Kyeremeh et al v. Sessions et al

Filing 19

ORDER granting 11 Motion for Summary Judgment. This case is REVERSED and REMANDED to the United States Citizenship and Immigration Services for further proceedings. Signed by Judge Algenon L. Marbley on 3/11/2019. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

YOLANDA KYEREMEH, et al.,
Plaintiffs,
v.

JEFFERSON B. SESSIONS, III, et al.,
Defendants.

:
:
:
:
:
:
:
:
:
:

Case No. 2:17-CV-497
JUDGE ALGENON L. MARBLEY
Magistrate Judge Jolson

OPINION & ORDER
This matter is before the Court on Plaintiffs Aning Kyeremeh’s and Yolanda Kyeremeh’s
Motion for Summary Judgment. (ECF No. 11). The Government Responded. (ECF No. 14).
The deadline for filing a Reply has passed, with no filing from the Plaintiffs. For the following
reasons, Plaintiffs’ Motion for Summary Judgement is GRANTED and the case is REVERSED
and REMANDED to the United States Citizenship and Immigration Services (“USCIS”).
I. BACKGROUND
Mr. Aning Kyeremeh arrived in the United States from Ghana on March 14, 2008. He
had a B-2 visa authorizing him to stay in the United States until September 13, 2008, but he
remained in the United States thereafter. From 2009 to 2012, Mr. Kyeremeh had three
unsuccessful marriages. On April 9, 2009, Mr. Kyeremeh married Lynsey Ann Rose, a U.S.
citizen, but the marriage was annulled in December 2009. On March 4, 2010, Mr. Kyeremeh
married Laketisha Henderson, also a U.S. citizen. On June 18, 2010, Ms. Henderson filed a
Form I-130, Petition for Alien Relative. Ms. Henderson did not appear for the interview with
USCIS in January 2011. In February 2011, the Government began removal proceedings against
1

Mr. Kyeremeh. (ECF No. 1-5 at 3). On April 6, 2011, Mr. Kyeremeh and Ms. Henderson
divorced.
One month later, on May 10, 2011, Mr. Kyeremeh married again; this time to Ms. Amber
Nicole Gilliam. On June 20, 2011, Ms. Gilliam filed a Form I-130 for Mr. Kyeremeh. USCIS
interviewed Mr. Kyeremeh and Ms. Gilliam individually on December 20, 2011. (ECF No. 1-5
at 3).
Ms. Gilliam and Mr. Kyeremeh offered consistent answers about some details of
their relationship. As the USCIS found in its decision denying Ms. Gilliam’s Form I-130:
Ms. Gilliam’s testimony and [Mr. Kyeremeh’s] testimony were consistent with
respect to their claimed marital address: 4313 Chesford Road, Apartment 3,
Columbus, Ohio; that they first met at a birthday party through an individual
named Master Geboah, in January 2010; that they went on their first date in
January 2011, and that they went to Applebees; that [Mr. Kyeremeh] asked Ms.
Gilliam to marry him on April 15, 2011; that the beneficiary had invited Ms.
Gilliam to his house for dinner, which consisted of rice stew and chicken; they
were married on May 10, 2011; after the wedding they went to a Chinese
restaurant, and then they went home; that Ms. Gilliam has a daughter named
Takaiyuh Gilliam, who lived with the couple; that Ms. Gilliam worked as an
STNA at Regency Manor, and her work schedule was typically from 2:30pm to
10:30pm, but her days varied; that [Mr. Kyeremed] was not working because his
employment authorization had expired in August 2011; that neither of them had
breakfast on the morning of the interview; that [Mr. Kyeremeh] met Ms. Gilliam’s
mother and father, and brother Maurice, at Maurice’s 50th birthday party in
August 2011; that [Mr. Kyeremeh] has an uncle in New Jersey; that [Mr.
Kyeremeh’s] parents reside in Ghana, and Ms. Gilliam has spoken to them over
the telephone.
ECF No. 6-3 at 8.
But Ms. Gilliam and Mr. Kyeremeh gave differing accounts of other details of their
relationship. According to Ms. Gilliam, Mr. Kyeremeh “did not know Master Geboah before the
birthday party” in January 2010. (ECF No. 6-3 at 8). About two weeks after they met at the
party, they talked “once or twice a day up until their first date in January 2011.” (Id.). Mr.
Kyeremeh gave her a ring when he proposed. Tracy Williams, Christian, Adam, and Abena
2

came to their wedding, and “everyone but Abena went to a Chinese restaurant after the
wedding.” (ECF No. 6-3 at 9). Mr. Kyeremeh had been living at the apartment on Chesford
Road since March or April 2011, and she moved in with him there the day of the wedding. She
says that she only moved clothes to Mr. Kyeremeh’s apartment. Ms. Gilliam’s daughter also
lived with Ms. Gilliam and Mr. Kyeremeh. Ms. Gilliam told the interviewer that her daughter
was staying with Ms. Gilliam’s parents in West Virginia and had been in West Virginia since the
Saturday before the interview.
According to Mr. Kyeremeh, “Master Geboah was a longtime friend from back in
Ghana.” (ECF No. 6-3 at 8). After he met Ms. Gilliam at the party, they did not see or speak to
each other until December 2010. (Id.). He did not give Ms. Gilliam a ring when he proposed but
bought one afterwards. (Id. at 9). Tracy Williams, Christian Abu, and Esther attended their
wedding, and “everyone but Esther went to a Chinese restaurant after the wedding.” (Id. at 9).
When he married Ms. Gilliam, he was residing at an apartment on Atlantic Avenue, and Ms.
Gilliam moved in with him there, “right after the wedding.” They moved to Chesford Road in
June 2011. When Ms. Gilliam moved in with Mr. Kyeremeh, “she brought clothes, her
daughters’ toys, and her daughter’s TV.” (Id. at 9). Mr. Kyeremeh told USCIS that Ms.
Gilliam’s daughter had been with them since the Friday before the interview and that they
dropped her off with a babysitter in Columbus before going to the interview.
In addition to these inconsistencies, USCIS concluded that Mr. Kyeremeh and Ms.
Gilliam did not live together at the Chesford Road address. On Mr. Kyeremeh’s June 2011
application for an apartment at Chesford Road, he “does not indicate a marital status, and the
section for ‘Spouse’s Name and Date of Birth’ is left blank.” (ECF No. 6-3 at 9). He did not list
Ms. Gilliam as one of his six personal references or as his emergency contact. USCIS also

3

contacted the community director of the apartment complex on Chesford Road. The community
director recognized Mr. Kyeremeh as living at the complex “but did not recognize the photo of
Ms. Gilliam as a tenant.” (ECF No. 6-3 at 9). USCIS also spoke with the landlord for the
apartment where Ms. Gilliam lived before marrying Mr. Kyeremeh. “[T]he landlord . . .
confirmed in February 2012 that Ms. Gilliam and her daughter were the residents of that address,
and the landlord stated that she had resided there since November 2009.” (Id.). A neighbor
provided the same information.
Based on these discrepancies, USCIS sent Ms. Gilliam a Notice of Intent to Deny
(NOID) the Form I-130 petition on February 28, 2012. In response to this NOID, Ms. Gilliam
attempted to explain some of the inconsistencies. She said that she was mistaken that Mr.
Kyeremeh had given her a ring when he proposed; that she had actually moved in with Mr.
Kyeremeh at the Atlantic Avenue apartment; that she kept several of her things at her old address
because she did not want to break her lease there but spent “most of the time” at the Chesford
Road apartment. She stated that Mr. Kyeremeh had helped arrange for her daughter to go to
West Virginia but was afraid that saying her daughter was in West Virginia “would be construed
negatively by the interviewing officer.” (ECF No. 6-3 at 10). Mr. Kyeremeh submitted an
affidavit stating the same clarifications about their addresses and where Ms. Gilliam’s daughter
was during the interview.
“On March 28, 2012, USCIS denied Ms. Gilliam’s Form I-130 . . . .” (Id.). Ms. Gilliam
appealed, and the BIA affirmed the decision on November 2012. While the denial of the
decision was on appeal, Mr. Kyeremeh divorced Ms. Gilliam, in July 2012.
On December 24, 2012, Mr. Kyeremeh married Yolanda Kyeremeh. Like Ms.
Henderson and Ms. Gilliam, Mrs. Kyeremeh filed a Form I-130 on March 29, 2013. The USCIS

4

found that Mrs. Kyeremeh had “met [her] burden of proof in demonstrating the bona fide nature
of [her] marriage to [Mr. Kyeremeh] by clear and convincing evidence.” (ECF No. 6-3 at 13).
Nevertheless, USCIS sent Mrs. Kyeremeh a NOID on June 13, 2014 because USCIS found “that
there is substantive and probative evidence of Mr. Kyeremeh’s attempt to obtain a benefit
through a fraudulent marriage to Ms. Gilliam.” (ECF No. 1-1 at 4). Mrs. Kyeremeh responded
with a letter from her attorney. On October 15, 2014, USCIS denied Mrs. Kyeremeh’s Form I130 petition. Mrs. Kyeremeh appealed, and the BIA remanded with instructions for the USCIS
to more fully address the evidence Mrs. Kyeremeh brought forward. USCIS issued another
NOID on December 21, 2015 and a final decision on January 25, 2016. The BIA affirmed on
September 12, 2016. (ECF No. 1-10 at 2).
Plaintiffs Yolanda Kyeremeh and Aning Kyeremeh filed their complaint on June 9, 2017,
alleging that USCIS’s decision violated the Administrative Procedure Act because the decision
was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” that
the decision was “contrary to constitutional right, power, privilege, or immunity,” that the
Kyeremehs were denied due process, and that the decision was barred by res judicata. (ECF No.
1 at 15–16). Plaintiffs also asked for declaratory judgment “that there is not substantial and
probative evidence supporting a finding that the approval of Mrs. Kyeremeh’s Petition is barred”
because Mr. Kyeremeh’s previous marriage to Ms. Gilliam was a sham and “that USCIS acted
contrary to law when it post hoc modified the statutory and regulatory basis for an already-issued
denial.” (ECF No. 1 at 16). Plaintiffs have also asked for attorney fees and costs under 5 U.S.C.
§ 504, 28 U.S.C. § 2412, 28 U.S.C. § 1920, and Fed. R. Civ. P. 54(d). (Id. at 17). The Plaintiffs
filed the instant Motion for Summary Judgment on May 16, 2018, which is now ripe for review.
Despite Plaintiffs’ multiple claims in their complaint, on summary judgment they have only

5

argued the issue of whether the USCIS’s decision violated the APA and whether the USCIS
erred in finding substantial evidence of fraud. Thus, this Court does not address Plaintiffs’
constitutional claims, res judicata arguments, or request for fees and costs.
II. STANDARD OF REVIEW
Typically, 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.” Fed.
R. Civ. P. 56(a). When reviewing an agency decision, however, the standard is different.
Alexander v. Merit Sys. Protection Bd., 165 F.3d 474, 480 (6th Cir. 1999) (quoting Minnesota
Dep’t of Jobs and Training v. Merit Sys. Protection Bd., 875 F.2d 179, 182 (8th Cir. 1989)).
An agency decision can only be set aside if it is “arbitrary, capricious, an abuse of
discretion or otherwise not in accordance with law.” Bangura v. Hansen, 434 F.3d 487, 502 (6th
Cir. 2006) (citing 5 U.S.C. § 706(2)(A)). This is a deferential standard. An agency’s decision is
arbitrary and capricious 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.
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). The
reviewing court looks only to the rationale articulated by the agency in its decision, but “even
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.” Id. (quoting
Alaska Dep’t of Env’t Conservation v. EPA, 540 U.S. 461, 497 (2004)). In making this
determination, the Court is confined to the evidence in the administrative record. Alexander v.
Merit Sys. Protection Bd., 165 F.3d at 480; Qian Tian v. United States, No. 1:15cv264, 2017

6

U.S. Dist. LEXIS 10746, at *3 (S.D. Ohio July 12, 2017). The reviewing “court is not permitted
to reweigh the evidence nor may a court substitute its judgment for that of the agency’s
judgment.” Qian Tian, 2017 U.S. Dist. LEXIS 10746, at *4–5.
To determine whether an agency’s decision was contrary to law, this Court looks to the
law that applies to petitions for immediate relative visas. A U.S. citizen may submit a Form I130 petition on behalf of an immigrant immediate relative to have that relative be given
preference status. 8 U.S.C. § 1154(b). But, the immigrant cannot be given preference status if
an immediate family member previously petitioned for or was given preference status based on
“a marriage determined by the Attorney General to have been entered into for the purpose of
evading the immigration laws, or . . . 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.”
8 U.S.C. § 1154(c). As in Bangura, “a determination of marriage fraud made pursuant to §
204(c) must be supported by substantial and probative evidence. Therefore, this Court must
overturn any finding of marriage fraud not supported by substantial and probative evidence.”
Bangura, 434 F.3d at 502–503.
III. ANALYSIS
A. Denial of Immediate Relative Visa under APA Standards
Mr. and Mrs. Kyeremeh argue that the USCIS’s decision to deny Mrs. Kyeremeh’s
petition for immediate relative visa on behalf of Mr. Kyeremeh was arbitrary, capricious, an
abuse of discretion, and otherwise not in accordance with the law. The Kyeremehs argue that the
USCIS acted improperly by discounting the Kyeremeh’s evidence with the statement that “such
documents are easily fabricated.” (ECF No. 6-3 at 14; ECF No. 11-1 at 24). The Kyeremehs
also argue that the USCIS improperly shifted the burden to the Kyeremehs to show that Mr.

7

Kyeremeh’s marriage to Ms. Gilliam was not a fraud and that the USCIS erred in finding that
Mr. Kyeremeh’s marriage to Ms. Gilliam was fraudulent. The Government responds that USCIS
considered all the evidence and decided that the Kyeremehs’ evidence was unpersuasive and that
Plaintiffs are simply attempting to have this Court reweigh the evidence that USCIS considered.
First, the Kyeremehs argue that the USCIS did not adequately consider their evidence of
the legitimacy of Mr. Kyeremeh’s marriage to Ms. Gilliam. They argue that the USCIS erred in
saying that the evidence the Kyeremehs presented was “easily fabricated” because “it should not
be presumed that the petitioner’s evidence is false or contrived or that any adverse inference
which may be drawn applies to the sequence of events surrounding the prior marriage.” Matter
of Patel, 19 I&N Dec. 774, 784–85 (BIA 1988).
The Kyeremehs submitted several documents in an attempt to show that Mr. Kyeremeh’s
marriage to Ms. Gilliam was not a fraud. The Kyeremehs submitted mail from GEICO
Insurance addressed to Mr. Kyeremeh and Amber Gilliam at the Chesford Road address and
listing Mr. Kyeremeh as the policyholder and Ms. Gilliam as the driver; the Chesford Road lease
that lists Amber Gilliam as an occupant; a “Resident Ledger” showing that Ms. Gilliam paid an
application fee for an apartment in August 2011; photos of Mr. Kyeremeh and Ms. Gilliam
together; more mail from GEICO; AEP and AT&T bills; information from the Franklin County
Auditor’s website showing that “JE Warren Properties, LLC owns several properties,” including
Ms. Gilliam’s address from before her marriage to Mr. Kyeremeh; a vehicle damage report from
June 2011, that has Mr. Kyeremeh as the driver and Ms. Gilliam as a witness; a 2011 tax return
for Ms. Gilliam and Mr. Kyeremeh that was submitted as Married filing jointly; an envelope
addressed to Ms. Gilliam and Mr. Kyeremeh at Chesford Road in December 2011; and mail from
Weddings Are Us sent to Mr. Kyeremeh and Ms. Gilliam in May 2011, at the Atlantic Avenue

8

apartment. (ECF No. 6-3 at 11–12). USCIS has offered some explanation for why it discounted
the documents, so it cannot be said that USCIS failed to consider the evidence at all. But even
under arbitrary and capricious review, “the BIA must provide analysis beyond ‘cursory,
summary, or conclusory statements.’” Guts v. Lynch, 623 F. App’x 304, 306 (6th Cir. 2015)
(quoting Daneshvar v. Ashcroft, 355 F.3d 615, 626 (6th Cir. 2004)).1 USCIS only stated that
“the documentary evidence provided is of little probative value in refuting the conclusion that
Ms. Gilliam and the beneficiary’s marriage was a sham” and that “[s]uch documents are easily
fabricated.” (ECF No. 6-3 at 14). This explanation is conclusory and renders the USCIS’s
decision arbitrary and capricious. As the BIA has stated before
because documents showing joint income tax returns and bank accounts are
generally considered to be evidence supportive of a bona fide marital relationship,
in the absence of an objective basis in the record for discrediting the evidence,
dismissal of such evidence as indicative of a financial but not necessarily a
marital commitment, as argued by the Service in the case before us, would be
unwarranted.
Matter of Patel, 19 I&N Dec. at 785. Therefore, this case is REMANDED to the USCIS for
additional consideration of the Kyeremeh’s documentary evidence.
The Kyeremehs also argue that the USCIS improperly shifted the burden to Mrs.
Kyeremeh to show that Mr. Kyeremeh’s marriage to Ms. Gilliam was not a sham. The USCIS
acted properly in shifting the burden to Mrs. Kyeremeh. Once “there is evidence in the record to

Although the Sixth Circuit has discussed the inadequacy of conclusory statements mostly in the
context for reviewing an agency decision for abuse of discretion rather than arbitrary and
capricious review, such analysis is also relevant here. An agency abuses its discretion if it acts
arbitrarily. See, e.g., Caesar v. Hartford Life & Accident Ins. Co., 464 F. App’x 431, 434 (6th
Cir. 2012) (applying arbitrary and capricious review to discontinuance of disability benefits, an
area in which the plan administrator has discretion); Zhao v. U.S. Dep’t of Justice, 265 F.3d 83,
93 (2d Cir. 2001) (“An abuse of discretion may be found in those circumstances where the
Board’s decision provides no rational explanation, inexplicably departs from established policies,
is devoid of any reasoning, or contains only summary or conclusory statements, that is to say,
where the Board has acted in an arbitrary and capricious manner.”).
1

9

indicate that the beneficiary has been an active participant in a marriage fraud conspiracy, the
burden shifts to the petitioner to establish that the beneficiary did not seek nonquota or
preference status based on a prior fraudulent marriage.” Matter of Kahy, 19 I&N Dec. 803, 806–
07 (BIA 1988). The USCIS applied an even higher standard, requiring there to be “substantial
and probative evidence” of a fraudulent marriage before shifting the burden. (ECF No. 1-5 at 2).
Even requiring there to be substantial and probative evidence of marriage fraud, the USCIS
properly shifted the burden to Mrs. Kyeremeh. The Kyeremehs argue that the BIA should have
credited Ms. Gilliam’s and Mr. Kyeremeh’s affidavits more heavily than it did. That is an
analysis this Court does not engage in on review of the USCIS and BIA decisions. The question
for purposes of burden shifting is whether there was substantial evidence in the record, not how
the USCIS should have weighed the Kyeremehs’ evidence. The evidence that the USCIS
pointed to—several discrepancies in testimony and doubts about whether Ms. Gilliam in fact
lived with Mr. Kyeremeh—was substantial evidence that shifted the burden to Mrs. Kyeremeh.
The Kyeremehs have also argued that the USCIS erred in finding that Mr. Kyeremeh’s
prior marriage to Ms. Gilliam was fraudulent. Because this Court is remanding the case, it will
not consider whether the USCIS erred in reaching its substantive conclusion of marriage fraud.
IV. CONCLUSION
For the foregoing reasons, the USCIS’s decision to deny Mrs. Kyeremeh’s Form I-130
Petition was arbitrary and capricious. Plaintiffs Motion for Summary Judgment is GRANTED.
This case is therefore REVERSED and REMANDED to the USCIS for further proceedings.
IT IS SO ORDERED.
s/Algenon L. Marbley
UNITED STATES DISTRICT JUDGE
DATE: March 11, 2019
10