Sikander et al v. Lynch et al

Filing 22

ORDER DISMISSING CASE signed by Judge Pamela Pepper on 10/25/2017. 12 Defendants' MOTION for Summary Judgment GRANTED. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

MR. HAYAT SIKANDER, and
MRS. CATHERINE SIKANDER,
Plaintiffs,
v.

Case No. 16-cv-550-pp

LORETTA E. LYNCH, JEH JOHNSON,
THOMAS CIOPPA, and KAY LEOPOLD,
Defendants.

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
(DKT. NO. 12) AND DISMISSING CASE

The plaintiffs filed this case under the Administrative Procedures Act
(“APA”), 5 U.S.C. §701, et seq., challenging the United States Citizenship and
Immigration Services’ (“USCIS”) denial of the I-130 petition Catherine Sikander
filed on her husband’s behalf. An I-130 petition establishes a United States
citizen’s relationship to a relative wishing to immigrate to the United States.
The defendants moved for summary judgment, arguing that there was no
genuine issue of material fact, and that the denial of the I-130 petition was
reasonable and not arbitrary or capricious, or otherwise contrary to law. The
defendants also argued that the plaintiffs provided no evidence to support their
Fifth Amendment Due Process claim. At a hearing on October 18, 2017, the
court granted the defendants’ summary judgment motion. This order provides
the court’s reasoning in more detail.
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I.

Standard of review
The APA governs judicial review of an agency’s final decision, Boutté v.

Duncan, 348 Fed. Appx. 151, 154 (7th Cir. 2009), and the standards the court
applies on summary judgment in APA cases differ from those the court applies
in a typical civil case. J.N. Moser Trucking, Inc. v. U.S. Dept. of Labor, 306 F.
Supp. 2d 774, 781 (N.D. Ill. 2004). The evidence to which the court looks in
deciding a summary judgment motion in an APA case is the administrative
record presented by the agency. See Florida Power & Light Co. v. Lorion, 470
U.S. 729, 744–745 (1985).
A court may set aside an administrative agency’s decision only if it is
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law.” 5 U.S.C. §706(2)(A); Israel v. USDA, 282 F.3d 521, 526 (7th Cir.
2002). To determine whether the agency’s decision was arbitrary or capricious,
the court considers whether it was “‘based on a consideration of the relevant
factors and whether there has been clear error of judgment.’” Ind. Forest
Alliance, Inc. v. United States Forest Serv., 325 F.3d 851, 858–59 (7th Cir.
2003) (quoting Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378
(1989)). Under this narrow, highly deferential standard, the court upholds an
administrative decision so long as “the agency's path may be reasonably
discerned.” Mt. Sinai Hosp. Med. Ctr. v. Shalala, 196 F.3d 703, 708 (7th
Cir.1999) (internal quotation marks and citation omitted). A court will not
vacate an agency’s decision unless the agency has
relied on factors which Congress had not intended it to
consider, entirely failed to consider an important aspect of
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the problem, offered an explanation for it decision that runs
counter to the explanation before the agency, or is so
implausible that it could not be ascribed to a difference in
view or the product of agency expertise.
Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658 (2007)
(citation omitted). It is not enough that [the court] might have reached a
different conclusion; so long as a reasonable mind could find adequate support
for the [agency’s] decision, it must stand.” Ogbolumani v. Napolitano, 557 F.3d
729, 733 (7th Cir. 2009) (citation omitted).
On the other hand, a reviewing court may not defend a decision on a new
ground not set forth in the original decision. Lara v. Lynch, 789 F.3d 800, 806
(7th Cir. 2015).
II.

Analysis
A.

The Plaintiffs’ Failure to Comply with the Rules

Rule 56(c)(1) of the Federal Rules of Civil Procedure requires a party
asserting that a fact is genuinely disputed to support that assertion by
citing to particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made
for purposes of the motion only), admissions, interrogatory
answers or other materials
or “showing the materials cited do not establish the absence . . . of a genuine
dispute or that the adverse party cannot produce admissible evidence to
support the fact.” Fed. R. Civ. P. 56(c)(1). Civil Local Rule 56(b)(2)(B)(i) requires
that the party opposing the motion file a concise response to the moving party’s
statement of facts, with “specific references to the affidavits, declarations, parts

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of the record and other supporting materials relied upon.” Civ. L.R.
56(b)(2)(B)(i)(E.D. Wis.).
The plaintiffs have not complied with these rules. The plaintiffs did not
file their own proposed findings of fact. Instead, they filed a document entitled
“Plaintiffs’ Responses to Defendants’ Proposed Findings of Facts in Support of
Summary Judgment.” Dkt. No. 18. This document reproduces each of the
defendant’s proposed findings of fact in paragraph form, then follows each
paragraph with language such as, “Response: Agree,” or “Response: Deny and
object as to relevance,” or “Deny.” These bare assertions do not comply with the
requirements of the rules—they do not provide the court with citations to the
administrative record to refute the facts they purport to deny.
The plaintiffs also filed a brief in opposition to the motion for summary
judgment, in which they asserted certain facts. Dkt. No. 16. The plaintiffs did
not attach any excerpts of the administrative record to the brief, and in many
places, they asserted facts without referencing any support for those facts in
the administrative record. For example, on page 7 of the brief, in footnote 2, the
plaintiffs state, “Catherine was not living in Arizona for more than one year as
the government suggests.” Dkt. No. 16 at 7, n.2. There is no cite to the record
in support of this claim. In other places, the plaintiffs cite to the record, but the
record does not support the fact they assert. For example, on page 8 of their
brief, the plaintiffs state that notes from two USCIS interviews reflected that
Catherine Sikander had told the interviewer that Hyat Sikander had attended
two different mosques and that he attended church with her one time. The
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brief cites to the administrative record at pages 224-226. But the notes state,
“—Muslim, Kenosha, 60th St. Hw C, Milwaukee, Every Friday, --Christian,
went one time in Kenosha *does not know when/where, Assembly of God. Over
a year since last time.” Dkt. No. 11-3 at 65-67. In other places, the plaintiffs
stated facts “upon information and belief.” Dkt. No. 16 at 9, n.3.
The plaintiffs failed to support their own arguments with additional
proposed findings, or with specific citations to the record, as required by Fed.
R. Civ. P. 56 and Civil L.R. 56(b)(2)(B)(ii). Accordingly, in deciding whether to
grant or deny the motion for summary judgment, the court looked only to the
administrative record and the proposed findings from the defendant that were
supported by the record.
B.

The Court’s Findings of Fact
1.

2002 I-130 Petition and Denial

Hayat Sikander (“Hayat”), a citizen of Pakistan, married Catherine
Holewinski (“Catherine”), a United States citizen, on August 4, 2001. Dkt. No.
11-3 at 41. Seven months later, on March 19, 2002, Catherine filed an I-130
Petition for Alien Relative (“I-130” petition) on Hayat’s behalf, seeking to classify
him as the spouse of a United States citizen. Dkt. No. 11-1 at 37; Dkt. No. 11-3
at 41.
The USCIS interviewed Hayat and Catherine. Dkt. No. 11-3 at 30, 46, 7273. During that interview, Hayat and Catherine were under oath. The agency
representative asked them basic questions about their relationship, and at
times, they provided inconsistent answers. For instance, when asked whether
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or not they had a dishwasher, Hayat answered “yes,” while Catherine answered
“no.” When asked what they had for dinner last night, Hayat answered
“nothing, we didn’t eat together,” while Catherine answered, “McDonald’s.”
When asked the color of the sheets on their bed, Hayat answered “pink,” while
Catherine answered “white.” When asked what Hyat gave Catherine for her last
birthday, Hayat initially answered “a ring,” then answered, “two rings, one ruby
and one white gold;” Catherine answered “fifty dollars,” but was unsure. Dkt.
No. 11-1 at 37; Dkt. No. 11-3 at 30, 46-47; 72-73.
During the interview, the USCIS learned that Hayat and Catherine had
lived apart. Catherine had been living in Arizona, separately from Hayat, since
June 2004. Dkt. No. 11-1 at 37; Dkt. No. 11-3 at 30, 47. She previously had
filed two other marriage-based immigration applications, and one of those
applications was approved. Catherine was married to the first husband from
1977 to 1980, and the second husband from 1987 to 1991. Dkt. No. 11-2 at
23; Dkt. No. 11-3 at 28, 30, 33, 40.
The USCIS denied the I-130 on November 30, 2005, on the ground that
the applicant failed to establish a bona fide marital union and eligibility for
benefit sought. Dkt. No. 11-3 at 29-30. The denial specifically cited the
discrepancies in answers in the interview, the fact that the couple had been
living in different states, and the fact that Catherine Sikander had filed
applications on behalf of two previous spouses. Id. at 30.

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2.

2005 I-130 Petition and Denial

On December 26, 2005, Catherine filed a second I-130 Petition for Alien
Relative on behalf of Hayat. Dkt. No. 11-1 at 38. In relation to this application,
the USCIS interviewed Hayat and Catherine on June 21 and August 3, 2006.
During the interviews, Catherine and Hayat were unable to answer basic
questions about each other, such as the side of the bed each slept on, their
home address, when and where each attended church, and whether Catherine
returned to Wisconsin to visit Hayat when she lived in Arizona. Dkt. No. 11-1
at 38; Dkt. No. 11-3 at 23, 62-68. On July 31, 2007, the USCIS denied the
petition on the basis that the applicant failed to establish that she ever had a
marital relationship and that the marriage was not one that was entered into
for fraudulently obtaining immigration benefits. Dkt. No. 11-3 at 22-23, 26-27.
This denial cited the same discrepancies mentioned in the November 30, 2005
denial.
3.

2008 I-130 Petition and Denial

On May 21, 2008, Catherine filed a third Petition for Alien Relative on
behalf of Hayat. In support of this petition, counsel for Catherine and Hayat
submitted the following documents: Integrity Mutual Insurance Cancellation
Notice; Vehicle title for a 1999 Ford issued in both names; lease agreement for
an apartment located at 11130 W. Morgan Avenue, Apt. #206 (signed by Hayat
only); lease agreement for an apartment located at 5009 58th Street signed by
both Hayat and Catherine; copies of several family photographs and cards;
Jantz Auto Sales and Service receipt documents in both names; American
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Family Insurance Group payment receipt; and a Sprint billing statement in
both names. Dkt. No. 11-2 at 17, 35-80; Dkt. No. 11-3 at 1-14.
On September 16, 2010, an immigration officer conducted a site visit to
Hayat and Catherine’s last known address of 11130 W. Morgan Avenue, Apt.
#206, Greenfield, WI. Present during the site visit were Catherine and her son
Chris. Dkt. No. 11-1 at 38; Dkt. No. 11-2 at 17; Dkt. No. 11-3 at 43, 55. The
immigration officer noted that the apartment had only two bedrooms;
Catherine stated that she slept in one bedroom and that Chris slept in the
other bedroom. Dkt. No. 11-1 at 38; Dkt. No. 11-2 at 17, 43.
Catherine told the immigration officer that Hayat slept at his children’s
apartment, but was unable to provide the address, saying that she had
forgotten it. Chris later stated that the apartment address was 8214 Howard
Avenue, Milwaukee, and Catherine confirmed that as the correct address. Dkt.
No. 11-1 at 38; Dkt. No. 11-2 at 17; Dkt. No. 11-3 at 43, 55. Catherine stated
that Hayat did not spend much time at the Morgan Avenue apartment, and
that he did not reside with Catherine during the week. Id. She also stated that
Hayat kept some of his clothing at the Morgan Avenue apartment; the
immigration officer observed two pieces of male clothing in the closet. Dkt. No.
11-1 at 39; Dkt. No. 11-2 at 17; Dkt. No. 11-3 at 43, 55. According to
Catherine, she had last eaten with Hayat on September 9, 2010 (when he
brought her food from McDonald’s), and had last seen Hayat on September 13,
2010. Id. She also said that she did not receive anything in return for marrying
Hayat, but that Hayat paid bills such as rent, electric and groceries, and that
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he brought her and Chris food. Dkt. No. 11-1 at 39; Dkt. No. 11-2 at 17; Dkt.
No. 11-3 at 43-44.
The immigration officer interviewed the leasing consultant for the Morgan
Grove Apartments. The leasing consultant stated that Hayat’s name was on the
lease for the Morgan Avenue apartment, but that Hayat did not reside in the
apartment with Catherine. Dkt. No. 11-1 at 39; Dkt. No. 11-2 at 18; Dkt. No.
11-3 at 44, 55. In addition, the immigration officer visited the address provided
by Catherine and Chris as being Hayat’s children’s apartment. The officer
confirmed that neither Hayat nor his children lived at 8214 Howard Avenue,
Milwaukee. Dkt. No. 11-1 at 39; Dkt. No. 11-2 at 18; Dkt. No. 11-3 at 56. The
immigration officer concluded that Hayat did not reside with Catherine and her
son Chris. Dkt. No. 11-3 at 44.
On December 15, 2011, the USCIS issued a Notice of Intent to Deny the
Petition for Alien Relative, and gave Catherine thirty days to submit evidence to
overcome the derogatory evidence. Dkt. No. 11-1 at 13, 15. Approximately one
month later, the USCIS received a response from Catherine’s counsel. The
response contained the following: affidavits from Catherine and her son Cruz
Rodriguez; statements from Catherine’s mother, sister, niece, aunt, sons and
Hayat’s children which previously were provided to Catherine; various
photographs of the Sikanders with family and in other settings; various
photographs of the Christmas season which included Catherine and her family
with Hayat and his family; an undated letter from the Sikanders’ landlord; a
letter from one of Catherine’s oncologists stating that Hayat was present with
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her at an appointment (which also served as an excused absence for Hayat to
his employer); three holiday cards from Catherine’s aunt, sister and mother to
Catherine, Hayat and the kids; a photograph of numerous pieces of what
appeared to be men’s clothing in a closet at 11130 W. Morgan Avenue; and
copies of Catherine’s medical prescriptions. Dkt. No. 11-1 at 40, 43, 45-60;
Dkt. No. 11-2 at 1-15.
After reviewing these documents, the USCIS noted that in contrast to
Catherine’s affidavit, Catherine had told an immigration officer in a prior
interview that Hayat did not spend much time at her apartment, did not live
with her during the week and slept at his children’s apartment. Dkt. No. 11-1
at 40. The USCIS noted that the Cruz Rodriguez affidavit averred that the
marriage was valid and that Hayat saw Catherine on a daily basis, but that
that information was in direct contrast to the information Catherine had
reported to the immigration officer. Id.
The USCIS followed up on the documents, contacting Jerry Cook, the
Sikanders’ landlord, who provided a letter. Cook indicated that the letter was
based solely on the leasing information provided, and stated that he could not
verify whether or not Hayat resided at the apartment with Catherine. Cook
could not provide an explanation as to why the leasing agent who worked at
the apartment building would state that Hayat did not live in the apartment.
Dkt. No. 11-1 at 41. The USCIS also recalled that a rental manager’s notes
from January 24, 2005 stated that Hayat had told the manager that Catherine

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“will not be living there, but needs to have her name on the lease in order to be
able to have his kids from Pakistan come here.” Id.
With regard to the other documents Catherine had submitted, the USCIS
found that Catherine’s mother’s letter did not discuss Catherine’s living
arrangements; that the medical excuse indicated that Hayat had attended one
of Catherine’s medical appointments after the USCIS interview; that the
submitted emails bore no signatures, failed to indicate who attached the
photos, and were from 2009; and that the handwriting on the cards from
“mom” and from “Tom and Theresa” was similar. Id.
As to the photos Catherine submitted, the USCIS found that the photos
of family interactions appeared to have been taken at a select few events,
because the clothing in the photos rarely changed. It also found that, as to the
photo of men’s clothing in a closet, it was impossible to tell if the clothes
photographed belonged to Hayat or to Catherine’s son. Id.
In a notice of decision to deny the petition dated February 10, 2012, the
agency determined that Catherine had failed to meet her burden of proof that
the marriage was entered in good faith and not solely for immigration purposes
and denied the alien relative petition. Dkt. No. 11-1 at 3, 37; Dkt. No. 11-2 at
16-17. Catherine appealed to the Board of Immigration Review (“BIA”), and on
September 11, 2013, the BIA affirmed, without opinion, the denial of the alien
relative petition. Dkt. No. 11-1 at 22. On May 5, 2016, the Sikanders filed the
present complaint, seeking review of the final administrative decision. Dkt. No.
1.
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C.

The Court’s Conclusions of Law

A United States citizen may file a Form I-130 on behalf of an alien
relative, asking the USCIS to formally recognize a marital relationship. 8 C.F.R.
§204.1(a)(1). The Attorney General must decide, after an investigation of the
facts, whether to approve the petition. 8 U.S.C. §1154(b). The USCIS, a division
of the Department of Homeland Security, completes the investigation. 8 C.F.R.
§100.1. The USCIS investigation includes identifying fraudulent marriages
entered into for the purpose of evading immigration laws. 8 U.S.C. §1154(c).
The petitioner bears the burden of proving “by a preponderance of the
evidence, that [the couple] intended to establish a life together at the time of
their marriage.” Brown v. Napolitano, 391 Fed. Appx. 346, 350 (5th Cir. 2010).
Though the couple's intent at the outset of the marriage is the relevant
question, “[w]hen assessing the couple's intent, courts look to both the period
before and after the marriage.” Surganova v. Holder, 612 F.3d 901, 904 (7th
Cir. 2010). Looking at all relevant evidence, the USCIS must find “substantial
and probative evidence, that the marriage was a sham from its inception.”
Brown, 391 Fed. Appx. at 351. If the USCIS determines a marriage is not bona
fide, it must deny the I–130 petition and all future I–130 petitions on behalf of
the beneficiary. 8 U.S.C. § 1154(c).
The plaintiffs argue that the USCIS acted arbitrarily, capriciously and
contrary to law by failing to consider all relevant factors when concluding that
Catherine and Hayat Sikander only entered into marriage to evade the
immigration laws. According to the plaintiffs, the USCIS inappropriately fixated
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on the nature of their relationship years after its inception, and arbitrarily
disregarded evidence which indicated that the marriage was valid. The court
has reviewed the record, and it disagrees.
Catherine filed her first petition seven months after her marriage to
Hayat. When interviewed about that petition, the plaintiffs’ interview responses
were inconsistent on questions such as whether they owned a dishwasher,
what they ate for dinner, the color of their sheets, Catherine’s birthday gift
from Hayat, and the fact that they did not reside together. While some of these
discrepancies, such as a husband failing to recall what he gave his wife as a
birthday gift, may seem minor standing alone, the law required the USCIS
consider the record as a whole when determining whether the plaintiffs
intended to establish a life together as husband and wife at the time of the
marriage. And there was more to the record than the inconsistencies in
interview answers. The USCIS also had before it at the time it denied the first
petition the fact that Catherine and Hayat had lived in different states for
significant periods of time between the date of the marriage and the denial of
the petition. Finally, the USCIS was aware that Hayat was not the first
husband for whom Catherine had filed an I-130 application; he was the third.
Using the deferential standard of review for APA cases, the court cannot
conclude that the USCIS’s reliance on these facts was arbitrary or capricious.
These facts, combined, constituted substantial and probative evidence that the
marriage was a sham from its inception.

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Later, in support of subsequent petitions, Catherine explained her
reasons for going to, and living in, Arizona. She explained that she had lost her
job and had gone there to look for work, and that she hoped that Arizona could
provide a good living environment for her and for Hayat. She asserted that
Hayat had visited her in Arizona. With regard to her former husbands,
Catherine asserted—in her affidavit, and through statements of others—that
her first two husbands were abusive. All of these facts may be true. They do
not, however, render the USCIS’s decision arbitrary or capricious.
As time passed, the USCIS had more information to consider. The
interviews that followed Catherine’s second petition similarly revealed
discrepancies in the couple’s testimony regarding the side of the bed they each
slept on, their home address, their church, and whether or not Catherine
returned home to Wisconsin while living in Arizona. The September 2010 site
visit revealed that Hayat did not spend much time in the apartment he claimed
to lease, that Catherine could not provide an address of that apartment, that
the closet contained only two articles of men’s clothing, that Catherine last had
eaten dinner with Hayat the week before, and that although they did not live in
the same place, Hayat paid some of Catherine’s expenses. The leasing
consultant for the apartment where Catherine and her son lived indicated that
Hayat did not reside there.
The law allows the USCIS to consider this post-marriage evidence in
determining the couple’s intent as of the time of the marriage. It was not

14

arbitrary or capricious for the agency to have considered this information as
evidence that the couple married to evade the immigration laws.
After the USCIS issued its December 15, 2011 Notice of Intent to Deny
the second petition, Catherine had the opportunity to rebut the finding of fraud
and establish that the marriage was not entered into for the purpose of evading
immigration laws. The USCIS received thirteen exhibits, including affidavits
from Catherine and her son, letters and copies of e-mails, three greeting cards
and photos. Noting continued discrepancies, the USCIS discussed this evidence
in its February 10, 2012 Notice of Decision to Deny. Dkt. 11-1 at 3.
Catherine filed an affidavit stating that Hayat lived with her at 11130 W.
Morgan Avenue in Greenfield, that he did not sleep overnight at her apartment
“all of the time” because of his four children, and that she saw him daily. Her
son Cruz also stated that Catherine saw Hayat daily. The USCIS could not
reconcile this affidavit with Catherine’s previous statements that Hayat did not
spend much time in the apartment and did not live with her during the week,
or with the evidence that Hayat did not live at Catherine’s address or the other
address that she had provided. The USCIS contacted Jerry Cook, the Senior
Vice President of Metropolitan Associates, who wrote a letter at Hayat’s request
verifying Hayat’s residency at 11130 W. Morgan Avenue, #206, from August 1,
2005 to January 6, 2012. Cook admitted to the USCIS that he based the letter
solely on the leasing information provided, and that he could not verify whether
Hayat resided in the apartment; however, Cook’s leasing agent stated that
Hayat did not live at Catherine’s address. The rental manager’s notes from
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January 24, 2005 stated that Catherine would not be living at 5009 58th Street
#17 (a previous address), but needed “to have her name on the lease in order to
be able to have his kids from Pakistan come here.”
Catherine also filed e-mails, cards and photos, but the USCIS pointed
out that the e-mails had no signatures and were sent two years prior to the
request. Even to this court (conceding that it cannot make its own factual
findings), the handwriting on the greeting cards appeared similar even though
the cards purported to be from different people, and the photographs appeared
to have been taken at only a few events, given the backgrounds and clothing.
The photograph of the closet full of men’s clothes bore no date or other
information that would have allowed the USCIS to identify whether the clothes
belonged to Hayat or one of Catherine’s sons.
The law allows the USCIS to consider this post-marriage evidence. The
record as a whole demonstrates that the USCIS had substantial and probative
evidence that the couple did not intend to make a life together at the time of
the marriage.
In opposition to the summary judgment motion, the plaintiffs argue that
the USCIS chose to rely on damning evidence, rather than looking at
supporting evidence, such as the affidavit of Catherine’s son Cruz Rodriguez.
Cruz averred that the marriage was valid, that Catherine and Hayat talked and
disagreed and celebrated like other married couples, and stated that Hayat
cared for Catherine’s other son, Carlos, while Catherine lived in Arizona. Dkt.
No. 11-1 at 48. The plaintiffs also noted that while the agency relied on their
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inability to answer questions about where they attended religious services and
whether Catherine had returned to Wisconsin while she was in Arizona, the
interviewing agent’s notes showed the contrary. Finally, the plaintiffs cited to
the fact that Catherine filed I-130 petitions for Hayat’s four children living in
Pakistan, and that these petitions were approved. Dkt. No. 11-2 at 29-33.
On APA review, this court cannot find that the USCIS should have given
more weight to one piece of evidence over another. If the court were to do so, it
would be substituting its judgment for that of the agency—an action the law
specifically forbids. Nor do some of the examples the plaintiffs cite support
their argument that the record contradicts the agency’s conclusions. For
example, the plaintiffs argue that the interview notes show that the plaintiffs
answered questions about their attendance at religious services, and about
Catherine’s travel between Arizona and Wisconsin. But the notes in the record
are sparse and vague. With regard to these issues, handwritten interview notes
in the record stated, “Muslim, Kenosha --> 60th St., Milwaukee, Every Friday,”
“Christian, went one time in Kenosha, does not know when where, Assembly of
God, Over a year since last time.” Dkt. No. 11-3 at 65-67. Based on these
cryptic notes, the court cannot find that the agency’s conclusion that the
plaintiffs gave contradictory information about attendance at religious services
was arbitrary or capricious.
The plaintiffs provided no authority for their assertion that granting the
children’s petitions invalidated the USCIS’ decision regarding the plaintiffs’
marital status. The USCIS addressed the children’s status, noting that they
17

were granted permanent residence as the step-children of Catherine, but that
they did not reside with Catherine.
The plaintiffs have failed to demonstrate that the USCIS was arbitrary or
capricious in concluding that they had not met their burden to show that they
intended to establish a life together at the time of their marriage. Their own
evidence showed little more than snapshots of time spent together years after
their marriage. While Hayat may have accompanied Catherine to the doctor,
paid some bills, or developed a relationship with her parents over time, the
USCIS provided an adequate explanation—more than once—for its decision
relating to their intent at the inception of the marriage. The court has no basis
for finding that the USCIS acted arbitrarily, capriciously or contrary to law
when finding the plaintiffs entered into marriage for the purpose of evading
immigration laws.
Nor have the plaintiffs supported their claim that the “arbitrary and
capricious review of the record and the clearly erroneous decision” deprived the
plaintiffs of a meaningful review in violation of their Fifth Amendment due
process rights. Dkt. No. 16 at 11. As the Seventh Circuit has explained,
“arbitrary rulings do not necessarily infringe upon the right to due process.”
Obgolumani v. Napolitano, 557 F.3d 729, 735 (7th Cir. 2009). “Only ‘egregious
administrative irregularities may amount to constitutional violations.’” Id.
(quoting Sokolv v. Gonzalez, 442 F.3d 566, 569 (7th Cir. 2006)). The twosentence argument in the plaintiffs’ opposition brief failed to identify any
USCIS procedures that fell short of the constitutional protections. The
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undisputed evidence in the administrative record revealed that the USCIS
reviewed the petitions, conducted interviews, allowed Catherine to rebut
adverse evidence and provided notice of its decisions. That constitutes due
process.
III. Conclusion
The court GRANTS defendant’s motion for summary judgment, dkt. no.
12, and DISMISSES this case. The clerk of court will enter judgment
accordingly.
Dated in Milwaukee, Wisconsin this 25th day of October, 2017.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge

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