Roman et al v. Riordan et al

Filing 39

District Judge Timothy S Hillman: MEMORANDUM OF DECISION AND ORDER entered denying 30 Motion for Summary Judgment and granting 33 Motion for Summary Judgment. (Castles, Martin)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
________________________________________________
REBECCA ROMAN AND OLEG BONDAREV,
Plaintiffs,
v.

DENIS RIORDAN, USCIS, DISTRICT DIRECTOR,
LEON RODRIGUEZ, USCIS DIRECTOR, and
JEH JOHNSON, SECRETARY, DEPARTMENT
HEALTH AND HUMAN SERVICES,
Defendants.
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CIVIL ACTION
NO. 15-40061-TSH

MEMORANDUM OF DECISION AND ORDER FOR JUDGMENT
September 19, 2016

HILLMAN, D.J.
Background
Plaintiffs, Rebecca Roman (“Roman”) and Oleg Bondarev (“Bondarev”) seek review
under the Administrative Procedures Act, 5 U.S.C. §701, et seq. (“APA”), of the United States
Citizenship and Immigration Service (“USCIS”) denial of their Form I-130, Petition for Alien
Relative (“I-130 petition”) and the Board of Immigration Appeals’ (“BIA”) affirmance of
USCIS’s decision. The parties have filed cross-motions for summary judgment. For the reasons
set forth below, Plaintiffs’ motion for summary judgment is denied and Defendants’ motion for
summary judgment is granted.

Standard of Review
Summary Judgment under the APA
Generally, summary judgment is appropriate where “there is no genuine issue as to any
material fact” and “the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c)(2). However, “[t]his rubric has a special twist in the administrative law context.”
Associated Fisheries of Maine, Inc. v. Daley, 127 F.3d 104, 109 (1st Cir. 1997). “Under the
APA, a reviewing court may only set aside an agency’s decision if it is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with the law,” such as if it is ‘unsupported by
substantial evidence.’” Atieh v. Riordan, 797 F.3d 135, 138 (1st Cir. 2015) (“Atieh II”); 5 U.S.C.
§§706(2)(A),(E)). “In making this determination, an agency’s factual findings are entitled to
deference regardless of which party has moved for summary judgment. Thus, the usual rules
that describe how the court must construe the summary judgment record do not apply.” Sig
Sauer, Inc. v. Jones, 133 F. Supp. 3d 364, 369 (D.N.H. 2015).
Review under the arbitrary and capricious standard is narrow, and this Court “may not
substitute its judgment for that of the agency, even if it disagrees with the agency’s conclusions.”
River St. Donuts, LLC v. Napolitano, 558 F.3d 111, 114 (1st Cir. 2009). “Consequently, judicial
review of agency decisions is highly deferential. If the agency’s decision is supported by any
rational view of the record, a reviewing court must uphold it.” Atieh II, 797 F.3d at 138
(quotation marks and citations omitted).
Facts
Bondarev is a native of Russia who entered the United States on October 1, 2002, as a B1 visitor. See Certified Administrative Record (Docket No. 21)(“AR”), at 191. On June 29,
2005, he married his first wife, Victoria Burns (“Burns”), a United States Citizen, in Chicago,
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Illinois. Id.. at 255. On December 13, 2005, Burns filed an I-130 petition on Bondarev’s behalf.
On June 21, 2006, Burns submitted a signed “Withdrawing Petition For Alien Relative”
(“withdrawal request”) pursuant to which she withdrew that I-130 petition. Id., at 250. In the
withdrawal request, she alleged that: (1) Bondarev approached her and proposed marriage so that
he could obtain a green card; (2) Bondarev offered her “55 grams of drugs” in exchange for
marriage; (3) she and Bondarev never lived together, and; (4) she had a “real” boyfriend. Id.
Burns indicates in the withdrawal request that she gave her statement “freely and voluntarily,”
and “without threat or coercion by an Immigration Officer.” Id. Two USCIS officers also signed
their names on the withdrawal request as witnesses to Burns’ statement. Id. On July 28, 2006,
USCIS sent a letter to Burns confirming her withdrawal of the I-130 petition on Bondarev’s
behalf. Id., at 249. Burns did not contest the withdrawal of the petition at the time this letter was
issued, nor did she subsequently file another I-130 petition for Bondarev. Bondarev and Burns
divorced on August 29, 2011. Id., at 191.
On April 6, 2012, Bondarev married Roman, a United States Citizen, in Worcester,
Massachusetts. Roman filed an I-130 petition on Bondarev’s behalf on July 24, 2012. On
December 3, 2012, Roman and Bondarev were interviewed at the USCIS Field Office in
Lawrence, Massachusetts in connection with their I-130 petition. Id., at 24. During the
interview, Plaintiffs gave discrepant answers to questions concerning: (1) when and how they
met; (2) when Bondarev moved to Massachusetts; (3) the physical appearance of their shared
home; (4) their activities on the morning of the interview, and; (5) details about Roman’s
children, including when and how her youngest child (who purportedly lives in the marital
residence) goes to school, and what sport he plays after school. Id., at 13. In addition, the
documentary evidence provided by Plaintiffs contradicted statements made during their

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interview as to where they lived at various times. Id. In light of these inconsistencies, USCIS
issued a Notice of Intent to Deny (“NOID”) the I-130 petition, explaining that “the testimony
under oath, as well as the evidence submitted, failed to establish the claimed spousal relationship
for immigration purposes.” Id., at 24. The NOID allowed Roman to submit evidence to rebut
the derogatory information identified by USCIS. Id.
Roman submitted a timely response to the first NOID. Id., at 138. Her response included
an affidavit explaining the couple’s conflicting answers at the interview, as well as additional
documentary evidence. Id., at 111. However, USCIS found that Plaintiffs had not satisfactorily
explained some of the most significant inconsistencies in the record, and on May 22, 2014,
issued a second NOID. Id., at 17. The second NOID—citing Burns’ withdrawal request—also
indicated that USCIS intended to find that approval of any petition filed on Bondarev’s behalf
was prohibited by 8 U.S.C. §1154(c) because his prior marriage to Burns was fraudulent. Id., at
23. The second NOID also allowed Roman to submit evidence to rebut USCIS’s allegations. Id.
Roman submitted a timely response to the second NOID. Id., at 92. Her response
included a recantation statement from Burns, dated June 18, 2014, in which she claimed that her
marriage to Bondarev was “real” and “not based on drugs or money.” Id., at 97. Burns further
stated in her recantation that, “[she] never said that [Bondarev] gave her drugs,” and that, “55
grams of cocaine would keep a herd of elephants drugged for a year.” Id. Roman’s response to
the second NOID also included: (1) an affidavit from Bondarev maintaining that his marriage to
Burns was bona fide; (2) a letter from one of Bondarev’s friends to the same effect; (3) a
statement from Bondarev’s former landlord in Chicago, claiming that Bondarev and Burns lived
together from May 2005 to “2006 or 2007”; (4) bank statements from Bondarev and Burns’ joint
bank account, and; (5) a letter from Bondarev’s employer, dated June 16, 2014, indicating that

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during the previous four years Bondarev had submitted to and passed various random drug tests
in the course of his employment. See Id., at 92-109
On July 28, 2014, USCIS denied Roman’s I-130 petition, finding that (1) Roman and
Bondarev had not sufficiently proven that their marriage was bona fide, and (2) even if they had
proven their marriage was bona fide, 8 U.S.C. §1154(c) prohibited approval of any I-130 petition
filed on Bondarev’s behalf due to his prior fraudulent marriage to Burns. Id., at 77. USCIS
concluded that the Roman’s response to the second NOID did not overcome the “substantial and
probative evidence” of marriage fraud in the record (i.e. Burns’ withdrawal request). Id.
According to USCIS, Burns’ specific reference to “cocaine” in her recantation statement—where
in her withdrawal request she referred only to “drugs”—reinforced the reliability of the
withdrawal because it provided additional information about the alleged fraudulent scheme. Id.,
at 86-87. USCIS gave less weight to the letter from Bondarev’s former landlord because it
conflicted with other documentation in the record, including a joint bank account statement from
2010 listing Bondarev and Burns as still residing at the address he claimed Burns left in “2006 or
2007.” Id. USCIS also found that the affidavit from Bondarev’s friend, which indicated that
“[Bondarev] told [the friend] he caught [Burns] in bed with another guy,” was “contrary to
proving a bona fide marriage,” and additionally found that the letter from Bondarev’s employer
was irrelevant, as there was never a question whether Bondarev used drugs.
Plaintiffs appealed USCIS’s denial of their I-130 petition to the BIA, and forwarded
along with their appeal the results of a polygraph test taken by Bondarev indicating that there
was “no deception” regarding his denial that he had given drugs to Burns in exchange for
marriage. On February 20, 2015, after conducting a de novo review of the record, the BIA
dismissed Plaintiffs’ appeal and affirmed USCIS’s decision to deny the I-130 petition. The BIA

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indicated that it was “unpersuaded that [Bondarev’s] self-serving statements regarding the
marriage (in his affidavit) are sufficient to overcome the adverse information presented therein,”
and found that the affidavit from Bondarev’s friend insufficient because it provided only general
statements regarding Bondarev and Burns’ relationship. The BIA dismissed Plaintiffs’ argument
that Burns denied signing ever signing the withdrawal request, stating that it was “not persuaded
that [Burns] can reliably recollect whether she signed the statement in June 21, 2006, in light of
her acknowledged substance abuse at that time,” and agreed with USCIS that the veracity of
Burns’ recantation was undermined due to her specific reference to cocaine. The BIA further
concluded that Bondarev’s polygraph test—submitted for the first time on appeal—did not
address the issue of whether Bondarev had married Burns for immigration benefits, or whether
that marriage was bona fide, and thus was insufficient to meet Plaintiffs’ burden.
The BIA also upheld USCIS’s determination that Bondarev and Roman had not met their
burden of proving that their marriage was bona fide. The BIA was unconvinced by Plaintiffs’
explanations for the discrepancies in their testimony, including the color of the exterior of their
house and the after-school activities of Roman’s son, whom they claimed lived with them. The
BIA found “the explanations [for the inconsistencies] unavailing as they do not lend credence to
the ultimate conclusion that the [Bondarev and Roman] are living a life together.” Id. The BIA
further found that the remaining documentation provided by Plaintiffs was not sufficient to
overcome these inconsistencies. Id. The BIA noted that the lease agreement provided by the
couple did not contain Roman’s signature, and the e-mail offered to establish the continuation of
the lease did not contain an actual or electronic signature, and BIA found that the remaining
documents were “insufficient to establish cohabitation or to otherwise overcome the concerns

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raised in the NOID regarding the validity of the marriage.” For these reasons, the BIA upheld
the I-130 petition denial and dismissed the appeal.
Discussion
Statutory Bar to Petition Approval under 8 U.S.C. 1154(c)
“Under the [Immigration and Nationality Act], an alien may achieve lawful permanent
residence status if he qualifies as an immediate relative’ of a U.S. citizen.” Atieh, 797 F.3d 138
(citing 8 U.S.C. §1151(b)(2)(A)(i)). Spouses of U.S. citizens are considered “immediate
relatives” under the statute. 8 U.S.C. §1151(b)(2)(A)(i). Before an alien spouse may gain lawful
permanent resident status, a citizen spouse must first file an I-130 petition. §1154(a)(1)(A)(ii).
However, if a USCIS district director determines “either that the alien entered into a marriage
‘for the purpose of evading the immigration laws’ or that the alien ‘attempted or conspired’ to do
so, the alien will be rendered ineligible for lawful permanent resident status.” Atieh 797 F.3d at
138 (quoting § 1154(c)); see also Matter of Tawfik, 20 I. & N. Dec. 166, 168 (BIA 1990). “This
determination also applies to any prior marriage found to have been entered into for the purpose
of evading immigration laws.” Ali v. United States, 15-CV-201-AJ, 2016 WL 3190190 (D.N.H.
June 7, 2016)(citation to quoted case, internal quotation marks, and alterations omitted).
It is initially the“[g]overnment’s burden of establishing substantial and probative
evidence that the prior marriage was a sham.” Matter of Kahy, 19 I. & N. Dec. 803, 806 (BIA
1988)); see also 8 C.F.R. § 204.2. “Substantial evidence ‘is more than a mere scintilla. It means
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’”
Astralis Condo. Ass'n v. Sec'y, U.S. Dep't of Hous. & Urban Dev., 620 F.3d 62, 66 (1st Cir.
2010) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951)).

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If the government meets this burden, it must issue a NOID to the petitioner and afford the
petitioner “an opportunity to rebut the information and present information ... before the decision
is rendered” by the government. 8 C.F.R. §§ 103.2(b)(8)(iv), (b)(16)(i). At this point, “the burden
shifts to the petitioner to rebut [the] USCIS's finding of fraud and establish that a prior marriage
was not ‘entered into for the purpose of evading immigration laws.’” Zemeka v. Holder, 989 F.
Supp. 2d 122, 130 (D.D.C. 2013) (quoting Kahy, 19 I. & N. Dec. at 805).
On review by the district court, “[a]n agency’s finding regarding the bona fides of a
marriage is normally regarded as a finding of fact ... [and] such a finding is reviewed under the
substantial evidence standard.” Atieh, 797 F.3d at 138. Under the substantial evidence standard,
the court “cannot contravene the agency’s factfinding unless a reasonable adjudicator would be
compelled to reach a contrary conclusion.” Akwasi Agyei v. Holder, 729 F.3d 6, 13 (1st Cir.
2013). “Within this rubric, a credibility determination is a finding of fact; and [the court] will
uphold such a finding so long as the agency ‘articulate[s] specific and cogent reasons’ to support
its view.’” Atieh, 797 F.3d at 138 (quoting Ahmed v. Holder, 765 F.3d 96, 101 (1st Cir. 2014)).
Where, as here, the BIA’s decision adopts and affirms the USCIS’s denial of the petition but also
elaborates on some of the bases of the USCIS’s decision, the court reviews both decisions in
tandem. See Akwasi Agyei, 729 F.3d at 13; Zemeka, 989 F. Supp. 2d at 128.
Whether the Record Supports a Finding of Marriage Fraud In Regards To Bondarev’s
First Marriage
Plaintiffs assert that the record does not contain substantial and probative evidence of
marriage fraud. They take issue with the BIA’s reliance on Burns’ withdrawal request, claiming
that it did not constitute substantial and probative evidence of fraud given that: (1) Burns denies
signing it, and even if she did sign it, the record calls into question whether it was signed
knowingly and voluntarily; (2) the withdrawal request was typed by a USCIS officer instead of
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Burns herself; (3) the withdrawal request is unsworn, and; (4) there is no other evidence in the
record to corroborate the statements made in the withdrawal request. Plaintiffs argue that
contrary to the finding of the USCIS and BIA, the record undermines the credibility of the
withdrawal request while giving credence to Burns’ recantation and thereby, supports a finding
the marriage was bona fide.
First, I find that the BIA and USCIS did not abuse their discretion when they found
substantial and probative evidence in the record to support a finding that Bondarev’s marriage to
Burns was fraudulent. Burns’ withdrawal statement, which was typed on agency letterhead and
was prepared and signed in the presence of two USCIS officers, was the product of agency
action and therefore, is entitled to a presumption of regularity. “[I]n the absence of clear
evidence to the contrary, it is presumed that government agencies have properly discharged their
official duties.” United States v. Armstrong, 517 U.S. 456, 464, 116 S.Ct. 1480, 134 (1996)
(quoting United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15, 47 S.Ct. 1 (1926)).
Consequently, “records made by public officials in the ordinary course of their duties . . .
evidence strong indicia of reliability.” Felzcerek v. INS, 75 F.3d 112, 116 (2d Cir. 1996). That
the statement was unsworn is not enough to render it unsubstantial. See Ogbolumani v.
Napolitano, 557 F.3d 729, 734 (7th Cir. 2009) (“While sworn statements would have bolstered
USCIS’s case, they are not. . . required”).
As to Plaintiffs’ argument that the BIA and USCIS failed to give sufficient weight to
Burns’ sworn affidavit recanting her withdrawal request, it is clear that both the BIA and USCIS
considered Burns’ recantation, but did not find it credible. More specifically, the BIA agreed
with the USCIS that additional details included in the recantation, which were not part of the
withdrawal request, such as the nature of the drug Bondarev provided her in exchange for

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entering into the marriage1, undermined the veracity of the recantation. As to Burns’ denial that
she signed the withdrawal request, the USCIS was not persuaded that at the time submitted the
recantation she could “reliably recollect” whether she had signed the withdrawal statement on
June 21, 2006, given her admitted drug use at that time. The BIA agreed with this finding.
Contrary to Plaintiffs’ contentions, this does not amount to a concession that the withdrawal
statement was not signed knowingly and voluntarily: a reasonable mind could conclude that
Burns’ memory is affected by her abuse of drugs and that her withdrawal request is more
credible than her recantation. Moreover, the BIA and USCIS did not rely solely on the
withdrawal request— as set forth in great detail in the findings of fact section, supra, there was
other evidence in the record which amply supports a finding that Bondarev’s marriage to Burns
was fraudulent. Plaintiffs also point out that there was conflicting evidence which tends to
establish that the marriage was bona fide, including Bondarev’s statements, an affidavit from a
friend of his, the statement of a former landlord, the statement of Bondarev’s employer, and
Bondarev’s polygraph (which was only submitted to the BIA). However, both the BIA and
USCIS explained in detail why they found that evidence to be either incredible, irrelevant,
unreliable, or, as in the case of the friend’s letter, contradictory to a finding that the marriage was
bona fide. On the record before me, Plaintiffs’ attempt to rebut the presumption that Bondarev’s
marriage to Burns was fraudulent is unavailing. Accordingly, I find that the determination by the
BIA and USCIS that Bondarev’s marriage to Burns was fraudulent is supported by the
substantial evidence in the record. Because Bondarev’s first marriage was entered into
fraudulently, Roman’s I-130 petition on behalf of Bondarev is barred.

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In her withdrawal statement, Burns indicated that Bondarev had provided her 55 grams of a controlled
substance to marry him. However, in the recantation, Burns denies that Bondarev provide her with “cocaine.”

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Whether the Record Supports a Finding of Marriage Fraud In Regards To Plaintiffs’
Marriage2
The determination by the BIA and USCIS that the Plaintiffs did not enter into a bona fide
marriage was not an abuse of discretion. The evidence supporting a bona fide marriage is highly
suspect and much of it appears to have been manufactured after Roman received the first NOID.
The USCIS in making its decision, and the BIA in affirming that decision, relied heavily on
inconsistent factual statements made by the Plaintiffs to the USCIS regarding: where they met,
how they met, when Bondarev moved to Massachusetts, their activities on the morning of the
interview with the USCIS, details about the lives of Roman’s children (including where they
lived and went to school), the color of the exterior of their residence and other matters as to
which married spouses living together would be expected to be aware. Moreover, both the
USCIS and BIA found that Roman’s responses to the two NOIDs issued to her by the USCIS did
not adequately explain the discrepancies. These inconsistencies as well as numerous others
contained in the record relate to material matters and, as found by the BIA, “undermine
[Roman’s] claim that she is living with [Bondarev] in a bona fide marriage’” AR,, at 13. For the
reasons set forth above, on the record before me, I find that the determination by the BIA and
USCIS that the Plaintiffs’ marriage is fraudulent is substantially supported by the record.
Conclusion
It is hereby Ordered that:
(1) Plaintiff’s [sic] Motion for Summary Judgment (Docket No. 30) is denied; and

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Although the BIA and USCIS found that Roman was statutorily barred from brining a I-130 petition on
Bondarev’s behalf, they went on to consider the issue of whether the Plaintiffs’ marriage was also fraudulent. For
the sake of completeness, I will do the same.  

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(2) Defendants’ Motion for Summary Judgment (Docket No. 33) is granted;
Judgment shall enter for the Defendants.

/s/ Timothy S. Hillman
TIMOTHY S. HILLMAN
DISTRICT JUDGE

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