ROBERT N. CHATIGNY, District Judge.
Plaintiffs seek judicial review of decisions by the United States Citizenship and Immigration Services ("USCIS") and Administrative Appeals Office ("AAO") denying an application for a labor-based visa on behalf of Jose Villaluz. Defendants have moved for summary judgment and the motion has been fully briefed and argued. For reasons set forth below, the motion is granted.
Mr. Villaluz, an engineer, was born in the Philippines. On June 16, 2001, he married Maria Princesita Osmena, a United States citizen. Less than two months later, Ms. Osmena filed a Form I-130 Petition for Alien Relative on his behalf.
Several years later, on July 28, 2007, Ms. Osmena filed a second I-130 petition on Mr. Villaluz's behalf. AR 3-4. In a letter accompanying the petition, she stated that her request to withdraw the first petition resulted from "some misunderstanding during our adjustment period." AR 48. On July 29, 2008, Ms. Osmena withdrew the second petition. She wrote that Mr. Villaluz "married [her] so he can stay legally in United States" and asserted that the two did not live together and did not make deposits into their joint account, that he did not share money with her or help her with her finances, and that he was mean and abusive. AR 1.
On June 16, 2010, Mr. Villaluz's employer, Joseph F. Risoli P.E., LLC, filed a Form I-140 Immigrant Petition for Alien Worker on his behalf.
Summary judgment may be granted if the movant demonstrates that there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56;
Plaintiffs challenge the decisions at issue as "arbitrary, capricious, an abuse or discretion or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). "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."
Defendants argue that the USCIS and AAO decisions must be upheld because they are not "arbitrary, capricious, an abuse or discretion or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). They rely principally on the "marriage fraud bar," discussed below, which precludes a person from obtaining immigration-related benefits if he has entered into a fraudulent marriage to evade immigration laws. In particular, they contend that substantial and probative supports a finding that Mr. Villaluz duped Ms. Osmena into marrying him. I agree with their position on this point.
Risoli's I-140 petition was denied in part because the agency concluded that Mr. Villaluz entered into a fraudulent marriage with Ms. Osmena for the purpose of evading the immigration laws. Under 8 U.S.C. § 1154(c), the agency is barred from approving immigration-related petitions if "(1) the alien has previously been accorded, or has sought to be accorded, an immediate relative or preference status as the spouse of a citizen of the United States or the spouse of an alien lawfully admitted for permanent residence, by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws, or (2) the Attorney General has determined that the alien has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws."
For the marriage fraud bar to apply, the agency must identify "substantial and probative evidence" of an attempt or conspiracy to enter into a fraudulent marriage to evade the immigration laws. 8 C.F.R. § 204.2(a)(1)(ii). "[I]t is not necessary that the alien have been convicted of, or even prosecuted for, the attempt or conspiracy," so long as "the evidence of such attempt or conspiracy . . . [is] documented in the alien's file."
Thus, the inquiry here proceeds in two steps. "First, the court must determine whether it was arbitrary and capricious for the agency to conclude that there was `substantial and probative evidence' [of marriage fraud]. . . . Second, the court must assess whether it was arbitrary and capricious for the agency to determine that the evidence subsequently submitted . . . failed to rebut the agency's conclusion that the marriage . . . was not bona fide."
In concluding that substantial and probative evidence of marriage fraud is present here, the agency relied primarily on Ms. Osmena's letter withdrawing the second I-130 petition. In this letter, Ms. Osmena stated that Mr. Villaluz "took advantage" of her "because [she is] an American citizen" and married her in order to "stay legally in the United States." AR 1. Ms. Osmena went on to explain that she and Mr. Villaluz did not live together, their finances were not commingled, and they did not celebrate their anniversary.
Standing alone and viewed in isolation, the statements in Ms. Osmena's second withdrawal letter may be insufficient to support a determination that Mr. Villaluz duped her into marrying him for the purpose of evading the immigration laws. As plaintiffs contend, such statements on the part of a spouse who claims to have been duped, as compared to one who admits complicity, should not be taken at face value. And it may well be, as plaintiffs argue, that the agency would have been well-advised to interview Ms. Osmena in order to assess the credibility of her statements, although it apparently had no statutory obligation to do so.
But other evidence in the record provides additional support for the agency's determination. The second withdrawal letter is consistent with the notarized letter sent by Ms. Osmena withdrawing the first I-130 petition she filed for Mr. Villaluz. The notarized letter states, "[t]he reason for the withdrawal is because my husband
After considering Ms. Osmena's second letter in light of the entire record, I cannot conclude that it was arbitrary and capricious for the agency to credit the statements in the letter without interviewing Ms. Osmena.
Plaintiffs argue that it was arbitrary and capricious for the agency to determine that the evidence they submitted failed to rebut the finding that the marriage was not bona fide. Evidence that "the marriage was not entered into for the purpose of evading the immigration laws . . . could take many forms, including, but not limited to, proof that the beneficiary has been listed as the petitioner's spouse on insurance policies, property leases, income tax forms, or bank accounts, and testimony or other evidence regarding courtship, wedding ceremony, shared residence, and experiences."
To rebut the agency's finding, Risoli relied primarily on documents submitted by Ms. Osmena and Mr. Villaluz in connection with the second I-130 petition. These included airline reservations showing that the couple visited each other, records purporting to show that they frequently spoke by telephone, and bank statements and other documents showing commingling of finances. The agency discounted the first of these, stating that "[v]isiting each other six times over the course of a seven-year marriage does not constitute regular visits." AR 619. The agency also did not credit the phone records because there was no evidence linking Ms. Osmena to any of the relevant phone numbers. That is, there was no way to determine on the basis of the records submitted whether Mr. Villaluz and Ms. Osmena actually spoke every day, as their attorney claimed. Finally, the agency found that the evidence showing commingling of finances was superficial. As the agency noted, "[n]one of these bank statements contain joint usage or use for any joint bills," and none show "either [Mr. Villaluz] or [Ms. Osmena] depositing their paychecks into [the] account." AR 620.
Risoli also offered an affidavit prepared by Mr. Villaluz. On the whole, the affidavit creates more confusion than it resolves, and it was within the agency's discretion to discount it. For example, Mr. Villaluz avers that his previous marriage (to a citizen of the Philippines) was annulled but that he "never had to appear in court." AR 530-31. However, a document submitted in connection with the second I-130 petition, in support of Mr. Villaluz's contention that he believed his prior marriage was anulled before he married Ms. Osmena, refers to a trial and Mr. Villaluz taking the witness stand. AR 642. The affidavit also contradicts other evidence in the record regarding the time period when Mr. Villaluz and Ms. Osmena lived together in Illinois.
Despite being given the opportunity to present additional evidence on behalf of the I-140 petition, plaintiffs did not provide an affidavit from Ms. Osmena or explain why they could not get one. In addition, the record does not contain a plausible explanation for the couple's living arrangements. Though Mr. Villaluz's decision to relocate to Connecticut can be explained by the availability of better job opportunities, it is unclear why Ms. Osmena remained in Illinois rather than joining her husband in Connecticut.
Overall, the evidence in the record does not suggest that the marriage between Mr. Villaluz and Ms. Osmena was based on mutual affection, as plaintiffs argue. Rather, viewed objectively, it adequately substantiates Ms. Osmena's claim that Mr. Villaluz deceived her into marrying him. The agency was therefore entitled to rely on its initial finding in denying Risoli's I-140 petition.
Accordingly, the motion for summary judgment is granted.
The Clerk may enter judgment and close the file.
So ordered this 31st day of March 2017.
Plaintiffs seek judicial review of decisions by the United States Citizenship and Immigration Services ("USCIS") and Administrative Appeals Office ("AAO") denying an application for a labor-based visa on behalf of Jose Villaluz. Defendants have moved for summary judgment and the motion has been fully briefed and argued. For reasons set forth below, the motion is granted.
Mr. Villaluz, an engineer, was born in the Philippines. On June 16, 2001, he married Maria Princesita Osmena, a United States citizen. Less than two months later, Ms. Osmena filed a Form I-130 Petition for Alien Relative on his behalf.
Several years later, on July 28, 2007, Ms. Osmena filed a second I-130 petition on Mr. Villaluz's behalf. AR 3-4. In a letter accompanying the petition, she stated that her request to withdraw the first petition resulted from "some misunderstanding during our adjustment period." AR 48. On July 29, 2008, Ms. Osmena withdrew the second petition. She wrote that Mr. Villaluz "married [her] so he can stay legally in United States" and asserted that the two did not live together and did not make deposits into their joint account, that he did not share money with her or help her with her finances, and that he was mean and abusive. AR 1.
On June 16, 2010, Mr. Villaluz's employer, Joseph F. Risoli P.E., LLC, filed a Form I-140 Immigrant Petition for Alien Worker on his behalf.
Summary judgment may be granted if the movant demonstrates that there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56;
Plaintiffs challenge the decisions at issue as "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). "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."
Defendants argue that the USCIS and AAO decisions must be upheld because they are not "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). They rely principally on the "marriage fraud bar," discussed below, which precludes a person from obtaining immigration-related benefits if he has entered into a fraudulent marriage to evade immigration laws. In particular, they contend that substantial and probative evidence in the record supports a finding that Mr. Villaluz duped Ms. Osmena into marrying him. I agree with their position on this point.
Risoli's I-140 petition was denied in part because the agency concluded that Mr. Villaluz entered into a fraudulent marriage with Ms. Osmena for the purpose of evading the immigration laws. Under 8 U.S.C. § 1154(c), the agency is barred from approving immigration-related petitions if "(1) the alien has previously been accorded, or has sought to be accorded, an immediate relative or preference status as the spouse of a citizen of the United States or the spouse of an alien lawfully admitted for permanent residence, by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws, or (2) the Attorney General has determined that the alien has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws."
For the marriage fraud bar to apply, the agency must identify "substantial and probative evidence" of an attempt or conspiracy to enter into a fraudulent marriage to evade the immigration laws. 8 C.F.R. § 204.2(a)(1)(ii). "[I]t is not necessary that the alien have been convicted of, or even prosecuted for, the attempt or conspiracy," so long as "the evidence of such attempt or conspiracy . . . [is] documented in the alien's file."
Thus, the inquiry here proceeds in two steps. "First, the court must determine whether it was arbitrary and capricious for the agency to conclude that there was `substantial and probative evidence' [of marriage fraud]. . . . Second, the court must assess whether it was arbitrary and capricious for the agency to determine that the evidence subsequently submitted . . . failed to rebut the agency's conclusion that the marriage . . . was not bona fide."
In concluding that substantial and probative evidence of marriage fraud is present here, the agency relied primarily on Ms. Osmena's letter withdrawing the second I-130 petition. In this letter, Ms. Osmena stated that Mr. Villaluz "took advantage" of her "because [she is] an American citizen" and married her in order to "stay legally in the United States." AR 1. Ms. Osmena went on to explain that she and Mr. Villaluz did not live together, their finances were not commingled, and they did not celebrate their anniversary.
Standing alone and viewed in isolation, the statements in Ms. Osmena's second withdrawal letter may be insufficient to constitute "substantial and probative evidence" that Mr. Villaluz duped her into marrying him for the purpose of evading the immigration laws. As plaintiffs contend, such statements on the part of a spouse who claims to have been duped, as compared to one who admits complicity, should not be taken at face value. And it may well be, as plaintiffs argue, that the agency would have been well-advised to interview Ms. Osmena in order to assess the credibility of her statements, although it apparently had no statutory obligation to do so.
But other evidence in the record provides additional support for the agency's determination. The second withdrawal letter is consistent with the notarized letter sent by Ms. Osmena withdrawing the first I-130 petition she filed for Mr. Villaluz. The notarized letter states, "[t]he reason for the withdrawal is because my husband
After considering Ms. Osmena's second letter in light of the entire record, I cannot conclude that it was arbitrary and capricious for the agency to credit the statements in the letter without interviewing Ms. Osmena.
Plaintiffs argue that it was arbitrary and capricious for the agency to determine that the evidence they submitted failed to rebut the finding that the marriage was not bona fide. Evidence that "the marriage was not entered into for the purpose of evading the immigration laws . . . could take many forms, including, but not limited to, proof that the beneficiary has been listed as the petitioner's spouse on insurance policies, property leases, income tax forms, or bank accounts, and testimony or other evidence regarding courtship, wedding ceremony, shared residence, and experiences."
To rebut the agency's finding, Risoli relied primarily on documents submitted by Ms. Osmena and Mr. Villaluz in connection with the second I-130 petition. These included airline reservations showing that the couple visited each other, records purporting to show that they frequently spoke by telephone, and bank statements and other documents showing commingling of finances. The agency discounted the first of these, stating that "[v]isiting each other six times over the course of a seven-year marriage does not constitute regular visits." AR 619. The agency also did not credit the phone records because there was no evidence linking Ms. Osmena to any of the relevant phone numbers. That is, there was no way to determine on the basis of the records submitted whether Mr. Villaluz and Ms. Osmena actually spoke every day, as their attorney claimed. Finally, the agency found that the evidence showing commingling of finances was superficial. As the agency noted, "[n]one of these bank statements contain joint usage or use for any joint bills," and none show "either [Mr. Villaluz] or [Ms. Osmena] depositing their paychecks into [the] account." AR 620.
Risoli also offered an affidavit prepared by Mr. Villaluz. On the whole, the affidavit creates more confusion than it resolves, and it was within the agency's discretion to discount it. For example, Mr. Villaluz avers that his previous marriage (to a citizen of the Philippines) was annulled but that he "never had to appear in court." AR 530-31. However, a document submitted in connection with the second I-130 petition, in support of Mr. Villaluz's contention that he believed his prior marriage was anulled before he married Ms. Osmena, refers to a trial and Mr. Villaluz taking the witness stand. AR 642. The affidavit also contradicts other evidence in the record regarding the time period when Mr. Villaluz and Ms. Osmena lived together in Illinois.
Despite being given the opportunity to present additional evidence on behalf of the I-140 petition, plaintiffs did not provide an affidavit from Ms. Osmena or explain why they could not get one. In addition, the record does not contain a plausible explanation for the couple's living arrangements. Though Mr. Villaluz's decision to relocate to Connecticut can be explained by the availability of better job opportunities, it is unclear why Ms. Osmena remained in Illinois rather than joining her husband in Connecticut.
Overall, the evidence in the record does not suggest that the marriage between Mr. Villaluz and Ms. Osmena was based on mutual affection, as plaintiffs argue. Rather, viewed objectively, it adequately substantiates Ms. Osmena's claim that Mr. Villaluz deceived her into marrying him. The agency was therefore entitled to rely on its initial finding in denying Risoli's I-140 petition.
Accordingly, the motion for summary judgment is granted.
The Clerk may enter judgment and close the file.
So ordered
