Singh v. Board of Immigration Appeals et al

Filing 35

MEMORANDUM AND ORDER granting 28 Motion for Summary Judgment; denying 22 Motion for Summary Judgment. For the foregoing reasons, the Court concludes as a matter of law that the decisions of the USCIS and the BIA are not arbitrary and capricio us, and were supported by substantial evidence. The defendants' motion for summary judgment is granted and the plaintiff's motion is denied. (Docket # 22, 28.) The Clerk is directed to terminate the motions and to enter judgment for the defendants. (As further set forth in this Order.) (Signed by Judge P. Kevin Castel on 2/23/2017) (cf) Modified on 2/23/2017 (cf).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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SUKHWINDER SINGH,
Plaintiff,
-against-

15-cv-5541 (PKC)
MEMORANDUM
AND ORDER

BOARD OF IMMIGRATION APPEALS and
UNITIED STATES CITIZENSHIP AND
IMMIGRATION SERVICES,
Defendants.
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CASTEL, U.S.D.J.
Federal immigration law permits a United States citizen to file a petition for
permanent resident status on behalf an alien spouse. The petitioner must show that the couple
intended to establish a life together at the time they entered into marriage. If immigration
authorities find that the marriage was a sham intended to evade the immigration laws, the alien
spouse is thereafter barred from receiving a marriage-based adjustment to immigration status.
Plaintiff Sukhwinder Singh brings this action pursuant to the Administrative
Procedure Act, 5 U.S.C. § 701, et seq. Her husband, Balbir Singh, previously was married to a
woman named Doris McWilliams, whom he met and married in July 1984, within one month of
his arrival to the United States. In 1987, immigration authorities concluded that Singh and
McWilliams entered into a sham marriage, and denied a petition that McWilliams filed on Balbir
Singh’s behalf. McWilliams and Balbir Singh divorced in 1991. In 1992, Balbir Singh married
plaintiff Sukhwinder Singh. Since that time, Sukhwinder Singh has filed petitions to the United
States Citizenship and Immigration Services (“USCIS”) for an adjustment to Balbir Singh’s

immigration status. Based on the earlier finding that Balbir Singh’s marriage to McWilliams
was a fraudulent attempt to evade the immigration laws, those petitions have been denied.
Plaintiff Sukhwinder Singh seeks to vacate and remand a decision of the USCIS,
subsequently affirmed by the Board of Immigration Appeals (“BIA”), that denied a petition for
lawful permanent resident status that she filed on behalf of Balbir Singh. The BIA and USCIS
have moved for summary judgment pursuant to Rule 56, Fed. R. Civ. P., and plaintiff
Sukhwinder Singh has filed a cross-motion for summary judgment. There are no disputed issues
of fact.
Because the decisions of the USCIS and the BIA were not arbitrary and
capricious, and were supported by substantial evidence, the defendants’ motion for summary
judgment is granted and the plaintiff’s motion is denied.
BACKGROUND.
For the purposes of the parties’ respective motions, the following facts are
undisputed. 1
A. The INS’s Conclusion that Balbir Singh’s Marriage to Doris McWilliams Was
a Sham Marriage.
In July 1984, Balbir Singh, a native and citizen of India, arrived to the United
States and, within a month, married Doris McWilliams, a United States citizen. (Record 253,
483.) The Court will refer to Balbir Singh as “Singh,” Doris McWilliams by her maiden name
“McWilliams,” and plaintiff Sukhwinder Singh by her first name, “Sukhwinder.”

1
No party has submitted a statement of undisputed facts required by Local Civil Rule 56.1. Defendants BIA and
USCIS have submitted the administrative record, and plaintiff Sukhwinder Singh has made no evidentiary
submissions. Because this case turns entirely on the administrative record, and the parties have not raised any
factual disputes, their failure to file a Rule 56.1 statement does not impede the adjudication of the summary
judgment motions.

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On August 8, 1984, McWilliams filed a “Petition to Classify Status of Alien
Relative for Issuance of Immigrant Visa” under Form I-130 issued by what was then called the
Immigration and Naturalization Service (the “INS”). (Id. 541.) The petition identified Singh as
McWilliams’s husband and the beneficiary of the petition. (Id.) The petition annexed
McWilliams’s birth certificate; a marriage certificate of Singh and McWilliams dated July 31,
1984; a photograph of Singh and McWilliams locked in an embrace; and individual headshots of
Singh and McWilliams. (Id. 543-48.) While adjudication of the 1984 petition was pending,
McWilliams filed renewed petitions on January 17, 1986 (id. 524) and July 24, 1986 (id. 481),
and annexed additional materials, including copies of leases for an apartment in Brighton Beach;
a realtor’s note addressed to both Singh and McWilliams; employment-related materials for
McWilliams and Singh; correspondence that the IRS and a telephone provider sent to
McWilliams at the Brighton Beach address; and documents related to Singh including copies of
his passport, birth certificate, an affidavit from his father, and a “character certificate” issued by
police in India. (Id. 489, 492-93, 491, 484, 487, 502, 511, 526, 546, 490, 508-09, 495-500, 50407.)
On July 2, 1987, an INS officer interviewed Singh and McWilliams, an 88-page
transcript of which is included in the record. (Id. 376-463.) Some of the answers provided by
Singh and McWilliams included inconsistent details. Singh stated that he and McWilliams met
on a beach at the end of July 1984, decided to marry the next day, and were married two or three
days later, whereas McWilliams stated that they met on a beach in early July and married at the
end of the month. (Id. 422-28, 384-86, 453-54.) They gave conflicting answers concerning
certain details of the wedding. McWilliams stated that she and a friend named Barbara, whose
last name she could not recall, took a subway to the Borough Hall station in Brooklyn, where

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they met Singh, and that after the ceremony, she, Barbara and Singh went out to eat. (Record
391-92.) Singh stated that he met Barbara and McWilliams on Court Street in Brooklyn, and that
after the wedding ceremony, their meal included a fourth person, Anthony Robinson. (Id. 43238.)
When asked about members of Singh’s family, McWilliams stated that Singh’s
father “just passed away, February.” (Id. 390.) But Singh testified that his father had died in
December 1985 with the news reaching him in February 1986, a year earlier than McWilliams
testified. (Id. 455-56.)
Concerning McWilliams’s employment, Singh stated that McWilliams worked at
a post office from July 1985 to September 1985. (Id. 401-02, 446.) McWilliams stated that she
also worked as a file clerk from March 1985 to July 1985, and Singh stated that she had stayed
home while they lived off her savings and borrowed money. (Id. 402-03, 447-49, 457-58.)
Following the interview, the INS further investigated the marriage of Singh and
McWilliams. A July 15, 1987 memo written by the interviewer stated that “[m]any answers
agreed, possibly the result of prior rehearsal. However, the profile of the case, the account of
their meeting and marriage, and the discrepancies in answers to some basic questions make their
relationship questionable.” (Id. 364.) The memo noted the above-summarized inconsistencies in
the interview, and recommended that “an investigation [be] conducted into the bona fides of this
marriage so that final adjudication of the petition may be made as soon as possible . . . .” (Id.
365.)
On July 29, 1987, an INS investigator interviewed Frank Robinson,
superintendent of a building located at 521 West 151st Street in Manhattan. (Id. 357, 361.)
Robinson stated that he was the father of Anthony Robinson, and that his son had lived for at

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least three years in apartment 33 with McWilliams, whom he described as Anthony Robinson’s
common-law wife. (Id. 357, 361.) Robinson identified a picture of McWilliams, and stated that
he was unfamiliar with Singh, or with McWilliams’s relationship with Singh. (Id. 361.) The
investigator then spoke to Cassandra Littlejohn, who resided across the hall of Anthony
Robinson and had lived at the apartment for approximately five years. (Id. 360.) She confirmed
that Frank Robinson was the father of Anthony Robinson, identified McWilliams by photograph
and stated that McWilliams and Anthony Robinson had lived together “for about 3 years.” (Id.)
The interview notes state, “She sees her going in and out of this apartment.” (Id.)
On September 16, 1987, the INS sent McWilliams written notification that it
intended to deny her petition on behalf of Singh, on the basis that “the marriage between you and
the beneficiary was contracted solely to obtain immigration benefits for the beneficiary and to
circumvent the immigration laws.” (Id. 351.) The notification stated that “it appears . . . that you
and the beneficiary are not residing in a bona fide marital relationship and that false and
misleading statements were given under oath.” (Id.) It recited factual inconsistencies in the
answers given by Singh and McWilliams, and the statements given by the residents of 521 West
151st Street concerning McWilliams’s relationship with Anthony Robinson. (Id. 350-51.)
McWilliams responded by letter, stating that the interviewer misunderstood
Singh’s answers due to his poor English. (Id. 347-49.) She stated that Anthony Robinson was a
close friend who she called “my brother,” and that statements describing them as romantically
involved were “scurrilous, a slander and untrue.” (Id.)
On December 30, 1987, the INS denied the form I-130 visa application filed by
McWilliams on behalf of Singh. (Id. 326-29.) Among other things, it stated: “It is concluded
that the marriage between petitioner and beneficiary was contracted solely to obtain immigration

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benefits for the beneficiary and to circumvent the immigration laws. Petitioner has failed to
establish the relationship claimed through clear, convincing and unequivocal evidence as
required in visa petition matters.” (Id. 329.) McWilliams and Singh then filed a notice of appeal
to the Board of Immigration Appeals, and there is no indication that they took further action. (Id.
320-21.)
In May 1991, McWilliams and Singh divorced. (Id. 318-19.)
B. Singh’s Subsequent Marriage and Form 1-130 Applications.
Balbir Singh married plaintiff Sukhwinder Singh on February 6, 1992. (Id. 317.)
On February 12, 1992, plaintiff Sukhwinder Singh, who was then a lawful permanent resident,
filed a Form I-130 application on behalf of Balbir Singh, and the INS approved the petition on
May 13, 1992. (Id. 314.) The INS revoked its approval on October 29, 1998, on the basis of its
prior finding that Singh and McWilliams had entered into a sham marriage. (Id. 299-300.)
On August 23, 2004, Sukhwinder filed another I-130 application on behalf of
Balbir Singh. (Id. 236-37.) By that time, Sukhwinder had become a U.S. citizen. (Id. 246.) On
September 26, 2006, the USCIS denied the application, explaining that the previous finding of
Singh’s sham marriage to McWilliams precluded approval. (Id. 209-10.) Sukhwinder appealed
the denial, and the BIA remanded the case, with the direction that the USCIS must make an
independent determination as to Singh’s prior application, stating that the USCIS “should not
give conclusive effect to determinations made in prior proceedings.” (Id. 179.)
On May 10, 2010, the USCIS issued a nine-page, single-spaced, written decision
giving notice of its intent to deny the I-130 application. (Id. 144-52.) Sukhwinder made
additional submissions in support of the application, and on November 26, 2012, the USCIS
issued a 14-page, single-spaced, written decision that denied the application. (Id. 67-80.) It

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reviewed and summarized the evidence as to the application that McWilliams made on Sigh’s
behalf, as well as newer evidence submitted by Sukhwinder, including four unsworn affidavits
submitted by Singh’s friends that described their observations as to the Singh/McWilliams
marriage. (Id.) The USCIS concluded that the application was barred pursuant to 8 U.S.C. §
1154(c) (Record 80), which states in part that “no petition” for an adjustment to immigration
status “shall be approved” if the beneficiary had entered into a previous marriage “for the
purpose of evading the immigration laws . . . .”
Singh appealed to the BIA, which affirmed the decision of the USCIS in a written
decision of May 1, 2015. (Id. 2-5.) The BIA conducted a de novo review of the administrative
record, and concluded that Sukhwinder’s submissions did not satisfy her burden to prove that
Singh’s marriage to McWilliams was not a sham, including the absence of credible observations
from friends and family members regarding their marital relationship. (Id. at 2-3.) It also
reviewed the inconsistencies in the statements of McWilliams and Singh during the 1987
interview, as well as the investigative findings concerning McWilliams’s co-habitation with
Anthony Robinson during the time that she was purportedly living with Singh. (Id. at 2.)
SUMMARY JUDGMENT STANDARD AND THE ADMINISTRATIVE PROCEDURE ACT.
Summary judgment “shall” be granted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Rule 56(a), Fed. R. Civ. P. A fact is material if it “might affect the outcome of the suit
under the governing law . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). On
a motion for summary judgment, the court must “construe the facts in the light most favorable to
the non-moving party and resolve all ambiguities and draw all reasonable inferences against the
movant.” Delaney v. Bank of Am. Corp., 766 F.3d 163, 167 (2d Cir. 2014) (quotation marks

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omitted). It is the initial burden of the movant to come forward with evidence on each material
element of the claim or defense, demonstrating that he is entitled to relief, and the evidence on
each material element must be sufficient to entitle the movant to relief in its favor as a matter of
law. Vt. Teddy Bear Co. v. 1–800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004).
If the moving party meets its burden, “the nonmoving party must come forward
with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid
summary judgment.” Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008). “A
dispute regarding a material fact is genuine ‘if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.’” Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d
Cir. 2000) (quoting Anderson, 477 U.S. at 248).
Plaintiff seeks relief under the Administrative Procedure Act (the “APA”).
“Under 5 U.S.C. § 706(2)(A) a reviewing court 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 (2d Cir. 2007). This standard is “narrow,” and
“courts should not substitute their judgment for that of the agency.” Id. “‘Appropriate deference
must be accorded [the INS’s] decisions’ in light of the widespread fraud associated with
immediate-relative petitions.” Egan v. Weiss, 119 F.3d 106, 107 (2d Cir. 1997) (quoting INS v.
Miranda, 459 U.S. 14, 18-19 & n. 4 (1982) (per curiam)). “[A]n agency determination will only
be overturned when the agency ‘has relied on factors which Congress has 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.’” Karpova, 497

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F.3d at 267-68 (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983)).
SUBJECT MATTER JURISDICTION AND VENUE.
Judicial review of an agency’s immigration decisions is circumscribed by 8
U.S.C. § 1252(a)(2)(B), which deprives courts of the jurisdiction to review certain specified
statutory relief, as well as actions left to the discretion of the Attorney General or the Secretary
of Homeland Security.
Sukhwinder petitioned the USCIS to revise her husband’s immigration
classification pursuant to 8 U.S.C. § 1154(A)(1)(A)(i). In Ruiz v. Mukasey, 552 F.3d 269, 27476 (2d Cir. 2009), the Second Circuit concluded that, with limited exceptions not relevant here,
review of petitions brought under that statute do not fall within the prohibitions of section
1252(a)(2)(B), and do not implicate the discretion of the Attorney General. This Court therefore
has subject matter jurisdiction over plaintiff’s claims.
Venue is appropriate in this District pursuant to 28 U.S.C. § 1391(e)(1)(B), which
provides that “[a] civil action in which a defendant is . . . an agency of the United States . . . may,
except as otherwise provided by law, be brought in any judicial district in which . . . a substantial
part of the events or omissions giving rise to the claim occurred . . . .” In an Order of December
2, 2016, this Court noted that plaintiffs reside in Michigan and bring claims related to the
USCIS’s administrative actions in Michigan, which were reviewed by the BIA in Virginia.
(Docket # 31.) The Court directed the parties to show cause in writing as to why this action
should not be transferred to the Eastern District of Michigan. (Docket # 31.) Although the claim
is brought by a Michigan plaintiff and arises from events in Michigan, which weigh in favor of
transfer, it is also the case that plaintiff elected to bring this action in this District, defendants do

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not oppose venue in this District, underlying facts concerning the marriage of Singh and
McWilliams occurred in this District and no party is inconvenienced by litigating in this forum
because the dispute turns entirely on the administrative record. (See Docket # 33.) The Court
therefore concludes that venue is proper in this District. See generally Pearson v. Rodriguez, 174
F. Supp. 3d 210 (D.D.C. 2016) (weighing venue considerations for claims challenging USCIS
decision).
DISCUSSION
Under the INA, “no petition” for an adjustment to immigration status “shall be
approved if . . . (1) the alien has previously . . . 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 . . . .” 8
U.S.C. § 1154(c). This provision acts as a “marriage-fraud bar” against a petitioner seeking
preferential immigration status. Bourisquot v. Holder, 569 Fed. App’x 35, 36 (2d Cir. 2014)
(summary order); see also Koffi v. Holder, 487 Fed. App’x 658, 659 (2d Cir. 2012) (“A Form I130 petition for an immediate relative must be denied if there is ‘substantial and probative
evidence’ of conspiracy to enter into a marriage, including previous marriages, ‘for the purpose
of evading the immigration laws.’”).
The petitioner has the burden of proving the beneficiary’s eligibility, “and must
therefore rebut any evidence of marriage fraud ‘in the alien’s file’ with proof that the prior
marriage was bona fide, i.e., not fraudulent.” Bourisquot, 569 Fed. App’x at 36. In deciding
whether a marriage was fraudulent, the inquiry centers on whether the couple “intend[ed] to
establish a life together at the time they were married . . . .” Matter of Mckee, 17 I. & N. Dec.

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332, 334 (BIA 1980); see also Vazquez v. U.S. I.N.S. at N.Y., 1990 WL 156158, at *7 (E.D.N.Y.
Sept. 28, 1990) (Spatt, J.). “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). “The petitioner
must establish by clear and convincing evidence that the prior marriage was not entered into for
the purpose of evading the immigration laws. Failure to meet the ‘clear and convincing
evidence’ standard will result in the denial of the petition.” 8 C.F.R. § 204.2(a)(I)(i)(C).
The conclusions of the USCIS and BIA will be upheld if they are supported by
substantial evidence. 8 C.F.R. § 204.2(a)(1)(ii) (“The 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, regardless of whether that alien received a benefit
through the attempt or conspiracy.”). “‘Substantial evidence means more than a mere scintilla.
It means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Koffi, 487 Fed. App’x at 659 (quoting Burgess v. Astrue, 537 F.3d 117, 127 (2d
Cir. 2008)).
This Court concludes that there is substantial evidence to support the conclusion
that Singh’s marriage to McWilliams was fraudulent, as found by the USCIS in 2012 and
affirmed by the BIA in 2015. The USCIS conducted an “independent investigation” into the
record of Singh’s marriage to McWilliams, which focused on the documentation of their
courtship and marriage, interview discrepancies and evidence of extramarital relationships.
(Record 52-65.) It concluded that the totality of the record, including the lack of documentary
evidence and “pervasive discrepancies,” established that the marriage of Singh and McWilliams

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“was not entered into to a share a life together, but was instead a scheme to obtain an
immigration benefit.” (Id. 65.)
As to documentation into the bona fides of Singh’s marriage of McWilliams, the
USCIS concluded that “the bulk of the documentation” consisted of identification documents,
which had “no relevance” to determining the marriage’s validity. (Id. 59.) There was “no
evidence” of joint finances, shared resources or shared experiences except for a photo of the two
hugging. (Id.) Tax records and utility bills “are all in only one of their names.” (Id.) The
USCIS afforded little weight to a lease renewal signed only by Singh, with McWilliams’s name
handwritten into an otherwise-typed document. (Id.) Taken together, the documents did not
present clear and convincing evidence that Singh and McWilliams entered into a shared life
together. (Id.) In addition, the USCIS found that their answers in the July 1987 interview
mainly reflected knowledge of basic information concerning matters that they were “easily able
to memorize . . . .” (Id.)
The USCIS reviewed additional discrepancies in the July 1987 interview. Singh
and McWilliams gave conflicting testimony about their meeting and courtship, with Singh
testifying that McWilliams suggested marriage a day after they met on a beach and McWilliams
testifying that the two dated for a little less than a month before deciding to marry. (Id. 60.) The
USCIS concluded that this was “a fabricated story” because the two were unable to explain their
“extremely different” accounts. (Id.) Similarly, McWilliams testified that a woman identified as
“Barbara” was the witness to their wedding ceremony, but Gurdev Singh was listed as witness on
their marriage license, and no one named Barbara was mentioned on any marriage document.
(Id. 60-61.) The USCIS found that McWilliams gave inconsistent testimony about her
knowledge of Singh’s relatives, once stating that “they are of no interest to me.” (Id. 61.) Singh

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also was unaware of aspects of McWilliams’s employment history during their marriage, and
McWilliams testified that she “did not tell him” about a job she took as a file clerk. (Id. 61-62.)
In support of the Form I-130 application, Sukhwinder argued that Singh’s comprehension of
English was poor at the time of the 1987 interview, but Singh confirmed his understanding of
English at the interview’s start, and displayed confusion at the questions only “a handful of times
. . . .” (Id. 62.)
The USCIS also credited statements made by individuals at 521 West 151st Street
concerning McWilliams’s relationship to Anthony Robinson. (Id. 64.) The USCIS concluded
that McWilliams and Robinson “were holding themselves out as a married couple,” and that
Robinson had been involved in aspects of Singh and McWilliams’s wedding ceremony,
including the purchase of the rings.” (Id.) The USCIS concluded that Singh, McWilliams and
Robinson “[c]learly . . . were engaged in a marital scheme, to make it appear as if she were in a
valid marriage with the beneficiary to enable him to gain status as the spouse of a United States
citizen.” (Id.) It concluded that Sukhwinder had been made aware of the evidence concerning
Anthony Robinson’s relationship to McWilliams but that Sukhwinder failed to come forward
with relevant or probative rebuttal evidence. (Id.)
The USCIS found the rebuttal evidence submitted by Sukhwinder to be
unpersuasive. (Id. 63.) It rejected Sukhwinder’s argument that credibility of a petitioner or
beneficiary should not be considered in establishing evidence of marriage fraud, noting that
“fabricated” or “discrepant” testimony indicates that the couple did “not have the same
knowledge of a claimed shared state of living.” (Id.) If an officer concludes that a couple has
misrepresented itself “once or twice during testimony,” that may be weighed as to the
believability of the testimony overall. (Id.) Sukhwinder also contended that McWilliams

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suffered from a faulty memory, but the USCIS concluded that even memory gaps could not
explain the “substantial and probative evidence” of falsehoods and conflicting statements. (Id.)
The BIA conducted a de novo review and affirmed the findings and conclusions
of the USCIS. (Id. 1-5.) It concluded that Sukhwinder had not provided convincing evidence of
the bona fides of Singh’s marriage to McWilliams, and that the USCIS properly weighed the
evidence of courtship, residency history, knowledge of one another’s lives, and absence of
evidence concerning joint finances and shared experiences. (Id. 3.) The BIA also concluded that
the USCIS properly considered the evidence concerning McWilliams’s relationship to Anthony
Robinson. (Id.) It concluded that Sukhwinder did not submit persuasive documentary or
testimonial evidence to address the inconsistencies and offered “no reliable evidence” on key
factors about Singh and McWilliams’s intent to share a life together. (Id. at 4.)
Sukhwinder argues that the BIA used an improperly low evidentiary standard for
determining marriage fraud. The BIA stated: “In view of the totality of the circumstances, this
inference [of marriage fraud] is sufficient to support a finding under section 204(c) of the Act.”
(Record 3; emphasis added.) Relying on an inference is inadequate because a finding of
marriage fraud must be supported by substantial and probative evidence. See Matter of Tawfik,
20 I. & N. Dec. 166, 168 (BIA 1990) (“[A] reasonable inference does not rise to the level of
substantial and probative evidence requisite to the preclusion of approval of a visa petition in
accordance with section 204(c) of the Act.”); In re Hassim, 2006 WL 3922236, at *1 (BIA Dec.
28, 2006) (“Inadequate evidence and negative inferences do not meet this standard.”).
Elsewhere, however, the BIA decision correctly stated that a finding of marriage fraud “must be”
based on evidence that is “substantial and probative of fraud.” (Record 2.) Throughout its
decision, the BIA described the evidence as “substantial and probative,” and did not rely solely

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on inference. (Id. 2-5.) This Court therefore concludes that, although the BIA erroneously
mentioned an “inference” of marriage fraud, both the BIA decision and the USCIS decision
correctly applied the “substantial and probative evidence” standard.
Sukhwinder also contends that the BIA failed to properly weigh four unsworn
affidavits submitted by Singh’s friends. However, the BIA noted that the recorded “contains . . .
no credible statements from friends . . . .” (Id. 4.) The USCIS weighed these “affidavits,”
mentioning the affiants by name and stating that four individuals attested to “their knowledge of
the beneficiary and their knowledge of the marriage of the beneficiary to Doris Singh.” (Id. 58.)
The USCIS concluded that the affidavits were not supported by other evidence and were
afforded “little probative value.” (Id.) It concluded that “[t]here is no primary evidence” that
Singh and McWilliams shared a life together, and that the affidavits therefore could not be
“considered sufficient evidence of the existence of a valid marriage . . . . .” (Id. 64.) There is no
basis from which to conclude that the BIA and the USCIS failed to properly weigh the four
unsworn affidavits.
To the extent that Sukhwinder challenges the BIA’s conclusions as arbitrary and
capricious, she essentially argues that the BIA should have credited certain statements by Singh
and McWilliams and rejected evidence that went toward McWilliams’s relationship with
Anthony Robinson. The BIA and USCIS were not arbitrary and capricious in weighing this
evidence, and their explanations for their findings did not run counter to the evidence before
them. See generally Egan, 119 F.3d at 107. This Court further concludes that the decisions of
the USCIS and the BIA were supported by substantial evidence. See generally Koffi, 487 Fed.
App’x at 660 (“Given the state of the evidence, a reasonable mind might accept the conclusion
that [the beneficiary’s] first marriage was entered into for the purpose of evading the

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immigration laws. Thus, the agencies’ conclusion to this effect is supported by substantial
evidence.”).
For the foregoing reasons, the Court concludes as a matter of law that the
decisions of the USCIS and the BIA are not arbitrary and capricious, and were supported by
substantial evidence. The defendants’ motion for summary judgment is therefore granted, and
the plaintiff’s motion is denied.
CONCLUSION.
The defendants’ motion for summary judgment is granted and the plaintiff’s
motion is denied. (Docket # 22, 28.) The Clerk is directed to terminate the motions and to enter
judgment for the defendants.
SO ORDERED.

Dated: New York, New York
February 23, 2017

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