Okpoko v. Heinauer

• Decision Date: 03 March 2011
• Docket Number: No. CA 10–43 S.,CA 10–43 S.
• Citation: 796 F.Supp.2d 305
• Parties: Sylvester OKPOKO, Plaintiff, v. F. Gerard HEINAUER, Director, Nebraska Service Center, Alejandro Mayrkas, Director, United States Citizenship and Immigration Services, and Janet Napolitano, Secretary, Department of Homeland Security, Defendants.
• Court: U.S. District Court — District of Rhode Island

796 F.Supp.2d 305

Sylvester OKPOKO, Plaintiff,

v.F. Gerard HEINAUER, Director, Nebraska Service Center, Alejandro Mayrkas, Director, United States Citizenship and Immigration Services, and Janet Napolitano, Secretary, Department of Homeland Security, Defendants.

No. CA 10–43 S.

United States District Court, D. Rhode Island.

March 3, 2011.

David L. Yavner, Providence, RI, for Plaintiff.

Leslie J. Kane, U.S. Attorney's Office, Providence, RI, Flor M. Suarez, U.S. Dept. of Justice Office of Immigration Litigation, Washington, DC, for Defendants.

ORDER

WILLIAM E. SMITH, District Judge.

The Report and Recommendations of United States Magistrate Judge David L. Martin filed on February 11, 2011 (document # 8) in the above-captioned matter is hereby accepted pursuant to Title 28 United States Code § 636(b)(1). No objection having been filed to the Report & Recommendation, Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment is hereby GRANTED and Plaintiff's Opposition to Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment and Plaintiff's Motion for Summary Judgment is hereby DENIED. Further, the above-captioned matter is hereby DISMISSED.

REPORT AND RECOMMENDATION

DAVID L. MARTIN, United States Magistrate Judge.

In this action, Plaintiff Sylvester Okpoko (“Plaintiff” or “Okpoko”) seeks judicial review of a decision by the United States Citizenship and Immigration Services (“USCIS”) denying an asylee relative petition which he filed on behalf of his wife.¹ Before the Court are two motions:

1. Defendants' Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (Docket (“Dkt.”) # 4) (“Motion to Dismiss” or “Defendants' Motion”), and

2. Plaintiff's Opposition to Defendants' Motion to Dismiss or, in the Alternative[,] Motion to [sic] Summary Judgment and Plaintiff's Motion for Summary Judgment (Dkt. # 7) (“Plaintiff's Motion”) (collectively the “Motions”)

Defendants by their motion seek dismissal of Plaintiff's Complaint pursuant to Federal Rule Civil Procedure (“Fed. R. Civ. P.”) 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. Alternatively, Defendants seek summary judgment on the grounds that there are no genuine issues of material fact and, as a matter of law, the denial of the asylee relative petition which Plaintiff filed on behalf of his wife was not unreasonable.

Plaintiff objects to Defendants' Motion and seeks summary judgment on his claims. Like Defendants, Plaintiff contends that summary judgment is appropriate because there are no genuine issues of material fact.

The Motions have been referred to me for preliminary review, findings, and recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B). After reviewing the filings, listening to oral argument, and performing independent research, I recommend that Defendants' Motion to Dismiss be granted and that Plaintiff's Motion be denied.

I. Facts

Plaintiff was born in Nigeria in 1969. Complaint (Dkt. # 1) ¶ 11. In July 2000 he entered the United States, and on October 18, 2000, an immigration judge granted him asylum. Id. ¶ 12; Administrative Record (“AR”) at 288–89. On January 25, 2001, Plaintiff filed a Form I–730 Refugee/Asylee Relative Petition (“Petition”) with the Immigration and Naturalization Service (“INS”) on behalf of his wife, Joy Okpoko (“Ms. Okpoko”). Complaint ¶ 14; AR at 286–87. The Petition was initially approved by the USCIS under the Immigration and Nationality Act (“INA”) Section 208 and forwarded to the Department of State on August 6, 2001. Complaint ¶ 15; AR at 285.

On March 23, 2004, the United States Embassy/Consulate in Lagos, Nigeria (the “Consulate”), referred Plaintiff's Petition to its fraud unit because the “claimed marriage ... appears to be for immigration purposes alone.” ² AR at 283. The Consulate returned Plaintiff's Petition to the National Visa Center (“NVC”) on September 23, 2005, with a recommendation that it be revoked because on-site investigation by the Consulate's anti-fraud unit had determined that there had never been any marriage, either traditional or civil, between Plaintiff and Ms. Okpoko. AR at 260. The Fraud Prevention Unit of the NVC returned the Petition to USCIS on November 15, 2005, with a recommendation that it be revoked because there was not enough evidence of a marital relationship and the consular officer had concluded that the relationship between Petitioner and Ms. Okpoko was for the sole purpose of obtaining an immigrant visa. AR at 208.

On December 8, 2005, USCIS advised the Consulate that USCIS had reaffirmed its approval of the Petition based on some correspondence, including a marriage certificate, which it had received from Plaintiff.³ AR at 207. USCIS, however, requested that the Consulate review the authenticity of the marriage certificate. Id. Meanwhile, USCIS notified Plaintiff that the Petition had been approved and forwarded to the NVC. AR at 206.

The NVC transmitted the Petition to the Consulate for processing on January 4, 2006. AR at 205. On May 6, 2006, the Consulate sent a memorandum to the NVC recommending that the Petition be revoked because the marriage certificate was not valid. AR at 107. The memorandum stated in part:

The case was reaffirmed per an Interoffice Memorandum dated December 8, 2005 [,] that stated, “the Service received some correspondence from the petitioner concerning the case. The marriage certificate appears authentic but would like the Consulate to review.”

The applicant was interviewed on 14 Mar[.] 2006. She stated she had not seen the petitioner since 2000. The marriage certificate in question was dated 2005. The applicant stated that her husband said they needed a marriage certificate so his brother stood in for him. In fact, on the marriage certificate where it reads, “This marriage was celebrated between us,” the petitioner's brother signed his signature and wrote “for (Brother).” The lawyers from the [Fraud Prevention Unit] confirmed that while it is possible to have a certificate to legitimize a customary marriage done by proxy, this is an actual Certificate of Marriage and it is not legal in Nigeria to marry by proxy. As it is not legal to marry by proxy, this is not a legal document, nor is it a legal marriage. Previous investigation revealed that the applicant and petitioner had not celebrated a court nor a traditional marriage before he left Nigeria.

AR at 107.

On May 19, 2006, the Consulate returned the Petition with a recommendation for reconsideration and, if appropriate, revocation. AR at 104–06. In an attached report of investigation, the Consulate stated that Ms. Okpoko “was unable to give a convincing account of her claimed relationship to the Petitioner....” AR at 105. The report also noted that there were conflicting statements from Plaintiff's family members about whether or not he was married to Ms. Okpoko. AR at 106. Specifically, an investigator had spoken with Plaintiff's mother; his older sister, Stella; an older brother, Sunday Okpoko; a grown nephew, God Day Osifo; and four other relatives, Messrs. Aremonehen, Dawudu, and Momodu and Mrs. Katherine Osifo. Id. All of these persons, except Sunday, stated that Plaintiff was not married. Id.

Despite the Consulate's recommendation, USCIS again reaffirmed the approval of the Petition and sent it back to the Consulate for issuance of a visa. ⁴ AR at 103. However, on July 31, 2006, the NVC returned the Petition to USCIS, recommending that it be revoked because Plaintiff was not physically present at the marriage and Plaintiff and Ms. Okpoko had not met since 2000. AR at 102.

On April 5, 2007, USCIS sent a notice of intent to deny to Plaintiff. ⁵ Complaint ¶ 16; AR at 97. The notice recited that USCIS had previously approved the Petition, but the matter was being reopened because the Consulate had discovered that Plaintiff and Ms. Okpoko were not legally married and that it appeared that a bona fide relationship did not exist between them. Complaint ¶ 16; AR at 97.

Plaintiff responded to the notice on April 23, 2007. Complaint ¶ 16; id., Exhibit (“Ex.”) 5 at 9–18. In his response Plaintiff stated that he and Ms. Okpoko had been married in 1998 in a traditional marriage ceremony, that the 2005 marriage certificate which his brother had helped him obtain was only for the purpose of confirming Plaintiff's 1998 marriage, and that he had a very strained relationship with a large part of his extended family and little or no contact with the relatives who had stated that he was not married. Complaint, Ex. 5 at 12–14. Plaintiff also questioned whether the consular investigator actually interviewed his mother because in 2005 she “was quite ill.” Id. at 13.

On July 26, 2007, USCIS issued a decision which stated that “[a]fter review of the record, the approval of the petition is reaffirmed and the petition has been forwarded to the United States Consulate/Embassy at Nigeria.” AR at 85. The Petition was forwarded by the NVC to the Consulate on August 27, 2007. AR at 84.

Almost five months later, on January 16, 2008, the Consulate sent a memorandum to the NVC again recommending that the Petition be revoked. AR at 81. The memorandum stated that this was the third time the case was being returned to the NVC with such a recommendation and recounted its previous history. ⁶ Id.

The beneficiary has been interviewed by five separate consular officers between 2002 and 2007 regarding the circumstances of her alleged marriage to and her relationship with the petitioner. Further, this case was the subject of an on-site Fraud Prevention Unit (“FPU”) investigation. The conclusions of every interview and the investigation were that the petitioner and the beneficiary are not legally married and that their alleged marital relationship exists solely for the purpose of immigration.AR at 81.

The memorandum continued. Following the first re-affirmation, “FPU...