Koffi v. Holder
| Decision Date | 18 July 2011 |
| Docket Number | CIVIL ACTION NO. 3:09cv2102(VLB) |
| Parties | BRUNO NGORAN KOFFI, GAYLE KAREN KOFFI, PLAINTIFFS, v. ERIC H. HOLDER, JR., ATTORNEY GENERAL OF THE UNITED STATES, DEFENDANT. |
| Court | U.S. District Court — District of Connecticut |
Before the Court is a motion for summary judgment filed by the Defendant, Eric H. Holder, JR. Attorney General of the United States and a cross motion for summary judgment filed by Plaintiffs, Bruno Ngoran Koffi ("Koffi") and his wife Gayle Karen Koffi, nee Mischler ("Mischler").1 Plaintiffs have filed a petition for review of the Board of Immigration Appeal's ("BIA") decision to affirm the denial of Plaintiffs' I-130 petition to establish an immediate-relative relationship between Koffi and his third wife American Mischler. In its decision, the BIA reasoned that the record of evidence supported a finding that Koffi's first marriage wasfraudulent and therefore 8 U.S.C. § 1154 (c) applied and served as a bar to approval of the I-130 petition. Plaintiffs argue that the BIA's decision was arbitrary and capricious as there was no substantial and probative evidence to support the BIA's conclusion that Koffi's first marriage was fraudulent, that the BIA abused its discretion by failing to consider the marriage fraud allegations when the 1-130 petition filed by Koffi's second American wife was approved and by not providing Koffi with a copy of a memorandum that detailed the criminal investigation of Koffi's former immigration attorney and her assistants for operating a marriage fraud scheme which identified Koffi's first marriage as fraudulent. Plaintiffs further contend that the BIA failed to conduct a de novo review and relied on the memorandum to the exclusion of all other evidence in an abuse of discretion until the present action. On the other hand, Defendant contends that the BIA did not abuse its discretion and that the BIA's conclusions were based on a reasoned review of all the evidence in the record and that it was not arbitrary and capricious for the BIA to determine that Koffi's first marriage was fraudulent thereby denying Koffi's current I-130 petition predicated on his third marriage. For the reasons stated hereafter, Defendant's motion for summary judgment is granted and Plaintiffs' cross motion for summary judgment is denied.
This action was originally filed with the Second Circuit of Appeals. On December 17, 2009 the Second Circuit determined that it lacked jurisdiction to hear the claim as 8 U.S.C. § 1252(a)(1) grants the Court of Appeals jurisdiction toreview only final orders of removal and a denial of an I-130 petition does not constitute a final order of removal. Ruiz v. Mukasey, 552 F.3d 269, 271 (2d Cir. 2009). In addition, the Second Circuit concluded that the District Court has jurisdiction to hear the claim since the decision to deny an I-130 petition is not a decision committed to the discretion of the Attorney General and therefore the District Court is not barred from hearing such a cause of action under 8 U.S.C. § 1252 (a)(2)(B)(ii). Id.
The following facts relevant to both Defendant's motion for summary judgment and Plaintiffs' cross motion for summary judgment are undisputed unless otherwise noted. Plaintiff Koffi is a citizen and national of the Ivory Coast. On July 8, 1990, he entered the Unites States on a J-1 exchange visa and overstayed his visa. [Doc.# 23, Administrative Record ("AR") at 306]. Koffi has resided continuously in the United States except for one trip in 2000 back to the Ivory Coast to attend his mother's funeral. [Id. at 134]. Koffi has had three different marriages to United States citizens and has attempted to obtain lawful permanent status based on each of these marriages. [Doc. #28-2, Defendant's Local Rule 56(a)1 Statement].
In order for an alien to obtain lawful permanent status based on a marriage to a United States citizen, the American spouse must first file an I-130 petition and establish that there exists a bona fide spousal "immediate relative" relationship. 8 U.S.C. § 1154 (a)(1)(A)(i). Once the I-130 petition is granted and the alien is classified as an immediate relative of a United States citizen, the alien becomes eligible to seek an adjustment of status to a lawful permanent residentby filing a Form I-485 Application to Register Permanent Resident or Adjust Status. 8 U.S.C. § 1255 (a). In connection with an I-130 petition, the petitioner carries the burden of proving the claimed relationship by a preponderance of the evidence. Matter of Brantigan, 11 I. & N. Dec. 493, 495 (BIA 1966); Egan v. Weiss, 119 F.3d 106, 107 (2d Cir. 1997). Koffi has been married three times and each of his American wives has filled an I-130 petition on his behalf.
On February 3, 1993, Koffi married his first wife Alexine Odom ("Odom") in Arlington, Virginia. [Doc. #23, AR at 326,337-347]. On February 8, 1993, Odom filed a Form I-130 on behalf of Koffi, which was prepared and submitted by Koffi's immigration attorney, My Ling Duong Soland ("Soland"). Sometime afterward, Koffi and Odom left the Alrington area and moved to Pittsburgh, Pennsylvania. Koffi and Odom were interviewed by the legacy Immigration and Naturalization Service ("INS") on April 26, 1993 in connection with the I-130 petition and the couple submitted several documents to establish the bona fide nature of their marriage as required by 8 C.F.R. § 204.2(a)(1)(i)(B). They submitted (1) a letter dated October 19, 1994 from the owner of their Pittsburgh residence, stating that Koffi and Odam were tenants, but that Odom at the present time is away; (2) bills and credit cards in both spouse's names; and (3) documentation that Odom was listed as the beneficiary on Koffi's health insurance, life insurance, and dental plans. [Doc. #23, AR at 358,360, 362].
In July 1994 while Koffi and Odom's I-130 petition was pending, INS commenced an investigation against Koffi's immigration attorney Soland culminating with criminal charges being brought against Soland and two of herassistants for arranging fraudulent marriages between foreign clients and United State citizens. Soland's foreign clients would pay a fee between approximately $5,000 to $6,000 to be matched with a United States citizen and Soland's assistants helped her recruit United States citizens and arrange the fraudulent marriages. Two of Soland's assistants were criminally convicted for their role in the marriage fraud scheme, but received reduced sentences for cooperating with the government's case. Soland's assistants provided INS with information about the marriages they had arranged including a list of over forty fraudulent marriages including Koffi and Odom's marriage. A memorandum, dated January 22, 1996, from the INS's Office of Investigations (Washington D.C.) memorializing the investigation was placed in Koffi's agency file and specifically noted that Koffi and Odom's marriage had been identified as a fraudulent marriage arranged by Soland. [Doc. #28-2]. On June 13, 1995, Soland plead guilty to a two-count information charging her with Conspiracy to Commit Marriage Fraud and False Statements, and Obstruction of Justice/Witness Intimidation.
On June 7, 1995, Koffi divorced Odom while Odom's I-130 petition was still pending. INS terminated Odom's I-130 petition as Koffi could no longer be qualified as a spousal immediate relative of Odom as a result of the divorce. Two months later on August 31, 1995, Koffi married his second wife Ellean Trammel ("Trammel") in Pittsburgh and she filed an I-130 petition on Koffi's behalf on February 12, 1996 which was approved on March 30, 1996 or April 15, 1996. [Doc. #28-2]. Koffi then filed a Form I-485 application for adjustment of status. In a letter dated November 1, 1996, Koffi informed INS that he was having problemswith his second marriage, that he and Trammel were living apart and requested information on what procedure he needed to follow. On May 19, 1997, INS interviewed Koffi and Trammel in connection with the Form I-485 application and the couple testified that they had only cohabitated as husband and wife for three months, having lived apart since November 1995 but that they were trying to work things out. On September 15, 1997, INS received notice from Koffi that he alone had moved from Pittsburgh to West Harford, Connecticut. [id.]. On January 9, 1998, INS issued a Notice of Intent to Revoke ("NOIR") of the I-130 petition on the basis that the couple was no longer living together. In a letter dated May 21, 1998, nearly three years after Koffi notified INS that he was estranged from her, Trammel notified INS that she and Koffi had reconciled and were living together in West Hartford. On May 18, 1999, Koffi and Trammel were interviewed by INS in Connecticut in in connection with Trammel's I-130 petition. [Id.].
On October 25, 1999, INS issued another NOIR in connection with the I-130 but this time the basis was that Koffi's first marriage to Odom was fraudulent. In the NOIR, INS explained that "a review of the beneficiary's immigration file reflects that beneficiary's prior attorney was indicted for Conspiracy to Commit Marriage Fraud and False Statements" and "the names of the beneficiary and a prior spouse were provided as to one of the arranged marriages." The NOIR also provided that Koffi and his second wife Trammel had 30 days to respond and rebut the allegations. [Doc. #28-2]. On November 16, 1999, they responded denying that Koffi's first marriage to Odom was fraudulent and provided evidence of the bona fide nature of Koffi's first marriage. Most of the evidence wasduplicative of the material that Koffi had first submitted with his and Odom's I-130 petition that was filed in February, 1993. However, Koffi also submitted a letter from Soland dated October 25, 1994 forwarding a copy of Koffi's file to his new...
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