GLORIA M. NAVARRO, Chief Judge.
Pending before the Court is the Motion for Summary Judgment (ECF No. 27) filed by Respondent Eric H. Holder, Jr. ("Respondent") on December 10, 2013 and the Motion for Summary Judgment (ECF No. 28) filed by Petitioner Abdul Saleh ("Petitioner") that same day. The parties filed their Responses in Opposition (ECF Nos. 32-33) on February 10, 2014. Respondent filed his Reply to Petitioner's Response (ECF No. 34) on February 24, 2014.
For the reasons discussed in this Order, the Court
This matter arises from an appeal filed by Petitioner pursuant to the Administrative Procedure Act, 5 U.S.C. § 701 (the "APA"), seeking review of a Board of Immigration Appeals' (the "BIA") decision affirming the denial of his Form 1-130 Petition to classify him as an immediate relative of a United States citizen. The operative facts are as follows:
Petitioner is a thirty-four-year-old native and citizen of Eritrea. (Undisputed Facts ¶ 1, ECF No. 27-2; 1-130 Petition, Admin. Record at 93). On April 12, 2010, he arrived in the United States with permission to remain in the country for only three months. (I-130 Petition, Admin. Record at 93). Less than two months after his arrival in the United States, Petitioner married Tehetena Dagna Teklewold ("Teklewold"), a fifty-one-year-old native of Ethiopia and a naturalized American citizen, in Las Vegas, Nevada on June 1, 2010. (Undisputed Facts ¶¶ 2, 4-5, ECF No. 27-2; 1-130 Petition, Admin. Record at 93). A month later on July 9, 2010, Teklewold filed an 1-130 Petition with the United States Citizenship and Immigration Services (the "USCIS") on behalf of Petitioner. (Id. ¶ 6). According to the 1-130 Petition, Petitioner had been married to Yesra M. Ferej, until their marriage ended on April 6, 2010, six days prior to his arrival in the United States. (1-130 Petition, Admin. Record at 93).
On November 8, 2010, Petitioner and Teklewold participated in an interview with a USCIS officer. (Undisputed Facts ¶ 7, ECF No. 27-2). During the interview, Petitioner could not remember the name of his former spouse, to whom he had purportedly been married for five years, nor
On December 9, 2010, USCIS officers conducted a site visit at the purported home of Petitioner and Teklewold and at the purported home of Petitioner's sister. (Undisputed Facts 118, ECF No. 27-2). During the site visit of Petitioner's purported home with Teklewold, the USCIS officers encountered Teklewold and a fifty-year-old man named Shekib Abubeker, whom Teklewold described as her best friend for over ten years. (USCIS Site Visit Memo, Admin. Record at 89). Petitioner was not at the home, and Teklewold claimed that he had spent the previous night at his sister's house because his sister was going to take him to the DMV in the morning. (Id.).
When Teklewold showed the USCIS officers around the three-bedroom house, they observed that the master bedroom did not contain any items of male clothing or anything that could be identified as belonging to Petitioner. (Id.). When asked about Petitioner's belongings, Teklewold showed the officers to a second bedroom where they found one pair of denim jeans, two pairs of pants, five shirts, and a small drawer with socks and male undergarments. (Id.; Site Visit Notes, Admin. Record at 91). However, the officers noted that none of the items could be identified as belonging to Petitioner. (USCIS Site Visit Memo, Admin. Record at 89). Additionally, Teklewold did not show the officers any other belongings in the house that she claimed belonged to Petitioner other than these few items of clothing. (USCIS Site Visit Memo, Admin. Record at 89-90; Site Visit Notes, Admin. Record at 91-92).
USCIS officers also conducted a site visit at the purported home of Petitioner's sister on December 9, 2010. (Undisputed Facts ¶ 8, ECF No. 27-2). At the home, the officers encountered a man who identified himself as Mohamed Ibrahim. (USCIS Site Visit Memo, Admin. Record at 90). Ibrahim told the officers that he lived at the home with his wife, his ex-wife, his three children with his ex-wife, and his exwife's mother. (Id.). He also told the officers that his ex-wife was Petitioner's sister but that he had not seen Petitioner in three or four days and that Petitioner had never spent the night at his house. (Id.). Ibrahim also stated that Petitioner lived with Teklewold, whom he identified as Petitioner's wife. (Id.).
On August 25, 2011, the USCIS issued a Notice of Intent to Deny the Petition ("NOID") to Petitioner. (Undisputed Facts 119, ECF No. 27-2). The NOID stated that the discrepancies in Petitioner and Teklewold's interview and site visit along with the lack of documentary evidence indicated that Petitioner and Teklewold had not entered a good faith, bona fide marriage. (NOID, ECF No. 5-1). Therefore, the USCIS advised Teklewold that it intended to deny the petition and that she had thirty days to submit additional evidence establishing a bona fide marriage before it would deny the petition. (Id.).
Teklewold responded to the NOID by submitting the following additional evidence: (1) an unsworn letter signed by Teklewold, (Teklewold Letter, Admin. Record at 67-68); (2) a copy of an interim
On January 12, 2012, the USCIS found that the marriage was fraudulent and denied the 1-130 Petition, citing the same discr-nancies that had been identified in the N OID and noting that the supplemental submissions along with the existing record did not establish the bona fides of the marriage. (USCIS Denial, Admin. Record at 62-66).
Teklewold appealed the denial of the I-130 petition to the BIA on July 12, 2012. (Notice of Appeal, Admin. Record at 5-6; Appeal Brief, Admin. Record at 16-20). Attached to Teldewold's appeal brief was the following additional evidence: (1) copies of Teklewold and Petitioner's 2010 federal income tax returns, showing them residing at the same house, (2010 Tax Returns, Admin. Record at 27-33); (2) a receipt for a December 13, 2010 payment to the Nevada Department of Motor Vehicles for a Nevada driver's license issued to Petitioner, (DMV Receipt, Admin. Record at 41); (3) a copy of a gas bill for the first two weeks of January 2011 sent to Teklewold or Petitioner at their purported home, (Gas Bill, Admin. Record at 45); (4) an affidavit from Abubeker stating that he has known Teklewold for over eight years and that Petitioner and Teklewold live together as husband and wife, (Abubeker Affidavit, Admin. Record at 47); (5) an affidavit from Petitioner's sister stating that Petitioner and Teklewold live together as husband and wife and are treated as husband and wife within the Ethiopian community, (Salih Affidavit, Admin. Record at 49); (6) four unannotated photographs showing Petitioner and Teklewold together, (Photographs, Admin. Record at 51-52); and (7) copies of Teklewold and Petitioner's 2011 federal income tax returns, showing them residing at the same house, (2011 Tax Returns, Admin. Record at 54-60).
On September 5, 2012, the BIA, citing the same discrepancies as the USCIS, dismissed the appeal after finding that the additional documents "did not meet her burden of proof' for establishing Petitioner's eligibility for classification as an immediate relative. (BIA Decision, ECF No.
On October 5, 2012, Petitioner filed a petition for review of the BIA's decision with the United States Court of Appeals for the Ninth Circuit. (Ninth Cir. Petition, ECF No. 5-6). Then on April 1, 2013, the Ninth Circuit issued an order granting Petitioner's request to transfer the present matter to this Court. (Transfer Order, ECF No. 1). Before this Court, the parties have filed the present motions for summary judgment in which Respondent seeks affirmance and Petitioner seeks reversal and remand of the BIA's decision. (Resp. MSJ Memo. 13:19-24, ECF No. 27-1; Pet. MSJ 6:7-12, ECF No. 28).
The Federal Rules of Civil Procedure provide for summary adjudication when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(a). Material facts are those that may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91' L.Ed.2d 202 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See id. "Summary judgment is inappropriate if reasonable jurors, drawing all inferences in favor of the nonmoving party, could return a verdict in the nonmoving party's favor." Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir.2008) (citing United States v. Shumway, 199 F.3d 1093, 1103-04 (9th Cir.1999)). A principal purpose of summary judgment is "to isolate and dispose of factually unsupported claims." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
At summary judgment, a court's function is not to weigh the evidence and determine the truth but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249, 106 S.Ct. 2505. The evidence of the nonmovant is "to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255, 106 S.Ct. 2505. But if the evidence of the nonmoving party is merely colorable or is not significantly probative, summary judgment may be granted. See id. at 249-50, 106 S.Ct. 2505.
In reviewing an administrative decision under the APA, the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did. City & Cty. of San Francisco v. United States, 130 F.3d 873, 877 (9th Cir.1997) (affirming the use of summary judgment to decide this legal question). "Under the APA, judicial review is usually limited to determining whether agency action is `arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'" United States v. Bean, 537 U.S. 71, 77, 123 S.Ct. 584, 154 L.Ed.2d 483 (2002). In applying this standard, a court must be "highly deferential, presuming the agency action to be valid," and the court must not "substitute its judgment for that of the agency." J & G Sales Ltd. v. Truscott, 473 F.3d 1043, 1051 (9th Cir.2007) (quotations omitted).
In order for an alien spouse of a United States citizen to obtain lawful permanent resident status, the United States citizen
In 1-130 visa petition cases, the United States citizen bears the burden of proving that the noncitizen beneficiary is eligible to receive the benefits of the visa. 8 U.S.C. § 1361; see also Gipson v. I.N.S., 284 F.3d 913, 915 (8th Cir.2002). This burden requires the citizen to provide evidence of their citizenship along with a valid certificate of marriage and proof of the legal termination of all previous marriages of both the citizen and the beneficiary. 8 C.F.R. § 204.2(a)(2). Once, "a petitioner of an immediate relative petition proves that his marriage meets the requirements for the approval of an 1-130, he is entitled, as a matter of right, to the approval of his petition." .Ching v. Mayorkas, 725 F.3d 1149, 1155 (9th Cir.2013). "The decision of whether to approve an 1-130 visa petition is a nondiscretionary one." Id.
However, the beneficiary of an I-130 petition is not eligible for immediate relative status if the marriage upon which the petition is based was a sham marriage entered into for the purpose of evading immigration laws. 8 U.S.C. § 1154(c); Vasquez v. Holder, 602 F.3d 1003, " 1014 (9th Cir.2010) ("A marriage that is entered into for the primary purpose of circumventing the immigration laws, referred to as a fraudulent or sham marriage, does not enable an alien spouse to obtain immigration benefits." (internal quotations omitted)). To reject an 1-130 petition based on marriage fraud, the USCIS must find that there is "substantial and probative evidence" that the marriage was a sham. 8 C.F.R. § 204.2(a)(1)(ii). Accordingly, "[t]he Government has the burden of providing substantial and probative evidence that the prior marriage was a sham."
If the USCIS discovers substantial and probative evidence of marriage fraud, then it must issue a NOID to the petitioner informing her of the derogatory information in question and affording her
In its decision, the BIA affirmed the denial of the 1-130 petition because Teklewold had failed to "sufficient[ly] resolve the questions raised about the bona fides of the marriage," but then the BIA went on to find that the evidence of fraud was insufficient to support the USCIS's finding of a sham marriage. (BIA Decision, ECF No. 5-5). The BIA, therefore, found that the Government had failed to meet its burden of showing by substantial and probative evidence that the marriage was a fraud while simultaneously confirming denial of the 1-130 petition based on the marriage being fraudulent. Such a finding is not permitted under the statutory framework. See 8 U.S.C. § 1154(c), § 1361; 8 C.F.R. § 204.2(a)(1)(ii); (a)(2).
Because the BIA found that there was not substantial and probative evidence that Petitioner's marriage to Teklewold was a fraud, the burden of proof never shifted to Petitioner to prove that the marriage was bona fide. Vy Nhu Hoang Dinh, 2014 WL 3513379, at *13. Accordingly, section 1154(c) cannot bar the approval of Teklewold's 1-130 petition once the BIA determined that there was insufficient evidence to find that the marriage was fraudulent.
The Clerk of the Court shall enter judgment accordingly.