Akinsuyi v. Board of Immigration Appeals et al
Filing
24
ORDER granting 17 Motion to Dismiss: For the reasons in the attached Memorandum and Order, the Court grants Defendants' motion to dismiss all of Plaintiff's claims. The Court reminds Plaintiff that she may refile her Petition with United States Citizenship and Immigration Services in order to have the evidence of her medical condition considered on the record. Ordered by Judge Pamela K. Chen on 8/22/2018. (Rediker, Ezekiel)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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OLUWABANKE AKINSUYI,
Plaintiff,
MEMORANDUM & ORDER
17-CV-1462 (PKC)
- against BOARD OF IMMIGRATION APPEALS,
UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES,
Defendants.
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PAMELA K. CHEN, United States District Judge:
This case concerns the denial of a Form I-130 Petition for Alien Relative (“Petition”) filed
by Plaintiff Oluwabanke Akinsuyi (“Plaintiff”) on behalf of her spouse Johnson Olalekan
(“Olalekan”). United States Citizenship and Immigration Services (“USCIS”) denied Plaintiff’s
Petition, and the Board of Immigration Appeals (“BIA”) (collectively, “the Agency”) affirmed that
decision. Plaintiff seeks review of the Agency’s decision pursuant to the Administrative Procedure
Act (“APA”), 5 U.S.C. § 701, et seq. The Agency filed a motion to dismiss, or, in the alternative,
for summary judgment, and Plaintiff opposed the Agency’s motion. For the reasons set forth
below, the Agency’s motion is granted and this matter is dismissed.
BACKGROUND
I.
Relevant Facts
Plaintiff Oluwabanke Akinsuyi and Johnson Olalekan were married on April 15, 2015.1
Plaintiff, who is a U.S. citizen of Nigerian descent, works as a live-in home health aide in Staten
Plaintiff’s appeal to the BIA states that she and her husband were married on April 15,
2015. (BIA Appeal, Dkt 1-1, at 6.) Plaintiff’s Complaint states that she and Olalekan were married
on July 4, 2015. (Complaint (“Compl.”), Dkt. 1, at ¶ 11.) The Court assumes that the marriage
date listed in the Complaint was a typographical error because it occurred after Plaintiff filed her
1
Island. (Compl., at ¶ 11.) Olalekan, who is a Nigerian citizen, works as a gas station attendant in
Union, New Jersey. (Certified Administrative Record (“Tr.”), Dkt. 19-1, at 44.)2 On May 5, 2015,
Plaintiff filed an I-130 Petition3 on behalf of Olalekan seeking to classify him as the spouse of a
U.S. citizen. (Tr. 139.) On April 13, 2016, Plaintiff and Olalekan appeared before USCIS, where
they were interviewed separately regarding the Petition. (Tr. 119-20.) On May 10, 2016, USCIS
issued Plaintiff a Notice of Intent to Deny (“NOID”) outlining the information considered by
USCIS in support of their intended denial of the Petition and providing Plaintiff an opportunity to
respond and present additional new information to support the Petition. (Tr. 118.) On May 27,
2016, Plaintiff responded to the NOID. (See Tr. 36.)
A.
The USCIS Decision
On June 13, 2016, USCIS denied Plaintiff’s visa petition, finding that she had not
established, by a preponderance of the evidence, a bona fide marital relationship with Olalekan
and thus had not met her burden to establish eligibility for the immigration benefit sought by
Plaintiff and Olalekan. (Tr. 35 (citing Matter of Brantigan, 11 I. & N. Dec. 493 (BIA 1966))). In
the NOID, USCIS explained that the denial was based, in part, on the following inconsistencies
that arose when an officer of USCIS interviewed Plaintiff and Olalekan on April 13, 2016:
Petition on May 5, 2015. The Court therefore adopts a marriage date of April 15, 2015 for the
purposes of this Order.
2
Page numbers refer to the pagination generated by the CM/ECF system, and not the
document’s internal pagination.
3
A citizen or lawful permanent resident of the United States may file Form I-130, Petition
for Alien Relative, with USCIS to establish the existence of a relationship to certain alien relatives
who wish to immigrate to the United States. Form I-130/I-130A Instructions, UNITED STATES
CITIZENSHIP AND IMMIGRATION SERVICES, https://www.uscis.gov/sites/default/files/files/form/i130instr.pdf (last visited August 21, 2018).
2
You4 stated you met your spouse5 at Newark Penn Station and
together you traveled to a Nigerian restaurant for your first date.
Your spouse stated he met you at a Brooklyn movie theater to see a
movie and later traveled together to a local restaurant near the movie
theater.
You stated you were living in Staten Island, New York taking care
of a client when you met your spouse. Your spouse stated you lived
in Brooklyn, New York with your mother when he met you.
You stated your spouse lived at 719 8th Street in Irvington, New
Jersey when you began dating. Your spouse stated he lived at 682
Cousin Avenue in Brooklyn, New York when you began dating.
You stated you returned to work in Staten Island, New York after
the wedding ceremony. Your spouse stated you traveled with him,
the witnesses, and your brothers and their wives to his home after
the wedding ceremony.
You stated your spouse lives at the marital address with a roommate.
You stated each person has their separate bedroom; however, the
living room, kitchen, bathroom is shared space. Your spouse stated
he lives at the marital address with you. Your spouse stated there are
two apartments on each floor of the residence and each apartment
has their own bedroom, living room, kitchen, bathroom, etc.
You stated you work as a live-in home health aide seven (7) days
per week. You stated only occasionally will you have a weekend off
from work. Your spouse also stated you work as a live-in home
health aide; however, your spouse stated you work Monday through
Friday and have every weekend off.
You stated in the marital address the floors are carpeted. Your
spouse stated the floors at marital address are wood.
You stated your spouse has two (2) children. You stated you have
never spoken to either of the children. Your spouse stated you have
spoken to his children.
You stated your spouse’s children live with their mother. Your
spouse stated his children live with his mother.
4
“You” refers to Plaintiff Oluwabanke Akinsuyi.
5
“Your spouse” refers to Johnson Olalekan.
3
You stated you have never assisted your spouse with the financial
support of his children. Your spouse stated you provided the money
to support his children prior to him working.
You stated you have never spoken to either of your spouse’s parents.
Your spouse stated you have spoken to his mother.
You stated your spouse has never spoken to your parents. Your
spouse stated he has spoken to your mother.
You stated you are not aware if your spouse has any siblings. Your
spouse stated he has five brothers and two sisters.
You stated you receive medical benefits through your employer.
Your spouse was unaware if you have medical insurance.
You stated you and your spouse had a life insurance policy although
you could not recall the name. Your spouse stated neither of you has
ever owned a life insurance policy.
(Tr. 33-34.)
USCIS further explained that none of the supporting documents submitted by Plaintiff
resolved the inconsistencies in her Petition. (Tr. 34.) USCIS noted that Plaintiff submitted the
following documents in response to the NOID:
An affidavit from friend Sunday Bada;
A letter from Amica Life Insurance Company;
A letter from Pastor Gabriel Ajenifuja;
A letter of reference from Pastor Yemi Ayeni;
A letter from Kayode Coker;
A letter from landlord Obiefuna Nwaneri;
A copy of a NJ driver’s license for Johnson Olalekan and NY State identification
card for Oluwabanke Akinsuyi;
Copies of receipts;
A copy of a NY marriage certificate for Johnson Olalekan and Oluwabanke
Akinsuyi; and
Photos.
(Tr. 34.) USCIS stated that it gave little weight to these submissions because they failed to include
proof of identity of the affiants and that certain letters contradicted testimony provided by Plaintiff
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and Olalekan in their interviews. (Tr. 34.) For example, the statement provided by Sunday Bada
claimed: “I attended the same church with Banke [i.e., Plaintiff] before she got married, I am a
regular visitor in their house almost every weekend when she (Banky) come home from work.”
(Tr. 35.) Yet, the USCIS decision noted that Plaintiff testified that she worked seven days a week
and only occasionally had weekends off. (Tr. 35.) Additionally, the letter from Plaintiff’s alleged
landlord Obiefuna Nwaneri contained discrepancies in the signatures and addresses that he
included.6 (Tr. 35.) USCIS determined that these documents failed to support Plaintiff’s claim of
a bona fide marital relationship.
USCIS also explained that even though Plaintiff was married to Olalekan for over one year
at the time of this application, there was little evidence “to support cohabitation or comingling of
assets or liabilities.” (Tr. 35.) Similarly, USCIS observed that the life insurance policy submitted
by Plaintiff was purchased after the issuance of the NOID, and thus held less probative value. (Tr.
35.) USCIS denied Plaintiff’s Petition, concluding that Plaintiff failed to overcome the testimonial
discrepancies raised by the NOID and demonstrate that she had a bona fide marriage. Plaintiff
appealed USCIS’s decision to the BIA. (Tr. 17.)
B.
The BIA’s Decision
On February 7, 2017, the BIA affirmed USCIS’s decision and dismissed Plaintiff’s appeal.
(Tr. 8-9.) The BIA agreed with USCIS’s determination that Plaintiff had not established by a
preponderance of the evidence that her marriage to Olalekan was bona fide. (Tr. 8.) The BIA
stated that the evidence submitted by Plaintiff was sparse and “insufficient to establish” that
Plaintiff and Olalekan are in “a bona fide marriage.” (Tr. 9.) The BIA observed that the signatures
USCIS stated, “the lease claims to be a contract between you and your spouse and the
lessor, Obiefuna Nwaneri; however, the lease was only signed by your spouse.” (Tr. 3.)
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on the lease and letter from the landlord were inconsistent and that Plaintiff only obtained the life
insurance policy naming Olalekan the beneficiary after the issuance of the NOID. (Tr. 9.) The
BIA found that Plaintiff and Olalekan gave “substantially inconsistent” answers to interview
questions concerning their marriage. (Tr. 8.) The BIA noted that Plaintiff attempted to explain
these inconsistencies by submitting medical evidence that she suffered from a memory-loss
condition called hydrocephalus. The BIA chose not to consider this evidence offered for the first
time on appeal, and concluded that “the petitioner did not establish that her medical condition,
which she was allegedly diagnosed with many years ago, explains the inconsistencies during her
relatively recent interview.” (Tr. 9.) The BIA noted, however, that Plaintiff was free to file a new
visa petition with USCIS and include such evidence and any other competent evidence supporting
the petition.
II.
Relevant Procedural History
Plaintiff filed the Complaint on March 15, 2017. (Dkt. 1.) The Agency’s motion to dismiss
the complaint, or, in the alternative, for summary judgment was fully briefed on March 2, 2018.
(Dkts. 17, 20, 21.)
STANDARD OF REVIEW
I.
Motion to Dismiss Under Rule 12(b)(6)
To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6),
“a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A “claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556). The “plausibility standard
is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
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defendant has acted unlawfully.” Id. (citation omitted). Determining whether a complaint states
a plausible claim for relief is “a context-specific task that requires the reviewing court to draw on
its judicial experience and common sense.” Id. at 679 (citation omitted). “In addressing the
sufficiency of a complaint, [the Court] accept[s] as true all factual allegations and draw[s] from
them all reasonable inferences; but [the Court is] not required to credit conclusory allegations or
legal conclusions couched as factual allegations.” Rothstein v. UBS AG, 708 F.3d 82, 94 (2d Cir.
2013).
II.
Summary Judgment Under Rule 56
Summary judgment is appropriate where “there is no genuine issue of material fact and . .
. the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Where, as here, a party seeks review of
agency action under the APA and “the entire case on review is a question of law,” summary
judgment will generally be appropriate. Glara Fashion, Inc. v. Holder, 11-CV-889 (PAE), 2012
WL 352309, at *5 (S.D.N.Y. Feb. 3, 2012); see also Am. Bioscience, Inc. v. Thompson, 269 F.3d
1077, 1083 (D.C. Cir. 2001) (“[W]hen a party seeks review of agency action under the APA, the
district judge sits as an appellate tribunal”). “[T]he Second Circuit has allowed appeals of agency
decisions to be styled as motions for summary judgment . . . while also stating that ‘[g]enerally, a
court reviewing an agency decision is confined to the administrative record compiled by that
agency when it made the decision.’” Clifford v. U.S. Coast Guard, 915 F. Supp. 2d 299, 307
(E.D.N.Y. 2013) (citations omitted); see also Univ. Med. Ctr. of S. Nevada v. Shalala, 173 F.3d
438, 440 n.3 (D.C. Cir. 1999) (finding the question of whether an agency acted in an arbitrary and
capricious manner is a legal one that the district court can resolve on the agency record, regardless
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of whether it is presented in the context of a motion for judgment on the pleadings or in a motion
for summary judgment).7
DISCUSSION
I.
Legal Standard
Under 5 U.S.C. § 706(2)(A), a court reviewing an agency decision must hold unlawful and
set aside any agency action found to be arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law. Karpova v. Snow, 497 F.3d 262, 267-68 (2d Cir. 2007). “[T]he scope
of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its
judgment for that of the agency.” Id. (citing Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). If, however, the agency decision “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,” the agency’s decision must be set aside.
Westchester v. U.S. Dept. of Housing and Urban Development, 802 F.3d 413, 431 (2d Cir. 2015)
(internal quotations and citation omitted); Karpova, 497 F.3d at 268 (identifying same grounds for
setting aside agency action as in Westchester, as well as the agency relying “on factors which
Congress has not intended it to consider”). “In other words, so long as the agency examines the
relevant data and has set out a satisfactory explanation including a rational connection between the
facts found and the choice made, a reviewing court will uphold the agency action, even a decision
that is not perfectly clear, provided the agency’s path to its conclusion may reasonably be
discerned.” Karpova, 497 F.3d at 268.
Plaintiff alleges in her brief that a summary judgment motion is premature. (Plaintiff’s
Opposition (“Pl. Opp’n”), Dkt. 21, at 8.) As stated above, appeals of agency decisions can be
presented as either motions to dismiss or motions for summary judgment.
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II.
Regulatory Background Relating to Immigration
In order for an alien to immigrate to the United States, i.e., come to the United States with
the intent to stay permanently, or remain in the United States and adjust their status to lawful
permanent resident, he or she must generally have an immigrant visa petition approved on his or
her behalf as a starting point. See generally 8 U.S.C. §§ 1151-54. Under Section 1154, U.S.
citizens may file such petitions, including I-130 Petitions, on behalf of their immediate relatives.
Immediate relatives are defined as the “children, spouses, and parents” of the citizen filing the I130 Petition. 8 U.S.C. § 1151(b)(2)(A)(i). Once an I-130 Petition has been filed with USCIS, the
agency is directed to conduct “an investigation of the facts in each case,” and, “if [the agency]
determines that the facts stated in the petition are true and that the alien in behalf of whom the
petition is made is an immediate relative . . . approve the petition and forward one copy thereof to
the Department of State.” 8 U.S.C. § 1154(b). However, the agency is not permitted to approve
an I-130 Petition if:
(1) 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 or the spouse of an alien lawfully admitted for permanent residence, by
reason of a marriage determined by the Attorney General to have been entered into
for the purpose of evading the immigration laws, or (2) 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.
U.S.C. § 1154(c). This means that the agency is statutorily barred from approving any I-130
Petition filed on behalf of a non-citizen who has conspired or actually entered into a sham marriage
for purposes of obtaining an immigration-related benefit. See id.; see also Samsundar v. Mukasey,
296 Fed. App’x 106, 107 (2d Cir. 2008). Approval of an I–130 Petition turns on whether the
marriage relationship was bona fide “at its inception.” Matter of McKee, 17 I. & N. Dec. 332 (BIA
1980) (establishing that parties’ intent at time of marriage controls whether marriage was bona
fide); see also Huarcaya v. Mukasey, 550 F.3d 224, 231 (2d Cir. 2008) (“we agree with the
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government that marriage-based visa eligibility has always meant that a petitioner had to
demonstrate that [the] marriage was bona fide.”).
The adjudication process provides notice and an opportunity to respond to adverse
information in the record. See 8 C.F.R. § 103.2(b)(8)(iv). If USCIS discovers derogatory
information, which unrebutted, supports a denial, the agency will issue a NOID to the applicant.
Id. The NOID will be in writing and “will specify . . . the bases for the proposed denial sufficient
to give the applicant or petitioner adequate notice and sufficient information to respond.” Id. The
NOID informs the applicant of the derogatory information at issue and affords the applicant the
“opportunity to rebut the information and present information in his/her own behalf before the
decision is rendered[.]” 8 C.F.R. § 103.2(b)(16)(i).
Approval of an I–130 Petition classifies the “immediate relative” alien within a specific
immigrant class, and permits the alien to apply for an immigrant visa if the alien is abroad, or to
seek adjustment of status to that of a lawful permanent resident if the alien is present in the United
States. 8 U.S.C. §§ 1201(a)(1), 1202(a), 1255(a). If, however, after the I–130 Petition is approved,
USCIS later determines that the alien is not an “immediate relative,” the Petition may be revoked
effective as of the date it was approved. See 8 U.S.C. § 1155 (providing for petition revocation
upon a finding of “good and sufficient cause”). In the event that USCIS denies an I-130 Petition,
the U.S. citizen spouse may notice an administrative appeal of the decision to the BIA, which
reviews all issues in such a USCIS decision de novo. See 8 C.F.R. § 1003.1(d)(3)(iii).
III.
Analysis
Plaintiff makes four arguments in seeking judicial review of the Agency’s decision: (1)
the Agency’s decision denying the Petition was arbitrary and capricious (Pl. Opp’n, at 21); (2) the
Agency inappropriately declined to consider evidence of her mental health condition of
hydrocephalus that was submitted on appeal (id. at 12, 14); (3) the Agency applied the incorrect
10
burden of proof on appeal (id. at 5); and (4) the Agency violated Plaintiff’s procedural due process
rights (id. at 20-21). The Court addresses each of these arguments in turn.
A.
The Agency’s Decision Was Not Arbitrary and Capricious
Plaintiff claims that the Agency’s decision denying her Petition was arbitrary and
capricious. In the immigration context, a petitioner or applicant “must prove by a preponderance
of evidence that he or she is eligible for the benefit sought.” Matter of Chawathe, 25 I. & N. Dec.
369, 375 (2010) (citations omitted). The petitioner also has the burden of proving the beneficiary’s
eligibility, and, with respect to an I-130 Petition, “must therefore rebut any evidence of marriage
fraud ‘in the alien’s file’ with proof that the . . . marriage was bona fide, i.e., not fraudulent.”
Bourisquot v. Holder, 569 Fed. App’x 35, 36 (2d Cir. 2014). “The petitioner should submit
documents which cover the period of the prior marriage,” including documentation showing joint
property ownership or common residence, commingling of financial resources or sworn affidavits
from third parties with personal knowledge of the marriage’s bona fides.
8 C.F.R. §
204.2(a)(1)(i)(B).
Upon review of the Administrative Record, this Court finds that the Agency’s Decision
was not arbitrary, capricious, or an abuse of discretion. The Court notes that the Agency
considered the relevant evidence submitted by Plaintiff at the time of its determination, including
affidavits and documentation submitted subsequent to the NOID. The record contains evidence
from which the Agency reasonably could infer that Plaintiff and Olalekan entered into the marriage
solely for the purpose of obtaining immigration benefits. The following evidence is particularly
significant: (1) considerable and irreconcilable discrepancies regarding the answers given by
Plaintiff and Olalekan, particularly regarding Plaintiff’s and Olalekan’s home addresses, their
living arrangements, and Plaintiff’s interactions (or lack thereof) with Olalekan’s family; (2)
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affidavits containing inconsistent information from Plaintiff’s friends and landlord; and (3) little
evidence of shared finances.
The Court finds no error in the Agency’s determination that Plaintiff did not resolve the
inconsistencies in her Petition to show that she had a bona fide marriage. Although the record
included material that was favorable to Plaintiff’s Petition, including letters from pastors and
family friends, the Agency concluded that, viewed as a whole, the record was insufficient for
Plaintiff to show by a preponderance that the marriage was not entered into “for the purpose of
evading the immigration laws.” U.S.C. § 1154(c). The Agency fully considered and reasonably
weighed Plaintiff’s favorable evidence against other evidence in the record in reaching its
determination. Matter of Riero, 24 I. & N. Dec. 267, 268 (BIA 2007) (for a marriage-based visa
petition to be “meritorious in fact,” the petition must be based on a “bona fide” and “genuine
marriage in which the parties intended to share a life as husband and wife, not a marriage of
convenience designed solely to confer an immigration benefit on one of the parties”). In light of
the material and unresolved inconsistencies in Plaintiff’s Petition, this Court cannot find that the
Agency’s determination was arbitrary, capricious, or an abuse of discretion.
B.
The Agency Appropriately Declined to Consider Plaintiff’s Medical Evidence
on Appeal
Plaintiff argues that the Agency inappropriately declined to consider evidence of her
medical condition, hydrocephalus, which was submitted for the first time on appeal.
Hydrocephalus is a condition involving “an abnormal accumulation of cerebrospinal fluid in the
brain,” leading to headaches and memory loss. (Pl. Opp’n, at 6.) Plaintiff claims that at least four
12
of her inconsistent responses to interview questions were caused by this medical condition, which
the BIA refused to consider. (Id. at 14-18.)8
The Court finds that the Agency’s refusal to consider the evidence of Plaintiff’s medical
condition on appeal was not improper. Plaintiff submitted evidence of her condition for the first
time on appeal to the BIA, despite knowing of it since 2004. (BIA Appeal, at 6) (“Petitioner has
had a long history of hydrocephalus and was so diagnosed in 2004.”) Plaintiff did not mention her
condition to USCIS during the visa petition process or interview. She also failed to mention the
condition in response to the NOID to explain the discrepancies in her testimony. (Tr. 9.) USCIS
put Plaintiff on notice that her application was deficient and she did not submit evidence of her
condition in response. The Agency was therefore not required to consider Plaintiff’s medical
condition, given that it was raised for the first time on appeal. 8 C.F.R. § 1003.1(d)(ii)(3)(iv)
(“Except for taking administrative notice of commonly known facts such as current events or the
contents of official documents, the [BIA] will not engage in factfinding in the course of deciding
appeals”); Matter of Fedorenko, 19 I. & N. Dec. 57, 74 (B.I.A. 1984) (recognizing that, as an
appellate body, BIA may decline to review evidence proffered for first time on appeal); Zedong
Wang v. Sessions, 706 Fed. App’x 5, 8 (2d Cir. 2017) (concluding that “BIA did not err in declining
to consider the additional evidence [Plaintiff] submitted to the agency for the first time on
appeal.”)9.
8
Plaintiff says that her condition of hydrocephalus caused her to be forgetful and provide
inconsistent answers to questions relating to when she and Olalekan met for the first time, where
she and Olalekan lived when they began dating, whether she had ever spoken to his children, and
whether she had ever spoken to his mother. (BIA Appeal, at 7-11.)
Even if the Agency had considered Plaintiff’s medical condition, it would not have
resolved the most significant discrepancies and deficiencies in the Petition, e.g., Plaintiff’s and
Olalekan’s inconsistent statements on their living arrangements and Plaintiff’s work schedule, and
the dearth of Plaintiff and Olalekan’s shared finances. In any event, Plaintiff has the opportunity
9
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C.
The Agency Applied the Correct Burden of Proof
Plaintiff next argues that the Agency “repeatedly applied the wrong burden of proof and
was otherwise not in accordance with law in numerous particulars.” (Pl. Opp’n, at 5.) The Court
disagrees: the Agency properly conducted a de novo review of Plaintiff’s I-130 Petition (Tr. 8-9);
see 8 C.F.R. § 1003.1(d)(3)(iii) (“The [BIA] may review all questions arising in appeals from
decisions issued by [USCIS] officers de novo”). Additionally, the Agency explained that that in
visa petition proceedings, Plaintiff has the burden of establishing eligibility for the benefit sought
and must prove the required elements by a preponderance of the evidence. Id. Therefore, the
Agency reviewed Plaintiff’s Petition using the correct burden of proof.
D.
The Agency Did Not Violate Plaintiff’s Due Process Rights
Plaintiff argues that the Agency violated Plaintiff’s procedural due process rights. In her
opposition, Plaintiff offers a number of general case cites concerning procedural due process, stare
decisis, and the APA, and then states, “Plaintiff argues that the decision of the Agency denying
her I-130 Petition filed on behalf of her husband was arbitrary, capricious, an abuse of discretion
and not in accordance with law.” (Pl. Opp’n, at 21.) Although Plaintiff offers no further analysis
in support of this claim, her argument is clearer in the context of her Complaint, which alleged that
the Agency “violated applicable law and the due process clause of the Fifth Amendment in not
providing Oluwabanke Akinsuyi with meaningful access to alleged derogatory information and in
not affording her with a trial type hearing before a neutral adjudicator on the issue of the bona
fides of her marriage to Johnson Olalekan.” (Compl. at ¶ 32.)
to file a new visa petition with USCIS that includes the medical evidence that the Agency did not
consider on appeal. (Tr. 9.)
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The Court finds that the Agency did not violate Plaintiff’s procedural due process rights on
either of the two grounds cited by Plaintiff. First, the Agency provided access to derogatory
information through the NOID, as required by 8 C.F.R. § 103.2(b)(8)(iv). The NOID sufficiently
notified Plaintiff, in writing, of “the bases for the proposed denial,” 8 C.F.R. § 103.2(b)(8)(iv), and
informed Plaintiff of the derogatory information at issue, including the inconsistencies in the
interview statements given by Plaintiff and Olalekan. (Tr. 3.) Plaintiff was then given the
“opportunity to rebut the information and present information in his/her own behalf before the
decision is rendered.” (Tr. 3) (citing 8 C.F.R. § 103.2(b)(16)(i).) Indeed, Plaintiff availed herself
of the process and responded to the NOID on May 27, 2016. (See Tr. 36.) Thus, Plaintiff was
given full access to the derogatory information and an opportunity to rebut it.
Second, the Agency was not required to afford Plaintiff a trial-like hearing before a neutral
adjudicator in connection with USCIS’s initial determination of eligibility. The Agency denied
Plaintiff’s Petition pursuant to 8 U.S.C. § 1154, which does not provide for a hearing on the record
or for any other kind of formal procedure; “an investigation of the facts in each case” by the
Attorney General is all that is guaranteed to applicants. 8 U.S.C. § 1154; see also Ching v.
Mayorkas, 725 F.3d 1149, 1154 (9th Cir. 2013) (noting that there is no statutory right to an
adjudicatory hearing under Section 1154); Simko v. Bd. of Immigration Appeals, 156 F. Supp. 3d
307-08 (D. Conn. 2015) (“Section 1154 does not provide for a hearing on the record or for any
other kind of formal procedure; ‘an investigation of the facts in each case’ by the Attorney General
is all that is guaranteed to applicants.”). Because the Agency complied with Section 1154, which
does not entitle I-130 petitioners to a trial or hearing, Plaintiff’s due process rights were not
violated.
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CONCLUSION
For the foregoing reasons, the Court grants the Agency’s motion to dismiss all of Plaintiff’s
claims. The Court reminds Plaintiff that she may refile her Petition with USCIS in order to have the
evidence of her medical condition considered on the record.
SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: August 22, 2018
Brooklyn, New York
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