Owusu-Boakye v. Barr

• Decision Date: 08 April 2019
• Docket Number: Case No. 1:18-cv-1344
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Kofi OWUSU-BOAKYE, Plaintiff, v. William BARR, Attorney General of the United States, et al., Defendants.

376 F.Supp.3d 663

Kofi OWUSU-BOAKYE, Plaintiff,

v.William BARR, Attorney General of the United States, et al., Defendants.

Case No. 1:18-cv-1344

United States District Court, E.D. Virginia, Alexandria Division.

Signed April 8, 2019

Steffanie Jones Lewis, The International Business Law Firm PC, Washington, DC, for Plaintiff.

Dennis Carl Barghaan, Jr., United States Attorney's Office, Alexandria, VA, for Defendants.

MEMORANDUM OPINION

T.S. Ellis, III, United States District Judge

This matter arises from the final decision of the Board of Immigration Appeals ("BIA") affirming the United States Citizenship & Immigration Services' ("USCIS") decision to deny plaintiff's 1-130 alien relative petition to grant a visa to plaintiff's spouse. In short, BIA and USCIS justified the denial of plaintiff's petition on the ground that there was substantial and probative evidence that plaintiff's spouse had previously entered into a fraudulent marriage for the purpose of evading immigration law and was thus ineligible for an immediate relative visa. In the Amended Complaint, plaintiff has challenged BIA's decision on several grounds, and the parties have each moved for summary judgment on plaintiff's claims.

I.

The Administrative Procedure Act ("APA")¹ confines judicial review of agency decisions to the administrative record of proceedings before the pertinent agency. See 5 U.S.C. § 706 ; see also Camp v. Pitts , 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). Put another way, "when a party seeks review of agency action under the APA, the district judge sits as an appellate tribunal." Am. Bioscience, Inc. v. Thompson , 269 F.3d 1077, 1083 (D.C. Cir. 2001). Given the district court's limited role in reviewing the administrative record, courts have noted that the usual summary judgment standard does not apply in cases where a district court exercises review of a final agency action under the APA. See, e.g., Spelman v. McHugh , 65 F.Supp.3d 40, 44 (D.D.C. 2014). The key difference in an APA case is that "all relevant facts are contained in the administrative record for such a case, and, as a result, there are no material facts in dispute." Maine v. Norton , 257 F.Supp.2d 357, 363 (D. Me. 2003). Therefore, in a review of agency action under the APA, "[t]he ‘entire case’ on review is a question of law." Am. Bioscience, Inc. , 269 F.3d at 1083.

The administrative record pertaining to plaintiff's underlying proceedings before BIA and USCIS reflects the following relevant facts.

• Auddismart Adubofour is a citizen and national of Ghana. Adubofour was admitted to the United States on August 16, 2001, on a temporary visitor visa that was set to expire on February 15, 2002.

• Over a year after the expiration of her authorized stay, on July 29, 2003, Adubofour married a man named Lennard King. They were married by a Civil Magistrate at the Arlington County, Virginia Courthouse, over fifty miles away from their residence in Pikesville, Maryland. And on that same day, Adubofour submitted herself to a detailed medical examination that would allow her to apply for immigration benefits.

• Two days after their marriage, on July 31, 2003, King submitted to USCIS an I-130 alien relative petition on Adubofour's behalf. On the same date, Adubofour submitted to USCIS an application seeking to adjust her status to that of lawful permanent resident. USCIS approved King's alien relative petition on January 22, 2004.

• On March 17, 2008, USCIS issued to King a Notice of Intent to Revoke ("NIR") its prior approval of the alien relative petition. In that NIR, USCIS first noted that it believed that the "petition may have been approved in error," because the agency had "reason to suspect that [King's] marriage to ... Adubofour is a sham marriage, entered into solely for immigration purposes." USCIS informed King that he had sixty days to submit any rebuttal to the NIR, including any evidence in support of such a rebuttal. The NIR listed and summarized, inter alia , the following information and reasoning supporting its intention to revoke the alien relative petition based on the conclusion that King and Adubofour's marriage was fraudulent.

• One fact noted by USCIS as a reason for suspecting the marriage was not bona fide was that King and Adubofour had "failed to submit credible evidence of commingling of [their] assets." Among other reasons, this conclusion was supported by the fact that King and Adubofour had entered into two purported apartment rental leases that were terminated within one month's time. Adubofour also could not remember the address of one of these latter rentals when questioned in January 2008.

• In addition, USCIS noted that public records reflected that King's address of record remained in Lanham, Maryland, notwithstanding his statement to USCIS officials that he resided in Germantown, Maryland with Adubofour. Thus, USCIS stated, there was not "credible evidence to establish that [King] and [Adubofour] maintained a shared household."

• Finally, USCIS explained that in January 2008, the agency had summoned both King and Adubofour to USCIS's Baltimore Field Office for independent sworn interviews. USCIS detailed dozens of inconsistent answers that King and Adubofour provided to the same questions about each other and their relationship. For example, Adubofour testified that King did "not have any distinguishing features, such as tattoos," whereas King testified that he had "three (3) tattoos, one on each arm." Adubofour also testified that she and King did "not have a jointly held mutual checking or savings account," whereas King identified such a jointly held account.

• On May 12, 2008, King responded to the NIR through a letter consisting of a single page of three short paragraphs. In essence, King declared that his marriage to Adubofour was legitimate and blamed the various inconsistencies on his incarceration "during most of [their] marriage," but did not submit any additional evidence in support of this position.

• King and Adubofour's marriage officially ended through the entry of a divorce decree on January 9, 2009.

• On June 18, 2009, after considering King's response along with the remaining record, USCIS issued its final decision revoking its prior approval of King's alien relative petition. USCIS explained that King's rebuttal was not corroborated by any independent, objective evidence and "failed to address several of the discrepancies" that USCIS noted in the NIR. In addition, USCIS explained that the regulations mandated the automatic revocation of a grant of an alien relative petition if the beneficiary and the petitioner are divorced before a final adjudication of the beneficiary's application for adjustment of status.

• Although USCIS informed King that he could appeal the revocation of his petition to BIA, the record does not reflect that King sought any further review of USCIS's revocation.

• On March 14, 2009, two months after her divorce from King was officially decreed, Adubofour married plaintiff at a church located in Woodbridge, Virginia.

• On May 6, 2009, plaintiff submitted to USCIS a new I-130 alien relative petition on Adubofour's behalf, and Adubofour simultaneously submitted a new application to adjust her status to that of lawful permanent resident.

• On July 16, 2013, USCIS issued to plaintiff a Notice of Intent to Deny ("NID") his alien relative petition, explaining that it appeared that Adubofour's previous marriage to King was a sham marriage entered into solely to procure immigration benefits, which rendered Adubofour ineligible for immigration benefits under federal statute. USCIS provided plaintiff with thirty days to respond to the NID with any rebuttal and supporting evidence. The NID listed and summarized, inter alia , the following information and reasoning that supported USCIS's intention to deny the alien relative petition based on the conclusion that Adubofour's previous marriage was fraudulent.

• USCIS again noted the inconsistent answers that King and Adubofour provided in their independent interviews with agency officials in January 2008 in response to questions about King's tattoos, their alleged then-current residence, the existence of joint bank accounts, and where their wedding bands were purchased. USCIS also again noted that the short lease terms for rental properties submitted by King and Adubofour failed to constitute credible evidence of commingling of assets or a shared residence.

• USCIS also summarized the sworn statements that King had provided in an interview with agency officers in April 2013. In that interview, King acknowledged in writing that he was giving testimony to a federal official under oath and that his statements were truthful. The NID explained that King had admitted that, he had never resided in Germantown, Maryland (contrary to the prior statements he and Adubofour made to USCIS in January 2008), he never told anyone in his family about his marriage to Adubofour when it occurred (and only told his mother and brother later), and he had no explanation for Adubofour's lack of knowledge about his tattoos.

• Finally, USCIS noted that public records reflected that in May 2004 King had listed his official address as his mother's house in Lanham, Maryland.

• Plaintiff, through counsel, submitted a response to USCIS's NID on August 13, 2013. In addition to a narrative response, plaintiff submitted additional evidence, including a declaration from Adubofour.

• Plaintiff's narrative response conceded that King and Adubofour "did not completely move in with one another," but alleged that this was the result of near immediate marital difficulties and that the couple "spent many nights together." Plaintiff also argued that any inconsistencies in King and Adubofour's statements to USCIS stemmed from the fact that marital and legal problems caused them to be apart. Plaintiff also argued that statements from King's April 2013 interview with USCIS reflected merely that the couple had

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