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Atieh v. Riordan

United States District Court, District of Massachusetts

July 30, 2014

RANIAH FATHI ATIEH and FUAD FAROUQ ATIEH
v.
DENIS RIORDAN, Director, Boston Service Center, et al.

MEMORANDUM OF DECISION

RYA W. ZOBEL, UNITED STATES DISTRICT JUDGE.

This case is on remand from the Court of Appeals. See Atieh v. Riordan, 727 F.3d 73 (1st Cir. 2013). Presently before me are the parties’ cross-motions for summary judgment (Docket ## 37, 39). The issue is whether the administrative record sufficiently supports the Bureau of Immigration Appeals’ (“BIA”) affirmance of the United States Citizenship and Immigration Service’s (“USCIS”) denial of a Form I-130 Petition for Alien Relative[1] plaintiff Raniah Fathi Atieh filed on behalf of her husband and plaintiff Fuad Farouq Atieh on the ground that Fuad had previously entered into a marriage to evade the immigration laws. See 8 U.S.C. § 1154(c); Atieh, 727 F.3d at 76. I conclude that it does, and I therefore DENY plaintiff’s motion and ALLOW defendants’ motion.

I. Legal Standard[2]

I review the BIA’s decision pursuant to the Administrative Procedures Act. 5 U.S.C. §§ 701-706. My task is to examine the administrative record (“AR”) and set aside the BIA’s decision only if the AR shows it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. § 706(2)(A). A decision is arbitrary and capricious

if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983). I may not substitute my judgment for the BIA’s judgment, even if I disagree with its conclusions. Id.; River St. Donuts, LLC v. Napolitano, 558 F.3d 111, 114 (1st Cir. 2009). To prevail, plaintiffs must show that the evidence they presented was “‘so compelling that no reasonable fact finder could fail’ to find that he had a bona fide marriage.” Mendes v. INS, 197 F.3d 6, 13 (1st Cir. 1999) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)).

II. Analysis

The BIA affirmed the USCIS’s denial of plaintiff’s I-130 petition pursuant to section 204(c) of the Immigration and Nationality Act, which states:

Notwithstanding the provisions of subsection (b) of this section no petition shall be approved if (1) the alien has previously been accorded, or has sought to be accorded, an immediate relative or preference status as the spouse of a citizen of the United States or the spouse of an alien lawfully admitted for permanent residence, by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws, or (2) the Attorney General has determined that the alien has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws.

8 U.S.C. § 1154(c). To support a finding of marriage fraud, evidence of fraud “must be documented in the alien’s file and must be substantial and probative.”[3] Matter of Tawfik, 20 I. & N. Dec. 166, 167 (BIA 1990). And because Fuad’s first marriage occurred while he was in removal proceedings, plaintiffs must show by clear and convincing evidence that Fuad entered into his first marriage in good faith. 8 U.S.C. § 1255(e)(3).

The BIA concluded that plaintiffs failed to meet this standard for several reasons. First, Fuad testified that he and his parents, who persuaded him to marry Jamelih Khudari, his first wife, hoped that he would gain lawful permanent residence though the marriage. AR 6. Second, the record showed that Fuad pursued a relationship with Raniah before he married Jamelih, suggesting that he intended all along to marry Raniah. Id. 5-6. Third, there was no evidence that Fuad and Jamelih commingled marital funds because their bank statements showed little financial activity and a small balance. Id. 5.

Plaintiffs take issue with the BIA’s reliance on statements Fuad made during an interview with USCIS. In handwritten notes on a “Fraud Referral Sheet, ” a USCIS investigator recorded Fuad’s statement, “We all hoped I would get my residence here through [Jamelih].”[4] AR 515. In response, plaintiffs contend that “a beneficiary and petitioner and everyone in their respective families can hope that a beneficiary receives a green card through marriage.” Mem. in Supp. at 13. In other words, plaintiffs simply chose not to feign ignorance about the immigration consequences of their marriage. Perhaps so, but plaintiffs’ argument misses the mark because defendants, as the reviewing agency, are in a far better position than I am to make credibility judgments. See Syed v. Ashcroft, 389 F.3d 248, 251-52 (1st Cir. 2004). As applied here, defendants were better able to assess whether Fuad merely hoped to gain residency through his first marriage, or married to gain residency. Defendants reached the latter conclusion, and the record does not suggest that their judgment was unreasonable.

Plaintiffs also argue that defendants did not properly credit affidavits that Fuad and family and friends filed on their behalf. They make two claims: (1) defendants gave “little weight” or “cursory review” to these affidavits, see Mem. in Supp. at 15; and (2) defendants mischaracterized the affidavits as discussing only the general custom of arranged marriages between cousins rather than that custom as it applies to Fuad’s first marriage. Id. at 15-16. The BIA’s opinion acknowledges that it considered the affidavits. AR 4-5. Plaintiffs’ first argument is thus of no moment because it calls for me to second-guess the weight defendants assigned to particular pieces of evidence. So long as the record, viewed as a whole, contains substantial and probative evidence of fraud, I may not do that. Syed, 389 F.3d at 251 (quoting Elias-Zacarias, 502 U.S. at 481). As for their second argument, plaintiffs are correct that the affidavits are less generic than defendants admit. But that fact is of little significance. As the BIA acknowledged, arranged marriages are not per se fraudulent so long as the parties intended to establish a life together at the time they married. AR 5 (citing Bark v. INS, 511 F.2d 1200 (9th Cir. 1975)). Here, the record shows that Fuad pursued Raniah before he married Jamelih. AR 161. It also shows that plaintiff and Jamelih married in part to pacify their parents, who pressured them to wed. Id. 159, 164. These facts, together with Fuad’s remark about his family’s hope that he gain a favorable immigration status through the marriage, are enough for defendants to conclude the couple lacked the required intent. This is especially so given that the law required plaintiffs to show that intent by clear and convincing evidence. 8 U.S.C. § 1255(e)(3). Because defendants had an adequate basis in the record to conclude as they did, I may not disturb their conclusion.

Finally, plaintiffs contend that defendants did not properly analyze their bank statements and altogether ignored photographs of a trip they took to California, which purportedly shows their affection for each other. These arguments meet the same fate. Plaintiffs correctly point out that, contrary to the USCIS’s statement in its letter denying the petition, the couple’s bank account balance frequently exceeded $100, marginally suggesting greater commingling of marital funds. But given the other evidence in the record, this error is harmless. So, too, with the defendants’ failure to acknowledge and credit plaintiffs’ vacation photos.

In short, the record adequately supports defendants’ conclusion that plaintiffs cannot demonstrate by clear and convincing evidence that Fuad’s first marriage was bona fide.

III. Conclusion

Plaintiff’s motion for summary judgment (Docket # 39) is DENIED. Defendants’ motion for summary judgment (Docket # 37) is ALLOWED. Judgment may be entered for defendants.


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