Hussein Mirjan v. Atty Gen USA

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 11-1218 _____________

HUSSEIN ALI MUHAMMED MIRJAN, Appellant

v.

ATTORNEY GENERAL OF THE UNITED STATES; EVANGELIA A. KLAPAKIS, or Successor Field Office Director, United States Citizenship and Immigration Services – Philadelphia District ______________

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civ. No. 5-10-cv-04641) District Judge: Honorable J. William Ditter, Jr. ______________

Submitted Under Third Circuit LAR 34.1(a) April 26, 2012 ______________

Before: GREENAWAY, JR., ROTH, and TASHIMA *, Circuit Judges.

(Opinion Filed: August 28, 2012) ______________

OPINION ______________

* Hon. A. Wallace Tashima, Circuit Judge, United States Court of Appeals for the Ninth Circuit, sitting by designation. 1 GREENAWAY, JR., Circuit Judge. This case arises from Appellant Hussein Ali Muhammed Mirjan’s (“Mirjan”)

denied petitions to adjust his immigration status with the United States Citizenship and

Immigration Service (“CIS” or “the agency”). After his appeal was denied by the Board

of Immigration Appeals (“BIA”), Mirjan filed the instant action in the United States

District Court for the Eastern District of Pennsylvania, seeking review under the

Administrative Procedures Act (“APA”) of the BIA’s decision not to adjust status. The

District Court dismissed Mirjan’s complaint for failure to state a claim. For the reasons

stated herein, we will affirm the District Court’s order dismissing Mirjan’s complaint.

I. BACKGROUND

Because we write primarily for the benefit of the parties, we recount only the

essential facts.

Mirjan, a citizen of Iraq, married Bridget Marie Bossler (“Bossler”), a United

States citizen, on June 26, 2005. In December 2005, the couple filed petitions to adjust

Mirjan’s status to that of a permanent resident. A CIS representative interviewed them

on June 29, 2006. Bossler died on August 31, 2009, while the petitions were still

pending. As a result of Bossler’s death, Mirjan’s initial I-130 petition (for an alien

relative) was converted to an I-360 (for amerasian, widow(er), or special immigrant). A

CIS representative interviewed Mirjan again in October 2009, after which it provided him

with a Notice of Intent to Deny his petition based on discrepancies in the record. Mirjan

replied and provided additional information in the hope that he might persuade the CIS of

2 the validity of his petition. Specifically, Mirjan tried to explain discrepancies in the dates

of co-habitation and occupancy at certain residences. Nonetheless, the CIS denied his

petition on December 16, 2009, finding that Mirjan failed to establish that he and Bossler

“were engaged in a bona fide marital relationship.” (App. at A17). Mirjan appealed the

decision, and the BIA denied his appeal on August 13, 2010.

Mirjan filed a complaint in the United States District Court for the Eastern

District of Pennsylvania, alleging that the CIS decision not to adjust status was arbitrary

and capricious or an abuse of discretion. The District Court dismissed the complaint for

failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Mirjan now

appeals the District Court’s order dismissing the case.

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction pursuant to 5 U.S.C. § 702. We have

jurisdiction pursuant to 28 U.S.C. § 1291.

We exercise plenary review of a district court’s grant of a motion to dismiss for

failure to state a claim. Grief v. Klem, 591 F.3d 672, 676 (3d Cir. 2010). To withstand a

Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (internal quotation marks omitted). Because we apply the same

standard of review under the Administrative Procedures Act (“APA”) as the district

court, we apply de novo review to its assessment of the agency’s decision. See Albert

Einstein Med. Ctr. v. Sebelius, 566 F.3d 368, 373 (3d Cir. 2009).

3 Our review of agency action is governed by the APA, 5 U.S.C. § 706. We may

only set aside agency actions, findings, and conclusions that are “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). We

apply the same standard when determining whether an agency’s actions were an abuse of

discretion or arbitrary and capricious. See Donovan v. Adams Steel Erection, Inc., 766

F.2d 804, 807 (3d Cir. 1985).

“The scope of review under the arbitrary and capricious standard is narrow, and a

court is not to substitute its judgment for that of the agency.” CBS Corp. v. F.C.C., 663

F.3d 122, 137 (3d Cir. 2011) (citing Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm

Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). “Where an agency departs from established

precedent without announcing a principled reason for such reversal, its action is arbitrary

and an abuse of discretion and should be reversed.” Id. (internal citations omitted).

Generally speaking, we will find an agency action to be arbitrary and capricious where

the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. The reviewing court should not attempt itself to make up for such deficiencies; we may not supply a reasoned basis for the agency's action that the agency itself has not given. Id. (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). III. ANALYSIS

We address whether the CIS’s decision to deny Mirjan’s petition, based on its

conclusion that Mirjan failed to show that he and Bossler were engaged in a bona fide

marriage, is arbitrary and capricious or an abuse of discretion. The United States Code 4 explicitly prohibits the approval of petitions from individuals who are participating in a

sham marriage. 8 U.S.C. § 1154(c) (“[N]o petition shall be approved if . . . 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.”). The burden of proof falls on the

petitioner to demonstrate by a preponderance of evidence that his marriage was bona fide

at its inception. See Matter of Laureano, 19 I & N Dec. 1, 3 (BIA 1983).

The record indicates that Mirjan presented several documents in support of his

claim that he and Bossler were engaged in a bona fide marriage, including: the marriage

certificate, Bossler’s birth and death certificates, joint insurance policies, joint tax returns,

joint credit card account statements, copies of bank statements, other bills, personal

photographs and a copy of a lease from May 1, 2005 through April 30, 2006. Both

Mirjan and Bossler provided statements about their marriage in a June 29, 2006

interview. Mirjan then presented additional statements in a second interview on October

22, 2009.

CIS noted a series of inconsistencies in the information Mirjan provided.

Specifically, it cited numerous discrepancies between the lease documents used to

establish the couple’s cohabitation and the testimony from Mirjan, Bossler’s father, and

Bossler’s friend, Megan Gilmer (“Gilmer”). For example, Bossler’s father indicated that

she resided with him from September 2008 until her death in August 2009. His

testimony was supported by both information Bossler provided to authorities in an April

2009 criminal investigation indicating that she resided with her father and her obituary.

5 This directly conflicted with Mirjan’s statements and bills demonstrating that she was

residing with him at the same time. Additionally, the CIS concluded that Mirjan’s

statement that he and Bossler moved in to a trailer at 15132-65 Kutztown Road in

Kutztown, PA on June 26, 2005, after their marriage, conflicted with the fact that the

lease went to in effect on May 1, 2005 and failed to list Gilmer, who resided with them at

this residence, despite indications from Gilmer that it should. The CIS and BIA also

noted inconsistencies with Mirjan’s assertion that he had never separated with Bossler

before her death – specifically, the fact that Bossler’s father was unaware of the marriage

and the fact that Mirjan was never mentioned in her obituary or offered condolences after

her death.

In making its determination, CIS also noted inconsistencies regarding Mirjan and

Bossler’s personal relationship. For example, despite Mirjan’s suggestion that he and

Bossler had a perfect marriage, he was unaware of her criminal and arrest history as well

as her alleged drug abuse issues. Curiously, he had no knowledge of her outstanding

criminal charges at the time of her death, which exposed her to considerable jail time.

The CIS also noted statements from Bossler at the time of her felony theft arrest as well

as statements from her friends indicating that Bossler was a lesbian. Additionally,

Mirjan’s communications with his employer and colleagues provided no indication that

he was married. He maintained two life insurance policies through his employer, none of

which listed Bossler as the beneficiary. He also failed to change his personal information

6 at work to indicate that he was married, and he never mentioned that his wife had passed

away to anyone at work.

While the record clearly indicates that Mirjan provided documents and evidence to

support his notion that he and Bossler were engaged in a bona fide marriage, the CIS

found that evidence to lack credibility or otherwise fail to establish that Mirjan and

Bossler were establishing a life together. In addition to the various identified

inconsistencies, the CIS concluded that the other documents provided by Mirjan failed to

show that Bossler ever accessed the funds in their joint bank accounts or used any of the

joint credit cards. It also determined that the bills in her name were insufficient to

establish that Bossler actually resided with Mirjan, particularly in light of her father’s

credible testimony that she lived with him and a prior landlord’s testimony that she lived

alone.

Considering the CIS decision and the corresponding evidence, it is clear that the

agency considered the relevant evidence, as contemplated by Congress, and offered a

more than sufficient explanation for its determinations. See 8 C.F.R. § 216.5(e)(2) (“In

considering whether an alien entered into a qualifying marriage in good faith, the director

shall consider evidence relating to the amount of commitment by both parties to the

marital relationship.”). Its decision was principled and grounded in a thorough

investigation of all of the information provided by Mirjan or otherwise collected during

its investigations. Mirjan suggests that the agency’s determination is arbitrary and

capricious because it runs counter to the evidence presented. Because there is evidence

7 in the record to support the agency’s determination and because we do not supplant the

agency’s judgment with our own, we reject Mirjan’s arbitrary and capricious argument.

See CBS Corp., 663 F.3d at 137; see also Burlington Truck Lines, 371 U.S. at 168

(articulating the standard for determining whether an agency action is arbitrary and

capricious).

We find that the agency’s decision not to adjust status was not arbitrary or

capricious or an abuse of discretion. In light of this finding, we agree with the District

Court’s determination that Mirjan failed to state a claim under Rule 12(b)(6). We will,

therefore, affirm the District Court’s order dismissing this case.

IV. CONCLUSION

For the reasons stated above, we will affirm the District Court’s order.