Armah-El-Aziz v. Zanotti et al
Filing
19
MEMORANDUM OPINION. Signed by District Judge James C. Cacheris on 7/16/2015. (dvanm, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
MERCY D. ARMAH-EL-AZIZ, et
al.,
Plaintiffs,
v.
KIMBERLY ZANOTTI, FIELD OFFICE
DIRECTOR, WASHINGTON FIELD
OFFICE, U.S. CITZENSHIP AND
IMMIGRATION SERVICES, et al.,
Defendants.
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M E M O R A N D U M
1:15-cv-261 (JCC/MSN)
O P I N I O N
This action brought pursuant to the Administrative
Procedures Act, 5 U.S.C. § 702 et seq. (“APA”), is before the
Court on the parties’ cross-motions for summary judgment.
[Dkts. 7, 11.]
For the following reasons, the Court will deny
Plaintiffs’ motion for summary judgment and grant Defendants’
motion for summary judgment.
I. Background
The following facts, taken from the parties’ briefs
and the administrative record [Dkts. 6-1, 6-2, 6-3], are
undisputed unless otherwise indicated.
The Court will refer to
the Plaintiffs individually by their first names, as both
individuals now share the surname “El-Aziz.”
1
Plaintiff Rashid El-Aziz (hereinafter “Rashid”) is a
citizen of Ghana.
(R. 134, 148-49.)
Rashid entered the United
States on March 5, 2005 pursuant to a visitor visa that expired
on April 30, 2005.
(R. 111, 134.)
In May of 2005, shortly
after his visa expired, Rashid met Ms. Celeste Dempsey
(hereinafter “Ms. Dempsey”).
(R. 125 ¶ 1.)
On October 4, 2005,
Rashid and Ms. Dempsey were married in Carrabus County, North
Carolina.
(R. 228.)
On December 19, 2005, Ms. Dempsey filed an
I-130 Petition for Alien Relative on behalf of Rashid.1
(R. 223-
25.)
Ms. Dempsey named Rashid as her spouse and beneficiary.
(Id.)
In the petition, Ms. Dempsey stated that both she and
Rashid presently resided at 6314 South Kings Highway,
Alexandria, Virginia, and that they intended to reside there in
the future.
(Id.)
Ms. Dempsey also stated that she was
presently employed by the Charlotte Observer as an Independent
Carrier in North Carolina.
(R. 225.)
In support of the I-130 Petition, Ms. Dempsey
submitted: (1) a residential lease for “Rashid and Celeste ElAziz” at 6314 South Kings Highway, Alexandria, Virginia for the
term of January 1, 2006 to December 31, 2008 (R. 49-51); (2) a
letter from the Charlotte Observer dated October 5, 2005 that
1
For an alien to immigrate to the United States, he or she must
be the recipient of an immigrant visa. See generally 8 U.S.C.
§§ 1151-54. A United States citizen parent, child, or spouse
can petition for an immigrant visa on behalf of the alien. 8
U.S.C. § 1151(2)(A)(i).
2
confirmed Ms. Dempsey’s employment as an Independent Carrier for
the Charlotte Observer (R. 53); and (3) tax forms in Ms.
Dempsey’s name for 2002 with an address in Columbia, South
Carolina, for 2003 with an address in Camden, South Carolina,
and for 2004 with an address in Charlotte, North Carolina (R.
55-60).
On July 19, 2006, after an interview with a
representative from the United States Citizenship and
Immigration Services (“USCIS”), Ms. Dempsey withdrew the I-130
Petition, stating:
I handwrote the answers to the application
and he typed/or had it typed up. I did not
submit
the
letter
from
the
Charlotte
Observer, the figures on the W-2 have been
changed. I also did not submit the lease.
Celeste Dempsey
12222 Old Timber Rd.
Charlotte, NC 28269
(R.
222.)2
On
December
2009,3
16,
USCIS
acknowledged
withdrawal and deemed the I-130 Petition null and void.
the
(R.
221.)
2
Defendants contend that contemporaneous notes from the USCIS
adjudicator identified the marriage as fraudulent. (See Defs.’
Mem. in Supp. [Dkt. 12] at 9 (citing R. 45).) The Court is
unable to make this determination based on the documents in the
record alone, but does note that one page entitled “Form I-485
Processing Worksheet” has the word FRAUD underlined and written
across the top of the page. (R. 43.)
3
It is unclear based on the record now before the Court why this
acknowledgment came over three years after Ms. Dempsey withdrew
the I-130 Petition.
3
On November 9, 2007, Ms. Dempsey and Rashid were
divorced by a “Decree of Divorce a Vinculo Matrimonii” entered
in the Circuit Court of the City of Alexandria.
(R. 196-98.)
The Divorce Decree stated that “since December 18, 2005, the
parties have been living separate and apart without cohabitation
or interruption,” which was a little over two months after they
were married and one day before the I-130 Petition was filed.
(R. 196.)
On September 23, 2009, the United States Department
of Homeland Security (hereinafter “Homeland Security”)
determined that Rashid married Ms. Dempsey “for the purpose of
evading provisions of the immigration laws.”
(R. 212-13.)
Four
days later, on September 27, 2009, Homeland Security created a
“Record of Deportable/Inadmissible Alien” for Rashid based on
the alleged marriage fraud with Ms. Dempsey.
(R. 214-15.)
On
January 12, 2010, Homeland Security ordered Rashid to appear
before an immigration judge through a “Notice to Appear” in
removal proceedings under section 240 of the Immigration and
Nationality Act (“INA”).
(R. 216-220.)4
On November 6, 2010, Rashid married Plaintiff Mercy
Armah (hereinafter “Mercy”) in Springfield, Virginia.
(R. 202.)
Mercy, also originally from Ghana, became a naturalized United
States citizen on February 11, 2003.
4
(R. 143-44.)
On May 12,
Rashid’s removal proceeding is still pending, with the next
hearing set for February 11, 2016 in Arlington, Virginia.
(Pl.’s Mot. for Summ. J. [Dkt. 7] at 8.)
4
2011, Mercy, through counsel, filed an I-130 Petition for Alien
Relative on behalf of Rashid.
(R. 134-35.)
On August 2, 2011,
Rashid and Mercy were interviewed by a USCIS representative.
During that interview, Rashid made the following sworn statement
regarding his previous marriage to Ms. Dempsey:
During our time of marriage, Celeste was
making reservations and arrangements to
finally move to Virginia. She visited often
and I did too.
She was residing with an
aunt of hers in Charlotte, N.C.
We were
working very hard to resolve our living
arrangements.
She would visit me and stay
for a week and I would visit for about 2
days because I was working at that time.
She
visited
and
stayed
for
before
Thanksgiving 2005.
I also visited a few
times in 2005 also [sic].
(R. 138.)
On September 29, 2011, USCIS issued a “Notice of
Intent to Deny Visa Petition” (“NOID”) and allowed Mercy thirty
days to submit additional evidence in opposition.
(R. 128-31.)
On October 28, 2011, Mercy submitted, through counsel, a letter
opposing conclusions reached in the NOID and attached a new
affidavit from Rashid.
(R. 101-127.)
On September 27, 2012,
USCIS issued its final denial of the I-130 Petition after
finding that Rashid entered into his previous marriage with Ms.
Dempsey with the intent of evading immigration laws, which
barred approval of the Second Petition under section 204(c) of
the INA.
(R. 95-100.)
5
On October 25, 2012, Mercy and Rashid, through
counsel, noticed an appeal from USCIS’s decision to the Board of
Immigration Appeals (“BIA”).
(R. 77-94.)
Homeland Security
filed a response to the appeal on December 20, 2012.
74.)
(R. 73-
On December 11, 2013, the BIA remanded the petition back
to USCIS to “place into the record” missing documents that were
necessary for review.
(R. 69-70.)
USCIS subsequently moved the
BIA to accept the missing documents into the record.
26.)
(R. 24-
Mercy and Rashid, through counsel, filed another brief in
response.
(R. 14-20.)
On October 15, 2014, the BIA dismissed
the appeal and concluded “that there is substantial and
probative evidence to support the finding that the beneficiary
previously engaged in marriage fraud when he was married to
Celeste Dempsey, such that he is ineligible for approval of the
subsequent visa petition filed on his behalf by his current
wife.”
(R. 5-7.)
On February 25, 2015, Mercy and Rashid (collectively
“Plaintiffs”) filed this lawsuit against Defendants Kimberly
Zanotti, Field Office Director of the Washington Field Office
for USCIS, Leon Rodriguez, Director of USCIS, Eric H. Holder,
Jr., then-United States Attorney General, and Jeh Johnson,
Secretary of Homeland Security (collectively “Defendants”),
challenging USCIS’s denial of the I-130 Petition.
1].)
(Compl. [Dkt.
Plaintiffs ask the Court to vacate Defendants’ order
6
denying the I-130 Petition and ask the Court to grant the I-130
Petition.
(Compl. at 11.)
The parties filed cross-motions for
summary judgment with memoranda in support.
Summ. J. [Dkt. 7];
(Pl.’s Mot. for
Defs.’ Mot. for Summ. J. [Dkt. 11]; Defs.’
Mem. in Supp. of Mot. for Summ. J. [Dkt. 12].)
Having been
fully briefed and argued, the motions are ripe for disposition.
II. Legal Standard
The parties have filed cross-motions for summary
judgment pursuant to Rule 56 of the Federal Rules of Civil
Procedure.
Summary judgment is appropriate when the pleadings
and the record demonstrate that “there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law.”
Fed. R. Civ. P. 56(c).
The
claims in this case, however, involve final action by USCIS,
i.e., the denial of the I-130 petition, and dismissal of the
appeal by the BIA, which is subject to judicial review under the
APA.
5 U.S.C. § 702; see also Lee v. U.S. Citizenship &
Immigration Servs., 592 F.3d 612, 619 (4th Cir. 2010).
“A court conducting judicial review under the APA does
not resolve factual questions, but instead determines ‘whether
or not as a matter of law the evidence in the administrative
record permitted the agency to make the decision it did.’”
Friends of Back Bay v. U.S. Army Corps of Engineers, No.
2:10cv270 (HCM), 2011 WL 12473234, at *4 (E.D. Va. Feb. 9, 2011)
7
(citations omitted).
Accordingly, “in a case involving review
of a final agency action under the APA . . . the standard set
forth in Rule 56(c) does not apply because of the limited role
of the court in reviewing the administrative record.”
Id.
(citation omitted); see also Spelman v. McHugh, --- F. Supp. 3d
---, 2014 WL 4178211, at *2 (D.D.C. Aug. 22, 2014) (citations
omitted).
Stated differently, in this posture, “summary
judgment becomes the mechanism for deciding, as a matter of law,
whether the agency action is supported by the administrative
record and otherwise consistent with the APA standard of
review.”
omitted).
Friends of Back Bay, 2011 WL 12473234, at *4 (citation
Thus, judicial review is confined to review of the
administrative record from proceedings before the agency.
Camp
v. Pitts, 411 U.S. 138, 142 (1973).
On judicial review, this Court must set aside final
agency action that is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.”
§ 706(2)(A).
5 U.S.C.
The standard of review is extremely “narrow” and
does not authorize a district court “to substitute its judgment
for that of the agency.”
Citizens to Preserve Overton Park,
Inc. v. Volpe, 401 U.S. 402, 416 (1971), abrogated on other
grounds, Califano v. Sanders, 430 U.S. 99 (1977).
Indeed, this
Court’s review is “highly deferential, with a presumption in
favor of finding the agency action valid.”
8
Ohio Valley Envtl.
Coal v. Aracoma Coal Co., 556 F.3d 177, 192 (4th Cir. 2009).
III. Analysis
Plaintiffs ask the Court to vacate the BIA’s final
order of dismissal5 of the visa petition on two grounds.
generally Compl.)
(See
First, Plaintiffs contend that the denial of
Mercy’s I-130 Petition was arbitrary, capricious, and not in
accordance with law.
(Pl.’s Mot. at 17-27.6)
Second, Plaintiffs
argue that the denial of Mercy’s I-130 Petition violated the Due
Process Clause of the Fifth Amendment.
(Id. at 27-32.)
Before
the Court addresses each argument, a brief review of the
substantive immigration law is necessary.
A United States citizen may file an I-130 visa
petition to classify his or her alien spouse, the beneficiary,
as an “immediate relative.”
8 U.S.C. § 1154.
5
The petitioner
The BIA reviewed USCIS’s denial of Mercy’s I-130 petition de
novo and issued its own opinion without adopting the USCIS
written opinion. (R. 5-7.) When the BIA decision affirms
USCIS’s denial of a I-130 petition and adopts the rationale set
forth in USCIS’s decision, both decisions are subject to review
by the federal district court. See, e.g., Zemeka v. Holder, 989
F. Supp. 2d 122, 128 (D.D.C. 2013) (citation omitted). Here,
because the BIA issued its own decision, the Court will review
that decision as the final agency action, in accordance with
Plaintiffs’ briefing. Cf. Tolesa v. Holder, 353 F. App’x 815,
818 (4th Cir. 2009) (“While ordinarily we review only the
decision of the BIA, when the BIA adopts the reasoning of the IJ
and summarily affirms, we review the IJ’s decision.”); see also
Pl.’s Mot. at 17 (“The Board issued its own opinion without
adopting the USCIS decision. Therefore, the Court reviews the
BIA decision for compliance with the APA.”).
6
The Court adopts the pagination assigned by CM/ECF to the
parties’ briefs.
9
citizen bears the burden of establishing eligibility for the
benefit sought.
(1975).
Matter of Phillis, 15 I. & N. Dec. 385, 386
The petitioner must furnish sufficient documentation
that establishes, inter alia, “the claimed relationship of the
petitioner [U.S. Citizen] to the beneficiary [alien].”
§ 204.1(f)(1).
8 C.F.R.
USCIS then must conduct “an investigation of the
facts in each case” to determine whether to approve the
petition.
8 U.S.C. § 1154(b).
If USCIS “determines that the
facts stated in the petition are true and that the alien on
behalf of whom the petition is made is an immediate relative,”
the petition shall be approved.
Id.
Approval of the petition
“renders the alien spouse eligible for immigrant status.”
Pereira v. Immigration and Naturalization Serv., 342 F.2d 422,
423 (1st Cir. 1965).
“The director [of USCIS] will deny a petition for
immigrant visa classification filed on behalf of any alien for
whom there is substantial and probative evidence . . . [that the
alien] has attempted or conspired to enter into a marriage for
the purpose of evading the immigration laws.”
204.2(a)(1)(ii) (citing 8 U.S.C. § 1154(c)).
8 C.F.R. §
Stated
differently, USCIS must deny a petition if it concludes there is
substantial and probative evidence that a purported marriage is
fraudulent.
Moreover, USCIS shall deny an immigrant visa to any
individual who has entered into a fraudulent marriage at any
10
time and sought an immigration benefit as a result, regardless
of the legitimacy of the current marriage.
Specifically:
[N]o 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); see also Osakwe v. Mukasey, 534 F.3d 977,
979 (8th Cir. 2008) (“It goes without saying that the [US]CIS’s
determination of marriage fraud carries great consequences as an
alien may be permanently ineligible to obtain an I-130 visa even
if he subsequently enters into a bona fide marriage with a U.S.
citizen.”) (citing 8 U.S.C. § 1154(c)).
A finding of marriage fraud must be supported by
“substantial and probative” evidence.
8 C.F.R. §
204.2(a)(1)(ii); Matter of Tawfik, 20 I. & N. Dec. 166, 167-68
(1990).
In making that adjudication, [USCIS] may
rely on any relevant evidence, including
evidence having its origin in prior . . .
proceedings involving the beneficiary, or in
court
proceedings
involving
the
prior
marriage.
Ordinarily, [USCIS] should not
give conclusive effect to determinations
made in a prior proceeding, but, rather,
11
should reach his own independent conclusion
based on the evidence before him.
Matter of Tawfik, 20 I. & N. Dec. at 168 (citing Matter of F-, 9
I. & N. Dec. 684 (1962)).
“Although it is not necessary that
the alien have been convicted of, or even prosecuted for the . .
. conspiracy, the evidence . . . must be contained in the
alien’s file.”
Koffi v. Holder, 487 F. App’x 658, 659 (2d Cir.
July 11, 2012) (citing 8 C.F.R. § 204.2(a)(1)(ii)).
“The
conduct of the parties after marriage is relevant to their
intent at the time of marriage . . . . Where the parties have
never lived together, the amount of evidence required to
establish that the marriage was not entered into for the
fraudulent purpose of evading the immigration laws may be
considerable.”
Matter of Phillis, 15 I. & N. Dec. 385, 387
(1975).
Once USCIS discovers evidence of marriage fraud, the
agency issues a “Notice of Intent to Deny” the petition (“NOID”)
to the petitioner with an opportunity to set forth additional
evidence to overcome this conclusion.
C.F.R. § 103.2(b)(8)(iv).
See id.; see also 8
The NOID “will be communicated by
regular or electronic mail and will specify the type of evidence
required, and whether initial evidence or additional evidence is
required, or the bases for the proposed denial sufficient to
give the applicant or petitioner adequate notice and sufficient
12
information to respond.”
8 C.F.R. § 103.2(b)(8)(iv).
The
petitioner is therefore advised of the derogatory information
and given an opportunity to respond or explain.
103.2(b)(16)(i).
8 C.F.R. §
Because the petitioner bears the ultimate
burden of proving the beneficiary’s eligibility, the petitioner
“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 v. Holder, 569 F. App’x 35, 36
(2d Cir. June 17, 2014) (citing 8 C.F.R. § 204.2(a)(1)(ii))
(additional citations omitted).
After receiving any response to
the NOID, USCIS determines whether the petition should be
approved.
USCIS denials of I-130 petitions for alien relatives
are reviewed administratively by the BIA.
BIA review is conducted de novo.
8 C.F.R. § 1204.1.
8 C.F.R. § 1003.1(d)(3)(iii).
For the following reasons, the Court finds that the
BIA’s dismissal of Mercy’s appeal was not arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law,
and that the denial did not violate Mercy’s Due Process rights.
Accordingly, judgment will be entered in Defendants’ favor.
A. APA Review
The BIA concluded that “there is substantial and
probative evidence to support the finding that [Rashid]
previously engaged in marriage fraud when he was married to
Celeste Dempsey, such that he is ineligible for approval of the
13
subsequent visa petition filed on his behalf by [Mercy].”
5.)
(R.
Specifically, the BIA found the following evidence in the
record supported this conclusion: (1) Rashid and Ms. Dempsey’s
Divorce Decree stated that they were separated on December 18,
2005, a mere two months after they were married, and a day
before Ms. Dempsey filed the visa petition for Rashid; (2)
Rashid and Ms. Dempsey did not cohabitate during their marriage
and Rashid provided contradictory evidence about their
cohabitation; and (3) Ms. Dempsey made statements during the
interview with USCIS in July of 2006 that she had not submitted
documentation attached to the petition, and that portions of the
documentation had been altered.
The Court finds that the BIA
did not act arbitrarily or capriciously when it dismissed
Mercy’s appeal from the denial of the I-130 application based on
the substantial and probative evidence of marriage fraud in the
record.
Here, on judicial review, the Court reviews the record
with “high deference” to the agency’s findings and is not
authorized “to substitute its judgment for that of the agency.”
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,
416 (1971), abrogated on other grounds, Califano v. Sanders, 430
U.S. 99 (1977).
Stated differently, it is not the province of
this Court to determine whether substantial and probative
evidence of marriage fraud actually exists in the record -- that
14
would constitute improper de novo review.
Instead, the Court
merely asks whether the agency acted arbitrarily, capriciously,
or not in accordance with law when it concluded that substantial
and probative evidence of marriage fraud existed in the record.
The Court must only determine whether the agency “examine[d] the
relevant data and articulate[d] a satisfactory explanation for
its action including a ‘rational connection between the facts
found and the choice made.’”
Motor Vehicle Mfrs. Ass’n of U.S.,
Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983)
(quoting Burlington Truck Lines v. United States, 371 U.S. 156,
168 (1962)).
The Court concludes that such a rational
connection exists here.
At the heart of Plaintiffs’ argument in this regard is
their plain disagreement with the BIA’s findings of fact and
weighing of arguably contradictory evidence in the record.
(See, e.g., Pl.’s Mot. at 17-18 (disagreeing with the conclusion
for why Ms. Dempsey withdrew her petition); at 18 (advocating
that Rashid explained in a sworn affidavit that the date of
separation in the divorce decree was a typographical error); at
20 (citing the certificate of title for a jointly owned 1986
Toyota, a life insurance policy, federal credit union
statements, telephone bills, and auto insurance as evidence of
cohabitation); at 20-21 (explaining Rashid’s statements
regarding the couples’ visits with each other); at 21-22 (noting
15
ambiguity in Ms. Dempsey’s address); at 23-24 (contesting the
finding of altered documents).)
In essence, however, Plaintiffs
are asking the Court to “substitute its judgment for that of the
agency,” which is expressly prohibited.
The agency is charged
with making factual findings, which necessarily includes
weighing contradicting evidence.
Cf. Doss v. Director, Office
of Workers’ Compensation Programs, 53 F.3d 654, 658-59 (4th Cir.
1995) (discussing judicial review for substantial evidence in
the record from administrative proceedings).
The denial of
Mercy’s I-130 Petition will stand so long as there was a
rational basis for the decision, i.e., the finding of marriage
fraud.
See Oddo v. Reno, 175 F.3d 1015 (Table), 1999 WL 170173,
at *2 (4th Cir. Mar. 29, 1999) (per curiam) (“This is a highly
deferential standard and our review is limited.
We will not
substitute our judgment for that of the INS.”); see also
Akinjiola v. Holder, No. ELH-12-2597, 2014 WL 641702, at *5-7
(D. Md. Feb. 14, 2014) (finding USCIS “rationally concluded that
the evidence [petitioner] submitted to support the validity of
the . . . marriage was outweighed by the agency’s evidence of
fraud.”).
Here, the BIA did not act arbitrarily when it
concluded substantial and probative evidence supported a finding
of marriage fraud.
Rashid and Ms. Dempsey were legally
separated only two months after they were married, there is no
16
evidence in the record of any intended permanent cohabitation,
Ms. Dempsey withdrew the petition after valid questions were
raised surrounding the legitimacy of the documents filed in
support of the petition, and Rashid’s own statements regarding
the marriage were contradictory.
See Bourisquot, 569 F. App’x
35, 36 (2d Cir. June 17, 2014) (concluding the BIA’s decision
was supported by substantial and probative evidence of marriage
fraud where “the two separated immediately after the marriage
and never spoke to or saw each other again; and they never
shared any assets or property.”).
Moreover, USCIS gave
Plaintiffs an opportunity to overcome this conclusion by issuing
the NOID and the reasons it intended to deny Mercy’s petition.
At that point in time, it was then appropriate for Mercy to
contest the proposed factual findings of USCIS, and again to
raise such a challenge on de novo appeal to the BIA.
But here
and now, this Court is constrained to a much narrower review
standard.
See, e.g., Alabed v. Crawford, No. 1:13-cv-2006-SKO,
2015 WL 1889289, at *9 (“The USCIS’ denial of an I-130 petition
based on a fraudulent marriage ‘will stand if the record reveals
a rational basis’ for the agency’s decision.”) (citing 8 U.S.C.
§ 1101).
Based on the controlling statutes and the evidence in
the record, which showed an early date of separation,
inconsistent evidence of cohabitation, and inconsistent
statements by Ms. Dempsey and Rashid, the Court finds the BIA’s
17
dismissal of Mercy’s appeal was not arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.
Instead, the Court finds a sufficiently rational basis in the
record for the decision.
The Court is mindful of the “great consequences” that
follow a finding of marriage fraud.
977, 979 (8th Cir. 2008).
Osakwe v. Mukasey, 534 F.3d
At this stage of review, however, the
Court looks only for arbitrary action by the agency that
violates the governing statutes and regulations.
Mere
disagreement with the factual findings by the agency wholly
fails to meet this heavy burden.
In other words, Plaintiffs
have failed to show the BIA’s dismissal was arbitrary or not in
accordance with law.
Accordingly, the Court will deny
Plaintiffs’ motion and grant Defendants’ motion on this basis.
B. Due Process
Plaintiffs also contend that the denial of Mercy’s I130 Petition violated the Due Process Clause of the Fifth
Amendment when they were not given the opportunity to be heard
at a meaningful time and in a meaningful manner.
27-32.)
(Pl.’s Mot. at
It is undisputed that Plaintiffs raise this
constitutional claim for the first time in this proceeding, and
did not raise it before the BIA or USCIS.
The Court will also
deny Plaintiffs’ motion on this basis for failure to exhaust
their administrative remedies regarding this claim.
18
Alternatively, under recent Supreme Court precedent, the Court
would find there is no constitutionally-protected liberty
interest to reside with one’s alien spouse, and thus, no due
process violation, and even if there was such an interest, the
agency provided sufficient procedures to satisfy due process.
Constitutional claims, just like any other claim that
could be raised before an administrative agency, are not exempt
from administrative exhaustion requirements.
Nationsbank Corp.
v. Herman, 174 F.3d 424, 429 (4th Cir. 1999) (“[Plaintiff’s]
first argument fails under our consistent and unambiguous line
of cases rejecting the contention that constitutional claims
should be exempt from exhaustion requirements.”) (citing cases).
Thus, alleged due process violations must be raised in
administrative immigration proceedings before they can be raised
in federal court.
Farrokhi v. U.S. Immigration & Naturalization
Serv., 900 F.2d 697, 700-701 (4th Cir. 1990) (“As a general
rule, an alien who has failed to raise claims during an appeal
to the BIA has waived his right to raise those claims before a
federal court on appeal of the BIA’s decision.”) (citing cases).
Plaintiffs argue, and the Fourth Circuit has recognized but
declined to follow, an exception that the Ninth Circuit
developed “for due process claims, holding that aliens may raise
such claims in the federal courts even if they have failed to
raise them before the BIA . . . .”
19
Id. at 701 (“However, to the
extent the Ninth Circuit would excuse failure to raise a due
process claim which, like [Plaintiff’s] due process claim, does
not seek to invalidate a congressional enactment, we think the
Ninth Circuit’s rule might go too far.
Nothing appears to
divest the BIA from hearing procedural due process claims that
do not seek invalidation of congressional enactments.”)
(emphasis added).
Plaintiffs attempt to claim that their due
process rights were violated when they were not given an
opportunity to be heard, or a hearing, before the USCIS or BIA.
Stated differently, Plaintiffs do not specifically seek
invalidation of a congressional enactment, but instead attempt
to challenge the I-130 petitioning process.
There is nothing to
suggest the BIA is divested from hearing such a claim, and
because Plaintiffs failed to raise this claim below, they cannot
raise it for the first time now.
Id.
In any event, because Plaintiffs’ constitutional claim
is without merit under recent Supreme Court precedent, the Court
would alternatively deny it on this basis.
135 S. Ct. 2128 (2015) (Scalia, J.).
See Kerry v. Din,
In Din, a sharply divided
plurality of the Supreme Court recently held that assuming a
citizen had a procedural due process right to reside with her
alien spouse, due process requirements were satisfied when an
agency officer informed the citizen that her husband was
inadmissible under the INA’s “terrorist activities” bar.
20
Id.
So too here, insofar as Mercy can sustain a procedural due
process violation based on the denial of her I-130 petition,7
USCIS provided the necessary due process protections when it
issued the extremely detailed NOID, which listed the reasons her
petition would be denied.
The NOID also gave Mercy an
opportunity to present additional evidence to persuade the USCIS
to reach a different conclusion.
Thus, even though Plaintiffs
failed to exhaust the administrative remedies available for
their due process claim, the Court would alternatively hold that
Plaintiffs were not deprived of “life, liberty, or property”
when USCIS and BIA denied Mercy’s I-130 petition, and to the
extent any deprivation occurred, the NOID procedure was more
than the due process clause requires.
Din, 135 S. Ct. at 2138
(“The Government has not refused to recognize Din’s marriage to
Berashk, and Din remains free to live with her husband anywhere
in the world that both individuals are permitted to reside.
It
has simply determined that Kanishka Berashk engaged in . . .
activities [that violated] the Immigration and Nationality Act,
and has therefore denied him [permission to legally reside] in
the country.”).
For these reasons, the Court will deny
7
“Din, of course, could not conceivably claim that the denial of
Berashk’s visa application deprived her--or for that matter even
Berashk--of life or property; and under the above described
historical understanding, a claim that it deprived her of
liberty is equally absurd.” Din, 135 S. Ct. at 2132-33.
21
Plaintiffs’ motion for summary judgment and grant Defendants’
motion for summary judgment on this basis.
IV. Conclusion
For the foregoing reasons, the Court will deny
Plaintiffs’ motion for summary judgment, grant Defendants’
motion for summary judgment, and enter judgment in Defendants’
favor.
An appropriate Order shall issue.
July 16, 2015
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
22
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