United States District Court, D. New Hampshire
K. Johnstone United States Magistrate Judge.
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. §
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).
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
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.
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). 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.
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. AR 827.
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.
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.
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. 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.
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
. . . .
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.
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.
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.
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.
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.
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
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
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.
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
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