UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Kamal Ali and Israa Hassan
v. Civil No. 15-cv-201-AJ Opinion No. 2016 DNH 098 United States of America, et al.
O R D E R
Under the Immigration and Nationality Act (INA), alien
spouses of American citizens may gain lawful permanent resident
status. 8 U.S.C. § 1151(b)(2)(A)(i). To obtain this status,
however, the citizen spouse must first file an I-130 petition on
behalf of the alien spouse to the United States Citizenship and
Immigration Services (USCIS). 8 U.S.C. § 1154(a)(1)(A)(ii).
Kamal Ali, a Sudanese citizen, and Israa Hassan, an
American citizen, married in 2003. Soon after, Hassan filed an
I-130 visa petition on behalf of her new husband. The USCIS
denied Hassan’s petition, and the decision was later upheld by
the Board of Immigration Appeals (BIA).
Ali and Hassan now challenge the government’s decision to
deny Hassan’s petition. The parties have submitted cross
motions for summary judgment. For the reasons set forth below,
the plaintiffs’ motion for summary judgment is denied, and the
defendants’ motion for summary judgment is granted. Background1
In 1988, Ali was admitted into the United States on a
student visa to attend Long Island University in Brooklyn, New
York. AR 187, 234, 237. Ali, though, never attended Long
Island University. AR 208. Instead, by 1989, he was living in
Boston, Massachusetts. AR 1148. That year, Ali attended the
wedding of Thelma Lewis (a coworker at the time) and met
Thelma’s daughter – Priscilla Lewis. AR 1148, 1176. Ali and
Lewis married in 1993. AR 90.
Four years later, Lewis, as an American citizen, filed an
I-130 petition on behalf of Ali. AR 238-40, 837. Ali
concurrently filed an I-485 application to become a permanent
resident. AR 628-31, 837. Lewis’s I-130 petition alleged that
she and Ali lived together in Manchester, New Hampshire. AR
238. Based on the I-130 petition, Lewis and Ali were scheduled
to be interviewed in January 1998 by the U.S. Immigration and
Naturalization Service (INS)2. AR 219. Before the scheduled
interview took place, however, Ali wrote to officials that he
and Lewis “had . . . separated for personal reason[s].” Id.
1The background section is drawn from the Administrative Record (AR). 2In 2003, the USCIS assumed responsibility for the immigration service functions of the federal government. The Homeland Security Act of 2002 dismantled INS and separated the agency into three components within the Department of Homeland Security (DHS). USCIS, Our History, https://www.uscis.gov/history-and- genealogy/our-history (last updated Feb. 11, 2016). 2 Ali requested that the interview be rescheduled so that he and
Lewis could “talk . . . about [their] marriage.” Id.
The interview was rescheduled for March 1998, but Lewis and
Ali failed to appear. AR 828. The couple later alleged that
they could not make it to the interview because Lewis’s mother
was ill. AR 841. The interview was rescheduled for May 1998,
but the couple’s attorney requested the interview be rescheduled
“at a later date” due to “a scheduling conflict.” AR 832. The
couple did appear to the third rescheduled interview in June
1998, yet the interview was cancelled because Lewis failed to
bring identification.3 AR 827.
Based on the foregoing, an INS investigation began
concerning possible marriage fraud between Ali and Lewis. AR.
206. The investigation made several findings. First, the
investigation confirmed that Ali never attended Long Island
University pursuant to his student visa. AR 208. Second, a
records check from the Massachusetts welfare department reported
that Lewis had received welfare checks at a single Boston
address since 1985, yet records revealed that Ali had lived at
multiple other addresses in Massachusetts and New Hampshire
since 1993. AR 207, 210, 212, 215. Moreover, no record
uncovered during the investigation linked Lewis to any address
3In prior notices, INS indicated that Lewis needed to bring valid photo identification to the interview. AR 219, 829. 3 in New Hampshire. AR 212-18. Third, a criminal record check
indicated that Lewis had been arrested seven times, yet all
changes were ultimately dismissed. AR 214.
In September 1999, INS agents visited Lewis at her Boston
residence; the same address as indicated by the Massachusetts
welfare department. AR 212-13. During the interview with INS
agents, Lewis alleged that Ali offered her $1000 to marry her
“for the purpose of obtaining a green card through marriage.”
AR 213. Lewis additionally claimed that she and Ali had
separated in 1998, but Ali asked her to lie and tell immigration
officers that they were still married and living together. Id.
After the interview, Lewis withdrew her I-130 petition. AR 213,
619-21.
Ali and Lewis divorced in 2002. AR 92. A year later, Ali
married Israa Hassan, and the two had a child in 2004. AR 91,
118. In 2006, Hassan became a naturalized American citizen.4 AR
81. Hassan soon after filed an I-130 petition on behalf of Ali.
AR 81-96. As a result of the petition, Ali and Hassan were
interviewed by a USCIS officer in January 2008. AR 282.
Eight months after the interview, the USCIS sent Hassan a
notice of its intent to deny her I-130 petition. AR 281-83.
The notice first quotes Section 204(c) of the INA, codified as 8
U.S.C § 1154(c), which states that
4 Like Ali, Hassan was born in Sudan. AR 81. 4 no [I-130] petition shall be approved if . . . 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 . . . .
AR 281. The notice concluded that the USCIS intended to deny
Hassan’s I-130 petition because “[t]here is no evidence in the
record of proceeding which supports the claim that the
[previous] marriage of Mr. Ali and Ms. Lewis was bona fide in
nature.” AR 283. The notice provided Hassan eighteen days to
respond. Id.
In response to the USCIS’s notice, Ali and Hassan submitted
multiple documents, including affidavits by Ali and Lewis. AR
1175-79. Ali’s affidavit alleged that Ali and Lewis met in
1989, married in 1993, and afterward lived with Lewis’s mother
in Massachusetts. AR 1176. The affidavit claimed that, by
1997, Ali and Lewis’s marriage became strained due to financial
problems. Id. Ali claimed that he moved to New Hampshire for
work, and Lewis stayed behind to continue living with her
mother. AR 1176. Ali’s affidavit stated that Lewis moved to
New Hampshire with him by the end of 1997, however, the two
separated by November 1998, and Lewis moved back to
Massachusetts with her mother. AR 1177. The affidavit
concluded that it was “completely untrue” that Ali offered Lewis
5 money for marriage. Id.
Lewis’s affidavit made similar assertions. AR 1179. The
affidavit claimed that “Ali never offered [Lewis] any money to
marry him” and “[i]t was not a fraudulent marriage.” Id. The
affidavit additionally contended that Lewis “remember[ed]
telling someone from I.N.S. that [the two] were having marriage
problems at the time, but [she] never told anyone that [Ali]
offered [her] money for a green card.” Id.
In addition to the affidavits by Ali and Lewis, Ali and
Hassan presented the following: affidavits by Lewis’s mother,
Lewis’s step-father, and Ali’s cousin contending that Ali’s
previous marriage to Lewis was legitimate, joint tax returns by
Ali and Lewis from 1993 to 1998, a 1997 amended lease noting
that both Ali and Lewis were lessees of a Manchester, New
Hampshire apartment, and a 1998 utility bill for the same
Manchester apartment addressed to both Ali and Lewis. AR 1180-
95; 1197; 1208-10.
In November 2008, the USCIS formally denied Hassan’s I-130
petition. AR 275-79. The USCIS found “clear and convincing
evidence” that Ali “had a previous involvement in a fraudulent
marriage that was entered into in order to circumvent the
immigration laws of the United States.” AR 276. The decision
noted that Lewis’s most recent affidavit contradicted “her
previous oral and written testimonies,” and although Ali and
6 Hassan provided documents “with [Lewis’s] name on them” for an
apartment “in Manchester, New Hampshire . . . at the interview
on January 22, 2008, [Ali] stated that [Lewis] did not live in
New Hampshire, but stayed in Massachusetts.” AR 275. The
decision also noted that the date Lewis’s mother claimed that
Lewis had moved to New Hampshire with Ali, Lewis was still
“receiving welfare checks, food stamps, and cash subsidies,
through the State of Massachusetts.” Id. And, “[a]s of
September 1999, she was still receiving Medicare from the State
of Massachusetts.” Id.
The USCIS’s decision further noted that “[a]fter multiple
attempts by [INS] to conduct an interview with” Ali and Lewis in
1997, the pair finally appeared for an interview in June 1998,
but the interview was not conducted because Lewis did not have
photo identification. AR 276. The decision additionally
recounted that, during an interview with INS in 1999, Lewis
claimed that “Ali had allegedly offered her a sum of $1000 to
marry him to he can get a green card” and the two were not
living together at the time of the June 1998 interview with INS.
Id. (quotation marks omitted).
Based on these facts, the USCIS determined that there was
“no evidence present in the record . . . that the marriage
between [Ali and Lewis] was bona fide in nature.” AR 278.
Consequently, because the USCIS found that Ali previously
7 entered in a fraudulent marriage with Lewis to circumvent United
States immigration law, it concluded that Hassan’s current
petition on behalf of Ali must be denied. Id.
Ali and Hassan appealed the USCIS’s decision to the BIA.
AR 1122-30. In its opinion, the BIA “agree[d] that the record
contains substantial and probative evidence of prior marriage
fraud and supports a finding that the [Ali’s] prior marriage was
entered into for the purpose of evading the immigration laws.”
AR 969. The BIA noted that Lewis’s 2008 affidavit conflicted
with her 1999 reported statement that Ali offered her $1000 “to
marry him so that he could obtain his green card.” Id.
Nevertheless, the BIA was “not persuaded by the subsequent
evidence submitted regarding the validity of the marriage
between [Ali] and [Lewis].” Id. As such, the BIA concluded
that Section 204(c) of the INA barred Hassan’s I-130 petition on
Ali’s behalf. Id. This suit followed. Doc. no. 1.
Legal Standard
Generally, summary judgment is appropriate where “there is
no genuine issue as to any material fact” and “the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c)(2). However, “[t]his rubric has a special twist in the
administrative law context.” Associated Fisheries of Maine,
Inc. v. Daley, 127 F.3d 104, 109 (1st Cir. 1997). Under the
8 Administrative Procedure Act (APA), a reviewing court may set
aside an agency’s decision if it is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.”
5 U.S.C. § 706. “In making this determination, an agency's
factual findings are entitled to deference regardless of which
party has moved for summary judgment. Thus, the usual rules
that describe how the court must construe the summary judgment
record do not apply.” Sig Sauer, Inc. v. Jones, 133 F. Supp. 3d
364, 369 (D.N.H. 2015).
“Review under the arbitrary and capricious standard is
narrow and this [c]ourt may not substitute its judgment for that
of the agency, even if it disagrees with the agency's
conclusions.” River St. Donuts, LLC v. Napolitano, 558 F.3d
111, 114 (1st Cir. 2009). “Consequently, judicial review of
agency decisions is highly deferential. If the agency's
decision is supported by any rational view of the record, a
reviewing court must uphold it.” Atieh v. Riordan, 797 F.3d
135, 138 (1st Cir. 2015) (quotation marks and citations
omitted).
Discussion
I. Applicable Law
“Under the [INA], an alien may achieve lawful permanent
resident status if he qualifies as an ‘immediate relative’ of a
U.S. citizen.” Atieh v. Riordan, 797 F.3d 135, 138 (1st Cir.
9 2015) (citing 8 U.S.C. § 1151(b)(2)(A)(i)). Spouses of U.S.
citizens are considered “immediate relatives” under the statute.
8 U.S.C. § 1151(b)(2)(A)(i).
Before an alien spouse may gain lawful permanent resident
status, a citizen spouse must first file an I-130 petition. §
1154(a)(1)(A)(ii). However, if a USCIS district director
determines “either that the alien entered into a marriage ‘for
the purpose of evading the immigration laws’ or that the alien
‘attempted or conspired’ to do so, the alien will be rendered
ineligible for lawful permanent resident status.” Atieh 797
F.3d at 138 (quoting § 1154(c)); see also Matter of Tawfik, 20
I. & N. Dec. 166, 168 (BIA 1990). This determination “also
applies to any prior marriage found to have been entered into
for the purpose of evading immigration laws . . . .” Alabed v.
Crawford, No. 1:13-CV-2006-SKO, 2015 WL 1889289, at *8 (E.D.
Cal. Apr. 24, 2015) (emphasis added).
At this stage “[i]t is the [g]overnment's burden of
establishing substantial and probative evidence that the prior
marriage was a sham.” Id. (citing Matter of Kahy, 19 I. & N.
Dec. 803, 806 (B.I.A. 1988)); see also 8 C.F.R. § 204.2.
“Substantial evidence ‘is more than a mere scintilla. It means
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Astralis Condo. Ass'n v.
Sec'y, U.S. Dep't of Hous. & Urban Dev., 620 F.3d 62, 66 (1st
10 Cir. 2010) (quoting Universal Camera Corp. v. NLRB, 340 U.S.
474, 477 (1951)).
If the government meets this burden, it must issue a Notice
of Intent to Deny (NOID) to the petitioner and afford the
petitioner “an opportunity to rebut the information and present
information . . . before the decision is rendered” by the
government. 8 C.F.R. §§ 103.2(b)(8)(iv), (b)(16)(i). At this
point, “the burden shifts to the petitioner to rebut [the]
USCIS's finding of fraud and establish that a prior marriage was
not ‘entered into for the purpose of evading immigration laws.’”
Zemeka v. Holder, 989 F. Supp. 2d 122, 130 (D.D.C. 2013)
(quoting Kahy, 19 I. & N. Dec. at 805).
If, after receipt of the petitioner’s response to the NOID,
the USCIS district director determines that the citizen spouse’s
I-130 should not be approved, the citizen spouse may appeal the
director’s decision to the BIA. 8 C.F.R. §§ 204.2(a)(1)(ii),
1204.1. If the BIA’s decision is unfavorable, the petitioner
may file suit in district court. 5 U.S.C. § 701 et seq.
On review by the district court, “[a]n agency's finding
regarding the bona fides of a marriage is normally regarded as a
finding of fact . . . [and] such a finding is reviewed under the
substantial evidence standard.” Atieh, 797 F.3d at 138. Under
the substantial evidence standard, the court “cannot contravene
the agency's factfinding unless a reasonable adjudicator would
11 be compelled to reach a contrary conclusion.” Akwasi Agyei v.
Holder, 729 F.3d 6, 13 (1st Cir. 2013). “Within this rubric, a
credibility determination is a finding of fact; and [the court]
will uphold such a finding so long as the agency ‘articulate[s]
specific and cogent reasons’ to support its view.” Atieh, 797
F.3d at 138 (quoting Ahmed v. Holder, 765 F.3d 96, 101 (1st Cir.
2014)). Where, as here, the BIA’s decision adopts and affirms
the USCIS’s denial of the petition but also elaborates on some
of the bases of the USCIS’s decision, the court reviews both
decisions. See Akwasi Agyei, 729 F.3d at 13; Zemeka, 989 F.
Supp. 2d at 128.
II. Analysis
The plaintiffs’ motion for summary judgment presents three
general arguments: (1) the defendants’ failure to hold an
evidentiary hearing and allow the plaintiffs to confront Lewis
and the agents who interviewed her in 1999 violated the
plaintiffs’ due process rights; (2) the defendants applied the
incorrect legal standard in determining that Ali previously
entered into a marriage with Lewis for the purpose of evading
immigration laws; and (3) even under the deferential standard of
review, the record does not support a finding of prior marriage
fraud. The court will address each argument in turn.
A. Due Process
The Fifth Amendment provides that “[n]o person shall be . .
12 . deprived of life, liberty, or property, without due process of
law.” U.S. Const. amend. V. As such, “no process is due if one
is not deprived of ‘life, liberty, or property.’” Kerry v. Din,
135 S. Ct. 2128, 2132 (plurality opinion).
The plaintiffs argue that the defendants violated their due
process rights by failing “to hold an evidentiary hearing and
provide [Ali] with the opportunity to confront [Lewis] . . . as
well as the . . . agents who elicited” the 1999 statement from
Lewis that her marriage to Ali was a sham. Doc. no. 15-1 at 12.
In support, the plaintiffs rely heavily on the Ninth Circuit’s
decision in Ching v. Mayorkas, 725 F.3d 1149 (9th Cir. 2013).
In response, the defendants contend that the plaintiffs’
“faith in Ching is misplaced” and instead argue that the Supreme
Court’s opinion in Din, 135 S. Ct. 2128, limits the plaintiffs’
due process claims. Doc. no. 19 at 20-21. Alternatively, the
defendants allege that “even assuming that some constitutional .
. . safeguards were implicated by the actions of the USCIS and
BIA,” the plaintiffs were nonetheless “provided with a
fundamentally fair opportunity to rebut the derogatory
information” presented by the government. Id. at 22.
The defendants believe Din supports that the plaintiffs do
not have a liberty interest in this matter, and any explanation
for the government’s decision to deny Hassan’s petition was more
than what due process required. In Din, Fauzia Din petitioned
13 to have her husband, Kanishka Berashk, classified as her
immediate relative. Din, 135 S. Ct. at 2132. At the time of
the petition, Berashk was living in Afghanistan. Id. at 2139
(Kennedy, J., concurring in judgment). The petition was
eventually granted, and Berashk subsequently filed a visa
application and was interviewed by consular officials in
Islamabad, Pakistan. Id. at 2132. After the interview, “[a]
consular official informed Berashk that he was inadmissible
under [8 U.S.C.] § 1182(a)(3)(B) but provided no further
explanation.” Id.5
In a plurality opinion, Justice Scalia, joined by Chief
Justice Roberts and Justice Thomas, found that “Din was not
deprived of ‘life, liberty, or property’ when the Government
denied [Berashk’s] admission to the United States,” and,
therefore, “there is no process due to her under the
Constitution.” Id. at 2138. Justice Kennedy, joined by Justice
Alito, concurred with the plurality “that the case must be
vacated and remanded[,]” but explained that “rather than
deciding, as the plurality does, whether Din has a protected
liberty interest, . . . [and] even assuming she does, the notice
5“§ 1182(a)(3)(B), covers ‘[t]errorist activities.’ In addition to the violent and destructive acts the term immediately brings to mind, the INA defines ‘terrorist activity’ to include providing material support to a terrorist organization and serving as a terrorist organization's representative. § 1182(a)(3)(B)(i), (iii)-(vi).” Id. 14 she received regarding her husband's visa denial satisfied due
process.” Id. at 2139.
The plaintiffs claim in their objection to the defendants’
motion for summary judgment that Din “is inapposite because it
arose from different facts” and, in any event, “the plurality
decision . . . leaves the Ninth Circuit’s decision in Ching, as
it relates to [Hassan’s] liberty interest in her marriage to
[Ali], undisturbed.” Doc. no. 23 at 4. The court agrees with
the plaintiffs that Din “did not produce a majority position on
the question whether a citizen has a constitutionally protected
. . . liberty interest in residing in the United States with his
or her non-citizen spouse.” Struniak v. Lynch, No. 1:15-CV-
1447, 2016 WL 393953, at *15 (E.D. Va. Jan. 29, 2016).
Nevertheless, even assuming that the plaintiffs have a
constitutionally protected liberty interest in this matter, due
process did not require an evidentiary hearing and an
opportunity for the plaintiffs to cross-examine Lewis and the
immigration agents who interviewed her in 1999.
“Due process is flexible and calls for such procedural
protections as the particular situation demands.” Gilbert v.
Homar, 520 U.S. 924, 930 (1997) (brackets omitted) (quoting
Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). To determine
what process is due, courts generally balance three factors:
15 First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
As to the first factor, the plaintiffs quote Ching to
contend that “[t]he right to live with and not be separated from
one's immediate family is a right that ranks high among the
interests of the individual and that cannot be taken away
without procedural due process.” 725 F.3d at 1157 (quotation
marks omitted); doc. no. 15-1 at 14. Contrary to the
plaintiff’s claims, however, the first Mathews factor does not
favor additional process in this case. In Ching, the plaintiff-
appellant faced “imminent removal” from the U.S. Id. at 1157
(quotation marks omitted). From this fact, the circuit court
found that separating Ching from her family could not occur
without procedural due process. Id. Here, although Ali’s
temporary protected status has been withdrawn, the plaintiffs
make no allegation that Ali is currently in removal proceedings
or that Ali expects to be immediately separated from his family.
AR 955-56. Therefore, the first factor does not benefit the
plaintiffs’ due process claims. See Alabed, 2015 WL 1889289, at
*18 (“To find that even the potential of being placed in removal
16 proceedings creates an imminent risk of separation would expand
the first element of Matthews [sic] too far.”).
For the second factor, the plaintiffs again cite Ching and
allege that the USCIS’s due process “shortcomings . . . are
clear.” Doc. no. 15-1 at 17. The plaintiffs warn that, under
the USCIS’s current procedural scheme,
USCIS may allege that an alien beneficiary previously participated in a marriage fraud conspiracy based on a mere summary of what a disgruntled ex-spouse said at the time of their separation, withhold those statements from the beneficiary and their current U.S. citizen spouse over the course of the adjudication, and then decide the marriage fraud issue based solely on written submissions prepared without the benefit of context or clarification.
Doc. no. 15-1 at 17.
Based on the plaintiff’s reliance of Ching, a short
background is necessary. As sufficiently summarized in Alabed,
In Ching, a U.S. Citizen, Elden Fong (“Fong”), submitted an I–130 visa petition for an immediate relative on behalf of his spouse, a Chinese native legally residing in the United States, Teresita Ching (“Ching”). When Ching entered the United States, she began dating and ultimately married, Fong. Fong submitted an I–130 visa petition on behalf of Ching, but Ching later informed USCIS she no longer wished the petition to be considered because Ching planned to divorce Fong. Ching and Fong divorced in December 2007, and Ching remarried Brooke Joseph (“Joseph”) who then submitted an I–130 visa petition on Ching's behalf.
The USCIS denied Joseph's I–130 petition because at an interview of Fong conducted by USCIS, Fong confessed and provided a sworn statement that he and Ching had never consummated their marriage, never lived together, and that Fong was offered and paid cash in
17 return for marrying Ching. Ching and Joseph responded to Fong's statement by submitting a detailed declaration from Ching describing in excruciating detail her intimate relationship with Fong. The USCIS subsequently denied Joseph's I–130 petition on grounds that Ching's first marriage was not entered into in good faith. Although USCIS had reviewed Ching's declaration, it was determined to be self-serving. Ching and Joseph challenged USCIS' denial in federal district court asserting they had been denied their right to due process because they were not given an opportunity to cross-examine Fong.
2015 WL 1889289, at *16 (quotations marks and citations
omitted). With this backdrop, the Ninth Circuit found that the
second Mathews factor “strongly favor[ed]” Ching because the BIA
concluded that Ching’s first marriage was fraudulent based only
on Fong’s sworn statement against “substantial evidence [by
Ching] that the first marriage was bona fide.” 725 F.3d at
1158.
The facts in this case are distinguishable from the facts
relied on by the Ninth Circuit in Ching. Unlike Ching, the
USCIS and BIA relied on multiple pieces of evidence to conclude
that Ali’s marriage to Lewis was fraudulent. As discussed
above, the USCIS’s decision found that although the plaintiffs
in 2008 submitted documents “with [Lewis’s] name on them” to
show that Ali and Lewis previously lived together in Manchester,
New Hampshire and Lewis contradicted her earlier claim that her
marriage to Ali was a sham, Ali nevertheless admitted to
immigration officials the same year “that [Lewis] did not live
18 in New Hampshire, but stayed in Massachusetts.” AR 275.
The decision also found that the date Lewis’s mother
claimed that Lewis had moved to New Hampshire with Ali, Lewis
was still “receiving welfare checks, food stamps, and cash
subsidies, through the State of Massachusetts[,]” and, “[a]s of
September 1999, she was still receiving Medicare from the State
of Massachusetts.” Id. The BIA’s decision affirmed the USCIS’s
decision for the same reasons. AR 969.
Compared to Ching, the evidence considered by the USCIS in
this case was significantly greater, “and thus the risk of an
erroneous determination is much less than that in Ching.”
Alabed, 2015 WL 1889289, at *19. Furthermore, because the USCIS
and BIA considered Lewis’s contradicting 1999 and 2008
statements in denying Hassan’s petition, the plaintiffs have
failed to demonstrate how the cross-examination of Lewis – or
the cross-examination of immigration agents about an interview
conducted seventeen years ago – would likely result in a
different outcome.
On a final note for this factor, the plaintiffs contend
that “[i]n almost every setting where important decisions turn
on questions of fact, due process requires an opportunity to
confront and cross-examine adverse witnesses.” Doc. no. 15-1 at
15 (quoting Goldberg v. Kelly, 397 U.S. 254, 269 (1970)). Yet,
even Ching, relied on heavily by the plaintiffs, concedes that
19 “[b]ecause of its inherent differences from the judicial
process, administrative proceedings in particular must be
carefully assessed to determine what process is due given the
specific circumstances involved. And we must do so on a case by
case basis.” Ching, 725 F.3d at 1157. Therefore, based on the
record in this case, the second Mathews factor weighs against
the need for an evidentiary hearing.
Turning to the final Mathews factor, the plaintiffs contend
that the “fiscal and administrative burdens” on the government
to conduct an evidentiary hearing do not outweigh the
“[p]laintiffs’ protected interests.” Doc. no. 15-1 at 20-21.
For this factor, Mathews instructs that “[a]t some point the
benefit of an additional safeguard to the individual affected by
the administrative action and to society in terms of increased
assurance that the action is just, may be outweighed by the
cost.” 424 U.S. at 348.
Facially, there does not appear to be a significant burden
on the USCIS to conduct an evidentiary hearing. Aliens in
removal proceedings, for example, already have the ability to
present evidence on their own behalf and cross-examine witnesses
in a hearing. See 8 U.S.C. § 1229a(b)(4)(B). Further, the
defendants point to no governmental interest or administrative
hurdle in providing an evidentiary hearing under the specific
facts of this case. As such, the third Mathews factor weighs
20 toward the plaintiffs. Compare Ching, 725 F.3d 1159
(determining that “because the process sought by Plaintiffs is
guaranteed to aliens in removal proceedings, there are no
practical problems with such a requirement” for I-130 petitions)
with Penobscot Air Servs., Ltd. v. F.A.A., 164 F.3d 713, 724
(1st Cir. 1999) (finding that the third Mathews factor weighed
against plaintiffs when an agency “would be required to conduct
trial-type hearings in connection with nearly every complaint
filed with it.”).
Still, in consideration of all three Mathews factors, due
process does not support an evidentiary hearing in this matter.
Importantly, the facts in Ching are distinguishable from this
case. The plaintiffs do not contend that Ali faces imminent
removal from the U.S., and, compared to Ching, the USCIS and BIA
considered significantly more evidence to support their decision
to deny Hassan’s I-130 petition. Further, the plaintiffs have
not shown how a cross-examination of Lewis – or of immigration
agents concerning a seventeen-year-old interview with Lewis –
would potentially change the government’s credibility
determinations or ultimate decision. Thus, although the third
factor weighs for the plaintiffs, the other factors – primarily
the second factor – outweigh the need for an evidentiary
hearing.
21 B. Application of Section 204(c) of the INA
Section 204(c) of the INA states that
no [I-130] petition shall be approved if . . . 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 . . . .
8 U.S.C § 1154(c) (emphasis added).
In determining whether a marriage was entered into to
circumvent U.S. immigration law, “[t]he substantive question is
whether, at the time of the marriage, there was an intent to
establish a life together.” Rodriguez v. I.N.S., 204 F.3d 25,
27 (1st Cir. 2000) (brackets and quotations marks omitted); see
also Matter of Laureano, 19 I. & N. Dec. 1, 1 (BIA 1983). “To
the extent that evidence of post-marriage conduct bears on this
issue, it is relevant.” Rodriguez, 204 F.3d at 27.
The plaintiffs argue that the USCIS and BIA incorrectly
applied Section 204(c) when they failed to consider evidence
from when Ali and Lewis “entered into” their marriage (1993-97)
and instead improperly “limited its fact-finding to the period
from 1997 to 1998 . . . .” Doc. no. 15-1 at 22. Consequently,
the plaintiffs contend that the USCIS and BIA’s decisions “were
based purely on evidence of [Ali and Lewis’s] separation” and
not “the time period that was most probative as to whether [Ali
22 and Lewis] intended to ‘establish a life together’ . . . .” Id.
Ali and Lewis married in 1993. AR 90. Twice, though, the
USCIS incorrectly states in its decisions that Ali and Lewis
married in 1997. AR 278, 282. The plaintiffs interpret the
USCIS’s error to mean that it ignored any evidence of Ali and
Lewis’s marriage prior to 1997 and limited its analysis to the
time Lewis filed her I-130 petition in 1997. The record does
not support this inference.
A fair reading of the record shows that the USCIS was well
aware that Ali and Lewis were married in 1993. In fact, in its
decision to deny Hassan’s petition, the USCIS made a point to
acknowledge the plaintiff’s correction to the record “that the
actual date of marriage was August 21, 1993, not August 17,
1993.” AR 275. On the very next page, the USCIS’s decision
again states that Ali married Lewis on August 21, 1993. AR 276.
The first page of the USCIS’s NOID also states that Ali married
Lewis in 1993. AR 281.
Moreover, the record supports that the USCIS and BIA
considered all relevant evidence from before and after Ali’s
marriage to Lewis in 1993. The USCIS’s decision details that it
reviewed evidence submitted by the plaintiffs they claim
supports that Ali and Lewis married with the intention to
establish a life together, including affidavits by Ali, Lewis,
and Lewis’s mother. AR 275. These affidavits detail Ali and
23 Lewis’s marriage prior to 1997. AR 1176-81.
In addition to Lewis’s 2008 affidavit, the USCIS’s decision
also discussed Lewis’s 1999 interview with immigration agents in
which she alleged that Ali “offered her a sum of ‘$1000 to marry
him so he can get a green card.’” AR 276. If true, Ali’s offer
logically occurred before their 1993 wedding. Thus, based on
the foregoing, the record shows that the USCIS and BIA’s
decisions properly applied Section 204(c) in considering
evidence before and after Ali and Lewis’s marriage.
C. Whether the Record Supports the USCIS and BIA’s Findings
The plaintiffs lastly argue that, even under this court’s
deferential standard, the record does not support a finding of
marriage fraud. The plaintiffs primarily allege that the “USCIS
and BIA’s reliance, and implied finding of credibility, upon
[Lewis’s] 1999 statement” to immigration officials that her
marriage to Ali was a sham “was not supported by specific and
cogent reasoning.” Doc. no. 15-1 at 24. The court disagrees.
In reaching a decision, an administrative agency need only
“fairly consider[] the points raised by the complainant and
articulate[] its decision in terms adequate to allow a reviewing
court to conclude that the agency has thought about the evidence
and the issues and reached a reasoned conclusion.” Raza v.
Gonzales, 484 F.3d 125, 128 (1st Cir. 2007). The USCIS and BIA
24 did so in this case.
The USCIS’s decision to deny Hassan’s I-130 petition
adequately discussed the plaintiffs’ presented evidence and
sufficiently explained why it believed the evidence was
unpersuasive. Foremost, the USCIS’s decision noted that Lewis’s
2008 affidavit claiming she married Ali “out of love”
contradicted her 1999 statement to immigration officials that
Ali paid her to get married. AR 275, 1179. The plaintiffs
maintain that the USCIS and BIA unfairly accepted Lewis’s 1999
statement over her 2008 affidavit. The USCIS’s decision,
however, articulates that it did not heavily weigh the
plaintiffs’ submitted evidence (including Lewis’s 2008
affidavit) because it largely conflicted with the record and
other sworn testimony. For example, the decision notes that the
plaintiffs submitted a cable bill and a lease for a Manchester,
New Hampshire apartment with both Ali and Lewis’s names, but Ali
admitted during an interview with immigration officials that
“Lewis primarily lived in Massachusetts and [he] primarily lived
in New Hampshire during the duration of their marriage.” AR
278. In addition, the decision also discusses that at the time
Lewis’s mother claims Lewis moved to New Hampshire with Ali,
Lewis was still receiving Massachusetts state benefits at a
Boston address. AR 275.
25 “Weighing the evidence is, within wide limits, the
exclusive province of the agency.” Atieh, 797 F.3d at 140.
Based on the facts detailed above, the court may not disturb the
USCIS’s decision to weigh Lewis’s 1999 statement alleging
marriage fraud over her 2008 recantation because the evidence
reasonably supports the USCIS’s conclusion. See id.
Yet, this court would be remiss if it did not note that the
record also shows conflicting evidence whether Ali and Lewis
ever lived together as a married couple. In a 2009 affidavit
submitted in support of the plaintiff’s appeal to the BIA, Ali
claims that he lived with Lewis at 32 Creston Street in Boston
from 1993-95. AR 1136. Ali alleges that “[t]he entire
household” moved 434 Washington Street in 1995, and, soon after
to 12 Lorenzo Street where they lived until 1997. Id. However,
in Ali’s 1997 lease for a Manchester, New Hampshire apartment,
Ali claims that his last address was 804 Center Street in the
Jamaica Plains neighborhood of Boston. AR 1150. Moreover, a
social security number search conducted by immigration officials
in 1999 revealed multiple other addresses linked to Ali – none
of which matched the addresses listed in his 2009 affidavit. AR
210.
In conclusion, the court “cannot contravene the agency's
factfinding unless a reasonable adjudicator would be compelled
to reach a contrary conclusion.” Akwasi Agyei, 729 F.3d at 13.
26 Here, the USCIS – and BIA in adopting the USCIS’s findings –
sufficiently explained its findings and rationale for denying
Hassan’s I-130 petition. In conjunction, because the USCIS’s
“decision is supported by [a] rational view of the record,” the
“court must uphold it.” Atieh, 797 F.3d at 138.
Conclusion
Based on the foregoing, the USCIS and BIA’s decisions were
supported by a rational view of the record and must be upheld.
Atieh, 797 F.3d at 138. In addition, the plaintiffs have not
shown that they were deprived of due process. Therefore, the
plaintiffs’ motion for summary judgment (doc. no. 15) is denied
and the defendants’ motion for summary judgment (doc. no. 18) is
granted. The clerk of the court shall enter judgment in
accordance with this order and close the case.
SO ORDERED.
__________________________ Andrea K. Johnstone United States Magistrate Judge
June 7, 2016
cc: Nathan P. Warecki, Esq. Terry L. Ollila, Esq.