Mairykeeva v. Barr, CIVIL ACTION NO. 18-4598

• Citation: 378 F.Supp.3d 391
• Decision Date: 07 May 2019
• Docket Number: CIVIL ACTION NO. 18-4598
• Parties: Aiperi MAIRYKEEVA, et al., Plaintiff, v. William BARR, et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

378 F.Supp.3d 391

Aiperi MAIRYKEEVA, et al., Plaintiff,

v.William BARR, et al., Defendants.

CIVIL ACTION NO. 18-4598

United States District Court, E.D. Pennsylvania.

Filed May 7, 2019

Tatiana S. Aristova, Khavinson & Associates PC, Plainsboro, NJ, for Plaintiff.

Anthony St. Joseph, U.S. Attorney's Office, Philadelphia, PA, for Defendants.

MEMORANDUM OPINION

Rufe, District Judge

This case arises from the Board of Immigration Appeal's ("BIA") decision affirming the United States Citizen and Immigration Services' ("USCIS") denial of Marat Yrysbekov's I–130 immigrant visa petition, which he filed for the benefit of his non-citizen wife, Aiperi Mairykeeva. Presently before the Court are the parties' cross-motions for summary judgment: Plaintiffs, Yrysbekov and Mairykeeva, assert that the denial of the I–130 petition was arbitrary and capricious, violating the Administrative Procedures Act ("APA") as well as the due process and equal protection clauses of the Constitution, and Defendants¹ assert that the agency's decision was reasonable and should be upheld.² For the reasons that follow, Plaintiffs' motion will be denied, and Defendants' motion will be granted.

I. BACKGROUND³

Pursuant to the Immigration and Nationality Act ("INA"), a United States citizen may petition to have his or her spouse obtain lawful resident status through an I–130 petition.⁴ Mairykeeva, the beneficiary of Yrysbekov's I–130 petition, is a citizen of Kyrgyzstan who arrived in the United States on June 29, 2011, as a visitor in B2 visa status. On her nonimmigrant visa application, she certified that she was married to an individual named Arsen Dzholdoshbekov.⁵ Upon entering the United States, Mairykeeva married an individual named Ivan Budiac; they divorced on August 21, 2013.⁶ On January 6, 2014, Mairykeeva married Yrysbekov, a United States citizen.⁷ Nearly two years later, on November 6, 2015, Yrysbekov filed an I–130 petition on Mairykeeva's behalf.⁸ That I–130 petition did not mention Mairykeeva's earlier purported marriage to Dzholdoshbekov.⁹

Plaintiffs' immigrant visa interview with USCIS was conducted on November 18, 2015.¹⁰ Plaintiffs contend that, at this interview, Mairykeeva "stated several times to the USCIS officer that she was never married to Mr. Dzholdoshbekov."¹¹ Although the record neither confirms nor refutes Mairykeeva's assertion that she admitted to the fraud on her nonimmigrant visa application during the interview,¹² Defendants appear to agree that she denied the marriage to Dzholdoshbekov.¹³

After the interview, the USCIS issued a Notice of Intent to Deny ("NOID") the I–130 Petition, which informed Plaintiffs that the USCIS intended to deny their petition because they failed to prove that Mairykeeva's prior marriage to Dzholdoshbekov had been terminated.¹⁴ The NOID further provided Plaintiffs 30 days to offer evidence of the lawful termination of this marriage to Dzholdoshbekov.¹⁵ In response, Plaintiffs submitted a fraudulent divorce decree that purported to show that this marriage, which Plaintiffs assert never occurred, was terminated.¹⁶ Mairykeeva asserts that she submitted this fraudulent document pursuant to the advice of her former attorney, after she had asked him how she should respond to the NOID "since she was never married to Mr. Dzholdoshbekov" and thus could not comply with the demand for proof of divorce.¹⁷

The Philadelphia USCIS office denied Plaintiffs' I–130 Petition.¹⁸ In its decision, the USCIS concluded that Yrysbekov failed to meet his burden of establishing that Mairykeeva and Yrysbekov's marriage was valid for immigration purposes, because Yrysbekov "failed to provide proof of the legal termination of the beneficiary's previous marriage to Arsen Dzholdoshbekov as required."¹⁹

Yrysbekov appealed that decision to the Board of Immigration Appeals ("BIA"). In support of the appeal, he provided the complaint Mairykeeva filed against the former counsel who allegedly encouraged her to submit the fraudulent divorce decree, an unsworn written statement in which Mairykeeva explained why she claimed to be married on her nonimmigrant visa application and why she obtained a fraudulent divorce decree, and a document from Kyrgyzstan purporting to show that Dzholdoshbekov was not currently married.²⁰ The BIA affirmed the USCIS's denial of the I–130 petition, finding that Yrysbekov "did not provide evidence of the legal termination of the beneficiary's prior marriage to A.D. whom she specifically named as her spouse on ... [her] Nonimmigrant Visa Application"²¹ and that Mairykeeva's "prior false statements regarding her marital status call into question the credibility of the petitioner, the beneficiary, and the validity of the documentation submitted on appeal."²² The BIA's decision also stated that the Board would not consider the additional evidence offered for the first time on appeal, as Yrysbekov had already been on notice of the deficiency in the evidence through the NOID and was given an opportunity to address it.²³

Plaintiffs then filed a complaint in this Court, alleging that the denial of the I-130 petition was unlawful under the APA, violated the USCIS and BIA's duty to properly adjudicate immigrant visa petitions under 28 U.S.C. § 1361, and violated Plaintiffs' rights to due process and equal protection.

II. STANDARD OF REVIEW

The petitioner bears the burden of establishing eligibility for the benefit sought in an I– 130 petition.²⁴ The USCIS determines whether the petitioner meets this burden using a preponderance of the evidence standard,²⁵ and the "BIA conducts a de novo review of the [USCIS's] decision."²⁶

"While summary judgment is the proper mechanism for deciding, as a matter of law, whether an agency's action is supported by the administrative record and consistent with the APA standard of review, because the district judge sits as an appellate tribunal in such cases, the usual summary judgment standard does not apply."²⁷ Instead, under the APA, a district court may only set aside an agency's action if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law."²⁸ Review under the "arbitrary and capricious" standard "is narrow and a court is not to substitute its judgment for that of the agency."²⁹ An agency's ruling is arbitrary and capricious "if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise."³⁰ "The court should not re-weigh the evidence presented but must determine only if a reasonable mind might accept [the evidence] as adequate to support a conclusion."³¹ "To reverse [a] BIA finding [a court] must find that the evidence not only supports that conclusion, but compels it."³²

III. DISCUSSION

1. Claims Under the APA

Plaintiffs argue that because Mairykeeva "conclusively repudiated and disavowed" the statement on her nonimmigrant visa application that she was married to Dzholdoshbekov, the government's determination that Plaintiffs failed to demonstrate Mairykeeva was legally free to marry Yrysbekov was unreasonable.³³ Plaintiffs contend that the government has approved petitions filed by similarly situated aliens in the past, and it was therefore arbitrary to deny theirs. Additionally, Plaintiffs argue that although individuals such as Mairykeeva who have sought to procure admission into the U.S. by fraud are generally inadmissible,³⁴ such individuals may apply to the Attorney General for a waiver of inadmissibility. Plaintiffs contend that by denying the I–130 petition, Defendants have precluded Mairykeeva from filing the fraud waiver application.³⁵ According to Plaintiffs, "the proper procedure would have been to approve the I– 130 petition and then to allow Plaintiff beneficiary to seek [the waiver]."³⁶

In response, Defendants assert that the decision was not arbitrary and capricious because Mairykeeva submitted fraudulent and conflicting evidence relating to a prior alleged marriage in Kyrgyzstan, and it was thus reasonable to determine that she lacked credibility when she disavowed this alleged marriage. Defendants also contend that, while the USCIS has approved I-130 petitions where the beneficiary had previously made false representations about being married, the beneficiaries in those cases were able to demonstrate through documentation and testimony that such previous representations were false; Mairykeeva, however, has changed her story and presented conflicting evidence to the USCIS.³⁷ Finally, Defendants argue that Plaintiffs "put the proverbial cart before the horse"³⁸ by focusing on their inability to seek a fraud waiver rather than Mairykeeva's failure to establish that she was lawfully married to Yrysbekov.

Given the numerous conflicting representations by Mairykeeva, the Court cannot find the agency's decision to be arbitrary or capricious. Mairykeeva claimed she was married to Dzholdoshbekov in her nonimmigrant visa application, but did not mention such a marriage, or disavow it, in the I–130 petition. Plaintiffs also failed to provide the USCIS any objective evidence to confirm the claim that no marriage in Kyrgyzstan ever occurred, and instead provided a fraudulent divorce decree purporting to show that she divorced Dzholdoshbekov. On appeal, Plaintiffs provided the certificate purporting to show that Dzholdoshbekov was not married, at which time the BIA was not obliged to consider it.³⁹ Although Mairykeeva contends that she told the Director of the USCIS that she lied about this marriage on her nonimmigrant visa petition, her uncorroborated statements do not render the USCIS's decision, and the BIA's affirmance of it, arbitrary or capricious, especially considering the false statements and fraudulent divorce decree that reasonably...