Smith v. Garland

• Court: U.S. Court of Appeals — Seventh Circuit
• Writing for the Court: Brennan, Circuit Judge.
• Citation: Smith v. Garland, 103 F.4th 1244 (7th Cir. 2024)
• Docket Number: 23-2874
• Decision Date: 03 June 2024
• Parties: Maria E. SMITH, Plaintiff-Appellant, v. Merrick B. GARLAND, Attorney General of the United States, et al., Defendants-Appellees.

103 F.4th 1244

Maria E. SMITH, Plaintiff-Appellant, v. Merrick B. GARLAND, Attorney General of the United States, et al., Defendants-Appellees.

No. 23-2874

United States Court of Appeals, Seventh Circuit

Argued April 10, 2024

Decided June 3, 2024

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 23-cv-00490-BHL — Brett H. Ludwig, Judge.

Godfrey Y. Muwonge, Attorney, Law Office of Godfrey Y. Muwonge LLC, Wauwatosa, WI, for Plaintiff-Appellant.

Olga Y. Kuchins, Attorney, Department of Justice, Office of Immigration Litigation - Appellate Section, Washington, DC, for Defendants-Appellees.

Before Ripple, Hamilton, and Brennan, Circuit Judges.

Brennan, Circuit Judge.

United States immigration authorities denied Maria Elvia Smith, a native and citizen of Mexico, legal status in the U.S. Smith sued, alleging the agencies responsible for this decision violated the Administrative Procedure Act, agency regulations, and the Fifth Amendment. The district court correctly dismissed her complaint, so we affirm.

I. Background

A. Smith's Visa Petition and Agency Investigation

Under the Immigration and Nationality Act, a United States citizen may petition for the allocation of a visa to his noncitizen spouse. 8 U.S.C. §§ 1153(a), 1154(a). To do so, the citizen files a Form I-130, called a Petition for Alien Relative, to classify his noncitizen spouse as an immediate relative. Id. §§ 1151(b)(2)(A)(i), 1154(a)(1)(A)(i). Should the citizen die while the I-130 petition is pending, the petition automatically converts to an I-360, Widow(er) Petition, as long as the surviving noncitizen spouse was not legally separated from the citizen at the time of death and did not remarry. 8 C.F.R. § 204.2(i)(1)(iv). This appeal involves Smith's unsuccessful I-360 petition and her legal challenges to that determination.

From 1973 to 2001, Smith was married to Francisco J. Hernandez Rico, also a Mexican native and citizen. They had a son. Just after their marriage dissolved, Smith and Rico tried to enter the United States on May 13, 2002, at the Hartsfield International Airport in Atlanta, Georgia. Immigration inspectors detained and questioned them. The inspectors later reported that they presented themselves as a married couple. Immigration authorities denied Smith and Rico admission into the country and gave them the opportunity to withdraw their application for admission.

Two years later, Smith and Rico applied for nonimmigrant visas at the United States consulate in Mexico City, again presenting themselves as a married couple. Officials issued the visas, and both traveled to the United States.

After arriving in this country, Rico married an American citizen. That citizen then filed a Form I-130 on Rico's behalf, which was denied by the U.S. Citizenship and Immigration Services. USCIS noted that during Rico's marriage to the American citizen, Smith and Rico shared a joint bank account and a residence in Wauwatosa, Wisconsin. Rico sought immigration status as the spouse of a U.S. citizen again in 2011. His petition stated he and Smith lived together from January 2006 through March 2011 in Wauwatosa, though at a different address than previously identified by USCIS.

Smith herself married a United States citizen—Arlo Henry Smith, Sr.—in December 2012.¹ Five months later, Arlo filed an I-130 petition to classify Smith as his immediate-relative spouse based on their marriage. Smith submitted 20 items in support of this petition, including information that she lived at the same Wauwatosa residence as Rico from May 2008 through October 2009. Arlo died in February 2014, and Smith's I-130 petition automatically converted to an I-360 petition. See 8 C.F.R. § 204.2(i)(1)(iv).

Rico later sought a divorce from his U.S. citizen spouse. During the divorce proceedings, Rico said he resided at an apartment in Milwaukee, Wisconsin. A few months later, Rico filed an I-130 petition on behalf of the son he shared with Smith, using that apartment address. In June 2014, an immigration officer visited the apartment. No one was home, but the mailbox listed the names of Rico, Smith, and their son. Immigration authorities also obtained a copy of the lease agreement from the apartment's registered agent; that agreement listed Rico, Smith, and their son as living at the residence and contained their names and signatures. In a July 2015 interview, Smith provided USCIS a sworn statement that she, Rico, and their son lived (and continued to live) at the Milwaukee apartment together before she married Arlo.

B. Immigration Proceedings

On August 19, 2015, USCIS issued Smith a Notice of Intent to Deny her I-360 petition. In the Notice, USCIS described 14 of the 20 items Smith submitted in support of her visa petition as evidence of Smith's "continued [ ] close relationship" with Rico during her marriage to Arlo that continued "long after [her] nominal divorce[ ]" from Rico. That evidence included the two times Smith and Rico presented themselves to immigration officials as a married couple, as well as their living together at the different Wisconsin residences from 2006 to 2014. This supported the conclusion that Smith's marriage to Arlo was "invalid for immigration purposes."

The Notice provided that Smith could submit further evidence to support her petition and to counter the proposed denial. Smith submitted three additional documents, including affidavits from her and Rico. USCIS found this additional evidence unpersuasive, as Smith's and Rico's statements about the couple's interactions with immigration officials at the Atlanta airport in 2002 "lack[ed] credibility." In particular, Smith's response that Rico was travelling with her to provide English-language assistance was contradicted by Rico's sworn statement to immigration inspectors and other evidence from the inspectors. USCIS also explained that Smith "provided false and misleading information to USCIS officers in hopes of obtaining immigration benefits" at her July 2015 USCIS interview. In the interview, Smith denied ever traveling with Rico after their 2001 divorce. But her assertion was contradicted by the pair's travel together to Atlanta in 2002.

So, in April 2019, following a "careful and complete review of the record and testimony," USCIS denied Smith's I-360 petition. The agency concluded that Smith failed to prove by a preponderance of the evidence that her marriage to Arlo was bona fide for immigration purposes. Though Smith had submitted some documents to establish a marriage, in light of the false and misleading information she provided to immigration officers in 2002 and in 2015, she was "not considered to be credible."

Smith appealed to the Board of Immigration Appeals. Conducting its own de novo review of USCIS's decision, the Board affirmed the denial of Smith's I-360 petition. After considering all the information Smith submitted, the Board confirmed USCIS's conclusion that Smith could not meet her burden to prove a bona fide marriage because Smith's evidence could not "overcome the derogatory information detailed in the [Notice] of [Smith's] continued cohabitation with her prior spouse."

C. District Court Proceedings

Smith sued the United States Attorney General, USCIS, and the Board, alleging that the agencies improperly denied her I-360 petition and violated her Fifth Amendment right to due process. The government moved to dismiss her complaint and attached the Notice.

The district court granted the motion, finding she did not plausibly allege that USCIS and the Board: (1) acted improperly in denying her petition; (2) acted without observance of the procedure required by law; and (3) substantively violated the Fifth Amendment's Due Process Clause. On its first finding, the district court reasoned that the agencies' decision rested on facts established in the record and supplied sufficient rationale based on those facts. In doing so, the agencies applied the proper standards and burden of proof and validly elected not to credit Smith's statements in light of her past untruthfulness. As to its second finding, the district court rejected Smith's argument that the agencies improperly ignored eight pieces of evidence. The record did not show that the agencies ignored the evidence, and "failure to mention is not failure to consider," so Smith could not plausibly allege that the agencies failed to follow proper procedures in dismissing her I-360 petition. For its third finding, the district court reasoned, "non-citizens have no historically recognized right to reside in the United States with their citizen spouses, much less reside in the United States after their citizen spouses have died." So, Smith could not plausibly allege a substantive due process claim.

The district court entered judgment dismissing the case, and Smith timely appealed.

II. Discussion

This court reviews de novo a dismissal for failure to state a claim. See Gunn v. Cont'l Cas. Co., 968 F.3d 802, 806 (7th Cir. 2020). "[T]he plaintiff must allege 'more than a sheer possibility that a defendant has acted unlawfully.' " McReynolds v. Merrill Lynch & Co., 694 F.3d 873, 885 (7th Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). While all well-pleaded facts are taken as true and viewed in the light most favorable to the plaintiff, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 736 (7th Cir. 2014) (cleaned up).

The Administrative Procedure Act provides for judicial review of final agency actions, like the denial of an I-360 petition. See 5 U.S.C. §§ 702, 704. This court reviews agency determinations with great deference, see F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 513, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009), and the court cannot substitute its judgment for that of the agency, see Dep't of Com. v. New York, 588 U.S. 752, ...