record reflects a reasonable basis for USCIS’s

decisions, Defendants are entitled to summary judgment on
Plaintiffs’ claim that USCIS’s decisions were arbitrary and
capricious and subject to reversal under the APA.
In numerous instances, Plaintiffs’ assertions
conflicted with what other individuals told USCIS.

For example,

while Plaintiffs claimed to have lived together at several
different places and offered statements from people confirming
Plaintiffs’ shared residences, USCIS spoke with other individuals
who could only recall having seen one Plaintiff at a reported
location.

USCIS was also presented with different accounts of

where Ringgold had lived at different times after she got
married.

In addition, more than one person told USCIS that

Mazliah and/or Ringgold appeared to be romantically involved with
someone other than his or her spouse after the date of the
marriage, although Plaintiffs have denied having had such
relationships.
Even within Plaintiffs’ own assertions there were
inconsistences.

For example, Ringgold stated in an affidavit on

January 27, 2012, that she and Mazliah had only lived at a Queen
Street address during their marriage, yet there are several
addresses in Hawaii at which Plaintiffs claimed to have lived
together.

AR at 8-10, 92, 96.

11

The inconsistences in the administrative record, along
with factors such as how soon after they met the parties got
married, Ringgold’s time living in California and Australia, and
evidence that Ringgold had not told family members about her
marriage, gave USCIS a reasonable basis for denying Ringgold’s
petition.
No one could deny that Plaintiffs did provide some
evidence of the legitimacy of their marriage.
PageID # 311-14; ECF No. 37, PageID # 662.

ECF No. 31-1,

This evidence

included rental agreements, utility statements, vehicle insurance
cards, bank statements, unnotarized “affidavits” from various
individuals, and photos from Plaintiffs’ wedding and reception.
But USCIS could have reasonably concluded that this evidence was
outweighed by other evidence uncovered during the investigation.
AR at 66, 67; see Brown v. Napolitano, 391 F. App’x 346, 351 (5th
Cir. 2010).

Plaintiffs have not demonstrated that the evidence

they provided was “so compelling that no reasonable fact-finder
could fail to arrive at their conclusion.”
quotation marks and citation omitted).

Id.

(internal

Plaintiffs’ contention

that USCIS failed to even consider or evaluate what they
submitted or “dismissed out of hand” their submissions is nothing
more than a naked allegation.

ECF No. 37, PageID # 664-65.

Plaintiffs also argue that USCIS “applied the incorrect
legal standard” by requiring that Plaintiffs have a “more

12

conventional or successful marriage than citizens.”
1, PageID # 308.

ECF No. 31-

Plaintiffs rely extensively on Bark v.

Immigration & Naturalization Service, 511 F.2d 1200 (9th Cir.
1975), which states:
The concept of establishing a life as marital
partners contains no federal dictate about
the kind of life that the partners may choose
to lead. Any attempt to regulate their life
styles, such as prescribing the amount of
time they must spend together, or designating
the manner in which either partner elects to
spend his or her time, in the guise of
specifying the requirements of a bona fide
marriage would raise serious constitutional
questions. Aliens cannot be required to have
more conventional or more successful
marriages than citizens.
Conduct of the parties after marriage is
relevant only to the extent that it bears
upon their subjective state of mind at the
time they were married. Evidence that the
parties separated after their wedding is
relevant in ascertaining whether they
intended to establish a life together when
they exchanged marriage vows. But evidence of
separation, standing alone, cannot support a
finding that a marriage was not bona fide
when it was entered.
Id. at 1201-02 (citations omitted).
The USCIS decision challenged here does not conflict
with Bark.

USCIS did not conclude that Plaintiffs had a sham

marriage just because they had not spent a certain amount of time
together or had an unconventional lifestyle.

Evidence that

Plaintiffs spent fairly substantial portions of their marriage
apart was a factor that USCIS considered in deciding whether the

13

parties intended at the time they exchanged marriage vows to
establish a life together, but it certainly was not the only
factor USCIS relied on in its decision.

See AR at 73.

As Bark

states, “the time and extent of separation, combined with other
facts and circumstances, can . . . adequately support[] the
conclusion that a marriage was not bona fide.”

Id. at 1202.

Plaintiffs make two arguments in which they seek to
bind USCIS to what they allege were early positions taken by
USCIS.
First, Plaintiffs argue that USCIS told them at their
first interview that their I-130 and I-485 would be approved and
that Mazliah would receive his green card.
# 310-11.

ECF No. 31-1, PageID

Plaintiffs do not actually attest to this occurrence.

Instead, it is asserted in a memorandum prepared by their
attorney.

See ECF No. 31-1, PageID # 311.

The only evidentiary

support for this assertion is the check in the “Approved Visa
Petition” box on a copy of Mazliah’s I-485.

See AR at 622.

But

even if a USCIS official preliminarily told Plaintiffs the I-130
and I-485 would be approved, Plaintiffs cite no authority binding
USCIS to that outcome or requiring this court to allow the
alleged statement to override the later formal denial.
Second, Plaintiffs seek to bind USCIS to what
Plaintiffs say was a USCIS failure to note discrepancies in the
evidence at the third interview on December 11, 2011.

14

Id.,

PageID # 311.

As Plaintiffs put it, “the officer did not note

any discrepancies or conflicts in their testimony or evidence
submitted and no questions were asked which is the usual
procedure for a Stokes Investigator.”

Id.

Not only do

Plaintiffs fail to support their contentions through citation to
the administrative record, Plaintiffs nowhere demonstrate that
the failure to note discrepancies or ask questions at the end of
an interview renders a later USCIS denial of an application
invalid or inconsistent with the record or with governing law.
Nothing requires an interviewer to give either a positive or
negative indication of the likely decision, and a failure in
either direction gives rise to no illegality and to no right on
the part of an applicant to any particular decision.
The court views Plaintiffs’ main argument to be that
USCIS denied them a chance to respond to negative information.
They assert that, in denying their applications, USCIS relied on
evidence that “had not previously been revealed to them” from
Ringgold’s father, stepmother, and former boyfriend, among
others.

Plaintiffs say that, by failing to allow them to examine

and rebut this evidence, USCIS violated 8 C.F.R. §§ 103.2(b)(8)
and (16).

ECF No. 14, PageID # 93; ECF No. 31-1, PageID # 315.

This argument is unpersuasive.
One of the provisions Plaintiffs cite, 8 C.F.R.
§ 103.2(b)(8), is irrelevant to the issue of the opportunity to

15

examine and rebut adverse evidence.

That provision addresses

requests by USCIS for evidence and notices of intent to deny.
The other provision, 8 C.F.R. § 103.2(b)(16), does
address disclosure of negative information and an opportunity to
respond, but Plaintiffs fail to demonstrate that the provision
was violated.

The section states:

If the decision will be adverse to the
applicant or petitioner and is based on
derogatory information considered by the
Service and of which the applicant or
petitioner is unaware, he/she shall be
advised of this fact and offered an
opportunity to rebut the information and
present information in his/her own behalf
before the decision is rendered[.]
On September 18, 2013, Plaintiffs could indeed have
learned about and responded to evidence obtained by USCIS after
it issued the Notice of Intent to Deny, as required by 8 C.F.R. §
103.2(b)(16).

However, Plaintiffs declined that opportunity when

they refused to be interviewed separately.

AR at 72.

The

administrative record reflects that, at the interview, Plaintiffs
were read a document that stated: “Each of you will be
interviewed separately and asked a series of questions regarding
your relationship.

Your answers will be compared and if there

are discrepancies/differences in your responses you will be given
an opportunity to explain after each of you have been
interviewed.”

AR at 751.

The administrative record also

reflects that Plaintiffs were told that the interviews were

16

necessary to review new information, but that Plaintiffs refused
to be interviewed separately.

They were then told that USCIS

would make a decision based on the evidence obtained to date.
ECF No. 14, PageID # 91.
Plaintiffs do not contend that USCIS is misdescribing
what occurred.

That is, they are not denying that they refused

separate interviews and knew that USCIS would rely on the
material in the record.

In fact, Plaintiffs confirm these

circumstances in their First Amended Complaint:
33. At the September 18, 2013 meeting,
Plaintiffs demanded to know what specific
problems the Department had with their
marriage and asked when a decision would be
made on their case. Officer Sawyer refused to
identify what problems the Department had
with their case contrary to 8 CFR 103.2
(b)(16) but stated that he needs to interview
them separately on matters since their last
interview and that the Department would need
time to evaluate the evidence.
. . . .
34. Plaintiffs made it clear that they
were willing to answer any questions together
but not separately as the emotional strain
was just too much.
. . . .
35. Officer Sawyer . . . announced that
the Department establishes the procedures for
processing cases and that if DIANA and VICTOR
did not wish to be interviewed separately,
the Department would make a decision based on
the evidence in their case. DIANA and VICTOR
then repeated their joint decision to Officer
Sawyer stating that they are more than
willing to be interviewed together but not
separately again.

17

ECF No. 14, PageID # 90-91 (emphasis added).
Nor can Plaintiffs complain that they were unaware that
USICS had been in further contact with Ringgold’s father.

Their

First Amended Complaint alleges, at paragraph 33, that Ringgold
knew in September 2013 that a USCIS investigator had again spoken
with her father and provided him with negative information about
Mazliah, and that Ringgold’s father thereafter declined to see
Mazliah again.
Only the opportunity to rebut adverse information is
required by 8 C.F.R. § 103.2(b)(16).

The record shows that

Plaintiffs were provided with that opportunity.
review is highly deferential.

This court’s

Given the absence of evidence of a

violation of 8 C.F.R. § 103.2(b)(16), the court upholds USCIS’s
decision.
Plaintiffs do not show that USCIS acted arbitrarily,
capriciously, or in a manner otherwise contrary to law in denying
Ringgold’s I-130 and Mazliah’s I-485.

The record reflects that

USCIS adequately considered the evidence and reached a reasonable
conclusion supported by the record.

Defendants are entitled to

summary judgment on Plaintiffs’ claim for relief under the APA.
B.

Defendants Are Entitled to Summary Judgment on
Plaintiffs’ Due Process Claim.
1.

Procedural Due Process.

Plaintiffs assert that they have “protected liberty and
property interest[s] in their marriage that give[] rise to a
18

right to constitutionally adequate proce[d]ures in the
adjudication of the I-130 petition.”

ECF No. 37, PageID # 662.

Even assuming Plaintiffs have such protected interests,
Plaintiffs fail to clearly identify what was constitutionally
inadequate about the procedures USCIS employed and thus how their
procedural due process rights were violated.

“A procedural due

process claim has two distinct elements: (1) a deprivation of a
constitutionally protected liberty or property interest, and (2)
a denial of adequate procedural protections.”

Brewster v. Bd. of

Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971, 982 (9th Cir.
1998).

Plaintiffs do not show that they were denied adequate

procedural protections.

To sustain a procedural due process

claim, it is not enough to show a protected interest and state,
without explanation, that adequate procedures are required.
Plaintiffs must identify how the procedures used fell short.
In their First Amended Complaint, Plaintiffs appear to
be arguing that their procedural due process rights were violated
“because they were [not] given the opportunity to examine and
rebut adverse evidence.”

ECF No. 24, PageID # 93.

As noted

above, the administrative record reflects that Plaintiffs were
given an opportunity to examine and rebut adverse evidence not
previously disclosed,2 but refused that opportunity because they
2

Plaintiffs were provided with the opportunity to rebut
adverse evidence presented in USCIS’s Notice of Intent to Deny,
and did take advantage of that opportunity through their April
16, 2012 letter. AR at 2-55. From Plaintiffs’ allegations, it
19

did not wish to be interviewed separately.
2.

Substantive Due Process.

Plaintiffs argue that USCIS’s decisions denying
Ringgold’s I-130 and Mazliah’s I-485 violate their substantive
due process rights by:
(1) Dictating the amount of time they must
spend together as a married couple;
(2) Restricting their freedom and liberty of
travel and movement;
(3) Attempting to regulate their life styles;
(4) Designating the manner in which they
spend their time [f]or employment,
recreation, and education;
(5) Erroneously finding that anytime spent
apart or alone by Plaintiffs show that
Plaintiffs never intended to live together as
a married couple;
(6) Acting contrary to the concept that
establishing a life together as marital
partners contains no federal dictate about
the kind of life that the Plaintiffs may
choose to lead and attempts to regulate their
life style;
(7) Finding that Plaintiffs are required to
have a more conventional or more successful
marriage than citizens;
(8) That DIANA has a constitutional right to
tell or not tell her father of her marriage
if she so elects and no adverse finding may
be attributed to that decision if there is a
reasonable explanation[.]
ECF No. 40, PageID # 778-79.
It is Plaintiffs’ burden to establish the alleged

does not appear that their complaint regarding the opportunity to
rebut adverse evidence extends to any evidence contained in the
Notice of Intent to Deny. Any such argument would find no
support in the record. Plaintiffs’ objection appears to relate
solely to evidence USCIS obtained after issuing the Notice of
Intent to Deny.
20

constitutional violation.

They do not meet their burden of

showing that they have been deprived of life, liberty, or
property.

See Action Apartment Ass’n, Inc. v. Santa Monica Rent

Control Bd., 509 F.3d 1020, 1026 (9th Cir. 2007) (“We have long
held that a substantive due process claim must, as a threshold
matter, show a government deprivation of life, liberty, or
property.”) (internal quotation marks and citation omitted).
Although Plaintiffs list things allegedly dictated by
USCIS, USCIS’s denial of Ringgold’s I-130 and Mazliah’s I-485
does not actually require or prevent Plaintiffs from having
whatever relationship they please.

At most, the denial affects

Mazliah’s liberty of movement by denying him permanent resident
status, but there is no constitutionally protected right to an
immigrant visa.

Smirnov v. Clinton, 806 F. Supp. 2d 1, 12

(D.D.C. 2011); see also United States ex rel. Knauff v.
Shaughnessy, 338 U.S. 537, 542 (1950) (“[A]n alien who seeks
admission to this country may not do so under any claim of right.
. . . [It] is a privilege granted by the sovereign United States
Government.”).
The items Plaintiffs list echo the idea in Bark that
“serious constitutional questions” arise when the process of
identifying a bona fide marriage is used to “dictate . . . the
kind of life that the partners may choose to lead” or to require
that “[a]liens . . . have more conventional or more successful

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marriages than citizens.”

Bark, 511 F.2d 1201-02.

As previously

discussed, USCIS’s decision does not run afoul of Bark.

USCIS

permissibly based its decision, in part, on the time Plaintiffs
spent apart, and did not deny Ringgold’s I-130 and Mazliah’s I485 on the theory that bona fide marriages only exist when
individuals spend a specific amount of time together and
participate in a certain lifestyle.

USCIS did not determine that

time spent apart necessarily establishes that “Plaintiffs never
intended to live together as a married couple,” as Plaintiffs
contend.

ECF No. 41, PageID # 779.

Instead, USCIS determined

that the fairly substantial periods of time Plaintiffs spent
apart was one factor, among others, suggesting that Plaintiffs
had not intended to establish a life together at the time they
were married.

Bark itself accepts such an approach, stating that

“the time and extent of separation, combined with other facts and
circumstances, can . . . adequately support[] the conclusion that
a marriage was not bona fide.”

511 F.2d at 1202.

Plaintiffs also contend that Ringgold’s substantive due
process rights were violated because she has “a constitutional
right to tell or not tell her father of her marriage if she so
elects and no adverse finding may be attributed to that decision
if there is a reasonable explanation.”

ECF No. 41, PageID # 779.

The cases Plaintiffs cite as support for this proposition appear
to again refer to the principles outlined in Bark, and do not

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otherwise undercut USCIS’s determination.

USCIS did not say

that, unless Ringgold disclosed her marriage to her father, she
could not establish a bona fide marriage.

The secrecy of her

status was instead one of numerous circumstances taken into
account.

Ringgold’s purported “constitutional right” to keep her

marriage a secret from her father was not violated by USCIS.
Ringgold was free to choose to keep information to herself, but
USCIS was not prohibited by the Constitution from considering
that choice, any more than it was prohibited from considering her
choice to travel across state boundaries and separate herself
from Mazliah.
C.

Plaintiffs Are Not Entitled to Attorneys’ Fees and
Costs Pursuant to 28 U.S.C. § 2412.

The court grants Defendants’ motion for summary
judgment and denies Plaintiffs’ motion.

Plaintiffs’ request for

attorneys’ fees and costs pursuant to 28 U.S.C. § 2412 is
therefore denied.
VI.

CONCLUSION.
Plaintiffs’ motion for summary judgment is denied, and

Defendants’ motion for summary judgment is granted.
disposes of all matters raised in this action.

This order

The Clerk of

Court is directed to enter judgment in favor of Defendants and to
close this case.

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IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 25, 2014.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Ringgold, et al. v. Johnson, et al., Civ. No. 13-00479 SOM/KSC; ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, AND DENYING PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT

24