United States District Court, D. Massachusetts
MEMORANDUM OF DECISION AND ORDER FOR
TIMOTHY S. HILLMAN DISTRICT JUDGE
Rebecca Roman (“Roman”) and Oleg Bondarev
(“Bondarev”) seek review under the Administrative
Procedures Act, 5 U.S.C. §701, et seq.
(“APA”), of the United States Citizenship and
Immigration Service (“USCIS”) denial of their
Form I-130, Petition for Alien Relative (“I-130
petition”) and the Board of Immigration Appeals'
(“BIA”) affirmance of USCIS's decision. The
parties have filed cross-motions for summary judgment. For
the reasons set forth below, Plaintiffs' motion for
summary judgment is denied and Defendants'
motion for summary judgment is granted.
Judgment under the APA
summary judgment is appropriate where “there is no
genuine issue as to any material fact” and “the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(c)(2). However, “[t]his rubric has a
special twist in the administrative law context.”
Associated Fisheries of Maine, Inc. v. Daley, 127
F.3d 104, 109 (1st Cir. 1997). “Under the
APA, a reviewing court may only set aside an agency's
decision if it is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with the law,
” such as if it is ‘unsupported by substantial
evidence.'” Atieh v. Riordan, 797 F.3d
135, 138 (1st Cir. 2015) (“Atieh
II”); 5 U.S.C. §§706(2)(A), (E)).
“In making this determination, an agency's factual
findings are entitled to deference regardless of which party
has moved for summary judgment. Thus, the usual rules that
describe how the court must construe the summary judgment
record do not apply.” Sig Sauer, Inc. v.
Jones, 133 F.Supp.3d 364, 369 (D.N.H. 2015).
under the arbitrary and capricious standard is narrow, and
this Court “may not substitute its judgment for that of
the agency, even if it disagrees with the agency's
conclusions.” River St. Donuts, LLC v.
Napolitano, 558 F.3d 111, 114 (1st Cir.
2009). “Consequently, judicial review of agency
decisions is highly deferential. If the agency's decision
is supported by any rational view of the record, a reviewing
court must uphold it.” Atieh II, 797 F.3d at
138 (quotation marks and citations omitted).
is a native of Russia who entered the United States on
October 1, 2002, as a B-1 visitor. See Certified
Administrative Record (Docket No.
21)(“AR”), at 191. On June 29, 2005, he
married his first wife, Victoria Burns (“Burns”),
a United States Citizen, in Chicago, Illinois. Id..
at 255. On December 13, 2005, Burns filed an I-130 petition
on Bondarev's behalf. On June 21, 2006, Burns submitted a
signed “Withdrawing Petition For Alien Relative”
(“withdrawal request”) pursuant to which she
withdrew that I-130 petition. Id., at 250. In the
withdrawal request, she alleged that: (1) Bondarev approached
her and proposed marriage so that he could obtain a green
card; (2) Bondarev offered her “55 grams of
drugs” in exchange for marriage; (3) she and Bondarev
never lived together, and; (4) she had a “real”
boyfriend. Id. Burns indicates in the withdrawal
request that she gave her statement “freely and
voluntarily, ” and “without threat or coercion by
an Immigration Officer.” Id. Two USCIS
officers also signed their names on the withdrawal request as
witnesses to Burns' statement. Id. On July 28,
2006, USCIS sent a letter to Burns confirming her withdrawal
of the I-130 petition on Bondarev's behalf. Id.,
at 249. Burns did not contest the withdrawal of the petition
at the time this letter was issued, nor did she subsequently
file another I-130 petition for Bondarev. Bondarev and Burns
divorced on August 29, 2011. Id., at 191.
April 6, 2012, Bondarev married Roman, a United States
Citizen, in Worcester, Massachusetts. Roman filed an I-130
petition on Bondarev's behalf on July 24, 2012. On
December 3, 2012, Roman and Bondarev were interviewed at the
USCIS Field Office in Lawrence, Massachusetts in connection
with their I-130 petition. Id., at 24. During the
interview, Plaintiffs gave discrepant answers to questions
concerning: (1) when and how they met; (2) when Bondarev
moved to Massachusetts; (3) the physical appearance of their
shared home; (4) their activities on the morning of the
interview, and; (5) details about Roman's children,
including when and how her youngest child (who purportedly
lives in the marital residence) goes to school, and what
sport he plays after school. Id., at 13. In
addition, the documentary evidence provided by Plaintiffs
contradicted statements made during their interview as to
where they lived at various times. Id. In light of
these inconsistencies, USCIS issued a Notice of Intent to
Deny (“NOID”) the I-130 petition, explaining that
“the testimony under oath, as well as the evidence
submitted, failed to establish the claimed spousal
relationship for immigration purposes.” Id.,
at 24. The NOID allowed Roman to submit evidence to rebut the
derogatory information identified by USCIS. Id.
submitted a timely response to the first NOID. Id.,
at 138. Her response included an affidavit explaining the
couple's conflicting answers at the interview, as well as
additional documentary evidence. Id., at 111.
However, USCIS found that Plaintiffs had not satisfactorily
explained some of the most significant inconsistencies in the
record, and on May 22, 2014, issued a second NOID.
Id., at 17. The second NOID-citing Burns'
withdrawal request-also indicated that USCIS intended to find
that approval of any petition filed on Bondarev's behalf
was prohibited by 8 U.S.C. §1154(c) because his prior
marriage to Burns was fraudulent. Id., at 23. The
second NOID also allowed Roman to submit evidence to rebut
USCIS's allegations. Id.
submitted a timely response to the second NOID. Id.,
at 92. Her response included a recantation statement from
Burns, dated June 18, 2014, in which she claimed that her
marriage to Bondarev was “real” and “not
based on drugs or money.” Id., at 97. Burns
further stated in her recantation that, “[she] never
said that [Bondarev] gave her drugs, ” and that,
“55 grams of cocaine would keep a herd of elephants
drugged for a year.” Id. Roman's response
to the second NOID also included: (1) an affidavit from
Bondarev maintaining that his marriage to Burns was bona
fide; (2) a letter from one of Bondarev's friends to the
same effect; (3) a statement from Bondarev's former
landlord in Chicago, claiming that Bondarev and Burns lived
together from May 2005 to “2006 or 2007”; (4)
bank statements from Bondarev and Burns' joint bank
account, and; (5) a letter from Bondarev's employer,
dated June 16, 2014, indicating that during the previous four
years Bondarev had submitted to and passed various random
drug tests in the course of his employment. See Id.,
28, 2014, USCIS denied Roman's I-130 petition, finding
that (1) Roman and Bondarev had not sufficiently proven that
their marriage was bona fide, and (2) even if they had proven
their marriage was bona fide, 8 U.S.C. §1154(c)
prohibited approval of any I-130 petition filed on
Bondarev's behalf due to his prior fraudulent marriage to
Burns. Id., at 77. USCIS concluded that the
Roman's response to the second NOID did not overcome the
“substantial and probative evidence” of marriage
fraud in the record (i.e. Burns' withdrawal
request). Id. According to USCIS, Burns'
specific reference to “cocaine” in her
recantation statement-where in her withdrawal request she
referred only to “drugs”-reinforced the
reliability of the withdrawal because it provided additional
information about the alleged fraudulent scheme.
Id., at 86-87. USCIS gave less weight to the letter
from Bondarev's former landlord because it conflicted
with other documentation in the record, including a joint
bank account statement from 2010 listing Bondarev and Burns
as still residing at the address he claimed Burns left in
“2006 or 2007.” Id. USCIS also found
that the affidavit from Bondarev's friend, which
indicated that “[Bondarev] told [the friend] he caught
[Burns] in bed with another guy, ” was “contrary
to proving a bona fide marriage, ” and additionally
found that the letter from Bondarev's employer was
irrelevant, as there was never a question whether Bondarev
appealed USCIS's denial of their I-130 petition to the
BIA, and forwarded along with their appeal the results of a
polygraph test taken by Bondarev indicating that there was
“no deception” regarding his denial that he had
given drugs to Burns in exchange for marriage. On February
20, 2015, after conducting a de novo review of the record,
the BIA dismissed Plaintiffs' appeal and affirmed
USCIS's decision to deny the I-130 petition. The BIA
indicated that it was “unpersuaded that
[Bondarev's] self-serving statements regarding the
marriage (in his affidavit) are sufficient to overcome the
adverse information presented therein, ” and found that
the affidavit from Bondarev's friend insufficient because
it provided only general statements regarding Bondarev and
Burns' relationship. The BIA dismissed Plaintiffs'
argument that Burns denied signing ever signing the
withdrawal request, stating that it was “not persuaded
that [Burns] can reliably recollect whether she signed the
statement in June 21, 2006, in light of her acknowledged
substance abuse at that time, ” and agreed with USCIS
that the veracity of Burns' recantation was undermined
due to ...