Roman v. Riordan

• Citation: 209 F.Supp.3d 371
• Decision Date: 19 September 2016
• Docket Number: CIVIL ACTION NO. 15-40061-TSH
• Parties: Rebecca ROMAN and Oleg Bondarev, Plaintiffs, v. Denis RIORDAN, USCIS, District Director, Leon Rodriguez, USCIS Director, and Jeh Johnson, Secretary, Department Health and Human Services, Defendants.
• Court: U.S. District Court — District of Massachusetts

209 F.Supp.3d 371

Rebecca ROMAN and Oleg Bondarev, Plaintiffs,

v.Denis RIORDAN, USCIS, District Director, Leon Rodriguez, USCIS Director, and Jeh Johnson, Secretary, Department Health and Human Services, Defendants.

CIVIL ACTION NO. 15-40061-TSH

United States District Court, D. Massachusetts.

Signed September 19, 2016

Gregory Romanovsky, Law Offices of Gregory Romanovsky, Boston, MA, for Plaintiffs.

Rayford A. Farquhar, United States Attorney's Office, Boston, MA, Sarah L. Vuong, Department of Justice, Office of Immigration Litigation, Washington, DC, for Defendants.

MEMORANDUM OF DECISION AND ORDER FOR JUDGMENT

HILLMAN, DISTRICT JUDGE

Background

Plaintiffs, Rebecca Roman ("Roman") and Oleg Bondarev ("Bondarev") seek review under the Administrative Procedures Act, 5 U.S.C. § 701 et seq. ("APA"), of the United States Citizenship and Immigration Service ("USCIS") denial of their Form I-130, Petition for Alien Relative ("I-130 petition") and the Board of Immigration Appeals' ("BIA") affirmance of USCIS's decision. The parties have filed cross-motions for summary judgment. For the reasons set forth below, Plaintiffs' motion for summary judgment is denied and Defendants' motion for summary judgment is granted .

Standard of Review

Summary Judgment under the APA

Generally, summary judgment is appropriate where "there is no genuine issue as to any material fact" and "the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). However, "[t]his rubric has a special twist in the administrative law context." Associated Fisheries of Maine, Inc. v. Daley , 127 F.3d 104, 109 (1st Cir.1997). "Under the APA, a reviewing court may only set aside an agency's decision if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law," such as if it is ‘unsupported by substantial evidence.’ " Atieh v. Riordan , 797 F.3d 135, 138 (1st Cir.2015) (" Atieh II "); 5 U.S.C. §§ 706(2)(A),(E) ). "In making this determination, an agency's factual findings are entitled to deference regardless of which party has moved for summary judgment. Thus, the usual rules that describe how the court must construe the summary judgment record do not apply." Sig Sauer, Inc. v. Jones , 133 F.Supp.3d 364, 369 (D.N.H.2015).

Review under the arbitrary and capricious standard is narrow, and this Court "may not substitute its judgment for that of the agency, even if it disagrees with the agency's conclusions." River St. Donuts, LLC v. Napolitano , 558 F.3d 111, 114 (1st Cir.2009). "Consequently, judicial review of agency decisions is highly deferential. If the agency's decision is supported by any rational view of the record, a reviewing court must uphold it." Atieh II , 797 F.3d at 138 (quotation marks and citations omitted).

Facts

Bondarev is a native of Russia who entered the United States on October 1, 2002, as a B-1 visitor. See Certified Administrative Record (Docket No. 21)("AR "), at 191. On June 29, 2005, he married his first wife, Victoria Burns ("Burns"), a United States Citizen, in Chicago, Illinois. Id. at 255. On December 13, 2005, Burns filed an I-130 petition on Bondarev's behalf. On June 21, 2006, Burns submitted a signed "Withdrawing Petition For Alien Relative" ("withdrawal request") pursuant to which she withdrew that I-130 petition. Id. , at 250. In the withdrawal request, she alleged that: (1) Bondarev approached her and proposed marriage so that he could obtain a green card; (2) Bondarev offered her "55 grams of drugs" in exchange for marriage; (3) she and Bondarev never lived together, and; (4) she had a "real" boyfriend. Id. Burns indicates in the withdrawal request that she gave her statement "freely and voluntarily," and "without threat or coercion by an Immigration Officer." Id. Two USCIS officers also signed their names on the withdrawal request as witnesses to Burns' statement. Id. On July 28, 2006, USCIS sent a letter to Burns confirming her withdrawal of the I-130 petition on Bondarev's behalf. Id. , at 249. Burns did not contest the withdrawal of the petition at the time this letter was issued, nor did she subsequently file another I-130 petition for Bondarev. Bondarev and Burns divorced on August 29, 2011. Id. , at 191.

On April 6, 2012, Bondarev married Roman, a United States Citizen, in Worcester, Massachusetts. Roman filed an I-130 petition on Bondarev's behalf on July 24, 2012. On December 3, 2012, Roman and Bondarev were interviewed at the USCIS Field Office in Lawrence, Massachusetts in connection with their I-130 petition. Id. , at 24. During the interview, Plaintiffs gave discrepant answers to questions concerning: (1) when and how they met; (2) when Bondarev moved to Massachusetts; (3) the physical appearance of their shared home; (4) their activities on the morning of the interview, and; (5) details about Roman's children, including when and how her youngest child (who purportedly lives in the marital residence) goes to school, and what sport he plays after school. Id. , at 13. In addition, the documentary evidence provided by Plaintiffs contradicted statements made during their interview as to where they lived at various times. Id. In light of these inconsistencies, USCIS issued a Notice of Intent to Deny ("NOID") the I-130 petition, explaining that "the testimony under oath, as well as the evidence submitted, failed to establish the claimed spousal relationship for immigration purposes." Id. , at 24. The NOID allowed Roman to submit evidence to rebut the derogatory information identified by USCIS. Id.

Roman submitted a timely response to the first NOID. Id. , at 138. Her response included an affidavit explaining the couple's conflicting answers at the interview, as well as additional documentary evidence. Id. , at 111. However, USCIS found that Plaintiffs had not satisfactorily explained some of the most significant inconsistencies in the record, and on May 22, 2014, issued a second NOID. Id. , at 17. The second NOID—citing Burns' withdrawal request—also indicated that USCIS intended to find that approval of any petition filed on Bondarev's behalf was prohibited by 8 U.S.C. § 1154(c) because his prior marriage to Burns was fraudulent. Id. , at 23. The second NOID also allowed Roman to submit evidence to rebut USCIS's allegations. Id.

Roman submitted a timely response to the second NOID. Id. , at 92. Her response included a recantation statement from Burns, dated June 18, 2014, in which she claimed that her marriage to Bondarev was "real" and "not based on drugs or money." Id. , at 97. Burns further stated in her recantation that, "[she] never said that [Bondarev] gave her drugs," and that, "55 grams of cocaine would keep a herd of elephants drugged for a year." Id. Roman's response to the second NOID also included: (1) an affidavit from Bondarev maintaining that his marriage to Burns was bona fide; (2) a letter from one of Bondarev's friends to the same effect; (3) a statement from Bondarev's former landlord in Chicago, claiming that Bondarev and Burns lived together from May 2005 to "2006 or 2007"; (4) bank statements from Bondarev and Burns' joint bank account, and; (5) a letter from Bondarev's employer, dated June 16, 2014, indicating that during the previous four years Bondarev had submitted to and passed various random drug tests in the course of his employment. See Id. , at 92–109

On July 28, 2014, USCIS denied Roman's I-130 petition, finding that (1) Roman and Bondarev had not sufficiently proven that their marriage was bona fide, and (2) even if they had proven their marriage was bona fide, 8 U.S.C. § 1154(c) prohibited approval of any I-130 petition filed on Bondarev's behalf due to his prior fraudulent marriage to Burns. Id. , at 77. USCIS concluded that the Roman's response to the second NOID did not overcome the "substantial and probative evidence" of marriage fraud in the record (i.e. Burns' withdrawal request). Id. According to USCIS, Burns' specific reference to "cocaine" in her recantation statement—where in her withdrawal request she referred only to "drugs"—reinforced the reliability of the withdrawal because it provided additional information about the alleged fraudulent scheme. Id. , at 86–87. USCIS gave less weight to the letter from Bondarev's former landlord because it conflicted with other documentation in the record, including a joint bank account statement from 2010 listing Bondarev and Burns as still residing at the address he claimed Burns left in "2006 or 2007." Id. USCIS also found that the affidavit from Bondarev's friend, which indicated that "[Bondarev] told [the friend] he caught [Burns] in bed with another guy," was "contrary to proving a bona fide marriage," and additionally found that the letter from Bondarev's employer was irrelevant, as there was never a question whether Bondarev used drugs.

Plaintiffs appealed USCIS's denial of their I-130 petition to the BIA, and forwarded along with their appeal the results of a polygraph test taken by Bondarev indicating that there was "no deception" regarding his denial that he had given drugs to Burns in exchange for marriage. On February 20, 2015, after conducting a de novo review of the record, the BIA dismissed Plaintiffs' appeal and affirmed USCIS's decision to deny the I-130 petition. The BIA indicated that it was "unpersuaded that [Bondarev's] self-serving statements regarding the marriage (in his affidavit) are sufficient to overcome the adverse information presented therein," and found that the affidavit from Bondarev's friend insufficient because it provided only general statements regarding Bondarev and Burns' relationship. The BIA dismissed Plaintiffs' argument that Burns denied signing ever signing the withdrawal request, stating that it was "not persuaded that [Burns] can reliably recollect whether she signed the statement in June 21, 2006, in light of her acknowledged substance abuse at that time," and agreed with USCIS that the veracity of Burns' recantation was undermined due to...