Teovski v. United States Citizenship and Immigration Services

UMNIIDTEDDL ES TDAISTTERS IDCITS TORFI FCLTO CROIDURAT

TAMPA DIVISION

MARKO TEOVSKI,

Plaintiff,

v. CASE NO. 8:21-cv-272-SDM-UAM

UNITED STATES CITIZENSHIP AND

IMMIGRATION SERVICES, et al.,

Defendants.

___________________________________/

ORDER

After the United States Citizenship and Immigration Services (USCIS) denied

an I-130 visa petition that Marko Teovski, a United States citizen, filed on behalf of

Martina Copkov, who is both Teovski’s wife and a Serbian citizen, Teovski sues

(Doc. 14) and argues that the denial of the petition was arbitrary and capricious be-

cause USCIS relied on “collateral proceedings” and not on “substantial and proba-

tive evidence.” Teovski moves (Doc. 38) for summary judgment. The defendants re-

spond (Doc. 44). Teovski replies (Doc. 45) in support of his motion for summary

judgment. Separately, the defendants move (Doc. 39) for summary judgment, and

Teovski responds (Doc. 42).

BACKGROUND

In 2011, Copkov married Nemanja Mucibabic, a United States citizen. Muci-

babic filed with USCIS a visa petition for Copkov, and Copkov applied for status as

a lawful permanent resident of the United States. (Doc. 14 at 6) In 2014, Copkov

and Mucibabic divorced. Copkov withdrew her application for lawful permanent

residency. After their divorce, Mucibabic and Copkov failed to appear for an inter-

view with USCIS. Finding that Mucibabic and Copkov abandoned Mucibabic’s pe-

tition, USCIS denied the petition. (Docs. 19-1 at 301 and 42 at 2–3) The defendants

submit an investigative report of a 2014 interview with Copkov by the Department of

Homeland Security (DHS). According to the report, Copkov admitted during the in-

terview that her marriage to Mucibabic “was for the sole purpose to acquire immi-

gration status in the United States.” (Docs. 32-1 at 4 and 19-1 at 6) Less than a year

after her divorce from Mucibabic, Copkov married Ralph Sosa. (Doc. 19-1 at 109–

11) Copkov and Sosa divorced after four months.

In 2019, Copkov married Teovski, who petitioned USCIS for a visa for

Copkov. In 2021, Teovski sued and requested (Doc. 1) a writ of mandamus directing

the defendants to adjudicate the petition. The defendants issued a “notice of intent

to deny,” and Teovski responded. (Doc. 14 ¶¶ 29 and 30) After evaluating the re-

sponse, the defendants issued a second “notice of intent to deny,” to which Teovski

responded. (Doc. 14 ¶¶ 31 and 32) The defendants denied the petition and asserted

that “approval was prohibited under Section 204(c) of the Immigration and National-

ity Act” because Teovski failed to establish that Copkov’s earlier marriage to Muci-

babic “was bona fide and not a sham.” (Doc. 14 at 7 and 20) After the denial of the

petition, Teovski amended (Doc. 14) the complaint in this action to challenge the de-

nial.1

Teovski moves (Doc. 38) for summary judgment and contends (Doc. 14 ¶ 49)

that, because no substantial or probative evidence supports the denial, the denial was

arbitrary and capricious. The defendants respond (Doc. 44), and Teovski replies

(Doc. 45). Separately, the defendants move (Doc. 39) for summary judgment. Te-

ovski responds (Doc. 42).

ANALYSIS

Under 8 U.S.C. § 1154(a)(1)(A)(i), a United States citizen on behalf of an alien

spouse may petition the Attorney General for an immigrant visa.2 In accord with

8 C.F.R. § 204.2, a citizen files a visa petition on behalf of an alien spouse by submit-

ting a “Form I-130” 3 to USCIS. If the alien spouse was married to a different citizen

who petitioned on behalf of the spouse for an immigrant visa and if the earlier

1 A plaintiff challenging certain immigration decisions, such as a final order of removal, must

exhaust all administrative remedies, including any appeal to the Board of Immigration Appeals

(BIA). See Recinos v. U.S. Atty. Gen., 566 F.3d 965, 967 (11th Cir. 2009); De La Teja v. United States,

321 F.3d 1357, 1366 (11th Cir. 2003). But under Darby v. Cisneros, 509 U.S. 137, 153–54 (1993), “an

appeal to ‘superior agency authority’ is a prerequisite to judicial review only when expressly required

by statute or when an agency rule requires appeal before review and the administrative action is

made inoperative pending that review.” (emphasis in original) Because 8 C.F.R. § 1003.1(b) states

that petitioners “may” appeal to BIA decisions on visa petitions on behalf of an alien relative, the

appeal to BIA is not “expressly required,” and a petitioner may sue in federal court without appeal-

ing to BIA the denial of the petition. See Bangura v. Hansen, 434 F.3d 487, 494 (6th Cir. 2006); Sofiane

v. Dep’t of Homeland Sec., 2010 WL 1882267, at *6 (D. Conn. 2010) (Hall, J.); see also Mendoza v. Sec’y,

Dep't of Homeland Sec., 2015 WL 13310428 (M.D. Fla. 2015) (Sharp, J.) (granting summary judgment

on the merits of an action challenging the denial of an I-130 petition, which the plaintiff never ap-

pealed to the BIA), aff’d, 851 F.3d 1348 (11th Cir. 2017).

2 Section 1154(a) permits a citizen to petition on behalf of a “an immediate relative,” which

section 1151(b)(2)(A)(i) defines to include a citizen’s spouse.

3 https://www.uscis.gov/i-130.

marriage was “determined by the Attorney General to have been entered into for the

purpose of evading the immigration laws,” Section 1154(c) proscribes the approval of

any petition on behalf of the alien spouse, even if the alien spouse has married a dif-

ferent citizen. Eberheart v. U.S. Atty. Gen., 322 Fed. Appx. 827, 830 (11th Cir. 2009)

(“Once it is determined that a marriage — including a prior marriage — has been en-

tered for the purpose of evading immigration laws, no spousal visa petition will be

granted.”). If evidence in the record “indicate[s] that the beneficiary has been an ac-

tive participant in a marriage fraud conspiracy, the burden shifts to the petitioner to

establish that the beneficiary did not seek nonquota or preference status based on a

prior fraudulent marriage.” Matter of Kahy, 19 I. & N. Dec. 803, 806 07 (B.I.A.

1988). USCIS must deny under 8 C.F.R. § 204.2(a)(ii) any petition o–n behalf of an

alien spouse “who has attempted or conspired to enter into a marriage for the pur-

pose of evading the immigration laws.”

The Administrative Procedure Act permits a district court to “set aside” the

denial of a visa petition “only if [the denial] is ‘arbitrary, capricious, an abuse of dis-

cretion, or otherwise not in accordance with law,’ or ‘unsupported by substantial evi-

dence.’” Rojas v. Sec’y, Dep’t of Homeland Sec., 675 Fed. Appx. 950, 953 (11th

Cir. 2017) (citing 5 U.S.C. § 706(2)(A), (E) and citing Sanchez Jimenez v. U.S. Atty.

Gen., 492 F.3d 1223, 1230 (11th Cir. 2007)); see also Iyawe v. Garland, 28 F.4th 875,

879 (8th Cir. 2022) (“USCIS’s decision to deny an I-130 petition pursuant to

§ 1154(c) must be based on ‘substantial and probative evidence’ that there was an at-

tempt or conspiracy to evade immigration laws through a fraudulent marriage.”).

Review of an agency’s decision is “exceedingly deferential.” Mendoza v. Sec’y, Dep’t

of Homeland Sec., 851 F.3d 1348, 1352–53 (11th Cir. 2017), cert. denied sub nom. Men-

doza v. Duke, 583 U.S. 1040 (2017). USCIS need only “reach[] a rational conclu-

sion.” Mendoza, 851 F.3d at 1356 (citing Defs. of Wildlife v. U.S. Dep’t of the Navy, 733

F.3d 1106, 1115 (11th Cir. 2013)).

Based on a “review of the entire record,” USCIS determined that “substantial

and probative” evidence showed that Copkov’s marriage to Mucibabic was fraudu-

lent. Specifically, USCIS relied on a report of DHS’s 2014 interview with Copkov in

which Copkov reportedly stated that her marriage with Mucibabic was fraudulent.

Mendoza, 851 F.3d at 1355, explains that an agency may reasonably conclude that

the petitioner failed to prove the beneficiary’s eligibility for a visa if “unrebutted evi-

dence suggest[s] that the beneficiary previously sought a visa by operation of a fraud-

ulent marriage[.]” USCIS sent Teovski two notices of intent to deny and after each

notice permitted Teovski to submit additional evidence to support his petition. Te-

ovski responded to the notices and argued that the report of the interview was not

“substantial or probative evidence,” but Teovski adduced no evidence establishing

that Copkov’s earlier marriage to Mucibabic was legitimate. After receiving Te-

ovski’s response, USCIS, citing 8 U.S.C. § 1154 and 8 C.F.R. § 204.2, denied Te-

ovski’s petition. Because USCIS relied on evidence that Copkov told DHS that her

earlier marriage was fraudulent and because Teovski adduced no evidence that the

earlier marriage was legitimate, USCIS’s denial is neither arbitrary nor capricious

and is supported by “substantial evidence.”

Resisting this conclusion, Teovski argues that the investigative report, on

which the defendants rely to establish that Copkov’s earlier marriage to Mucibabic

was fraudulent, is not “substantial or probative evidence” because the report “is not a

sworn statement” and because the report is “double hearsay.” But “the Federal

Rules of Evidence do not apply in administrative proceedings.” Garces v. U.S. Atty.

Gen., 611 F.3d 1337, 1347 (11th Cir. 2010). If the evidence is uncontradicted, proba-

tive, and not fundamentally unfair, hearsay is generally admissible in immigration

proceedings. See Alvarez v. U.S. Att’y Gen., 787 Fed. Appx. 669, 671 (11th Cir. 2019)

(holding that “police reports, though hearsay, are admissible in administrative immi-

gration proceedings.”); Lemorin v. U.S. Att’y Gen., 416 Fed. Appx. 35, 40 (11th

Cir. 2011) (quoting Tashnizi v. INS, 585 F.2d 781, 782–83 (5th Cir. 1978), and citing

Zahedi v. INS, 222 F.3d 1157, 1164 n. 6 (9th Cir. 2000)); 32 Charles Alan Wright &

Arthur R. Miller, Federal Practice and Procedure § 8142 (2d ed.).

Despite two additional opportunities to submit evidence to show that

Copkov’s earlier marriage was legitimate, Teovski declined to submit evidence to

rebut the statements in the investigative report. The report was uncontradicted, pro-

bative, not fundamentally unfair, and supported by the evidence that Mucibabic and

Copkov divorced and abandoned the earlier petition on Copkov’s behalf. USCIS

reasonably concluded that the unrebutted report was “substantial and probative evi-

dence” of marriage fraud.

CONCLUSION

For these reasons and others stated in the defendants’ motion for summary

judgment, the defendants’ motion (Doc. 39) for summary judgment is GRANTED,

and Teovski’s motion (Doc. 38) for summary judgment is DENIED. The clerk must

enter judgment for the defendants and must close the case.

ORDERED in Tampa, Florida, on October 30, 2023.

STEVEN D. MERRYDAY

UNITED STATES DISTRICT JUDGE

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