Iddrissu v. McAleenan

IN THE UNITED STATES DISTRICT

COURT FOR THE NORTHERN DISTRICT

OF ILLINOIS EASTERN DIVISION

SEIDU IDDRISSU and ROBIN SANDERS,

Plaintiffs,

Case No. 1:19-cv-04391

KEVIN MCALEENAN, et al., Judge Charles R. Norgle

Defendants.

ORDER

Defendants’ motion to dismiss for failure to state a claim [28] is granted. Civil case terminated.

MEMORANDUM OPINION

Seidu Iddrissu and Robin Sanders (“Plaintiffs”), who are husband and wife, bring this

action seeking declaratory judgment pursuant to the Administrative Procedure Act, 5 U.S.C. §

555(b). They assert that the denial of Sanders’ I-130 visa petition filed on behalf of her husband!

by U.S. Citizenship and Immigration Services (“USCIS”) was an arbitrary and capricious finding

that should be reversed. Defendants move to dismiss pursuant to Federal Rule of Civil Procedure

12(b)(6), arguing that the denial of the visa is supported by evidence in the record. Because the

Plaintiffs do not plausibly claim that the decision by USCIS was arbitrary and capricious, the

motion is granted.

' United States citizens and legal permanent residents may apply for an immigrant visa for their non-citizen spouses.

8 U.S.C. § 1151; 8 ULS.C. § 1255. Visa I-130, also called a Petition for Alien Relative, “is the first step in helping an

eligible relative apply to immigrate to the United States and get [sic] Green Card.” U.S. CITIZENSHIP AND

IMMIGRATION SERVICES, /-/30, Petition for Alien Relative, (June 16, 2021) available at https://www.uscis.gov/t-130.

Despite that its approval does not give the relative any immigration status or benefit, approval generally allows the

relative to apply to become a Lawful Permanent Resident. Id.

1, MOTION TO DISMISS STANDARD

Rule 8(a) of the Federal Rules of Civil Procedure requires that a complaint contain a “short

and plain statement of the claim showing that the plaintiff is entitled to relief.” Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 554-557 (2007). This statement must provide sufficient plausible facts

to put a defendant on notice of the claims against him. Brooks v. Ross, 578 F. 3d 574, 581 (7th

Cir. 2009). The complaint “must provide enough factual information to ‘state a claim to relief that

is plausible on its face’ and ‘raise a right to relief above a speculative level.’” Doe v. Village of

Arlington Heights, 782 F.3d 911, 914 (7th Cir. 2015) (quoting Twombly, 550 U.S. at 555, 570),

Rule 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). “A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Id. (citations and quotation marks omitted). In reviewing a

plaintiff's claim, the court “must construe all of the plaintiffs factual allegations as true, and must

draw all reasonable inferences in the plaintiff's favor.” Virnich v. Vorwald, 664 F.3d 206, 212

(7th Cir. 2011).

II], BACKGROUND

According to Plaintiffs’ complaint, Iddrissu, a native and citizen of Ghana, is now married

to Sanders, a U.S. citizen. He was previously married to a woman named Sivels, who is not a party

in this case, but who had previously filed an I-130 Petition for Alien Relative on Iddrissu’s behalf

in September 2005. Sivels ultimately withdrew that petition on October 31, 2006, and it was

officially denied in February 2007. The couple officially divorced in April 2013. Iddrissu and

Sanders later married in September 2013, and have resided together since then.

Approximately one month after marrying Iddrissu, Sanders filed her own I-130 Petition

for Alien Relative on his behalf. USCIS interviewed Plaintiffs, and Iddrissu claims to have testified

truthfully regarding his past and current marriage. On December 22, 2016, USCIS sent Plaintiffs

a notice of intent to deny letter (“NOID”). The NOID stated that there was substantial and

probative evidence to show that Iddrissu previously entered into a fraudulent marriage with Sivels

to obtain an immigration benefit, precluding him from the approval of any other visa petition on

his behalf. Dkt. 24-1 at 3; see Section 204(c) of the Immigration and Nationality Act, 8 U.S.C. §

1154(c) (“the marriage bar”). The evidence was Sivels’ own admission, against her own interest,

to USCIS that her marriage to Iddrissu was fraudulent; she “withdrew her petition [on behalf of

Iddrissu] . . . after admitting their marriage was fraudulent and was for the purpose of evading

immigration laws.” Dkt. 24-1 at 3. She admitted this “freely [and] under oath[.]” Id.

Specifically, Sivels admitted that: (1) Sivels met Iddrissu through a friend; (2) Iddrissu told

Sivels he needed a wife so he could stay in the United States; (3) Iddrissu offered to help Sivels

financially with her children; (4) Sivels never resided with Iddrissu during the duration of their

marriage; and (5) Sivels only called Iddrissu when she needed help or a favor. Dkt. 24-1 at 3.

Finally, USCIS found that “evidence corroborates Ms. Sivels’s admission of creating evidence in

order to make the marriage appear bona-fide and not [sic] for the purpose of evading immigration

law.” Id. at 4. USCIS informed Iddrissu and Sanders of their opportunity to rebut the derogatory

information and to submit within 30 days any additional evidence in support of the visa petition.

Id. According to Plaintiffs, they only received the above summary of the evidence referenced in

the NOID, rather than an actual copy of the alleged admissions made by Sivels. No further details

regarding the evidence was provided.

On January 18, 2017, Iddrissu and his attorney responded to the NOID with a notarized

statement from Sivels attesting to the bona-fide nature of her marriage to Iddrissu, contradicting

the substance of the NOID. Sivels, Sanders, and Iddrissu were not subsequently interviewed

regarding the allegations contained in the notice or Sivels’ second statement.

Citing the marriage bar of Section 204(c), USCIS denied Sanders’ petition on February 2,

2017 after finding that Iddrissu’s first marriage was not bona-fide. Dkt. 24-2. In its decision,

USCIS acknowledged that Plaintiffs:

“responded to the NOID on January 18, 2017 with a statement from

your attorney and Ms. Sivels [which] stated that the admission from

Ms. Sivels was coerced and was forced by USCIS’s overly

aggressive tactics. This assertion . . . is not substantiated by the

record, which shows that she freely and voluntarily provided her

statement when withdrawing her petition and the statement was

witnessed by two adjudicating officers as well as her attorney of

record. .. . Other than the statement provided by your attorney and

Ms. Sivels, there was no other evidence submitted to dissuade

USCIS from its earlier findings that that [sic] your husband's

previous marriage to Ms. Sivels was entered into for the sole

purpose of circumventing U.S. immigration laws.” Dkt. 24-2 at 3.

Plaintiffs appealed the denial of the petition to the Board of Immigration Appeals

(“Board”), but the Board dismissed the appeal on May 3, 2019. Reviewing the decision of the

Department of Homeland Security officer de novo, the Board noted that in her notarized letter,

Sivels “related that she and the beneficiary were married and lived together for 6 years; that the

marriage was based on mutual love and affection and that they established a life together; that she

accused the beneficiary of infidelity, that they argued often about small things, and that things that

were important to her were not important to him; and that they both decided to call it quits and he

filed for divorce.” Dkt. 28-2 at 2.2 The Board agreed with USCIS that Sivels’ first statement

? Plaintiffs’ complaint asserts that USCIS “[f]or the first time” in its decision described Sivels’ admission as (1) free

and voluntary, and (2) taken with witnesses present. Dkt. 24 at 7. However, the previously issued NOID (submitted

by Plaintiffs with their complaint) states that Sivels “freely admitted under oath that her marriage to your husband

[sic] for the purpose of your husband staying in the United States permanently[.]” Dkt. 24-1 at 2.

> Federal Rule of Civil Procedure 10 provides that a “copy of any written instrument which is an exhibit to a pleading

is a part thereof for all purposes.” Fed. R. Civ. P. 10(c). This can include Rule 12(b)(6) motions. Rosenblum v.

Travelbyus.com Ltd., 299 F.3d 657, 66] (7th Cir. 2002) (“[D]ocuments attached to a motion to dismiss are considered

part of the pleadings if they are referred to in the plaintiffs complaint and are central to his claim. Such documents

may be considered by a district court in ruling on the motion to dismiss.”) (citing Wright v. Assoc. Ins. Cos. Inc., 29

F.3d 1244, 1248 (7th Cir.1994)).

constituted substantial and probative evidence of marriage fraud for purposes of Section 204(c). It

said:

“In the letter submitted in response to the NOID, the petitioner’s

counsel suggests that [Iddrissu’s] former spouse was threatened by

immigration officials [to give her first statement]. However,

counsel’s statements are not evidence. . . . In her statement offered

in response to the NOID, [Sivels] does not describe any threats or

coercion; in fact, she does not explain or even acknowledge the

svatement she made in withdrawing the visa petition.” Dkt. 28-2 at

The Board further noted that Sivels’ response to the NOID contained no supporting

documentary evidence, and found that a joint lease and joint bank account records previously

submitted by Sivels in her visa petition did not rebut her withdrawal statement or satisfy Sanders’

burden to establish that the previous marriage was bona-fide. After the Board dismissed the

appeal, this suit followed.

Ill. ANALYSIS

At the agency level, a finding that Section 204(c) of the Immigration and Nationality Act,

8 U.S.C. § 1154(c)—the marriage bar—applies to an alien must be based on evidence that is

substantial and probative. Seghal v. Johnson, 105 F. Supp. 3d 860, 863 (N.D. Ill. 2015); Matter of

Tawfik, 20 I&N Dec. 166 (BIA 1990). Once USCIS has met this initial requirement, the burden

shifts back to the petitioner to rebut the Government’s evidence and establish that the prior

marriage was bona-fide and that Section 204(c) should not apply.

Pursuant to the Administrative Procedure Act (“APA”), a “person suffering legal wrong

because of agency action, or adversely affected or aggrieved by agency action within the meaning

of a relevant statute, is entitled to judicial review thereof,” including a Petition for Alien Relative,

which is a “final agency action for which there is no other adequate remedy.” 5 U.S.C. § 702, 705;

Seghal v. Johnson, 105 F. Supp. 3d 860, 863 (N.D. II. 2015). A court reviewing agency action

shall “hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law” or “unsupported by

substantial evidence.” 5 U.S.C. § 706(2). The APA “sets forth the full extent of judicial authority

to review executive agency action for procedural correctness.” Perez v. Mortg. Bankers Ass’n,

575 U.S. 92, 102 (2015) (quoting F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 513

(2009)). An agency must “examine the relevant data and articulate a satisfactory explanation for

its action including a rational connection between the facts found and the choice made.” Motor

Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

However, judicial review of agency decisions is “narrow.” F.C.C., 556 U.S. at 513; Marsh

v. Oregon Nat. Res. Council, 490 U.S. 360, 378 (1989) (“This inquiry must be searching and

careful, but the ultimate standard of review is a narrow one.”) (internal quotations omitted). Courts

apply an abuse of discretion standard, which is deferential. Ghaly v. I.N.S., 48 F.3d 1426, 1431

(7th Cir. 1995). Abuse of discretion may be found only if there is no evidence to support the

decision or if the decision is based on an improper understanding of the law. Joseph v. Landon,

679 F.2d 113, 116 (7th Cir. 1982) (affirming revocation of visa petition). The Board of

Immigration Appeals’ decision “need not be compelling, or even convincing, to be sufficient.”

Ghaly, 48 F.3d at 1431 (citing Achacoso-Sanchez v. I.N.S., 779 F.2d 1260, 1266 (7th Cir. 1985)).

The role of a court in conducting APA review is to “insist that the agency examine the relevant

data and articulate a satisfactory explanation for its action.” F.C.C., 556 U.S. at 513. A court may

not “substitute its judgment for that of the agency.” Id. A court will “uphold a decision of less

than ideal clarity if the agency’s path may reasonably be discerned.” Motor Vehicle Mfrs. Ass’n

of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. at 43. “Substantial evidence is evidence

a reasonable mind would find adequate to support a conclusion.” Ghaly, 48 F.3d at 1431.

Plaintiffs first argue that they proved Iddrissu’s first marriage was bona-fide by a

preponderance of the evidence. Dkt. 24 at 8. But the Court may not reweigh the evidence. Butera

Apfel, 173 F.3d 1049, 1055 (7th Cir. 1999); Tracie E. v. Saul, No. 120CV00307SEBMPB, 2021

WL 1135834, at *1-2 (S.D. Ind. Mar. 25, 2021) (ordering final judgment be entered in favor of

Commissioner of Social Security). Here, USCIS considered substantial evidence—a former

spouse’s own admission of fraud—when deciding that the former marriage was not bona-fide. The

Board cited directly to this evidence in the record, finding that Plaintiffs had “not submitted

sufficient evidence to show” the marriage was bona-fide. Dkt. 28-2 at 5. That adequately supports

its decision. Fliger v. Nielsen, 743 F. App’x 684, 688 (7th Cir. 2018) (even a statement that does

not explicitly confess to a sham marriage is sufficient to support an agency finding that a marriage

was fraudulent); Ghaly, 48 F.3d at 1431.

Plaintiffs also argue that the agency decision was based upon conjecture or assumption.

Dkt. 24 at 8. As USCIS and the Board articulated, though, there was good reason to find that

Sivels’ first statement was substantial and probative, even in light of her second statement. Fliger

v. Nielsen, 743 F. App’x at 688 (“[I]t was reasonable for the agency to discount Fred’s attempt to

recant his sworn statement. Courts tend to be suspicious of attempts to retract sworn testimony

after it produces some unfavorable result.”). Here, Sivels’ first statement was given voluntarily

and freely, under oath. Sivels never claimed to have been coerced and did not address or explain

why her first statement contradicted her second. The first statement, given under oath in front of

her own counsel and two adjudicating officers, is substantial and probative even when considered

next to Sivels’ second statement—a notarized letter submitted by Iddrissu’s counsel less than one

month after Iddrissu received a notice of intent to deny. In addition, the Board found that Sivels’

evidence submitted with her original petition, including a joint lease and joint bank account with

Iddrissu, did not rebut Sivels’ withdrawal statement. Thus, the decision was not “made without a

rational explanation, inexplicably departed from established policies or rest[] on an impermissible

basis such as invidious discrimination against a particular race or group.” Achacoso-Sanchez, 779

F.2d at 1265; see Mahler v. U.S. Forest Serv., 128 F.3d 578, 582 (7th Cir. 1997) (agency decision

did not entirely fail to consider an important aspect of the problem, offer an explanation that runs

counter to the evidence, or was so implausible that it could not be ascribed to a difference in view

or the product of agency expertise).

Next, Plaintiffs argue that the procedure followed by USCIS was improper.’ In a case

where a decision will be adverse to the applicant or petitioner, and “is based on derogatory

information . . . of which the applicant or petitioner is unaware, h/she shall be advised of this fact

and offered an opportunity to rebut the information and present information in his/her own behalf

before the decision is rendered.” 8 C.F.R. § 103.2(b)(16)(i). Here, Plaintiffs argue that the

statement summary provided by USCIS in the NOID was insufficient to allow them to rebut the

evidence, and that they should have been given a copy of the statement itself. They argue that they

did not know that her statement was witnessed by two officers and her attorney until the agency

issued its decision, which was too late to properly rebut the evidence.

The Court acknowledges that the Seventh Circuit has chastised agencies who do not

provide copies of statements like Sivels’ statement. Fliger v. Nielsen, 743 F. App’x 690, 690 (7th

Cir. 2018) (warning the agency that it should not assume that the Seventh Circuit will continue to

tolerate a summary as a general rule). However, at the same time, the Seventh Circuit in Fliger

held for Defendants despite that “the agency included no primary-source documents to support its

reasoning.” Id. at 687. Instead, the Seventh Circuit acknowledged “that a summary can suffice.”

* Defendants state that this argument appears to underlie a due process claim rather than the APA, which Plaintiffs do

not assert in their complaint. See Musunuru v. Lynch, 831 F.3d 880, 882 (7th Cir. 2016). Regardless, in considering

Plaintiffs’ procedural argument, the Court rules in Pefencants favor.

Id. at 689 (“In this case, the reason [for the decision] was so straightforward that the document

would not have been any more enlightening than the verbatim summary.”); see Ogbolumani v.

Napolitano, 557 F.3d 729, 735 (7th Cir. 2009) (nit-picking the exact characterization of the

evidence would overstep the court’s limited role); Ghaly v. I.N.S., 48 F.3d 1426, 1434 (7th Cir.

1995) (“The regulations do not mandate that [petitioners] must be provided an opportunity to view

each and every sworn statement.”).

The Court holds that the summary provided in this case was sufficient to allow Plaintiffs

to rebut the evidence. It included details about Sivels’ allegations, including that Iddrissu helped

her financially with children, she never lived with him, and she rarely called him. And Plaintiffs

were in fact given a reasonable opportunity to rebut this evidence, but failed; the additional

statement from Sivels herself was not enough. They had the opportunity to provide USCIS with

other evidence, but do not highlight any other such evidence in their complaint, and provided none

according to the Board. While Plaintiffs may not have known before the USCIS decision was

issued that others were present when Sivels gave her statement, the Court finds that they were still

“advised of [derogatory facts] and offered an opportunity to rebut the information and present

information in [their] own behalf before the decision [was] rendered.” 8 C.F.R. § 103.2(b)(16)(i).

IV. Conclusion

As a matter of law, Plaintiffs do not state a plausible claim. Taking all of their factual

allegations as true, the Court cannot draw the reasonable inference that Defendants are liable for

the misconduct alleged. This is because the conclusions of USCIS and the Board were not arbitrary

and capricious, or an abuse of discretion, but compelling; their reasoning was satisfactory and

adequate to support their findings. The motion to dismiss is granted.

IT IS SO ORDERED. ENTER:

CHARLES RONALD a

DATE: June 21, 2021 United States District Court