Desmore et al v. Department Of Homeland Security et al

Filing 35

MEMORANDUM OPINION granting 31 MOTION to Dismiss 1 Complaint For Lack Of Subject Matter Jurisdiction Pursuant To Fed. R. Civ. P. 12(b)(1) MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Upon Which Relief Can Be Granted Pursuant To Fed. R. Civ. P. 12(b)(6) MOTION for Summary Judgment Pursuant To Fed. R. Civ. P. 56(a) (Signed by Magistrate Judge Nancy K. Johnson) Parties notified.(sjones, 4) (Main Document 35 replaced on 2/12/2016) (sjones, 4).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
CONNIE DESMORE,
KWAME ABABIO,

§
§
§
§
§
§
§
§
§
§
§
§

Plaintiffs,
v.
DEPARTMENT OF HOMELAND
SECURITY, JEH JOHNSON,
et al.,
Defendants.

CIVIL ACTION NO. G-14-191

MEMORANDUM OPINION
Pending before the court1 is Defendants’ combined Partial
Motion to Dismiss and Motion for Summary Judgment (Doc. 31).
Plaintiffs have not filed a response and the motion is therefore
unopposed.2

The court has considered the motion and the applicable

law. For the reasons set forth below, the court GRANTS Defendants’
motion.
I.

Case Background

Plaintiffs bring this case against the Department of Homeland
Security

and

three

individuals

in

their

official

capacities,

alleging that Defendants improperly denied the approval of an
immigrant visa petition and that the denial violated Plaintiffs’

1
The parties consented to proceed before the undersigned magistrate
judge for all proceedings, including trial and final judgment, pursuant to 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. Doc. No. 22.
2

See S.D. Tex. R. 7.3, 7.4.

constitutional due process and equal protection rights.
A.

Factual History
Plaintiff Kwame Ababio (“Ababio”) was born in Ghana and became

a citizen of Germany in 1997.3

On June 25, 1999, Ababio was

admitted to the United States as a nonimmigrant pursuant to the
Visa Waiver Program, allowing him to remain in the country until
September 23, 1999.4

On July 26, 1999, Ababio married Jeanne

Robinson (“Robinson”), an individual who at that time had been
married four times and had submitted petitions for an alien
relative (“I–130”) on behalf of three husbands, with no record of
divorce or termination of the earlier marriages.5
On October 12, 2000, Robinson filed an I–130 form on Ababio’s
behalf.6

Robinson claimed that she had had one previous marriage

that ended in April 1996 and that she had never filed an I–130 form
on behalf of Ababio or anyone else.7
Following an interview in which Ababio incorrectly listed the
ages of Robinson’s children and was not aware when Robinson’s
previous marriage had ended, on September 15, 2004, the United
States

Citizenship

and

Immigration

Services

(“USCIS”)

3

See Doc. 23, Tr. of Admin. Record (“Tr.”) 555.

4

See Tr. 432.

5

See Tr. 485.

6

See Tr. 536-39.

7

See Tr. 537.

2

denied

Robinson’s
marriages.8

I–130

petition

due

to

her

unreported

previous

Robinson did not appeal the unfavorable decision to

the Board of Immigration Appeals (“BIA”), and on October 28, 2004,
Ababio filed a petition for divorce from Robinson, which became
final on February 23, 2005.9
On October 27, 2005, Ababio married Plaintiff Connie Desmore
(“Desmore”) in Houston, Texas.10

On March 9, 2006, Desmore filed

an I–130 form on Ababio’s behalf, but it was administratively
closed on November 8, 2006.11 Desmore submitted a second I–130 form
on September 27, 2007.12

On December 1, 2008, Desmore was issued

a Notice of Intent to Deny (“NOID”) regarding her I–130 form on the
grounds that Robinson’s previous I–130 on Ababio’s behalf was found
to be based on “an obvious fraud,” and was not appealed, thus
precluding Ababio from obtaining a visa
1154(c)(“Section 1154”).13

pursuant to 8 U.S.C. §

The USCIS explained that in order to

gain approval of her current petition, Desmore would have to show
that the previously filed petition was not fraudulent.14
Desmore contested the USCIS’s decision and submitted evidence
8

See Tr. 485-500.

9

See Tr. 437-44, 479-83.

10

See Tr. 424-25.

11

See Tr. 84.

12

See Tr. 415-16.

13

See Tr. 392-93.

14

See Tr. 393.

3

in support, including tax returns from 2001, the only year in which
Ababio and Robinson filed jointly.15

However on May 29, 2009, the

USCIS denied Desmore’s I–130 form.16 The USCIS did not contest that
Desmore and Ababio’s marriage was valid, however, it found that
Ababio’s marriage to Robinson was a sham, and thus the form was
denied under Section 1154(c).17
On June 19, 2009, Desmore appealed the denial to the BIA.18
On February 29, 2012, the BIA dismissed Desmore’s appeal, finding
that Ababio’s marriage to Robinson was not bona fide.19

On March

28, 2012, Desmore appealed the BIA’s ruling to the Court of Appeals
for the Fifth Circuit.20
While that appeal was pending, Desmore wrote a letter to the
USCIS stating that the USCIS was “correct all along,” that “all
this has been a lie,” that she was “so done with” Ababio, and that
she had prepared divorce papers.21

On May 23, 2012, Desmore filed

a motion opposing dismissal of the appeal and attached an affidavit
explaining that she had written the letter after an argument with
Ababio but that she intended to continue pursuing her husband’s
15

See Tr. 326.

16

See Tr. 326-28.

17

See Tr. 326-27.

18

See Tr. 309-13.

19

See Tr. 294-98.

20

See Tr. 286-88.

21

See Tr. 259.

4

visa petition.22

On June 1, 2012, Desmore’s appeal was dismissed

by the Fifth Circuit for lack of jurisdiction.23
On June 18, 2012, Desmore filed another I–130 form on Ababio’s
behalf.24

On September 11, 2012, the USCIS issued a second NOID

based on Ababio’s ineligibility under Section 1154(c).25
On August 30, 2012, Desmore, Ababio, and Robinson appeared for
an adjustment interview.26 An immigration officer declined to speak
with Robinson on the basis that the BIA had already determined that
her marriage to Ababio was a sham.27
On October 4, 2012, Desmore appealed the NOID, attaching in
support an affidavit by Robinson that stated that her relationship
with Ababio had not been a sham.28

The affidavit also disclosed

that Robinson had filed for divorce due to jealousy and that Ababio
was “so upset about [the BIA]’s finding that he decided to return
to Germany.”29
On February 6, 2013, USCIS denied Desmore’s I–130.30

22

See Tr. 242-43.

23

See Tr. 231.

24

See Tr. 149-50.

25

See Tr. 84-85.

26

See Doc. 1, Pls.’ Compl. p. 5.

27

See id.

28

See Tr. 87-94.

29

See Tr. 93.

30

See Tr. 78-82.

5

The

denial indicated that although Desmore’s marriage to Ababio was
valid, his previous marriage was entered into for the purpose of
evading immigration laws.31 Desmore appealed this denial to the BIA
on February 23, 2013, arguing that there was no evidence that
Ababio colluded with Robinson, arguing that Ababio was a “victim”
of Robinson’s “marriage scheme.”32
On October 21, 2013, Desmore submitted a brief in support of
her appeal to the BIA.33

In her appeal, Desmore argued that the

USCIS erred by not interviewing Robinson, that Robinson’s marriage
to Ababio had not been valid due to Robinson’s polygamy, that there
was

no

marriage

evidence
fraud,

Ababio
and

knowingly

that

Ababio

participated

in

received

benefits

no

Robinson’s
from

Robinson’s actions, therefore they could not be imputed to him.34
On April 4, 2014, the BIA dismissed Desmore’s appeal.35

The

BIA explained that there was substantial evidence that Ababio
entered into the marriage with Robinson for the purpose of evading
immigration laws.36
B.

Procedural History

31

See Tr. 79.

32

See Tr. 70.

33

See Tr. 7-48.

34

See Tr. 9-19.

35

See Tr. 4-6.

36

See Tr. 5.

6

On June 6, 2014, Plaintiffs Desmore and Ababio filed suit
against Defendants, alleging that they were deprived of substantive
and procedural due process under the Fifth Amendment, that Section
1154(c) violated the Equal Protection Clause and was arbitrarily
and selectively enforced, and requested that the court declare that
Defendants

incorrectly

denied

Desmore’s

I–130

form

and

award

Plaintiffs their attorneys’ fees.37
On August 29, 2015, Defendants filed a motion to dismiss and
for summary judgment.38

Plaintiffs did not file a response to

Defendants’ motion, and the deadline to respond has passed.
II.

Defendants’ Motion to Dismiss Ababio

Defendants move to dismiss Plaintiff Ababio’s claims for lack
of standing pursuant to Federal Rule of Civil Procedure (“Rule”)
12(b)(1).
The court must decide a Rule 12(b)(1) motion before addressing
any attack on the merits.
161 (5th Cir. 2001).

Ramming v. United States, 281 F.3d 158,

Pursuant to the federal rules, dismissal of

an action is appropriate whenever the court lacks subject matter
jurisdiction. Fed. R. Civ. P. 12(b)(1); 12(h)(3).

Federal courts

may exercise jurisdiction over cases only as authorized by the
United

States

Constitution

and

the

jurisdictional

statutes.

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377

37

See Doc. 1, Pls.’ Compl. 8-13.

38

See Doc. 31, Defs.’ Mot. to Dismiss & for Summ. J.

7

(1994); see also Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th
Cir. 2001).

The party asserting jurisdiction bears the burden of

overcoming the presumption that the cause falls outside the court’s
limited jurisdiction.
at 916, 919.

Kokkonen, 511 U.S. at 377; Howery, 243 F.3d

In considering such a motion, the court must take as

true all uncontroverted factual allegations in the complaint. John
Corp. v. City of Houston, 214 F.3d 573, 576 (5th Cir. 2000).
Defendants argue that Ababio lacks standing to contest the
BIA’s denial of Desmore’s I–130 form and that Desmore alone has
standing to challenge the BIA’s ruling. INA regulations state that
unfavorable BIA decisions may be appealed by the affected party.
See 8 C.F.R. § 103.3(a)(1)(ii).

The regulations implementing the

INA define an “affected party” as “the person or entity with legal
standing in a proceeding.
a Visa petition.”

It does not include the beneficiary of

8 C.F.R. § 103.3(a)(1)(iii)(B).

Defendants

argue that only Desmore, the visa petitioner, has standing before
the court.
In addition to Article III’s normal standing requirements, the
Supreme Court has held that a person suing under the Administrative
Procedure Act (“APA”) must also be “arguably within the zone of
interests to be protected or regulated by the statute” allegedly
violated.
Patchak,

Match–E–Be–Nash–She–Wish Band of Pottawatomi Indians v.
___

prudential

U.S.

standing

___,
test

132
is

S.
not

8

Ct.

2199,

meant

to

2210

(2012).

The

be

demanding,

and

“forecloses

suit

only

when

a

plaintiff’s

interests

are

so

marginally related to or inconsistent with the purposes implicit in
the statute that it cannon reasonably be assumed that Congress
intended to permit the suit.”

Id.

The Fifth Circuit has not specifically determined whether a
visa beneficiary has standing to file suit to challenge a rejected
I–130 form.

See Khalid v. DHS, USA, 1 F. Supp. 3d 560, 568 (S.D.

Tex. 2014).

Other district courts have consistently found that a

Form I–130 beneficiary lacks standing.

See, e.g. Opoku–Agyeman v.

Perez, 886 F. Supp. 2d 1143, 1148 (W.D. Missouri 2012);
Renaud, 709 F. Supp. 2d 230, 236 n. 3 (S.D.N.Y. 2010).

Li v.

This court

has previously found that beneficiaries lack standing to challenge
See Khalid (denying standing to

the denial of similar petitions.

an I–360 beneficiary); Gene’s Mach., Inc. v. Dep’t of Homeland
Sec., No. V-11-4, 2012 WL 1067557, at *6 (Mar. 28, 2012) (denying
standing to I–140 beneficiary). In Gene’s Machine, Inc., the court
found that the beneficiaries’ status as illegal residents in the
United States was a factor in determining that the beneficiaries
lacked standing.

Id.

Here, Desmore filed the I–130 forms with Ababio as the
intended beneficiary. Like the plaintiffs in Gene’s Machine, Inc.,
Ababio is an illegal resident attempting to challenge a decision
for which he was the primary beneficiary.

Plaintiffs’ causes of

action relate to the denial of I–130 forms prepared by Desmore, so

9

only

Desmore,

the

petitioner,

has

sufficiency of the BIA’s denial.

standing

to

challenge

the

Ababio’s claims are therefore

DISMISSED.
III.

Rule 12(b)(6) Dismissal Standard

Rule 12(b)(6) allows dismissal of an action whenever the
complaint, on its face, fails to state a claim upon which relief
can be granted.

When considering a motion to dismiss, the court

should construe the allegations in the complaint favorably to the
pleader and accept as true all well-pleaded facts.

Harold H.

Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 803 n.44 (5th Cir.
2011).
A complaint need not contain “detailed factual allegations”
but must include sufficient facts to indicate the plausibility of
the claims asserted, raising the “right to relief above the
speculative level.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Plausibility means that the factual content “allows the court to
draw the reasonable inference that the defendant is liable for the
Iqbal, 556 U.S. 678.

misconduct alleged.”
provide

“more

than

labels

and

conclusions”

A plaintiff must
or

recitation of the elements of a cause of action.”
U.S. at 555.

“a

formulaic

Twombly, 550

In other words, the factual allegations must allow

for an inference of “more than a sheer possibility that a defendant
has acted unlawfully.”

Iqbal, 556 U.S. 678.
10

IV.

Analysis

Desmore claims that the denial of her I–130 form (1) violated
her substantive and procedural due process rights; (2) that Section
1154(c) violates the equal protection clause of the Fourteenth
Amendment;

and

(3)

selectively enforced.

that

Section

1154(c)

is

arbitrarily

and

Desmore additionally argues that the denial

of her application was arbitrary and capricious and therefore
subject to review under the APA.

Defendants argue that Desmore’s

constitutional claims fail to state a claim for relief, and that
Desmore cannot prevail as a matter of law on her APA claim.
Desmore has not responded, and Defendants’ motion is therefore
deemed unopposed.
A.

The court considers Desmore’s claims in turn.

Due Process
Desmore

claims

that

the

BIA’s

rejection

violated

her

substantive due process rights by denying her visa petition.39

She

claims her procedural due process rights were violated because she
was denied the right to present reasons why her petition should be
granted, specifically the ability to call Robinson as a witness.
Defendants respond that Desmore has failed to state any claim upon
which relief can be granted.
The Fifth Amendment states, in relevant part, that: “No person
shall . . . be deprived of life, liberty, or property, without due
process of law.”

39

U.S. Const. amend. V.

See Doc. 1, Pl.’s Compl. p. 8.

11

The due process clause

encompasses both procedural and substantive rights.

Cnty. of

Sacramento v. Lewis, 523 U.S. 833, 840 (1998).
The

constitutional

guarantee

of

procedural

due

process

includes, at a minimum, notice and an opportunity to be heard in a
meaningful time and manner.

Gibson v. Tex. Dept. of Ins.-Div. of

Workers’ Compensation, 700 F.3d 227, 239 (5th Cir. 2012) (quoting
Fuentes v. Shevin, 407 U.S. 67, 80 (1972)).

The analysis of a

procedural due process claim has two steps: (1) whether a liberty
or

property

interest

exists

with

which

the

government

has

interfered; and (2) whether the procedures attendant upon the
deprivation were constitutionally sufficient.

Meza v. Livingston,

607 F.3d 392, 399 (5th Cir. 2010) (quoting Ky. Dep't of Corr. v.
Thompson, 490 U.S. 454, 460 (1989), overruled in part on other
grounds, Sandin v. Conner, 515 U.S. 472 (1995)), clarified on
denial of reh’g, 2010 WL 6511727 (5th Cir. 2010)).
The constitutional guarantee of due process also includes a
substantive component that protects individuals from arbitrary or
conscience-shocking executive action.

See Doe ex rel. Magee v.

Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 867 (5th Cir.
2012) (quoting Cnty. of Sacramento, 523 U.S. at 847). However, the
protection

is

limited.

If

another

provision

of

the

U.S.

Constitution provides “an explicit textual source of constitutional
protection,” the plaintiff's claims must be analyzed under that
provision rather than the “more generalized notion of substantive

12

due process.” Wilson v. Birnberg, 667 F.3d 591, 599 (5th Cir. 2012)
(quoting Conn v. Gabbert, 526 U.S. 286, 293 (1999)).
Regarding her substantive due process claim, Desmore has not
identified what fundamental right is burdened by Defendants’ action
in denying a visa petition.

Although there is a fundamental right

to marry, Defendants have not disputed her marriage to Ababio. See
Kerry v. Din, ___ U.S. ___, 135 S. Ct. 2128, 2134 (2015).

Even if

Desmore claimed a liberty or property interest in her I–130 form,
the power to expel or exclude aliens is a fundamental sovereign
right.

See Fiallo v. Bell, 430 U.S. 787, 792 (1977).

In Kerry,

the Supreme Court stated that a person is not deprived of any life,
liberty, or property interest when the government denies a spouse’s
admission to the United States.

Id. at 2138.

Desmore has

therefore failed to state a claim that her substantive due process
rights were violated.
Similarly, the Supreme Court in Kerry held that, to the extent
that

a

spouse

is

due

any

procedural

due

process

under

the

Constitution, such process is satisfied by an explanation of the
BIA’s decision.

Id.

Here, there is no question that Desmore

received an opportunity to be heard and was informed of the BIA’s
reasons in denying her petitions.

Because she cannot present a

claim that her due process rights were violated, Desmore’s due
process claims are DISMISSED.
B.

Equal Protection

13

Desmore

argues

that

Section

1154(c)

violates

the

equal

protection clause of the Fourteenth Amendment by treating citizens
who marry foreigners differently than citizens who marry other
citizens.

Defendants note that the Fourteenth Amendment does not

apply to the federal government, but that even if Desmore had
specified her equal protection claim under the Fifth Amendment, she
failed to state a claim for relief because the BIA did not infringe
on Desmore’s right to marry Ababio, and that, even if Defendants
burdened Desmore’s ability to live with her alien spouse in the
United

States,

it

is

related

to

the

government’s

legitimate

interest in regulating immigration and discouraging marriage fraud.
In order to state a claim under the equal protection clause,
a plaintiff first must allege “that two or more classifications of
similarly situated persons were treated differently” by a state
actor.

Gallegos-Hernandez v. United States, 688 F.3d 190, 195 (5th

Cir. 2012). If successful, the court determines the appropriate
level of scrutiny for the classification made. Id.
Because Congress has near-complete legislative power over the
admission of aliens into the country, the court has a narrow
ability to review legislative decisions.

Malagon de Fuentes v.

Gonzales, 462 F.3d 498, 504 (5th Cir. 2006).

Congress may enact

legislation “that would be invalid under the Fourteenth Amendment
if enacted by a State, particularly if the legislation relates to
immigration.”

Id.

(quoting Rodriguez-Silva v. INS, 242 F.3d 243,

14

246

(5th

Cir.

2001)).

Congress’

legislative

decisions

to

distinguish between those who have committed violations and those
who have not, or to make gaining a visa more difficult than removal
have not been found to violate equal protection.

Id. (citing

Giusto v. INS, 9 F.3d 8, 10 (2d Cir. 1993) (holding that

28 U.S.C.

§ 1182(c)’s making discretionary relief unavailable did not violate
equal protection rights)).

The Fifth Circuit has found that the

equal protection clause does not restrict Congress’ authority to
set admission and naturalization criteria, so the court need not
find even a rational basis for Congress’ decisions.

Rodriguez-

Silva, 242 F.3d at 248.
Here,

Desmore

has

not

established

that

she

differently from any similarly situated group.

was

treated

As noted by

Defendants, the government has not invalidated her marriage to
Ababio.

Considering Desmore’s claims in the best possible light,

she argues that Defendants violated her equal protection rights by
treating a potential visa beneficiary who had engaged in marriage
fraud differently from a potential visa beneficiary who had not.
Considering Congress’ broad discretionary power in controlling
immigration, the court finds that Section 1154(c) does not violate
Desmore’s

rights.

Her

equal

protection

claim

is

therefore

DISMISSED.
C.

APA Review
Desmore additionally asks that the denial of her application
15

be reviewed under the APA.

Defendants respond that as a matter of

law Desmore cannot prevail on her APA claim because there is no
evidence that Defendants’ actions were arbitrary or capricious.
1.

Summary Judgment Standard

Summary judgment is warranted when the evidence reveals that
no genuine dispute exists regarding any material fact and the
moving party is entitled to judgment as a matter of law.

Fed. R.

Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);
Triple Tee Golf, Inc., v. Nike, Inc., 485 F.3d 253, 261 (5th Cir.
2007).

The summary judgment mechanism is particularly appropriate

for the review of a decision of a federal administrative agency.
Girling Health Care, Inc. v. Shalala, 85 F.3d 211, 214-15 (5th Cir.
1996).
The explanation for this lies in the relationship between
the summary judgment standard of no genuine issue as to
any material fact and the nature of judicial review of
administrative decisions . . . . [T]he administrative
agency is the fact finder. Judicial review has the
function of determining whether the administrative action
is consistent with the law – that and no more.
Id. at 215 (quoting 10A Charles Alan Wright, Arthur R. Miller &
Mary

Kay

Kane,

Federal

Practice

and

Procedure

§

2733

(1983))(alterations in original).
2.

APA Review

The court retains jurisdiction under 28 U.S.C. § 1331 to
review administrative decisions via the APA.
Chertoff,

517

F.3d

273,

278

(5th
16

Cir.

See Ayanbadejo v.

2008).

The

court

is

authorized to review final agency decisions and to set aside any
decision that is “arbitrary, capricious, an abuse of discretion or
otherwise not in accordance with the law.”40

5 U.S.C. § 706(2)(A);

see also F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 513
(2009).

Examples of when an agency decision is arbitrary or

capricious include when the agency relied on factors not intended
by Congress, when it entirely failed to consider an important
factor, or when it offered an explanation that was contrary to the
evidence or completely implausible.

Motor Vehicle Mfrs. Ass’n of

U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983).
The court’s task is to apply the APA standard of review to the
agency decision based solely on the administrative record.
Power & Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985).

Fla.
The

standard of review is narrow, requiring only that an agency
“examine

the

relevant

data

explanation for its action.”

and

articulate

a

satisfactory

F.C.C., 556 U.S. at 513 (quoting

Motor Vehicle Mfrs. Ass’n of U.S., Inc., 463 U.S. at 43).
Desmore asserts that Defendants’ denial of her I–130 form was
arbitrary

and

capricious.

Defendants

respond

that

Desmore’s

petition was correctly denied under Section 1154(c).

40

The statute also directs the court to set aside agency actions if
found to be contrary to a constitutional right, in excess of statutory
jurisdiction, without proper procedural requirements, unsupported by substantial
evidence in cases of hearings, or unwarranted by the facts to the extent the
facts are subject to trial de novo by the court. 5 U.S.C. § 706(2). Here,
Plaintiffs claim that the decision was arbitrary and capricious.

17

The

court

retains

limited

ability

to

review

Defendant’s

determination to the extent that its action was final. An agency’s
actions are final when: “1) it represents the consummation of the
agency’s decision making process, meaning that it must not be of a
merely tentative or interlocutory nature; and (2) the action must
be one by which rights or obligations have been determined, or from
which legal consequences will flow.”

Offiong v. Holder, 864 F.

Supp. 2d 611, 626 (S.D. Tex. 2012) (quoting Bennett v. Spear, 520
U.S. 154, 178 (1997)).

This means that the court may review only

Defendant’s final decision to deny Desmore’s I–130 form, not
specific BIA actions previous to that determination, including the
decision not to interview Robinson.
Desmore’s I–130 form was denied based on Section 1154(c).
Section 1154(c) states:
[No] petition shall be approved 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.
8 U.S.C. § 1154(c).

8 C.F.R. § 204.2(a) states that the BIA will

deny any petition if there is “substantial and probative evidence”
that the individual previously attempted to enter into a marriage
or conspiracy in an attempt to evade immigration laws, “regardless

18

of whether that alien received a benefit through the attempt or
conspiracy.”
Desmore argues that Ababio’s marriage to Robinson does not
violate Section 1154(c) because Robinson was married to other
individuals at the time and because there was insufficient evidence
to support Defendants’ finding of marriage fraud between Ababio and
Robinson.
Desmore’s
unavailing.

argument

that

Ababio’s

marriage

was

void

is

The statute explicitly states that no petition shall

be approved when an alien has “attempted or conspired to enter into
a marriage for the purpose of evading” immigration laws; the
underlying validity of the marriage is extraneous to the BIA’s
analysis.

See

8 U.S.C. § 1154(c)(2).

Here, it is undisputed that

Ababio and Robinson attempted to marry; the underlying validity of
the marriage is therefore irrelevant.
Desmore also asserts that “there was no substantial and
probative evidence which would result in the conclusion that the
Robinson-Ababio marriage was fraudulent.”41

In its review of the

BIA’s determination, the court is to give considerable deference to
the BIA’s interpretation unless the record reveals evidence that
the BIA’s interpretation is incorrect.

Shaikh v. Holder, 588 F.3d

861, 863 (5th Cir. 2009). If the BIA’s interpretation is correct,
the BIA’s determination is upheld if it is supported by substantial

41

See Doc. 1, Pls.’ Compl. p. 11.

19

evidence. Id. “Substantial evidence” requires only that the BIA’s
decision “be supported by record evidence and be substantially
reasonable.”

Id. (quoting Omagah v. Ashcroft, 288 F.3d 254, 258

(5th Cir. 2002).
In this case, the BIA’s February 29, 2012 denial stated that
it found substantial and probative evidence in support of its
determination

that

Section

1154(c)

applied

to

Desmore’s

application.42

The court therefore must determine only that the

BIA’s decision was substantially reasonable and supported by record
evidence.
A marriage is considered a sham marriage “if the bride and
groom did not intend to establish a life together at the time they
were married.” Brown v. Napolitano, 391 F. App’x 346, 351 (5th Cir.
2010) (quoting Bark v. I.N.S., 511 F.2d 1200, 1201 (9th Cir. 1975)).
The conduct of the parties after marriage, as well as testimony and
evidence regarding courtship, residence, and shared experiences is
used to determine the parties’ intent at the time of marriage. Id.
(citing Matter of Laureano, 19 I & N Dec. 1, 2 (BIA 1983)).
Here, Ababio married Robinson one month after entering the
country.

Robinson completed an I–130 form on Ababio’s behalf,

stating that she had been married once previously and had never
completed an I–130 form, although the USCIS determined that she had
married and filled out identical forms on behalf of three other

42

See Tr. 297.

20

men.

Robinson

and

Ababio’s

interview

with

USCIS

established

numerous inconsistencies, from the ages of Robinson’s children, to
the length of her previous marriage, and to whether Robinson had
any tattoos.43

Robinson’s 2012 affidavit, prepared in support of

Desmore’s appeal, additionally included factual inconsistencies,
providing

an

incorrect

name

for

Ababio’s

son,

stating

that

Robinson, not Ababio, filed for divorce, and that Ababio had
returned to Germany after Robinson’s application was denied.44
Considering the above evidence, the BIA’s determination that
the Ababio-Robinson marriage was a sham is both substantially
reasonable and supported by evidence of record. Defendants’ motion
for summary judgment on Desmore’s APA claim is therefore GRANTED.
V.

Conclusion

Based on the foregoing, the court GRANTS Defendants’ motion to
dismiss and for summary judgment.
SIGNED in Houston, Texas, this 12th day of February, 2016.

______________________________
U.S. MAGISTRATE JUDGE

43

See Tr. 491-500.

44

See Tr. 93.

21