Omokaro v. Hamilton
| Decision Date | 09 August 2016 |
| Docket Number | CIVIL ACTION H-15-2465 |
| Parties | OSARETIN FRED OMOKARO, Petitioner, v. RICKY HAMILTON, FIELD OFFICE DIRECTOR, HOUSTON, et al. Respondents. |
| Court | U.S. District Court — Southern District of Texas |
Pending before the court is a motion to dismiss petitioner Osaretin Fred Omokaro's complaint, or alternatively, a motion for summary judgment, filed by Ricky Hamilton, Field Office Director, Houston Field Office, Sharon A. Hudson, District Director, Houston, and Jeh C. Johnson, Secretary, Security of Homeland Security (collectively, "Respondents"). Dkt. 12. Having reviewed the motion, response, reply, the applicable law, and the record evidence, the court is of the opinion that the motion should be GRANTED.
Petitioner Omokaro is a United States Citizen by naturalization. Dkt. 12 at 2. Asteria John Kirari, a native and citizen of Tanzania, has been the beneficiary of four petitions for alien relative ("I-130 petition") filed by three different husbands: Charles Bell, Jerome Nixon, and Omokaro. The table below provides a time line of Kirari's marriages and the I-130 petitions filed on her behalf:
Marriage Visa I-130 Petitioner I-130 & I-485 Filed Date of Denial December 30, 2001
Charles L. Bell March 11, 2002 June 24, 2004
July 24, 2004
Jerome Nixon November 4, 2004 January 28, 2008 February 21, 2006
September 17, 2009 September 25, 2009
Osaterin Omokaro October 8, 2009
August 26, 2010
December 17, 2013
Omokaro filed an I-130 petition on behalf of his wife, Kirari, on October 8, 2009. Dkt. 13 at 1. Kirari subsequently filed an application to register permanent residence ("I-485 petition"). On January 22, 2010, the United States Citizenship and Immigration Service ("USCIS") interviewed Kirari and Omokaro. Dkt. 12, Ex. 2 at 2. On July 9, 2010, the USCIS issued a notice of intent to deny the petition based on its finding that Kirari had previously entered into two sham marriages to Bell and Nixon in violation of section 204(c) of the Immigration Nationality Act, 8 U.S.C. § 1154(c). Id. at 3. In determining that the Kirari-Nixon marriage was a sham, the USCIS relied, in part, on interviews of Kirari and Nixon that were conducted on March 24 and March 25, 2005. Dkt. 12, Ex. 3 at 2-3. Kirari responded to the notice of intent to deny Omokaro's I-130 petition by filing a sworn affidavit in an attempt to explain the alleged discrepancies arising from the March 2005 interviews. Dkt. 12 at 15. On August 26, 2010, the USCIS denied Omokaro's I-130 petition, along with Kirari's I-485 petition, based, in part, on its determination that Kirari's sworn affidavit was not credible. Dkt. 12, Exs. 2, 3. On January 12, 2012, the USCIS denied Omokaro's motion to reconsider the denial. Dkt. 12 at 15. On January 13, 2012, Omokaro appealed the I-130 denial to the Board of Immigration Appeals ("BIA"). Id. On March 15, 2013, the BIA remanded the appeal to respondent Ricky Hamilton, the Field Office Director. Id. On August 22, 2013, a second notice of intent todeny the I-130 petition was issued. Id. After considering Omokaro's response to the second notice, the USCIS again denied the I-130 petition on November 13, 2013. Id. at 16.
On December 17, 2013, Omokaro filed a second appeal to the BIA. Id. On July 28, 2015, the BIA dismissed the appeal and upheld the USCIS's finding that "the record contained substantial and probative evidence of marriage fraud based on [Kirari's] marriages to her first two husbands." Dkt. 12, Ex. 4 at 3. On August 25, 2015, Omokaro filed this complaint, challenging the denial of Omokaro's I-130 petition under the Administrative Procedure Act ("APA") and asserting various constitutional claims. Dkt. 1. On December 12, 2015, Respondents filed a motion to dismiss Omokaro's complaint, or in the alternative, a motion for summary judgment. Dkt. 12. On December 31, 2015, Omokaro filed a response (Dkt. 13), to which Respondents filed a reply (Dkt. 14).
Federal courts are courts of limited jurisdiction and the federal rules of civil procedure permit a court to dismiss a complaint because of lack of subject-matter jurisdiction or a party's failure to state a claim upon which the court can grant relief. See Kokkenen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673 (1994); see also Fed. R. Civ. P. 12(b)(1), (6). Unless a statute or the Constitution confers jurisdiction, federal courts lack the power to adjudicate claims and must dismiss an action. See Stockman v. Fed. Election Comm'n, 138 F.3d 144, 151 (5th Cir. 1998); see also Fed. R. Civ. P. 12(h)(3) (). As the party invoking the subject matter jurisdiction of this court, petitioner bears the burden of demonstrating that this court has the requisite subject matter jurisdiction to grant the relief he requests. See Kokkonen, 511 U.S. at 375; Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511(5th Cir. 1980). In evaluating whether subject matter jurisdiction exists, the court accepts all uncontroverted, well-pleaded factual allegations as true. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683 (1974).
A court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Gines v. D.R. Horton, Inc., 699 F.3d 812, 816 (5th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937 (2009). "Factual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. at 555. As part of the Twombly-Iqbal analysis, the court proceeds in two steps. First, the court separates legal conclusions from well-pled facts. Iqbal, 556 U.S. at 678-79. Second, the court reviews the well-pled factual allegations, assumes they are true, and then determines whether they "plausibly give rise to an entitlement of relief." Id. at 679.
A court shall grant summary judgment when a "movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). "[A] fact is genuinely in dispute only if a reasonable jury could return a verdict for the non-moving party." Fordoche, Inc. v. Texaco, Inc., 463 F.3d 388, 392 (5th Cir. 2006). The moving party bears the initial burden of demonstrating the absence of a genuine issue of materialfact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548 (1986). If the party meets its burden, the burden shifts to the non-moving party to set forth specific facts showing a genuine issue for trial. Fed. R. Civ. P. 56(e). The court must view the evidence in the light most favorable to the non-movant and draw all justifiable inferences in favor of the non-movant. Envtl. Conservation Org. v. City of Dall, Tex., 529 F.3d 519, 524 (5th Cir. 2008).
A reviewing court may set aside an administrative decision only where the petitioner establishes that the agency's decision was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); see also City of Dall., Tex.v. Hall, 562 F.3d 712, 717 (5th Cir. 2009) (citing Marsh v. Or. Natural Res. Council, 490 U.S. 360, 375-76 (1989); Kleppe v. Sierra Club, 427 U.S. 390, 412, 96 S.Ct. 2718 (1976)). Review under this standard is "narrow and highly deferential, requiring only that the agency 'articulate a rational relationship between the facts found and the choice made.'" City of Abilene v. EPA, 325 F.3d 657, 664 (5th Cir. 2003) (citations omitted). Under this deferential standard, the reviewing court may not substitute its own judgment for that of the agency. Id. In reviewing agency action under the "arbitrary, capricious, abuse of discretion, contrary to law" standard of review specified in the APA, 5 U.S.C. § 706(2)(A), "the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court." Camp v. Pitts, 411 U.S. 138, 142, 93 S. Ct. 1241 (1973).
In this case, the USCIS denied Omokaro's I-130 petition and the BIA affirmed that decision on appeal based on the USCIS's finding that Kirari had previously entered into two sham marriages in violation of 8 U.S.C. § 1154(c)(1). To support a finding of marriage fraud under § 1154(c)(1),there must be "substantial and probative evidence" to indicate that the beneficiary entered, attempted to enter, or conspired to enter into a marriage "for the purpose of evading the immigration laws." See 8 C.F.R. § 204.2 (a) (1) (ii). However, that standard merely requires "'more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Brown v. Napolitano, 391 F. App'x 346, 350 (5th Cir. 2010) (quoting Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983)); see also Omagah v. Ashcroft, 288 F.3d 254, 258 (5th Cir. 2002) . In the context of determinations made by the BIA, the Fifth Circuit has held that "[t]o obtain a reversal of the board's decision . . . the alien must show that the evidence he presented was so compelling that no reasonable fact-finder could fail to arrive at his conclusion," and that "[t]...
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