Avitan v. Holder, Case No. C-10-03288 JCS
| Decision Date | 08 February 2011 |
| Docket Number | Case No. C-10-03288 JCS |
| Parties | YEHUDA AVITAN, Plaintiff, v. ERIC HOLDER, ET AL., Defendants. |
| Court | United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California |
Plaintiff Yehuda Avitan brings this action challenging the denial of his I-130 Immigrant Marriage Petition. Defendants bring a Motion to Dismiss in Part and for Summary Judgment in Part ("Defendants' Motion") seeking: 1) dismissal of Claims One, Two and Six under Rule 12(b)(6) of the Federal Rules of Civil Procedure; and 2) summary judgment on Claims Three, Four and Five under Rule 56 of the Federal Rules of Civil Procedure. Plaintiff brings a cross-motion for summary judgment ("Plaintiff's Motion"). A hearing on the Motions was held on Friday, February 4, 2011 at 9:30 a.m. For the reasons stated below, Defendants' Motion is GRANTED. Plaintiff's Motion is DENIED.1
A. Facts
On September 5, 2005, Lisa Claire Butler ("petitioner") filed an I-130 Petitions for Alien Relative ("the First I-130 Petition") on behalf of beneficiary Yehuda Avitan, Plaintiff in the instant action. See Certified Administrative Record ("CAR") at 60. This petition was based on the marriage on April 23, 2005 between Avitan and Ms. Butler. Id. at 52. According to Plaintiff, around the same time, on September 9, 2005, he filed an application for adjustment of status to permanent residence (hereinafter, "Form I-485"). Complaint, ¶ 21. Plaintiff was paroled into the United States on June 19, 2007. Id., ¶ 23.
Plaintiff alleges that on June 13, 2006, Avitan and Ms. Butler attended an interview at the office of U.S. Citizenship and Immigration Services ("USCIS") in Salt Lake City, Utah in connection with the First I-130 Petition. Id., ¶ 22. According to Plaintiff, Id., ¶ 22. Plaintiff alleges that this evidence was promptly provided to Officer Titus. Id.
On May 29, 2008, 2 Avitan and Ms. Butler were interviewed a second time in connection with the First I-130 Petition. Id., ¶ 24; see also CAR at 57-60. Ms. Butler and Avitan were interviewed separately, under oath. CAR at 24; Complaint, ¶ 25. At the interview, Ms. Butler signed a sworn statement that includes the following exchange between Ms. Butler and Officer Titus:
Q. Are you and your husband living together in the same home?
A. No.
Q. Have you ever lived together in the same home.
A. No.
Q. When and where were you and your husband married?
A. Elvis Chapel in Las Vegas, NV on 4-23-2005.
Q. How long did you know your husband before you were married?
A. About a month or 2 months.
Q. Who arranged the marriage?
A. We both did.
Q. Were you paid any money prior to the marriage or after the marriage, by your husband or any of his family members?
A. During the last 4 years it has been about $4,00.00 and the cable bill every month.
Q. Was this money given to you to enter into a Sham Marriage to circumvent immigration law?
A. Yeah.
Q. Were you made any other primises or offered any other money?
A. Yeah I was going to be given an additional $1000.00.
Q. Did you know it was a violation of law to enter into a sham marriage?
A. Yes.
Q. Why did you get married to this person when you knew it was a violation of law?
A. I care about him and thought he could make soemthing for himself, because he does work hard,
Q. Are you currently living with your husband in a valid marital union?
A. No.
Q. Have you and your husband ever consummated your marital union?
A. Once before we were married but not since the marriage.
Q. Since I have explained all the information to you about a sham marriage[,] [w]hat would you like to do with the I-130 relative petition that you submitted for your claimed husband?
CAR at 58-59. Ms. Butler also signed a Withdrawal Form, and the First I-130 Petition was denied on the same day. CAR at 57, 60. In his Complaint, Plaintiff alleges that Ms. Butler signed the statement and withdrawal form only because Officer Titus threatened her with imprisonment and "she felt that she had no choice but to sign the statement prepared entirely by Officer Titus." Complaint, ¶¶ 27-28.
On June 10, 2008, USCIS placed Avitan into removal proceedings for having overstayed his visitor's visa issued on November 13, 2004. Complaint ¶ 29.
On November 28, 2008, Ms. Butler filed a second I-130 petition on Avitan's behalf ("the Second I-130 Petition"). CAR at 50-51; Complaint ¶ 30.
On April 28, 2009, USCIS interviewed Avitan and Ms. Butler under oath in conjunction with the Second I-130 Petition. Complaint ¶ 30; CAR at 2, 24. On May 5, 2009, USCIS denied the Second I-130 Petition after concluding that the marriage was entered into for the purpose of evading immigration laws and obtaining immigration benefits for Avitan. CAR at 23-27. The written decision that accompanied the denial states, in part, as follows:
During the interview, you and the beneficiary were both asked if you lived together, both of you said no. You both testified that you maintain separate residences....
...
The officer asked you where you were residing when you initially met the beneficiary. You stated that you were residing at 6101 "something road" in Albuquerque, New Mexico. You were further asked if the beneficiary has spent the night at that residence. You stated no. You were then asked if he has visited you at the address. You stated that "he came in but not spent the nght." When the beneficiary was asked the same question, he responded that he has never been at your New Mexico residence.
You confirmed that you previously lived at 582 N. Riverside Drive residence at Salt Lake City, Utah with your son from November 2006 through September 2008. You stated that the beneficiary would "just come visit" and he did not spend the night here. You further stated that your relationship at this point was only platonic and you and the beneficiary were friends. When the beneficiary was asked if he ever spent the night at the residence, he statedthat he at least spent the night "involving an amount under five times."...
...
The officer asked if your parents are aware of your marriage with the beneficiary. You stated that they are not aware and you further stated that "I don't want them in my life, " but you stated your sister is aware of your marriage to the beneficiary. When the beneficiary was asked the same question, he stated that your parents knew about the marriage. When the beneficiary was confronted with the discrepancy, he stated, "that's what she...told me awhile ago."
...
On September 13, 2009, Ms. Butler filed a third I-130 petition on Avitan's behalf ("the Third I-130 Petition"), along with an affidavit stating that she had agreed to withdraw the First I-30 Petition only because Officer Titus threatened her during the interview, stating, in part, as follows:
My name is Lisa Clair Butler, I am a United States Citizen and I am married to Yehuda Avitan....I am making this affidavit as part of my petition for an immigrant visa for him, as a way or retracting a statement which I was forced to sign in May 2008.
My husband and I were married in April of 2005 and shortly thereafter, I filed a visa petition on his behalf. After filing, we were interviewed at the immigration offices in Salt Lake City. Although we were having problems in our marriage and we had separated, were were trying to work out our problems and I wanted to be able to settle the issue of his legal status here to take that stress out of the equation. I was so excited when we got the notice to return in 2008 that I eagerly prepared all the documentation necessary and happily went to the interview....
...I was called into the room alone with the officer, Mark Titus. His first rematk to me was, "I know your marriage is a sham because Israelis don't marry single women with children because those women are dirty."...He told me from the outset that I was going to sign a statement indicating that I entered my marriage for money and to get immigration status for Udi, or he would see to it that I was going to lose my child.
Because his accusations were untrue, I fought back. I told him that was not the case, that Udi and I married for love and with the intention of building our lives together forever. Officer Titus told me that Udi was dangerous, and that I could be killed, because he has an uncle who is rich and powerful, and has ties to the Mafia. That was not true, but he kept badgering me and threatening to put me in jail so that I would lose my son. I asked to leave, because I didn't want to be there, and I asked to go talk to my husband, but he would not let me.
His threats finally broke me....I could see that this officer was determined to ruin me, and I finally gave in....
The statement I filed was written by him, and he made it up, and twisted my words to suit his purpose. For most of the time we have been together, I have supported my husband financially. He didn't have his work authorization for some time, and the only money he ever was able to contribute to our household was money his brother or sister would give him.
Later, he started driving trucks for his brother and we would be separated for weeks at a time, which was also hard on the marriage, but he was more able to contribute to our household financially.
But I was never paid by my husband to marry him so that he could obtain his immigration papers. We both entered this marriage with the intention of sharing our lives together....
Id. at 13-14 (6/5/2009 Affidavit).
On November 24, 2009, in response to a notice of interview, Avitan appeared for an interview but Ms....
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