Tian et al v. United States of America et al
ORDER denying 28 Motion for Summary Judgment; granting 29 Motion for Summary Judgment. Signed by Judge Michael R. Barrett on 7/12/17. (ba)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
Qing Tian, et al.,
Case No. 1:15cv264
Judge Michael R. Barrett
United States of America, et al.,
OPINION & ORDER
This matter is before the Court on cross motions for summary judgment filed by the
parties. (Docs. 28, 29). This matter is now fully briefed and ripe for review.
Plaintiff, David Swartz, an American citizen, married Qing Tian, a native and citizen of
China on February 2, 2008. (AR 1 390). On November 14, 2008, Swartz filed a spousal visa
petition (“I-130 Petition”) on Tian’s behalf with the United States Citizenship and Immigration
Services (“USCIS”). (AR 356-57). On June 11, 2009, USCIS interviewed Swartz and Tian.
(AR 304-05). Despite finding Swartz’s and Tian’s marriage to be bona fide, USCIC nevertheless
issued a Notice of Intent to Deny (“NOID”) on June 24, 2009. (AR 299-303). The NOID
explained Tian was an ineligible beneficiary under 8 U.S.C. § 1154(c) because her previous
marriage to Johnnie Smith was deemed to be fraudulent.
(AR 299-302). Swartz submitted a
letter through his counsel in response to the NOID. (AR 284,293). On April 29, 2010, USCIS
denied the I-130 Petition, finding Tian ineligible for a spousal visa. (AR 283-84).
The Administrative Record (Doc. 16) was filed on October 15, 2015. For the sake of brevity, the Administrative
Record is cited to as “AR” with the corresponding page number.
On October 28, 2011, Swartz filed a second I-130 Petition on Tian’s behalf. (AR 102).
USCIS conducted two separate interviews with Swartz and Tian in connection with the second I130 Petition. (AR 75-78, AR 52-53). On July 2, 2014, USCIS issued a NOID as to the second I130 Petition, once again finding Tian’s previous marriage to Smith had been entered into for the
purpose of evading immigration laws. (AR 28-33). Swartz responded to the NOID on August 1,
2014. (AR 22-27). On January 9, 2015, USCIS denied the second I-130 Petition. (AR 11-21).
Plaintiffs’ filed this action challenging the denial of the second I-130 Petition under the
Administrative Procedure Act (“APA”), 5 U.S.C. §§ 702, et seq., and the Fifth Amendment Due
Process Clause. (Doc. 1 at ¶¶ 49-57).
A. Motion for Summary Judgment
Federal Rule of Civil Procedure 56(a) provides that summary judgment is proper “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.” The moving party has the burden of showing an absence of
evidence to support the non-moving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). Once the moving party has met its burden of production, the non-moving party cannot
rest on his pleadings, but must present significant probative evidence in support of his complaint
to defeat the motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 24849 (1986).
The summary judgment standard, however, is not applicable to judicial review of an
agency’s actions under the APA. Alexander v. Merit Sys. Protection Bd., 165 F.3d 474, 480-81
(6th Cir. 1999).
As the Sixth Circuit explained, review of agency action is limited to
consideration of evidence in the administrative record. Id. at 480. Accordingly, summary
judgment is appropriate in this context when it “serves as the mechanism for deciding, as a
matter of law, whether an agency action is supported by the administrative record and is
otherwise consistent with the APA standard of review.” Singh v. Johnson, No. 15-cv-12957,
2016 WL 3476701 (E.D. Mich. June 27, 2016), at *3 (citation omitted).
B. Administrative Procedure Act
District Courts have jurisdiction to review a decision on the merits of an I-130 petition
pursuant to Section 702 of the APA. Bangura v. Hansen, 434 F.3d 487, 497, 501-02 (6th Cir.
2006). The APA provides in relevant part “the reviewing court shall hold unlawful and set aside
agency action, findings and conclusions of law found to be arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A). The standard of
review is deferential to the agency’s decision. Bangura, 434 F.3d at 502 (citing Carabell v. U.S.
Army Corp. of Eng'rs, 391 F.3d 704, 707 (6th Cir.2004); Northeast Ohio Reg. Sewer Dist. v.
Env't Prot. Agency, 411 F.3d 726, 731 (6th Cir.2005). The Sixth Circuit further explained in
A court may not set aside or hold unlawful an agency action unless that action is
arbitrary, capricious, an abuse of discretion or otherwise not in accordance with
law. 5 U.S.C. § 706(2)(A); see also Carabell, 391 F.3d at 707; N.E. Ohio Reg.
Sewer Dist., 411 F.3d at 731. An agency decision is arbitrary and capricious if the
agency fails to examine relevant evidence or articulate a satisfactory explanation
for the decision. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 42–43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). The reviewing court
“may not supply a reasoned basis for the agency's action that the agency itself has
not given.” Id. at 43, 103 S.Ct. 2856. However, “[e]ven when an agency explains
its decision with less than ideal clarity, a reviewing court will not upset the
decision on that account if the agency's path may reasonably be discerned.”
Alaska Dep't of Env't Conservation v. EPA, 540 U.S. 461, 497, 124 S.Ct. 983, 157
L.Ed.2d 967 (2004).
In other words, a court is not permitted to reweigh the evidence nor may a court substitute its
judgment for that of the agency’s judgment. See Adi v. United States, No. 1:10CV502, 2011 WL
9613, at *5 (N.D. Ohio Jan. 3, 2011) (aff’d Adi v. U.S., 498 Fed.Appx. 478 (6th Cir. 2012)).
A. USCIC’s Factual Findings
With respect to the second I-130 Petition, USCIS made in relevant part the following
factual findings. Tian was admitted to the United States on October 28, 2005, as a visitor for
business or pleasure for the purpose of viewing firefighting equipment. (AR 2). On November
16, 2005, Tian married Johnnie Smith, a United States citizen. (Id.). Tian had never met or
communicated with Smith prior to entering the United States a few weeks earlier. (Id.). When
they got married, Tian was 39 years old and Smith was 57 years old. (Id.). On November 27,
2005, Tian returned to China where she remained for six months, apparently because she broke
her leg while she was there. (AR 3,6). Tian returned to the United States on May 21, 2006,
again as a visitor, indicating her entry was for business. (Id.).
On July 9, 2006, Smith filed an I-130 Petition on behalf of Tian. (Id.). In the I-130
Petition and the I-485 petition, which Smith filed concurrently, they listed their mutual address
as Kenlee Drive in Cincinnati. (Id.). As such, USCIS issued a receipt notice for the I-130
Petition and I-485 petition to the Kenlee Drive address. (Id).
On July 21, 2006, the receipt notice was returned to USCIS with handwritten notes on it
from Shu Sheng Li and Yali Sun, the residents of the Kenlee Drive address listed on the
petitions. (Id.). The notes included allegations that Tian and Smith did not live at the Kenlee
Drive address, and instead lived separately on Barnum Street and Crossing Drive, respectively.
(Id.). The notes also alleged the “marriage is a fraud” entered into for the purpose of obtaining
an immigration benefit. (Id.). Moreover, the Kenlee Drive residents alleged Tian’s attorney
acted as a translator for Smith and Tian because Smith could not speak Chinese and Tian could
not speak English. (Id.). Further still, the notes alleged Tian’s and Smith’s attorney had
instructed them to pretend they lived together, and to set up a join bank account. (Id.).
10 days later, Tian signed a change of address, noting her new address on Barnum
Street—the address the Kenlee Drive residents had cited as Smith’s residence. (Id.). On August
2, 2016, USCIS received an identical copy of the handwritten notes from Shu Sheng Li and Yali
After the first issued notice scheduling the interview for October 19, 2006 was
erroneously sent to the Kenlee Drive address, USCIS eventually interviewed Plaintiffs on May
At the interview, Tian needed an English translator, and both
acknowledged they did not share any common language when they met or when they married.
(AR 4). Tian claimed to understand a limited amount of what Smith said in English, and
explained that they supplemented with sign language and hand gestures. (Id.).
They both stated they lived together at the Barnum Street address and had lived there
since November 2005. (AR 4, 443-44). Despite this, Smith was unaware Tian had returned to
China for over six months after they wed. (Id.). After being confronted with this fact, Smith
admitted he lied, and conceded that he and Tian did not live together. (Id.). In the interview
with Tian related to the instant I-130 Petition, she too admitted they did not live together,
acknowledging that although she had stayed at the Barnum Street address one night, she did not
want to continue doing so because it was messy and unclean. (AR 5-6). Tian and Smith never
consummated their marriage, noting Smith was impotent. (AR 6).
Moreover, at the time of the May 24, 2007 interview of Tian and Smith, Tian considered
Swartz to be her boyfriend. (Id.). Indeed, despite not living together at the time, Tian and
Swartz were engaged in a sexual relationship. (Id.).
Less than two weeks after the interview, on June 5, 2007, Tian filed for divorce from
Smith. (AR 4). On February 2, 2008, Tian married Swartz. (Id.).
1. Analysis under APA
Plaintiffs outline the standard used by USCIS to determine sham marriages. They argue
a finding of marriage fraud may be sustained and visa revocation proceedings initiated in three
instances: 1) a written statement from one or both parties the marriage was entered into for
immigration purposes; 2) evidence money changed hands leading a reasonable person to
conclude the marriage was a paid arrangement for immigration purposes; 3) extensive factual
evidence that would convince a reasonable person the marriage was entered into to evade
immigration laws. 9 FAM 504.2-8(a)(2). Plaintiffs then spend pages of briefing analyzing these
factors, admitting there may be a reasonable inference of marriage fraud, but arguing there was
not the substantial evidence of marriage fraud necessary to carry USCIS’s burden. (Doc. 28,
PageID 1104-12). Plaintiffs miss the mark.
First, Plaintiffs appear to assert USCIS has the burden of proof, arguing that USCIS has
“failed to prove marriage fraud from the evidence in the record.” (Doc. 34, PageID 1157).
However, the party that challenges an agency’s action bears the burden of proof. Lewis v.
Huntington Nat’l Bank, 838 F. Supp.2d 703, 720 (S.D. Ohio 2012). Thus, it is Plaintiffs who
bear the burden of proof in the instant action. 2
Plaintiffs then fail to explain why USCIS’s decision was arbitrary and capricious—the
proper standard of review under the APA. Instead, Plaintiffs’ arguments could be construed as
challenging the weight USCIS attributed to various pieces of evidence. In other words, Plaintiffs
Oddly enough, Plaintiffs appear to concede they did not meet their burden of proof in the visa proceedings. They
state, “there is no doubt there is a serious lack of evidence of the bona fide nature of Tian’s first marriage. Based on
the record, it does appear that Tian and Smith failed to meet their burden of proof by a preponderance of the
evidence with regards to their relationship before USCIS. Even further, Plaintiffs understand and acknowledge that
there were certain red flags that USCS identified with regards to Tian’s first marriage.” (Doc. 34, PageID 1162).
appear to ask the Court to reweigh the evidence. 3 To the extent Plaintiffs indeed ask the Court to
do so, it is impermissible under the applicable standard of review. Adi, 2011 WL 9613 at *5.
For example, Plaintiffs argue attempting to consummate the marriage “should be viewed as proof
the marriage was not solely for an immigration benefit but instead for at least one other reason.”
(Doc. 28, PageID 1009). (Emphasis in original). Even if Plaintiffs think USCIS should have
given Tian’s and Smith’s attempt to consummate the marriage more weight, the Court is not
permitted to substitute its judgment for that of the agency’s.
Adi, 2011 WL 9613 at *5.
Accordingly, it is of no consequence that Plaintiffs view the evidence differently.
Plaintiffs also argue USCIS did not consider all of the evidence. USCIS argues its nonreliance on a specific fact in the denial does not mean the evidence was not considered. As
USCIS correctly asserts, absent evidence to the contrary, the Court assumes the agency reviewed
and considered the record as a whole, either directly or indirectly. See e.g. Hickey v. Chadick,
No. 2:08-cv-824, 2009 WL 3064445, at *2 (S.D. Ohio Sept. 18, 2009) (citing BAR MK Ranches,
994 F.2d at 740)). “In order to overcome the presumption that the administrative record was
properly designated, plaintiffs must do more than simply assert the allegedly omitted documents
are relevant, were before the agency at the time of the decision, and were inadequately
considered. Pac. Shores Subdivision Cal. Water Dist. v. United States Army Corps of Eng'rs,
448 F.Supp.2d 1, 6 (D.D.C.2006); Sara Lee, 252 F.R.D. at 34 (plaintiff cannot merely assert that
other documents were relevant but not adequately considered).” Id.
Here, there is no evidence USCIS did not adequately consider the record, and Plaintiffs’
assertions to the contrary, at least in certain instances, are incorrect. For example, despite
Plaintiffs contend they are not asking the Court to reweigh the evidence, but rather to determine whether USCIS
issued a proper finding of fraud given USCIS’s alleged failure to fully consider certain evidence. (Doc. 34, PageID
1161). In essence, however, when Plaintiffs assert USCIS should have fully considered certain evidence, there is no
discernable difference between the two. If certain evidence were to be considered more fully, the Court would
indeed be giving greater weight to that evidence.
Plaintiffs contention that USCIS excludes Smith’s impotency from the record, USCIS clearly
included in its decision that Tian and Smith “engaged in some sexual activity, but did not have
intercourse because Johnnie Smith was impotent.” (AR 16-17).
Other examples cited by Plaintiffs are USCIS’s failure to consider the couple’s
communication about their respective health issues and USCIS’s failure to address Smith’s
statement that he transported Tian to and from school. (Doc. 28, PageID 1009-10). Plaintiffs
argue such examples tend to show that despite their language barrier, they were able to
effectively communicate. While Plaintiffs argue this information was not adequately considered,
they provide no evidence to that effect, aside from the mere fact this information was not
specifically referenced in USCIS’s decision. Such assertions are not sufficient to show USCIS
failed to consider the information nor does it overcome the presumption USCIS considered the
record as a whole when making its determination.
Reviewing the record as a whole, the Court concludes the evidence in the record supports
USCIS’s conclusion and thus was reasonable, particularly under the deferential standard of
review applicable here. The evidence USCIS relied upon in making its determination included:
1) Tian lied to immigration officials about living with Smith; 2) Tian lived in China for over six
months after she and Smith were married, and Smith was unaware; 3) Tian and Smith were
married 19 days after meeting; 4) Tian and Smith did not speak the same language when they got
married, and still did not speak the same language at the interview – 18 months after their
wedding; 5) Tian was dating Swartz at the time of the May 2007 interview, and was engaged in a
sexual relationship with him at that time; and 6) Tian filed for divorce less than two weeks after
the May 2007 interview. Considering the foregoing, there is ample evidence to support USCIS’s
decision and thus, its determination is not arbitrary or capricious. Kroger Co. v. Reg’l Airport
Auth. of Louisville & Jefferson Cnty., 286 F.3d 382, 389 (6th Cir. 2002) (citing Oakland County
Bd. of Comm'rs v. U.S. Dep't of Labor, 853 F.2d 439, 442 (6th Cir.1998).
2. Procedural Due Process
Having reached the above conclusion, the Court must address whether Defendants
violated Plaintiffs’ rights under the Due Process Clause. “The Fourteenth Amendment prohibits
the government from depriving persons of ‘life, liberty, or property, without due process.’ U.S.
Const. amend. XIV, § 1. The Due Process Clause protects aliens physically present in the United
States as well as citizens. Landon v. Plasencia, 459 U.S. 21, 32–33, 103 S.Ct. 321; Mathews v.
Diaz, 426 U.S. 67, 77, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976). Due process rights only attach,
however, once a plaintiff asserts a liberty or property interest. See also Almario v. Attorney
General, 872 F.2d 147, 151 (6th Cir.1989). To establish a liberty or property interest, the
plaintiff must demonstrate that the Constitution or a federal or state statute grants him a protected
right. See Almario, 872 F.2d at 151.” Bangura, 434 F.3d at 496.
Here, Plaintiffs argue Defendants violated their constitutional right to procedural due
process in two ways. First, Plaintiffs contend because USCIS used the testimony of Smith,
Swartz should have been permitted to cross examine him. Second, Plaintiffs object to the
consideration of the “Tip/Snitch” letter.
While it is undisputed the Constitution grants a liberty interest in a person’s marriage, the
Sixth Circuit has not addressed the issue of whether a beneficiary has a protected interest in a
spousal visa. See Bangura, 434 F.3d at 496 (declining to address whether 8 U.S.C. §§ 1151 and
1154 create a property interest protected by the Due Process Clause because the issue was not
before the Court). Nor has the Sixth Circuit addressed whether there exists a right to cross
examination with respect to I-130 petitions. 4
Nevertheless, Plaintiffs urge the Court to find their inability to cross examine Smith
violates due process, relying on the Ninth Circuit’s opinion in Ching.5 In Ching, the Court found
that under the specific circumstances therein, due process required an opportunity to confront
witnesses against her. Id. at 1159 (applying the factors in Mathews v. Eldridge, 424 U.S. 319
(1976)). For the reasons discussed more fully herein, Plaintiffs’ reliance on Ching is misplaced.
A due process analysis necessarily requires an application of the factors in Mathews.
However, despite asserting that the Mathews test applies, Plaintiffs do not engage in any further
analysis of the factors outlined in Mathews; still, the Court would be remiss if it did not do so.
The Supreme Court explained in Mathews, the analysis is fact specific, as “due process is
flexible and calls for such procedural protections as the particular situation demands.” Mathews,
424 U.S. at 334 (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33
L.Ed.2d 484 (1972)). In doing so, courts consider three factors to determine whether the due
process provided was adequate: 1) the private interest that will be affected by the official action;
2) the risk of an erroneous deprivation of such interest through the procedures used, and the
probable value, if any, of additional or substitute procedural safeguards; and 3) the government’s
interest, including the function involved and the fiscal and administrative burdens that the
additional or substitute procedural requirements would entail. Id. 424 U.S. at 335.
To begin, Defendants acknowledge the Plaintiffs’ private interests (the first factor) are
significant, as Tian faces possible removal.
As for the second factor, the Court finds a low risk of erroneous deprivation is present in
There is no statutory right to cross-examination in I-130 visa adjudications. Ching v. Mayorkas, 725 F.3d 1149,
1154 (9th Cir. 2013).
Plaintiffs also argue they should be entitled to cross examine the USCIS officers who interviewed Smith and Tian.
They cite no authority in support of their position. Their argument on this point is likewise unavailing.
this case. In Ching, the Court found particularly troubling the fact that despite Ching presenting
extensive evidence of her previous marriage being bona fide, her ex-husband provided a
statement indicating they did not marry for love. Id. at 1158. Thus, because the Court was
unable to determine whose story was credible, due process required an evidentiary hearing.
The circumstances in Ching are inapposite to those presented here. First, unlike the Sixth
Circuit, the Ninth Circuit has expressly found a petitioner has a constitutionally protected liberty
interest in her marriage, and a protected property interest in a spousal visa petition, giving rise to
due process protections with respect to the adjudication of such petitions. Ching, 725 F.3d at
1155-56. Moreover, the facts in this case are distinguishable. Here, Smith did not say their
marriage was fraudulent; actually, he said quite the opposite. And Plaintiffs have not provided
any explanation as to how cross examining Smith would be valuable to the adjudication of the
petition nor have they explained how cross examination would change the outcome of the
proceedings. Indeed, the record is replete with evidence Tian’s and Smith’s marriage was not
bona fide, and despite numerous chances to provide evidence to rebut the same, Tian has failed
to do so.
Finally, the Court finds the third factor tips in favor of Defendants.
essentially asks the Court to assess the public interest. Defendants argue Plaintiffs request would
financially and administratively burden the government. Plaintiffs counter that USCIS is selffunded through fees collected in conjunction with immigration applications. They argue if
funding is not available, USCIS can increase filing fees. Plaintiffs fail to explain, however, how
increased filing fees support the public interest, considering additional costs would come out of
the pockets of applicants. Moreover, to allow cross examination in such cases, particularly
where the risk of erroneous deprivation is low, wastes scarce administrative resources.
Plaintiffs also take issue with the “Tip/Snitch” letter being considered for two reasons:
1) The NOID failed to indicate the document is not notarized and that it is unsigned; and
2) Swartz did not receive a copy of the letter despite requesting one. However, Plaintiffs fail to
recognize the two pieces of information ascertained from the letter—that Tian and Smith did not
live together and they did not speak the same language—were corroborated by other evidence.
Tian and Smith both admitted they did not live together at the Barnum Street address. And
USCIS knew Tian and Smith did not speak the same language as Tian needed an interpreter for
the May 2007 interview.
Thus, the risk of erroneous deprivation is low, and additional
procedural safeguards would not have proved valuable.
Having undertaken an analysis of the factors set forth in Mathews, the Court declines to
forge new legal ground and find a constitutionally protected property interest with respect to the
adjudication of spousal visa applications. While there may be an occasion to do so, in this case,
the Court finds the procedures undertaken in this matter comported with due process and thus,
additional safeguards were not necessary.
Accordingly, even assuming arguendo a
constitutionally protected property right exists, Plaintiffs are not entitled to the relief requested.
Consistent with the foregoing, Defendants’ Motion for Summary Judgment (Doc. 29) is
GRANTED and Plaintiffs’ Motion for Summary Judgment (Doc. 28) is DENIED.
IT IS SO ORDERED.
s/Michael R. Barrett
Michael R. Barrett, Judge
United States District Court
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