Singh v. Cissna

• Decision Date: 30 September 2018
• Docket Number: Case No. 1:18-cv-00782-SKO
• Court: U.S. District Court — Eastern District of California
• Parties: GURKAMAL SINGH and ROSIE SANDHU, Plaintiffs, v. L. FRANCIS CISSNA, Director, United States Citizenship & Immigration Services; KIRSTJEN M. NIELSEN, Secretary, Department of Homeland Security; JEFF SESSIONS, Acting United States Attorney General, Defendants.

GURKAMAL SINGH and ROSIE SANDHU, Plaintiffs, v. L. FRANCIS CISSNA, Director, United States Citizenship & Immigration Services;

KIRSTJEN M. NIELSEN, Secretary, Department of Homeland Security;

JEFF SESSIONS, Acting United States Attorney General, Defendants.

Case No. 1:18-cv-00782-SKO

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

September 30, 2018

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS

(Doc. 16)

Plaintiffs Gurkamal Singh ("Singh") and Rosie Sandhu ("Sandhu") (collectively, "Plaintiffs") bring this action challenging the denial of a Petition for Alien Relative, USCIS Form I-130 ("I-130"), filed by Plaintiff Sandhu on behalf of her husband, Plaintiff Singh. (See Doc. 1 (Compl.).) Pending before the Court is Defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (the "Motion"). (Doc. 16.) Plaintiffs oppose the Motion. (Doc. 18.) For the reasons that follow, the Court hereby GRANTS IN PART and DENIES IN PART the Motion.¹

I. BACKGROUND

A. Factual Background

Plaintiff Singh is a citizen of India who entered the United States without inspection on or about March 7, 1996, at or near Brownsville, Texas. (Compl. ¶ 7; Doc 1-2 (Compl. Ex. 1).) In 1997, Plaintiff Singh filed a petition for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). (Compl. ¶¶ 47-48, Ex. 1 at 4.) He was placed in removal proceedings and issued a notice to appear before an immigration judge. (Id.)

In 2000, Plaintiff Singh, while living in Fresno, CA, met Evelyn Williams, a U.S. citizen who lived in Buttonwillow, CA. (Compl. ¶ 55, Doc. 1-9 (Compl. Ex. 8) at 2; Doc 1-37 (Compl. Ex. 36) at 43-44.) On April 24, 2001, Plaintiff Singh married Ms. Williams in Las Vegas, NV. (Compl. ¶ 53, Ex. 8.) On April 30, 2001, Ms. Williams filed an I-130 petition on behalf of Plaintiff Singh to initiate the process for him to become a lawful permanent resident of the United States. (Compl. Ex. 1 at 4.) In support of the petition, Ms. Williams and Plaintiff Singh submitted three copies of wedding photographs and a copy of their marriage certificate. (Id.)

Plaintiff Singh and Ms. Williams were originally scheduled to appear for an interview in support of their I-130 petition on July 24, 2002, but the interview was rescheduled "allegedly because [Plaintiff Singh] required a Punjabi/English interpreter." (Compl. Ex. 1 at 4.) On October 8, 2002, Plaintiff Singh and Ms. Williams appeared, without an interpreter, at the U.S. Immigration and Naturalization Service ("INS") office in San Francisco, CA, to provide sworn testimony and supporting documentation in support of their I-130 petition. (Compl. ¶ 54, Ex. 1 at 4; Ex. 36.) The interviews of Ms. Williams and Plaintiff Singh, which were conducted separately, were video recorded. (Compl. ¶¶ 58, 66, 70 and Ex. 1 at 4.)

During the interview by immigration officer Yurgin ("Officer Yurgin"), Ms. Williams made "statements about the false nature of her marriage" to Plaintiff Singh. (Compl. ¶ 10.) Attached to Plaintiffs' complaint is a document titled "United States Department of Justice, Immigration and Naturalization Service, Record of Sworn Statement in Affidavit Form" executed on October 8, 2002, purportedly signed by Ms. Williams and containing the following handwritten statement:

Oh my, I got a call from Peter Singh who asked me if I would be willing to get a so called husband. I said maybe and asked why. Later that day Peter and another man stopped by at my house and we talked a little more about what I needed in a man a housemate [sic]. This all took place the afternoon of the 4/23/01. When Kamel's uncle agreed to pay my PG&E bill in the amount of $1800.00 I said OK. Then 4/24/01 we went to Las Vegas. Where we were married 4/25/01 [sic]. We never have had sex. He has never truly moved in with me. From time to time he calls or stops by my house. We talk more on the phone than in person. I married him because I needed a man around the house, because I was being harassed by my ex-husband and my house was broken into. I just wanted a man there sometime. Also in the agreement he would be able to receive a greencard. If I would stay married to him [sic].

(Compl. ¶¶ 66, 98 and Ex. 1 at 4-5; Doc. 1-41 (Compl. Ex. 40).) Following the interview, Ms. Williams withdrew her I-130 petition on behalf of Plaintiff Singh, stating "This is a fake marriage. And I am requesting to be out of this marriage." (Compl. ¶ 80, Ex. 1 at 5.)

After the interview on October 8, 2002, Plaintiff Singh was placed into custody by USCIS agents. He maintained that "he did not enter into a fraudulent marriage" with Ms. Williams. (Compl. ¶ 71 and Ex. 1 at 5.) While in custody, Plaintiff Singh "initially refused to give Ms. Williams money to return home" yet ultimately provided $250 for Ms. Williams' use. (Id. ¶¶ 72-73. See also Compl. Ex. 1 at 5.)

On June 17, 2003, an immigration judge denied Plaintiff Singh's application for asylum, withholding of removal, and protection and issued a removal order against Plaintiff Singh. (Compl. ¶- 48, 123, Ex. 1 at 5.) Plaintiff Singh and Ms. Williams divorced on March 1, 2004. (Compl ¶ 53, 109, Ex. 8.)

Plaintiff Singh married Plaintiff Sandhu, a U.S. citizen, in Elkton, MD, on September 1, 2006. (Compl. ¶ 7, 110, Doc. 1-8 (Compl. Ex. 7).) Plaintiff Sandhu has filed a series of three unsuccessful I-130 petitions on behalf of Plaintiff Singh. The first was filed on October 23, 2006, and was denied by the U.S. Citizenship and Immigration Services (USCIS) in a decision dated September 30, 2009. (Comp. ¶¶ 110-111, Ex. 1 at 17-29.) The second petition was filed on September 23, 2011, and was denied by the Director of USCIS on January 6, 2014. (Compl. ¶ 112, Ex. 1 at 11-16.) Plaintiff Sandhu appealed the denial to the Board of Immigration Appeals, which dismissed the appeal on January 20, 2015. (Compl. 113, Doc. 1-3 (Compl. Ex. 2).)

On July 13, 2016, Plaintiff Sandhu filed her third I-130 petition on behalf Plaintiff Singh,which forms the basis of this lawsuit. (Compl. ¶ 114, Doc. 1-4 (Compl. Ex. 3).) In support of the third petition, Plaintiff Sandhu submitted: a marriage certificate; a divorce certificate; "sworn affidavits"; "numerous utility bills"; "joint bank account and tax statements"; "family photos"; Plaintiffs' son's birth certificate; the expert declaration of Alan Hirsch, Esq., and Mr. Hirsch's curriculum vitae, "in connection with his professional analysis of CIS interrogation of Ms. Williams"; and a letter from Jeffrey Pearce, a private investigator, "documenting Ms. Williams's statements from when Mr. Pearce attempted to inquire or ask her about the bona fides of her prior marriage" to Plaintiff Singh. (Compl. ¶¶ 66, 114, Ex. 1 at 6.)

In his declaration, Mr. Hirsch opined that Ms. Williams was "subject to the interrogation tactics that contribute to false confessions by leading people to conclude that maintaining innocence is futile whereas acknowledging guilt will be benign." (Doc. 1-14 (Compl. Ex. 13) ¶ 12; see also Compl. ¶ 64, Ex. 1 at 6.) Mr. Pearce's letter, dated November 6, 2015, indicates he spoke with Ms. Williams regarding Plaintiff Singh via telephone in February 2015. (See Doc. 1-15 (Compl. Ex. 14); see also Compl. ¶¶ 92-93, Ex. 1 at 7.) Mr. Pearce stated Ms. Williams

became extremely defensive and started using vulgar language. She [] repeatedly stated that she does not want to get involved anymore with this immigration case because she is afraid of going to jail and being afflicted with a $250,000.00 fine as threatened by immigration officers when she attended the I-130 interview several years ago with Gurkamal Singh. She was also told if she ever tried to change what the record shows she said at the time of the interview they would prosecute her and put in her jail for 10 years.

(Compl. Ex. 14 at 2; Compl. ¶¶ 92-93, Ex. 1 at 7.) Mr. Pearce also stated Ms. Williams said she is "deathly afraid because she was warned and threatened about getting involved in this case over and over again by those specific agents of U.S. Immigration and Customs Enforcement at the interview" and "especially believes they can and will put her in jail because of her criminal history." (Id.) Mr. Pearce's letter indicates that Ms. Williams "vividly remembers how afraid she was at the interview and how much she cried and sobbed at the time she signed a statement she was compelled to write." (Id.)

On February 23, 2017, the U.S. Court of Appeals for the Ninth Circuit denied Plaintiff Singh's petition for review of the Board of Immigration Appeals' order dismissing his appeal froman immigration judge's decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture. Singh v. Sessions, 678 F. App'x 515 (9th Cir. 2017). On March 30, 2017, Plaintiff Singh filed an application for stay of deportation or removal for twelve months beginning March 10, 2017. (Compl. ¶ 51, Doc. 1-20 (Compl. Ex. 19).) Plaintiff Singh's petition for rehearing or rehearing en banc was denied by the Ninth Circuit in October 2017. (Compl. ¶ 50.)

On August 9, 2017, Plaintiffs personally appeared for an interview relating to their third I-130 petition at the USCIS Philadelphia Field Office. (Compl. ¶ 27.) During the interview, Plaintiff Singh was asked additional questions to obtain sworn testimony regarding his marital relationship with Ms. Williams. (Compl. Ex. 1 at 7.) He testified that he could not remember if he or Ms. Williams proposed because the decision to get married "just happened." (Id.)

On October 19, 2017, the USCIS issued a Notice of Intent to Deny ("NOID") Plaintiff Sandhu's I-130 petition. (Compl. ¶ 114, Ex. 1 at 7.) In response, Plaintiff Sandhu submitted 18 documents along with a 31-page letter from her attorney, which claimed that Ms. Williams was subjected to abuse, intimidated, and coerced by Officer Yurgin at the time she said that her marriage to Plaintiff Singh was a sham. (Id...