Salvador v. Sessions

• Decision Date: 09 April 2019
• Docket Number: CIVIL ACTION NO. 18-01608
• Parties: SALVADOR, et al., Plaintiffs, v. SESSIONS, et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

SALVADOR, et al., Plaintiffs, v. SESSIONS, et al., Defendants.

CIVIL ACTION NO. 18-01608

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

April 9, 2019

PAPPERT, J.

MEMORANDUM

Grissette Salvador, an American citizen, filed an I-130 Petition with the United States Citizenship and Immigration Services on behalf of Deepak Kumar, an alien, requesting that USCIS grant Kumar immediate relative status as her spouse. USCIS denied the Petition, finding that Kumar had previously engaged in a sham marriage in violation of 8 U.S.C. § 1154(c). Salvador appealed that decision to the Board of Immigration Appeals, which—after remanding the case to USCIS for further development of the record—ruled that substantial and probative evidence supported the finding that the purpose of Kumar's previous marriage was to evade the immigration laws.

Salvador and Kumar bring this action against various government officials and agencies, arguing that the BIA's decision was arbitrary, capricious or otherwise not in accordance with the law. They also contend that the denial violated their due process rights and that the punishment constituted an excessive penalty in violation of the Eighth Amendment. Defendants now move for summary judgment, which the Court grants for the reasons that follow.

I

Kumar entered the United States on a visa as the fiancée of an American citizen in 2003. (Administrative Record ("R.") CAR000656-60, ECF No. 7.) More specifically, Kumar's family arranged for him to marry his first cousin, A.B., who lived in the United States. (R. at CAR000347.) Kumar married A.B. on June 3, 2003. (Id. at CAR000648.) After the wedding, Kumar lived in A.B.'s parents' home but slept in a different bedroom than A.B. (Id. at CAR000347, CAR000587.) The couple never consummated their marriage. (Id. at CAR000587.) Shortly after the wedding, A.B. told Kumar that she was in love with another man, S.K. and asked for a divorce. (Compl. at ¶ 23; R. at CAR000636.) On October 30, 2003, A.B. updated I-485 and I-765 applications for Kumar to obtain permanent resident status in the United States, informing USCIS that she was filing for divorce. (R. at CAR000636.) Kumar and A.B. obtained a divorce decree on June 21, 2004, terminating the marriage. (Id. at CAR000613.) Despite separating from A.B., Kumar remained in the United States and did not return to India.

In 2009, Kumar met Grissette Salvador, whom he married on October 9, 2010. (Id. at CAR000611.) Salvador, an American citizen, filed the I-130 Petition naming Kumar as the beneficiary on January 23, 2011. (Id. at CAR000606.) USCIS interviewed the couple before issuing a Notice of Intent to Deny the I-130 on December 15, 2011. (Id. at CAR000578.) USCIS determined that Kumar's previous marriage to A.B. was a sham, which precluded approval of the Petition. (Id. at CAR000578.) Thedecision was based on facts uncovered during an investigation, including that Kumar and A.B. never shared a room or consummated the marriage, resided together for a total of only 15-20 days, and stopped whatever meaningful interaction they had within weeks of their marriage. (Id. at CAR000578-79.) USCIS denied the I-130 Petition on January 20, 2012. (Id. at CAR000573.)

Salvador appealed that decision to the Board of Immigration Appeals. (Compl. ¶ 34; R. at CAR000466.) On July 25, 2012, the BIA remanded the case back to USCIS, finding that "the record [was] not sufficiently developed" for review. (R. at CAR000366-367.) The BIA expressed concern that the only evidence in the record were handwritten notes bearing the apparent stamp of an immigration officer. (Id.) These notes did not contain Kumar's name, signature or the full name of the immigration officer and lacked a detailed description of the circumstances under which the statements were made. (Id.)

Following the BIA's remand, USCIS officers conducted two separate investigations, including site visits and interviews with A.B. (Id. at CAR000005.) The officers obtained multiple affidavits from A.B. and submitted additional evidence to USCIS, which issued a second Notice of Intent to Deny the I-130 Petition on September 11, 2013. (Id. at CAR000331-333.) USCIS denied the Petition on February 6, 2015, again finding that approval was barred due to prior marriage fraud. (Id. at CAR000085.)

BIA reviewed the USCIS determination de novo and agreed with USCIS's decision that substantial and probative evidence supported a finding that Kumar previously entered into his marriage with A.B. solely to evade the immigration laws.(Id. at CAR000005.) The BIA again based its denial on evidence that: the marriage was of short duration and never consummated; Kumar and A.B. lived in the same house for fifteen to twenty days; Kumar and A.B. were first cousins; S.K. lived with A.B. and her family at their home from 2001 until they moved into their own home in 2006; A.B. stated that she told Kumar a couple days after their marriage that she was dating S.K. and that when USCIS was conducting its investigation in 2011 Kumar worked as the manager for a gas station run by A.B. and S.K. (Id. at CAR000005-6.)

Following the BIA's decision, Salvador and Kumar filed their Complaint in this Court, (ECF No. 1), asserting that the decision was arbitrary and capricious in violation of the Administrative Procedure Act, the decision violated their due process rights and that the punishment constituted an excessive penalty in violation of the Eighth Amendment. (Id. at ¶¶ 47, 49, 51, 53.) Defendants moved for summary judgment based on the administrative record. (ECF No. 8.)

II

A

Although "summary judgment is the proper mechanism for deciding, as a matter of law, whether an agency's action is supported by the administrative record" the district court is acting as an appellate tribunal and "the usual summary judgment standard does not apply." Zizi v. Bausman, 306 F.Supp.3d 697, 702 (E.D. Pa. 2018) (citing Dorley v. Cardinale, 119 F.Supp.3d 345, 351 (E.D. Pa. 2015)); see also Uddin v. Mayorkas, 862 F.Supp.2d 391, 399 (E.D. Pa. 2012). An agency decision can only be set aside if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).

"In applying that standard, 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 (1973). Final agency action is arbitrary and capricious where "the evidence not only supports a contrary conclusion but compels it." Yitang Sheng v. Attorney Gen. of the United States, 365 Fed.Appx. 408, 410 (3d Cir. 2010) (quoting Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001)). In assessing an agency decision, "the reviewing court 'must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.'" Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378 (1989) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)). Even if the district court disagrees with a decision, a "court is not to substitute its judgment for that of the agency." NVE, Inc. v. Dep't of Health & Human Servs., 436 F.3d 182, 190 (3d Cir. 2006).

B

A United States citizen may apply for his or her alien spouse to obtain lawful permanent residence by filing an I-130 Petition with USCIS. 8 C.F.R. §§ 204.1(a)(1), 204.2(a). The petitioner bears the burden of proving eligibility and can do so by presenting evidence of a valid marriage. 8 U.S.C. § 1361; see In re Brantigan, 11 I. & N. Dec. 493, 495 (BIA 1966). However, USCIS cannot approve an I-130 Petition filed on behalf of an alien beneficiary who has "previously been accorded, or has sought to be accorded, immediate relative status" on the basis of a fraudulent marriage. The statute provides that:

[N]o petition shall be approved if (1) the alien has previously been accorded, or has sought to be accorded, an immediate relative or preference status asa spouse of a citizen of the United States . . . by reason of marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws or (2) the Attorney General has determined that the alien has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws.

8 U.S.C. § 1154(c).

The government bears the burden of proving marriage fraud by establishing substantial and probative evidence that the prior marriage was a sham. Matter of Kahy, 19 I. & N. Dec. 803, 806, 1988 WL 235464 (B.I.A.1988); 8 CFR § 204.2(a)(1)(ii). Substantial evidence is "more than a scintilla, but . . . something less than a preponderance of the evidence." Fla. Gas Transmission Co. v. FERC, 604 F.3d 636, 645 (D.C. Cir. 2010).

If USCIS discovers substantial and probative evidence related to marriage fraud, it must issue a Notice of Intent to Deny ("NOID") informing the petitioner of "the derogatory information" and giving him the opportunity to respond with rebuttal evidence. 8 C.F.R. § 103.2(b)(8)(iv). Upon receiving the NOID, the burden shifts to the petitioner to rebut USCIS's finding of fraud. See Matter of Kahy, 19 I. & N. Dec. at 806-807. The petitioner must establish by clear and convincing evidence that the prior marriage was not entered into for the purpose of evading the immigration laws. "Failure to meet the 'clear and convincing evidence' standard will result in the denial of the petition." 8 C.F.R. § 204.2(a)(1)(i)(C).

III

Petitioners' primary argument is that BIA's denial of the I-130 Petition was arbitrary and capricious because there was insufficient evidence in the record to meet the requisite "substantial and probative evidence" standard. Petitioners argue, inter alia, that the evidence does not demonstrate a sham marriage but instead shows thatA.B. and Kumar entered into a traditional arranged marriage in 2003. (Resp. Opp'n at 9, ECF No. 9.)

While the BIA considered...