Ginters et al v. Frazier et al
Filing
83
MEMORANDUM OPINION AND ORDER. 1. The Ginters' Motion for Summary Judgment (Doc. No. 69 ) is DENIED; and 2. The Federal Defendants' Motion for Summary Judgment (Doc. No. 64 ) is GRANTED; and 3. The Ginters' Complaint (Doc. No. 1 ) is DISMISSED WITH PREJUDICE. (Written Opinion). Signed by Judge Donovan W. Frank on 7/20/2011. (BJS)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Viktors Ginters and Rochelle Ginters,
Civil No. 07-4681 (DWF/LIB)
Plaintiffs,
v.
MEMORANDUM
OPINION AND ORDER
Sharon Dooley, District Director, Citizenship
and Immigration Services; Alejandro
Mayorkas, Director, Citizenship and
Immigration Services; Janet Napolitano,
Secretary, Department of Homeland Security;
Eric H. Holder, Jr., United States Attorney
General,
Defendants,
_______________________________________________________________________
Dyan Williams, Esq., and Herbert A. Igbanugo, Esq., Igbanugo Partners Int’l Law Firm,
PLLC, counsel for Plaintiffs.
Friedrich A. P. Siekert and Lonnie F. Bryan, Assistant United States Attorneys, United
States Attorney’s Office, counsel for Defendants.
_______________________________________________________________________
INTRODUCTION
This matter is before the Court on cross motions for summary judgment brought
by Plaintiffs Viktor and Rochelle Ginters (the “Ginters”) and Defendants Sharon Dooley,
Alejandro Mayorkas, Janet Napolitano, and Eric H. Holder, Jr. (the “Federal
Defendants”). For the reasons set forth below, the Court denies the Ginters’ motion and
grants the Federal Defendants’ motion.
BACKGROUND
Plaintiff Viktors Ginters (“Viktors”) is a citizen of Latvia, where he currently
resides after his removal by the United States government in March 2006. (Compl.
¶¶ 7-8.) Plaintiff Rochelle Ginters (“Rochelle”) is a United States citizen who has been
married to Viktors since May 9, 1998. (Id. ¶ 7.) On February 6, 2006, Rochelle filed a
Form I-130 petition for Viktors. (Id. ¶ 19.) This was Rochelle’s second such petition,
and the third overall filed on behalf of Viktors. (Id. ¶¶ 19, 37.)
A Form I-130 petition is the first step in the process whereby a United States
citizen may apply for an immigrant visa for their non-citizen spouse from Citizen and
Immigration Services (the “Service” or “USCIS”).1 (Id. ¶¶ 26, 27.) The first Form I-130
filed on behalf of Viktors was filed by Denise Harris (“Denise”). (Id. ¶37.) Viktors and
Denise had married on September 21, 1996, just over a month before Viktors’ visa was to
expire on October 26, 1996. (Administrative R. at 1164-65.) On or about November 18,
1996, Denise signed an I-130 petition on Viktors’ behalf, which the Service marked
received on March 11, 1997.
On October 20, 1997, the Service received a letter from Denise. (Id. at 1156-59.)
In the letter, Denise stated that Viktors had told her “that the only reason he married me
was to stay in the United States, and to stay out of the Latvian Military.” (Id. at 1157.)
1
USCIS took over many of the functions from the legacy Immigration and
Naturalization Service (“INS”) on March 1, 2003. In this Memorandum Opinion, the
Court will not differentiate between USCIS and legacy INS and will instead refer to both
entities as “USCIS” or the “Service.”
2
Denise stated that the marriage had never been consummated, that Viktors had become
physical, that Viktors had moved out of their apartment in January 1997, and that he had
attempted to bribe her with $1,000 “to go to INS and lie to INS for him by telling them
how happy we are, that we live together, we share expenses.” (Id. at 1157-58.) On
December 1, 1997, Denise submitted a notarized withdrawal of the Form I-130 that she
had earlier submitted. (Id. at 1155.) Viktors and Denise were divorced on March 16,
1998. (Id. at 999-1003.)
Less than two months later, on May 9, 1998, Viktors married Rochelle. (Id.
at 1004.) Rochelle then filed an I-130 petition on Viktors’ behalf on June 10, 1998. (Id.
at 1040-42.) On August 12, 1998, Viktors testified under oath before an immigration
official regarding the petition. (Id. at 1115.) When asked why he married Denise,
Viktors stated: “I was about to sign a document for asylum and stuff, because I couldn’t
go to Latvia. I was trying to stay in America because it was very bad there and stuff.”
(Id. at 1123.) He also admitted that the marriage was never consummated. (Id.) A
Notice of Intent to Deny (“NOID”) the second I-130 was issued on September 21, 1998.
(Id. at 980-83.) The NOID stated that “the Service finds that there is substantial and
probative evidence to establish that the first marriage of [Viktors] was a sham entered
into for immigration benefits only, rather than to establish a life together for love and
affection.” (Id. at 983.) The Ginters were given thirty days to offer written evidence in
rebuttal. (Id.) Rochelle submitted a response on October 21, 1998. (Id. at 1048-50.)
The petition was denied on April 27, 1999. (Id. at 979.)
3
Rochelle appealed the denial to the Board of Immigration Appeals (“BIA”) on
May 27, 1999. (Id. at 1068-69.) The BIA dismissed the appeal in an order dated
March 24, 2000. (Id. at 968-73.) The BIA found “that the record supports the district
director’s conclusion that the beneficiary’s prior marriage to Denise Ginters, a United
States citizen, was entered into for the primary purpose of circumventing the immigration
laws.” (Id. at 969.)
Viktors was removed to Latvia on March 21, 2006.2 Just before his removal,
Rochelle filed the current I-130 petition, Viktor’s third overall and the second by
Rochelle, in February 2006. (Id. at 258-78.) This petition was based in part on an
affidavit by Denise, dated February 17, 2006, in which she attempted to retract much of
the content of her October 1997 letter. (Id. at 1397-1409.) An investigation was opened,
and an agent spoke with Denise in June 2006. (Id. at 421.) Denise indicated at that time
that she had memory problems. (Id.) She indicated that she remembered writing the
letter in 1997, but could not remember dates or details. (Id.) An agent also spoke with
Denise’s husband, Chris Harris, who stated that he began dating Denise in July 1997, that
he helped Denise write the October 1997 letter, that it was all true, and that Viktors
2
Viktors was placed in removal proceedings on February 9, 1998. (Administrative
R. at 1270.) Viktors then applied for asylum on September 22, 1998. (Id. at 1275-87.)
The Immigration Judge denied the asylum application on May 20, 2002 and was affirmed
by the BIA on December 3, 2003. (Id. at 1252, 1264.) Viktors submitted a petition for
review of the BIA order to the Eighth Circuit, which was denied on November 3, 2005.
(Id. at 1243-48.)
4
offered him $10,000 to get Denise to go to the Service and tell them that she was married
to Viktors. (Id. at 422.)
On December 1, 2006, the Service issued a Notice of Intent to Deny (“NOID”) the
third I-130 petition. (Id. at 144-50.) The NOID contained the following analysis of
Denise’s October 1997 letter and February 2006 affidavit:
Initially, [Denise] contacted the Service to report fraud on two separate
occasions by way of written letter. [Denise’s] retraction statement is
suspect for the following reasons:
(1) She retracted her statements nearly ten years after they were initially
given.
(2) The timing of the retraction is suspect since [Viktors] was facing
impending removal from the United States when [Denise] completed
the affidavit.
(3) The retraction has less merit than her initial truthful statement since
[Denise] has indicated she felt remorse for the situation that [Viktors]
is currently in, and may have felt that her avenue of assistance was to
attempt to retract her initial truthful statement.
(4) It is noted in her retraction that [Denise’s] initial statements were
motivated by the fact she was bitter and resentful of [Viktors] for their
breakup. It is unlikely those were her motives in light of the
statements of [Denise’s] current spouse revealing that he and [Denise]
had already been involved in a romantic relationship for three months
at the time she composed the initial letter to the Service.
(5) The content of her retraction is suspect because while the initial
statements were detailed and included specific acts, in a recent phone
conversation with a Service officer [Denise] now claims she cannot
recollect dates or details due to mental health issues.
(6) A recent phone conversation between [Denise’s] current husband and
a Service officer corroborates [Denise’s] initial claims that [Viktors]
offered money to induce her to lie to the Service.
(7) The statements in [Denise’s] initial letters appear more likely to be
truthful than her statements in the recent affidavit in light of the fact
that Chris Harris has asserted that he was offered $10,000 to persuade
[Denise] to mislead the Service.
The Service finds the initial statements made by [Denise] to be credible.
The Service questions the retraction because the initial statements appear to
5
be consistent with the facts and the timing of the retraction is suspect since
it was received when [Viktors’] removal was imminent. An inference
cannot be drawn that the information is now accurate simply because the
declarant retracts her previous statement.
The initial statements and retractions have been reviewed and considered.
Greater weight must be given to the initial statements for the reasons shown
above.
(Id. at 148-49.) The NOID gave Rochelle thirty (30) days to offer written evidence in
rebuttal. (Id. at 150.)
Rochelle responded to the NOID on January 2, 2007. (Id. at 137-43.) She also
submitted additional affidavits from Denise and Chris Harris. (Id. at 423, 423(a).) Chris
Harris’s affidavit stated that he “reviewed the content of my wife’s affidavit, dated
February 2006, and the content is true to the best of my knowledge and my wife’s
knowledge.” (Id. at 423.) Denise’s affidavit stated: “My affidavit, dated February 2006,
recanting my letter from ten years ago is honest, accurate and truthful to the best of my
knowledge, so help me God.” (Id. at 423(a).) The Service considered the submissions
and then denied the third I-130 petition on January 26, 2007, concluding that “[a]fter
re-examining the entire body of evidence in this case, the Service must place greater
weight to [sic] the evidence contained in the record during the proceedings which support
the conclusion that the marriage was entered into by fraud.” (Id. at 123.)
On February 21, 2007, Rochelle appealed the denial to the BIA. (Id. at 126.) The
BIA dismissed the appeal and stated the following:
Ultimately, the issue in this matter is whether to believe that the factual
claims made by [Denise] in her February 17, 2006, retraction are true, or
whether her October 20, 1997, statement is true and her claims in her
retraction are false. Based on the evidence of record, the Board believes
6
that her October 20, 1997, statement is accurate. Her retraction carries less
weight in that it was submitted over 8 years later, when the details are not
as fresh in her memory and where she appears to be influenced by her
sympathy to the plight of the beneficiary and his family.
(Id. at 4.) The BIA also noted that:
[T]he determination of prior marriage fraud did not rest solely on the
statement by [Denise] but on an examination of the entire record, including
the timing of the marriage shortly before the beneficiary was supposed to
leave the country, the short duration of the marriage, the fact that the
marriage was never consummated, and [Viktors’] attempts to persuade
[Denise] to go forward with the visa petition.
(Id. at 5.) The BIA concluded that it “agrees that the evidence of record supports a
finding that [Viktors] previously entered into a sham marriage for the purpose of
obtaining an immigration benefits, [sic] and the approval of any marriage-based visa
petition on his behalf is barred under section 204(c) of [the Immigration and Nationality
Act].” (Id.)
On November 27, 2007, the Ginters initiated this action for judicial review. The
parties have now moved for summary judgment. The Court addresses the motions below.
DISCUSSION
I.
Summary Judgment Standard
Summary judgment is proper if there are no disputed issues of material fact and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The
Court must view the evidence and the inferences that may be reasonably drawn from the
evidence in the light most favorable to the nonmoving party. Enter. Bank v. Magna Bank
of Mo., 92 F.3d 743, 747 (8th Cir. 1996). However, as the Supreme Court has stated,
“[s]ummary judgment procedure is properly regarded not as a disfavored procedural
7
shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed
‘to secure the just, speedy, and inexpensive determination of every action.’” Celotex
Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1).
The moving party bears the burden of showing that there is no genuine issue of
material fact and that it is entitled to judgment as a matter of law. Enter. Bank, 92 F.3d at
747. The nonmoving party must demonstrate the existence of specific facts in the record
that create a genuine issue for trial. Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th
Cir. 1995). A party opposing a properly supported motion for summary judgment “may
not rest upon mere allegations or denials of his pleading, but must set forth specific facts
showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 256 (1986).
II.
Scope of Review
The Ginters’ claims are brought under the judicial review provisions of the
Administrative Procedure Act (“APA”). Under the APA, the reviewing court must affirm
an agency decision unless it is “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 5 U.S.C. § 706 (2)(A). See also Marsh v. Oregon Natural
Res. Council, 490 U.S. 360, 375 (1989); Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State
Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983). The Court considers whether
defendants considered the relevant factors and whether they made a “clear error of
judgment.” Motor Vehicles, 463 U.S. at 43. This standard of review is narrow and gives
agency decisions a high degree of deference. Sierra Club v. Envtl. Prot. Agency, 252
F.3d 943, 947 (8th Cir. 2001). An agency’s rule is arbitrary and capricious if it (1) relied
8
on factors Congress did not intend it to consider; (2) “entirely failed to consider an
important aspect of the problem”; (3) offered an explanation that runs counter to the
evidence before the agency; or (4) “is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.” Motor Vehicles, 463 U.S. at 43.
The Immigration and Naturalization Act (“INA”) permits United States citizens to
apply for an immigrant visa for their non-citizen spouses. 8 U.S.C. § 1151(2)(a)(i)
(defining “immediate relatives” to include spouses of citizens); 8 U.S.C. § 1154(a)
(permitting any United States citizen claiming that an alien is entitled to immediate
relative status to file petition). After the petition is filed, the government must conduct an
investigation. If the government then determines that the facts stated in the petition are
true and the alien is an immediate relative, the petition must be approved. 8 U.S.C.
§ 1154(b). If, however, “the alien has previously been accorded, or has sought to be
accorded, an immediate relative or preference status as the spouse of a citizen of the
United States . . . by reason of a marriage determined by the Attorney General to have
been entered into for the purpose of evading the immigration laws,” the petition cannot
be approved. 8 U.S.C. § 1154(c). The pertinent regulations provide that “[t]he director
will deny a petition for immigrant visa classification filed on behalf of any alien for
whom there is substantial and probative evidence of such an attempt or conspiracy.”
8 C.F.R. § 204.2(a)(1)(ii).
III.
Denial of the Third I-130 Petition
The Ginters assert that the denial of Rochelle’s second I-130 petition, the third
filed on Viktors’ behalf, is arbitrary, capricious, and an abuse of discretion because it
9
disregards the sworn affidavit of Denise recanting her October 2007 letter. The Ginters
assert that the Service failed to distinguish between a failure to produce affirmative
evidence of the bona fides of a marriage and the substantial and probative evidence
required to demonstrate marriage fraud. They acknowledge that “[a]rguably, the Service
did not have grounds . . . to approve [Rochelle’s] first Form I-130 petition for [Viktors]
when they did not have an explicit and full recantation from [Denise],” but contend that
the decision to deny Rochelle’s second Form I-130 “in spite of all the evidence
undermining the marriage fraud finding” is arbitrary and capricious. (Doc. No. 71
at 26-27.) The Ginters rely in part on Sabhari v. Frazier, No. 06-cv-196, 2007 WL
295261 (D. Minn. Jan. 30, 2007), in which the Court ordered the Service to grant an
I-130 petition and stated that “[i]t was arbitrary, capricious, and an abuse of discretion for
the [Service] to hold steadfastly to their previous sham marriage determination in the face
of recantations from the family members that initially cast doubt on the Sabharis’
marriage, and strong evidence that the Sabharis’ marriage is bona fide.” Id. at *13.
The Federal Defendants assert that the Service’s denial of the third I-130 was not
arbitrary and capricious because the Ginters were provided with a reasoned explanation
based on record evidence. The Federal Defendants argue that the Court may not
substitute its judgment for that of the agency, and that the Court’s review is confined to
the question of whether the USCIS and the BIA properly found that the record contained
substantial and probative evidence of marriage fraud.
The Federal Defendants contend that the denial of Rochelle’s first I-130 was
properly based on the Denise’s statements in 1997, Viktor’s own sworn admissions in his
10
August 12, 1998 interview, and other evidence or the lack thereof. They assert that the
evidence submitted in connection with Rochelle’s second I-130, the Service’s denial of
which is currently before the Court, was essentially the same except for the February
2006 attempted recantation. The Federal Defendants argue that the USCIS and the BIA
gave reasonable explanations as to why the 1997 statements were more credible than the
2006 recantation and that this decision was neither arbitrary nor capricious. The Federal
Defendants assert that the finding of marriage fraud was supported by substantial and
probative evidence.
The Court agrees. The essence of the parties’ dispute is the February 2006
attempted recantation by Denise. The Ginters argue that with the recantation, there no
longer exists substantial and probative evidence upon which to base a finding of marriage
fraud. The Federal Defendants argue that the Service considered the February 2006
affidavit and found that it was less credible than the October 1997 statement. In
reviewing the agency decision, the Court is not permitted to re-weigh the evidence, but is
instead limited to determining whether the agency’s determination that the record
contained substantial and probative evidence of marriage fraud was arbitrary and
capricious. The Court, having thoroughly reviewed the record in this action, cannot
conclude that the Service’s decision was arbitrary and capricious. The Service was
permitted to make the credibility determination that the October 1997 statement was
more reliable than the February 2006 attempted recantation.
The Court’s conclusion is not altered by the Sabhari case relied on by the Ginters.
Although Sabhari also involved three I-130 petitions, they all related to a single
11
marriage. Sabhari, 2007 WL 295261 at *1-4. The statements disparaging the Sabharis’
marriage and on which the initial denial was based were made by members of Sabhari’s
family, as opposed to the citizen spouse. Id. at *1-2. The allegedly fraudulent marriage
had lasted ten (10) years, whereas here Viktors moved out approximately four months
after marrying Denise. Id. at *5. Each of these facts distinguishes the situation currently
before the Court from that presented in Sabhari, and that decision is therefore inapposite.
The Court thus concludes that the Service’s denial of the second I-130 petition
submitted by Rochelle was not arbitrary and capricious. The Federal Defendants are
therefore entitled to summary judgment on the Ginters’ claim for judicial review of that
denial.
CONCLUSION
Accordingly, based on the files, records, and proceedings herein, and for the
reasons set forth above, IT IS ORDERED that:
1.
The Ginters’ Motion for Summary Judgment (Doc. No. [69]) is DENIED;
2.
The Federal Defendants’ Motion for Summary Judgment (Doc. No. [64]) is
and
GRANTED; and
3.
The Ginters’ Complaint (Doc. No. [1]) is DISMISSED WITH
PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: July 20, 2011
s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?