Nakityo et al v. Garland et al

Filing 19

Judge Richard G. Stearns: ORDER entered granting 8 Motion to Dismiss for Lack of Jurisdiction. "For the foregoing reasons, defendants' motion to dismiss for lack of subject matter jurisdiction is ALLOWED. The Clerk shall close this case. (Tang, Danni)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 21-10427-RGS
MARY BAYIYANA NAKITYO and
WILLIAM WAGUMBULIZI
v.
MERRICK GARLAND, ALEJANDRO MAYORKAS,
TRACEY RENAUD, and KRISTEN M. SMITH
MEMORANDUM AND ORDER ON
DEFENDANTS’ MOTION TO DISMISS
July 16, 2021
STEARNS, D.J.
Plaintiffs Mary Bayiyana Nakityo and William Wagumbulizi allege that
the United States Citizenship and Immigration Services (USCIS) relied on
information prohibited by 8 U.S.C. § 1367(a) in rescinding the approval of a
family-based immediate relative visa petition submitted by Wagumbulizi on
Nakityo’s behalf. Defendants – Merrick Garland (in his official capacity as
the Attorney General of the United States), Alejandro Mayorkas (in his
official capacity as the Secretary of the Department of Homeland Security),
Tracey Renaud (in her official capacity as the Acting Director of USCIS), and
Kristen M. Smith (in her official capacity as the Massachusetts Field Office

Director of USCIS) – move to dismiss for lack of subject matter jurisdiction
pursuant to Fed. R. Civ. P. 12(b)(1).
BACKGROUND
For purposes of deciding this motion, the court accepts as true the wellpleaded facts of the Complaint. Nakityo, a Ugandan citizen, married Jason
Edward Larkin, an American citizen, in 2008. In February of 2009, Larkin
filed a family-based visa petition for Nakityo. At a May 26, 2009, interview
held in the USCIS Boston Field Office, Larkin stated that he had only met
Nakityo four times, that he was paid $2,700 to marry her to enable her to
obtain a green card, and that other submitted evidence of a bona fide
marriage had been falsified. Larkin withdrew the petition and the USCSI
denied Nakityo’s application for status adjustment.
Despite Larkin’s volte face, Nakityo remained in a relationship with
him. Larkin abused Nakityo, physically, sexually, and psychologically, from
the fall of 2009 until early 2011, when he left their home. Nakityo sought
treatment for depression in September of 2011. In June of 2012, she filed an
I-360 self-petition for relief under Violence Against Women Act (VAWA),
seeking permanent residency as the battered spouse of an American citizen.
In June of 2015, the USCIS requested additional evidence in support of
Nakityo’s claim.

By that time, she had entered a relationship with
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Wagumbulizi and had given birth to their daughter. Nakityo did not pursue
the VAWA application, and it was denied for abandonment.
Wagumbulizi, an American citizen, subsequently married Nakityo, and
in December of 2016, filed a visa petition on her behalf. The petition was
approved in April of 2017. In August of 2017, however, the USCIS sent
Wagumbulizi a “Notice of Intent to Revoke” (NOIR), citing as grounds that
Nakityo had previously attempted to evade the immigration laws by
fraudulently marrying Larkin.

Wagumbulizi responded to the NOIR

unsuccessfully, and the USCIS issued a revocation decision on December 27,
2017.

In addition to revoking Nakityo’s visa, the USCIS barred her

indefinitely from becoming the approved beneficiary of any future visa
petition submitted pursuant to 8 U.S.C. § 1154(c). Plaintiffs appealed to the
Board of Immigration Appeals (BIA), and received an unfavorable decision
in March of 2019. Plaintiffs filed this lawsuit in March of 2021.
DISCUSSION
The parties agree on the metes and bounds of the legal landscape. In
Bernardo ex rel. M & K Eng’g, Inc. v. Johnson, 814 F.3d 481 (1st Cir. 2016),
the First Circuit joined seven other Circuits in concluding that “Congress has
barred judicial review” of the revocation of a previously approved visa
petition. Id. at 482. “Decisions made . . . as to the revocation of previously
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approved visa petitions are made discretionary by statute.” Id. at 482, citing
8 U.S.C. § 1155. “Title 8, section 1252 of the U.S. Code precludes judicial
review of discretionary decisions made by the Attorney General and the
Secretary of Homeland Security under Title 8, Chapter 12, Subchapter II.”
Id. Together, these statutes reflect “a clear expression of Congressional
intent” to deprive the courts of subject matter jurisdiction over visa
revocation decisions. Id.
Plaintiffs contend that 8 U.S.C. § 1367(a) carves out a narrow opening
in this seemingly impenetrable wall. As a part of VAWA’s effort to protect
the rights of victims of domestic violence and abuse,
in no case may the Attorney General, or any other official or
employee of the Department of Justice, the Secretary of
Homeland Security, the Secretary of State, or any other official
or employee of the Department of Homeland Security or
Department of State (including any bureau or agency of either of
such Departments)-(1) make an adverse determination of admissibility or
deportability of an alien under the Immigration and
Nationality Act using information furnished solely by-(A) a spouse [] who has battered the alien or
subjected the alien to extreme cruelty.
8 U.S.C. § 1367. As plaintiffs interpret it, the statute prohibits an adverse
determination of admissibility based on the uncorroborated testimony of an
abusive spouse. In other words, USCIS has no discretion to make an adverse
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admissibility determination if it is based on such uncorroborated
information. It follows, in plaintiffs’ reading, that 8 U.S.C. § 1252’s bar
against the judicial review of discretionary decisions does not extend to
negative admissibility determinations made in contravention of this
prohibition.

Plaintiffs assert that because USCIS relied on Larkin’s

uncorroborated and false (or so they allege) statements regarding his “sham”
marriage to Nakityo, the revocation decision remains reviewable by virtue of
section 1367.
Accepting without deciding plaintiff’s premise that section 1367 could
serve as a jurisdictional path to circumvent the section 1252 bar, the USCIS
and BIA decisions on their face refute plaintiffs’ contention that they were
made “using information furnished solely by a spouse [] who has battered
the alien.” The revocation decisions rested in the first instance on an
assessment of Nakityo’s credibility, finding her allegations of spousal abuse
“self-serving and unsupported.” 1 BIA Decision, Dkt # 9-1 at 2. The BIA also
noted that Nakityo’s VAWA “Form I-360 had been denied for abandonment
and not the merits of [her] abuse claims and [] the Form I-360 was not

Larkin made the sham marriage statements in May of 2009, prior to
any allegation by Nakityo of abuse. See Compl. ¶ 22 (alleging abuse from fall
of 2009 to early 2011).
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relevant to the revocation of the current visa petition.” Id. at 2-3. The
decisions also drew on corroborating evidence that did not depend on
Larkin’s testimony in establishing that Nakityo had engaged in marriage
fraud.
[Nakityo]’s A-file contains substantial and probative evidence
indicating that the [her] previous marriage to Mr. Larkin was
entered into solely for immigration purposes. . . . [S]he was not
even legally free to marry Mr. Larkin because she was legally
married to Mr. Ibrahim Kakembo at the time. This information
was never disclosed on Mr. Larkin’s Form I-130, Petition for
Alien Relative [] nor was it disclosed on [Nakityo]’s February 10,
2009 G-325A, Biographic Information.
USCIS Decision, Dkt # 1-5 at 3. 2 Finally, the USCIS decision notes that
Nakityo had the opportunity to rebut the adverse evidence with “evidence
that shows that the prior marriage [to] Mr. Larkin was not entered into for
the primary purpose of evading the immigration laws,” but failed to do so.
Id. Because the prohibition of section 1367 was not triggered, the revocation
of Nakityo’s approved visa petition remains a discretionary matter beyond
the reach of this court’s subject matter jurisdiction. See Bernardo, 814 F.3d
at 482.

Notwithstanding Nakityo’s assertion of the belief that her first
marriage had dissolved and that she was free to marry Larkin, her “failure to
disclose her marital relationship with Ibrahim Kakembo and [her] failure to
disclose her two children at the time of her marriage to Mr. Larkin
undermines her credibility with respect to [this] petition.” USCIS Decision
at 3.
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ORDER
For the foregoing reasons, defendants’ motion to dismiss for lack of
subject matter jurisdiction is ALLOWED.
SO ORDERED.
/s/ Richard G. Stearns
UNITED STATES DISTRICT JUDGE

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