Shizhe Shen v. Martin

• Decision Date: 18 April 2022
• Docket Number: CV 21-6244 AS
• Parties: SHIZHE SHEN and CHAORAN YU, Plaintiffs, v. IRENE MARTIN, San Bernardino Field Office Director, U.S. Citizenship and Immigration Services; UR M. JADDOU, Director, U.S. Citizenship and Immigration Services;[1] ALEJANDRO MAYORKAS, Secretary, U.S. Department of Homeland Security; MERRICK B. GARLAND, U.S. Attorney General, Defendants.
• Court: U.S. District Court — Central District of California

SHIZHE SHEN and CHAORAN YU, Plaintiffs, v. IRENE MARTIN, San Bernardino Field Office Director, U.S. Citizenship and Immigration Services; UR M. JADDOU, Director, U.S. Citizenship and Immigration Services;^[1] ALEJANDRO MAYORKAS, Secretary, U.S. Department of Homeland Security; MERRICK B. GARLAND, U.S. Attorney General, Defendants.

No. CV 21-6244 AS

United States District Court, C.D. California

April 18, 2022

MEMORANDUM OPINION AND ORDER DIRECTING JUDGMENT IN FAVOR OF DEFENDANTS AND DISMISSING CASE

ALKA SAGAR, UNITED STATES MAGISTRATE JUDGE

INTRODUCTION

On August 27, 2019, Plaintiff filed a Complaint for Declaratory Relief and Injunctive Relief (“Complaint”) against Defendants pursuant to the Administrative Procedure Act (“APA”) 5 U.S.C. § 701 et seq., challenging the denial of a Form I-130 Petition for Alien Relative (“I-130 petition” or “petition”), filed on October 4, 2016, by Plaintiff Chaoran Yu, a United States citizen, on behalf of her husband, Plaintiff Shizhe Shen, a Chinese citizen. (Dkt. No. 1). The U.S. Citizenship and Immigration Services (“USCIS”) denied the I-130 petition on September 6, 2018, pursuant to section 204(c) of the Immigration and Nationality Act (“INA”), which precludes approval of an 1-130 petition if the beneficiary has ever sought benefits based on a marriage entered into to evade immigration laws (i.e., a “sham marriage”). (Compl. ¶¶ 1, 16); 8 U.S.C. 1154(c). This was based on Plaintiff Shen's prior marriage to Selena Gonzalez, a United States citizen whose December 2014 I-130 petition on behalf of Plaintiff was denied on February 10, 2016. (See Compl. ¶¶ 12-16). On June 22, 2021 the Board of Immigration Appeals (“BIA”) upheld the USCIS's decision to deny Plaintiff Yu's I-130 petition. (See Compl. ¶¶ 1, 17, Exh. B). Plaintiffs now seek reversal of the BIA decision under the APA on the grounds that it is arbitrary, capricious, an abuse of discretion, and unsupported by substantial evidence.

Defendants filed an Answer to the Complaint on October 4, 2021 (Dkt. No 18), followed by Certified Administrative Record (“Administrative Record” or “CAR”) filed under seal on January 12, 2022 (Dkt. No 26).^[2] The parties then filed briefs regarding the Administrative Record: (1) Plaintiffs' Opening Brief (“Pls. Opening Br., ” Dkt. No. 28); (2) Defendants' Response (Dkt. No. 29); (3) Plaintiffs' Reply (“Pls.' Reply, ” Dkt. No. 30); and (4) Defendants' Surreply (Dkt. No. 31).

The parties have consented to proceed before a United States Magistrate Judge (Dkt. Nos. 16-17) and submitted this matter on the briefs and Administrative Record. (See Dkt. No. 21). The Court has taken the matter under submission without oral argument. See C.D. Cal. C. R. 7-15. For the reasons stated below, the Court concludes that judgment should be entered in favor of Defendants and against Plaintiffs.

LEGAL AND FACTUAL BACKGROUND

A. I-130 Petitions

Spouses of U.S. citizens may obtain lawful permanent resident status as an immediate relative of the U.S. citizen. See 8 U.S.C. § 1151(a)(1), (2)(A)(i). The U.S. citizen (the “petitioner”) must file a Form I-130 petition with USCIS on behalf of his or her non-citizen spouse (the “beneficiary”) to have the beneficiary classified as an “immediate relative.”^[3] 8 U.S.C. § 1154(a)(1)(A)(i).

“After an investigation of the facts in each case, ” USCIS decides whether to approve the Form I-130 petition. 8 U.S.C. § 1154(b). “[N]o petition shall be approved if” the Government determines that the beneficiary spouse has “attempted or conspired to enter into a marriage for the purpose of evading the immigration laws.” 8 U.S.C. § 1154(c)(1); see also 8 C.F.R. § 204.2(a)(1)(ii) (“The director will deny a petition for immigrant visa classification filed on behalf of any alien for whom there is substantial and probative evidence of . . . an attempt or conspiracy” to enter into a marriage for the purpose of evading the immigration laws.).

A “marriage entered into for the purposes of circumventing immigration laws is considered a fraudulent marriage or sham marriage and is not recognized as enabling an alien spouse to obtain immigration benefits.” Avitan v. Holder, 2011 WL 499956 at *7 (N.D. Cal. Feb. 8, 2011) (citing Vasquez v. Holder, 602 F.3d 1003, 1014 n.11 (9th Cir. 2010)). A person's second I-130 petition may be denied on the basis that a prior marriage was fraudulent even if USCIS had not affirmatively determined there was fraud when investigating the prior marriage. See Garcia-Lopez v. Aytes, 2010 WL 2991720 at *2 (N.D. Cal. Jul. 28, 2010) (denying second I-130 petition because USCIS determined that petitioner had previously entered into a fraudulent marriage, even though his first I-130 petition was denied for failure to prosecute). When marriage fraud from a previous marriage is the basis for denying an I-130 petition, the USCIS district director “should not give conclusive effect to determinations made in a prior proceeding, but, rather, should reach his [or her] own independent conclusion based on the evidence before him [or her].” 8 C.F.R. § 204.2(a)(1)(ii).

USCIS “bears the initial burden of producing evidence of marriage fraud.” Alabed v. Crawford, 691 Fed.Appx. 430, 431 (9th Cir. 2017). The USCIS's burden of proof requires “substantial and probative evidence, ” a standard that is “at least as high as a preponderance of the evidence.” Zerezghi v. United States Citizenship & Immigr. Servs., 955 F.3d 802, 816 (9th Cir. 2020) (“[G]iven the seriousness of a marriage-fraud determination and the risk of a finding being made in error, the Constitution requires at least a preponderance of the evidence before imposing this sanction.”).^[4] In making a marriage fraud determination, USCIS “may rely on any relevant evidence, including evidence having its origin in prior [USCIS] proceedings involving the beneficiary, or in court proceedings involving the prior marriage.” See Matter of Tawfik, 20 I. & N. Dec. 166, 168 (BIA 1990). Direct evidence of intent is not required. Sablan v. Nielson, 2018 WL 5880174, at *6 (C.D. Cal. Oct. 25, 2018) (noting that “courts have upheld marriage fraud determinations based on circumstantial evidence alone”) (citing Patel v. Johnson, 2015 WL 12698427, at *7-9 (C.D. Cal. Oct. 7, 2015); Ogbolumani v. Napolitano, 557 F.3d 729, 734 (7th Cir. 2009); Liu v. Lynch, 149 F.Supp.3d 778, 788 (S.D. Texas 2016)). The USCIS “often uses documents in its possession, interviews with the couple, and observations made during site visits to the couple's marital residence.” Zerezghi, 955 F.3d at 805 (citing Matter of Singh, 27 I. & N. Dec. 598, 600-01 (BIA 2019)).

Where the record contains substantial and probative evidence of marriage fraud, USCIS must issue to the petition a Notice of Intent to Deny the petition (“NOID”). 8 C.F.R. § 103.2(b)(8)(iv). The NOID informs the petitioner of the “derogatory information” and provides the petitioner with a chance to rebut that information. Alabed v. Crawford, 2015 WL 18889289 at *9 (E.D. Cal. Apr. 24, 2015) (citation omitted). Upon receiving the NOID, “the burden then shifts back to the petitioner to establish that the marriage is bona fide and to rebut the evidence of fraud.” Alabed, 691 Fed.Appx. 430, 431 (9th Cir. 2017) (citing Matter of Kahy, 19 I.&N. Dec. 803, 806-807 (BIA 1988)). “To qualify as a bona fide marriage, a marriage must be based on an actual and legitimate relationship and the focus of any inquiry is whether the parties intended to establish a life together.” Yu An v. Napolitano, 15 F.Supp.3d 976, 981 (N.D. Cal. 2014) (citing Nakamoto v. Ashcroft, 363 F.3d 874, 882 (9th Cir. 2004)).

To satisfy this burden, the petitioner “must offer evidence that is probative of the motivation for marriage, not just the bare fact of getting married.” Alabed, 691 Fed.Appx. at 432 (quoting Malhi v. INS, 336 F.3d 989, 994 (9th Cir. 2003)). “Evidence of the marriage's bona fides may include: jointly-filed tax returns; shared bank accounts or credit cards; insurance policies covering both spouses; property leases or mortgages in both names; documents reflecting joint ownership of a car or other property; medical records showing the other spouse as the person to contact; telephone bills showing frequent communication between the spouses; and testimony or other evidence regarding the couple's courtship, wedding ceremony, honeymoon, correspondences, and shared experiences.” Agyeman v. INS, 296 F.3d 871, 882-83 (9th Cir. 2002). “If the petitioner cannot rebut the charge to the [USCIS's] satisfaction, the petition is denied.” Zerezghi, 955 F.3d at 805.

The petitioner may appeal the USCIS's decision with the BIA. See 8 C.F.R. §§ 103.3(a), 1003.1(b)(5).

B. Shen's Prior Marriage and Prior I-130 Petition

On January 23, 2013, Plaintiff Shen, a Chinese citizen, arrived in the United States and was lawfully admitted as a student on an F-1 visa. (2 CAR 246). In June 2014, he first met Gonzalez at a McDonald's in Los Angeles where she was working. (2 CAR 174). Two months later, on August 28, 2014, Shen and Gonzalez married in Alhambra, California. (2 CAR 246, 251). Gonzalez filed a I-130 petition with USCIS on December 4, 2014, seeking to have Shen classified as an immediate relative as the spouse of a U.S. Citizen. (2 CAR 128, 157). Concurrently, Shen filed a Form I-485, Application to Register Permanent Residence or Adjust Status. (2 CAR 128). Shen and Gonzalez claimed that they lived together at 11550 Paramount Boulevard, Apt. 18, Los Angeles, California. (2 CAR 246). The documentary joint evidence with the I-130 petition included Time Warner Cable bills, insurance policy statements, Chase Bank account statements, 2014 federal income tax returns, and gas company bills. (See 2 CAR 252-307).

On April 29, 2015, Shen and Gonzalez appeared...