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Ali v. United States

United States District Court, D. New Hampshire

June 7, 2016

Kamal Ali and Israa Hassan
v.
United States of America, et al. Opinion No. 2016 DNH 098

          ORDER

          Andrea K. Johnstone United States Magistrate Judge.

         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.

         Background[1]

         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. 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 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

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 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 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 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 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 ...


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