Wen Liu v. Lynch

• Citation: 149 F.Supp.3d 778
• Decision Date: 03 March 2016
• Docket Number: CIVIL ACTION NO. H-14-3052
• Parties: Wen Liu and Ho Yin Lam, Plaintiffs, v. Loretta Lynch, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

149 F.Supp.3d 778

Wen Liu and Ho Yin Lam, Plaintiffs,

v.Loretta Lynch, et al., Defendants.

CIVIL ACTION NO. H-14-3052

United States District Court, S.D. Texas, Houston Division.

Signed March 3, 2016

Charles Herman Kuck, Atlanta, GA, for Plaintiffs.

Adam Laurence Goldman, Department of Justice, Houston, TX, for Defendants.

MEMORANDUM AND OPINION

Lee H. Rosenthal, United States District Judge

Wen Liu and Ho Yin Lam, the plaintiffs, sued the United States Attorney General, the Secretary of the Department of Homeland Security, and five others (together, “the government”). Liu and Lam alleged that the Board of Immigration Appeals (“BIA”) decision upholding the denial by the United States Citizenship and Immigration Services (“USCIS”) of the I-130 petition Lam filed on Liu's behalf was arbitrary and capricious. Liu and Lam sought a declaratory judgment under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. , that Liu is eligible for an adjustment of status. (Docket Entry No. 17). The government moved for summary judgment, (Docket Entry No. 30), arguing that Liu had entered into a previous marriage “for the purpose of evading the immigration laws” and that the USCIS was required to deny the I-130 petition as a result. See 8 U.S.C. § 1154. Liu and Lam cross-moved for summary judgment, (Docket Entry No. 34), arguing that substantial evidence failed to support the marriage-fraud finding.

Based on the pleadings, the parties' written and oral arguments, the certified administrative record, and the applicable law, this court grants the government's motion for summary judgment and denies Liu's and Lam's cross-motion. Final judgment is entered by separate order. The reasons are explained below.

I. Background

A. Liu's Marriage to Jimmy Tran

Liu was born in China. (CAR 311).¹ She was married to a Chinese citizen, in China, from 1988 to 2001. (Id. at 231). In 2001, Liu entered the United States on a B-1 visa. (CAR2 43–46). Liu met Jimmy Tran in 2002 in the United States. Tran was born in Vietnam and became an American citizen in June 1995. (CAR 304).

A USCIS investigation revealed that Tran was married to two other women when Liu met him. The investigation found, and Tran admitted, that he married Xiao Dan Jiang in 2000 in China and was still married to her when he married Liu.

Tran admitted to filing an I-130 petition on Jiang's behalf. The USCIS had approved that petition,² and Jiang entered the United States as a conditional resident in October 2001. (CAR 40–41, 277–78, 288).

The investigation also found that while he was still married to Jiang, but before he married Liu, Tran married a second woman in the United States, Wen Qin Zhang. The USCIS investigation found that Tran filed an I-130 petition on Zhang's behalf. That petition is not in the record, and Tran has not admitted to marrying Zhang. (Id. ). The investigation also found that in the I-130 Tran submitted for Zhang, he stated that he had no prior marriages. (Id. ).

1. Liu's Affidavit

Liu stated in an affidavit she submitted to the USCIS that she met Tran at a seafood restaurant in Los Angeles in May 2002. (Id. at 54). She thought that Tran had “a soft and polite manner,” and she felt they “had a connection.” (Id. ). Although Tran was Vietnamese and Liu was Chinese, they were able to communicate in Mandarin. (Id. ). They went on over ten dates before Tran proposed in June 2002. (Id. ). Liu asked Tran if he had ever been married; he said he had not. (Id. ). He proposed at the restaurant where they went on their first date. (Id. ). She “believe[d] everything he had told me and by that time I was falling in love with him so I accepted his marriage proposal.” (Id. ).

Liu stated that when she married Tran in August 2002, (id. at 324), she had no reason to believe he was married to other women, (id. at 54). On the marriage certificate, Liu and Tran stated that Liu was a waitress and that they lived together in San Gabriel, California. (Id. at 324). In her affidavit Liu stated that she and Tran lived with a roommate, Yang Yang Liu. (Id. at 55). “A few weeks” after her marriage to Tran in August 2002, however, Tran “started coming home late ... [a]nd then one night he stopped coming home.” (Id. ). Liu decided to divorce Tran. She did not file for divorce until December 2003 because she did not know where he was. (Id. ).

2. Tran's Affidavit

Tran also submitted an affidavit to the USCIS. He admitted that he was married to Jiang when he married Liu. He stated that he did not divorce Jiang because she lived in New York and he lived in California. (Id. at 40). Tran's affidavit does not mention a prior marriage to Zhang. Tran acknowledged that he “may have lied” to Liu about never having been married. (Id. ). He stated that he and Liu met at a seafood restaurant, that they were able to communicate in Mandarin, and that he proposed in June 2002. (Id. ). He met another woman named Theresa in September 2002 and quickly started dating her. (Id. at 41). He stated that his marriage with Liu was tumultuous and that he left Liu for Theresa. (Id. ).

The affidavits do not establish the precise date when Liu and Tran separated. Liu's and Tran's affidavits make clear, however, that they separated shortly after their marriage in August 2002.

3. The I-130 Petition and the I-485 Application

Liu stated in her affidavit that Tran filed an I-130 petition on her behalf in September 2002, but the petition is not in the record. (Id. at 55). Liu stated that this petition was returned on February 13, 2003, but there is no record evidence supporting that assertion. Liu stated that an attorney resubmitted the immigration documents after they were returned, but there is no indication when the attorney did so.

The record does contain an I-130 petition Tran signed on February 6, 2003 and submitted on Liu's behalf.³ (Id. at 294–95). Three other documents were signed on the same day. Liu and Tran signed G-325A forms providing their biographical information, (id. at 296–303); Liu signed an I-485 application for adjustment to permanent resident status based on the I-130 petition, (CAR2 97–100); and Tran signed an I-864 form supporting Liu's application, (id. at 105–11).

On the I-130 petition, Tran stated that he had no previous marriages and had never filed an I-130 petition. (CAR at 294–95). He disclosed Liu's prior marriage and stated that she was unemployed. (Id. at 294). The G-325A forms stated that Liu was a housewife and that neither Liu nor Tran had been previously married. (Id. at 296–303).

The I-485 application included an I-864 form signed by Lam Tsan, who stated that he lived with Liu and Tran in San Gabriel, California. (CAR2 116). Tax records attached to the I-864 form showed that Tsan was married and lived in Los Angeles at that time. (Id. at 124).

All of the forms Liu and Tran submitted indicated that they lived together in San Gabriel, California. Liu's affidavit stated that they lived with her friend, Yang Yang Liu, not with Tsan. (CAR 55).

On February 20, 2003, Liu received a “notice of rejection” because she had failed to sign a money order submitted with the documents. (CAR 325). It is unclear whether the notice related to the I-130 petition Tran filed on her behalf or to the I-485 application Liu filed for her own adjustment of status. The notice does not support Liu's allegation that a September 2002 I-130 petition was filed and then rejected, because Liu alleged that the petition was returned on February 13, 2003 and then resubmitted by an attorney.

Liu and Tran filed for divorce in December 2003. The divorce was finalized in June 2004. (CAR 55, 242–43). Although they separated and then divorced, they did not withdraw the I-130 petition or otherwise notify the USCIS that they intended to abandon it. In her affidavit, Liu stated that she never received an interview notice from the USCIS because she had moved, and that the USCIS never interviewed her about the I-130 petition. (Id. at 55). Liu claims that she “abandoned” the petition by not attending interviews, although she had no notice of an interview at the time. (Docket Entry No. 34 at p. 10).

In 2005, the Department of Homeland Security began investigating Tran for having filed concurrent I-130 petitions, suspecting marriage fraud. (CAR 277–79).

B. Liu's Marriage to Ho Yin Lam and the I-130 Petition He Filed for Liu

In September 2007, Liu married Lam, a native of Macau who was naturalized as an American citizen in May 2004. (Id. at 235–38). In October 2007, Lam filed an I-130 petition on Liu's behalf. (Id. at 225–26). Liu submitted a G-325A form stating that she was a housewife who had lived at a number of addresses in Texas, California, and Illinois in the preceding five years. (Id. at 231–34). Liu and Lam submitted a lease agreement, (id. at 248–51); automobile and life-insurance information, (id. at 252–65); Liu's driver's permit, (id. at 266); photographs, (id. at 270–74); ATM cards, (id. at 268–69); and a check from their joint bank account, (id. at 267). Liu also filed an I-485 application. (CAR2 32–38). Liu claimed that in April 2003, she had “abandoned” the prior I-485 application, filed after her marriage to Tran. (Id. at 33). Lam submitted an I-864 form supporting Liu. (Id. at 62–66).

The USCIS interviewed Liu and Lam about the I-130 petition and the I-485 application in March 2008. (Id. at 29). Liu and Lam submitted airline tickets they had purchased together, utility bills, phone bills, bank-account statements, and insurance policies. (CAR 97–99, 100–17, 118–221).

On December 18, 2008, in connection with the investigation into Tran's petition history, the USCIS issued a notice of intent to deny the I-130 petition Tran had filed for Liu. (CAR 287–88, 290–91). The notice mentioned Tran's previously filed I-130 petitions and emphasized Tran's statements that he had not previously been married on the I-130 petition he filed for Liu, even though he was married to two other women at that time. (Id. ). Based on its investigation, the...