Schamens v. Sessions, Civil No. 17-4926 (MJD/HB)
| Decision Date | 10 May 2018 |
| Docket Number | Civil No. 17-4926 (MJD/HB) |
| Parties | Angela Schamens and Amr Fouda, Petitioners, v. Jefferson Sessions, et al. Respondents. |
| Court | U.S. District Court — District of Minnesota |
David L. Wilson and Michael D. Gavigan, Wilson Law Group, Counsel for Petitioners.
Anna Juarez, Trial Attorney, United States Department of Justice, Civil Division, Office of Immigration Litigation, Counsel for Respondents.
This matter is before the Court on Respondents' motion to dismiss.
Petitioner Amr Fouda married Arianne Whitt in February 2003. (Petition, Ex. 2 at 5.) Whitt is a citizen of the United States and Fouda is a citizen of Egypt. On March 9, 2004, Whitt filed an I-130 Petition for Alien Relative, an immigrant visa, on Fouda's behalf. (Id.) To support the I-130 petition, Fouda and Whitt submitted documents, and sat for an interview with the U.S. Citizenship and Immigration Services ("USCIS") on February 16, 2006. (Id.) According to the record, Whitt and Fouda claimed that they resided together at 25-22 Stainway St. # 10-D, Long Island City, NY 11103. (Id.) The documents submitted to support the Petition included Whitt's interim New York identification; Fouda's 2004 taxes; 2005 taxes, filed jointly; Whitt's and Fouda's 2005 W-2s; and an AIG insurance statement dated September 22, 2003 in Fouda's name only. (Id. at 5- 6.)
The USCIS characterized their interview responses as vague and discrepant regarding family, religion, relationship history and work schedules. (Id. at 6.) Their responses regarding everyday life was characterized as weak. (Id.) The USCIS also determined the documents submitted in support of the petition were of little value. For example, Whitt obtained her New York identification five days before her marriage to Fouda and did not use the marital address. (Id.) Fouda's 2004 taxes showed that he claimed single and filed individual taxes, even though he was married in February 2003. (Id.) The joint 2005 taxes were prepared the day before the interview, and were not signed. (Id.) Whitt's 2005 W-2's listed three different addresses, none of which reflected the alleged marital address at that time, which was in North Randall, Ohio. (Id.)Further, the insurance documents dated September 22, 2003 listed Fouda as the sole insured, and Whitt as an excluded driver. (Id.)
On July 20, 2006, the USCIS issued a Notice of Intent to Deny ("NOID") the I-130 petition based on the determination that Fouda and Whitt married for the purpose of evading immigration laws. (Id. at 6.) The USCIS did not receive a response to the NOID and the I-130 petition was denied. (Id.)
The Department of Homeland Security ("DHS") thereafter placed Fouda in removal proceedings, as Fouda had remained in the United States longer than the time authorized. (Id.) The Immigration Judge granted Fouda's request for voluntary departure in October 2007, and Fouda departed the United States in January 2008. He currently resides in Egypt. (Id.)
Prior to Fouda leaving the country, Whitt and Fouda had signed a marital separation agreement on August 17, 2007, and the marriage was dissolved in October 2007. (Id. at 7.) The separation agreement provided they owned no joint assets such as property, bank accounts, or credit card accounts. (Id.)
On August 29, 2007, Whitt and Fouda filed an appeal with the Board of Immigration Appeals ("BIA"), appealing the USCIS's denial of the I-130 petition, claiming that the NOID was sent to the wrong address. (Id.) In support of theappeal, they filed several additional documents: duplicate copies of the 2005 taxes, telephone statements, and insurance documents that listed Fouda's name only; an American Express bill in the name of Fouda; Verizon telephone statement in Whitt's name only, listing the address as 287 Lloyd, Akron, OH; Whitt's Affidavit in which she attempted to explain her relationship with Fouda and to discount the allegations of fraud; Fouda's Affidavit in which he also attempted to discount the allegations of fraud; an affidavit from Whitt's father and several affidavits from friends. (Id. at 6-7.) On January 25, 2008, the BIA remanded the case per the request of DHS for further consideration. The decision of the District Director was thereafter vacated. (Id. at 7.)
Petitioners Schamens and Fouda were then married in Egypt on September 29, 2008. (Id.) On December 1, 2008, Schamens filed a new I-130 petition on behalf of Fouda.
The next day, the USCIS issued its decision to deny Whitt's I-130 petition due to the fact that the marriage between her and Fouda had been dissolved. (Id.) On December 24, 2008, Fouda's attorney, Cassondre K. Buteyn, filed a notice of appeal to the BIA from a decision of a USCIS Officer, but that appeal was dismissed because it lacked the requisite signatures and forms. (Id.)
With regard to the I-130 petition filed by Schamens, Petitioners sat for an interview with a USCIS officer in June 2009. This I-130 petition was thereafter approved on January 28, 2010. (Pet., Ex. 1.) Petitioners claim that the officer conducting the interview, Trina M. Swanson, informed them she was aware of a prior alien relative petition for Fouda filed by Whitt, and confirmed that the denial of that petition was based on the dissolution of the prior marriage and not on a finding the prior marriage was fraudulent. (Pet. ¶¶ 23, 24.) Petitioners then pursued processing Fouda's application with the Department of State, filing a waiver of inadmissibility. (Id. ¶ 27.) That application remained pending for five years. (Id. ¶ 28.)
On April 16, 2013, Schamens was sent a notice of intent to revoke ("NOIR"). (Hove Aff., Ex. 1.) That notice was returned to the U.S. Post Office as undeliverable. (Id.) A second notice was sent on August 20, 2013. (Id.)
As set forth in the NOIR, a review of Fouda's file revealed that Officer Swanson may not have been aware of Fouda and Whitt's suspected marriage fraud when approving the petition. (Id. at 6.) Accordingly, in October 2012, the USCIS conducted a further investigation and issued subpoenas to Whitt's places of employment. (Id.) In response, the USCIS received additional evidence whichreflected that Whitt did not live at the alleged marital residence during the time she was married to Fouda, and that she claimed to be single on employment forms from 2004 and 2005, even though she was married from 2003-2007. (Id.) A subpoena was also issued to the owner of the alleged marital residence in North Randall, Ohio, through which the USCIS learned there were no records of Whitt or Fouda ever living at that address. (Id. at 6-7.)
In the NOIR, the USCIS advised Schamens of its determination that Fouda had previously entered into a marriage for the purpose of evading immigration laws and was therefore ineligible for a visa petition pursuant to 8 U.S.C. § 1154(c). (Id. at 7.) The NOIR also informed her that she had thirty days from the date of the letter to offer written evidence in rebuttal. (Id.)
Schamens responded to the NOIR on September 18, 2013 through her attorney, and submitted additional documents, such as an affidavit from Fouda, an email from Fouda's former immigration attorney explaining that she did not receive a copy of the 2006 NOID, an article from About.com explaining Islamic dating customs, a blank 2013 IRS Form W-4, and arrest information for Whitt dated 2012. (Pet., Ex. 2 at 8-9.)
On July 1, 2015, the USCIS issued its decision to revoke the I-130 petition. (Id.) This decision was appealed to the BIA, and on February 28, 2017, the BIA affirmed the decision to revoke. (Pet., Ex. 3.)
In this action, Petitioners claim that Respondents' practices, policies, conduct and failures to act deprived them of their right to have an immigrant visa petition approved pursuant to 8 U.S.C. §1151. Petitioners also claim that Respondents violated the Administrative Procedures Act ("APA") when it revoked Schamens' I-130 petition, because such decision was erroneous and contrary to law. Petitioners also assert a claim that their rights to due process under the Fifth Amendment have been violated.
Respondents now move the Court to dismiss for lack of subject matter jurisdiction, arguing there is no judicial review of claims arising from the USCIS's discretionary decision to revoke Petitioners' I-130 petition. Respondents argue in the alternative that Petitioners have failed to state a claim upon which relief may be granted.
Courts lack jurisdiction to review any "decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is . . . in the discretion of the Attorney General or the Secretary of Homeland Security." 8 U.S.C. § 1252 (a)(2)(B)(ii). Pursuant to 8 U.S.C. § 1155, Decisions made under § 1155 are discretionary and as such, are not subject to judicial review. Abdelwahab v. Frazier, 578 F.3d 817, 821 (8th Cir. 2009); see also Bernardo ex rel. M & K Eng'g v. Johnson, 814 F.3d 481, 484 (1st Cir. 2016) (). Still reviewable, however, are "predicate legal question[s] that amount to a nondiscretionary determination underlying the denial of relief." Abdelwahab, 578 F.3d at 821 (citing Ibrahimi v. Holder, 566 F.3d 758, 764 (8th Cir. 2009)).
In this case, the USCIS determined that Petitioners' previously approved I-130 petition be revoked based on the determination that Fouda had previously entered into a marriage for the purpose of evading immigration laws. Respondents argue that because any ruling on the merits of Petitioners' claims would require the Court to...
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