Mamedov v. Barr

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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ZAUR MAMEDOV and BAKHRIYA AGAYEVA, : 20-CV-1063 (ARR)

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Plaintiffs, :

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-against- : OPINION & ORDER

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WILLIAM P. BARR, Attorney General et al., :

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Defendants. :

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ROSS, United States District Judge:

The government moves to dismiss this Administrative Procedure Act (“APA”) challenge

to the denial of an I-130 petition for failure to state a claim. Gov’t’s Mot. Dismiss 8–15 (“Gov’t’s

Mot.”), ECF No. 12-1. Though styled only as a motion to dismiss under Federal Rule of Procedure

12(b)(6), the government’s motion also raises a jurisdictional argument that plaintiffs’ claims are

moot, which I address under Federal Rule of Civil Procedure 12(b)(1). Plaintiffs Zaur Mamedov

and Bakhriya Agayeva oppose, arguing that their claims are not moot and that they have plausibly

pleaded that the agency’s denial was arbitrary and capricious and violated their procedural due

process rights. Pls.’ Opp’n 5–10, ECF No. 15. For the following reasons, I deny the government’s

motion as to plaintiffs’ arbitrary-and-capricious claim and grant the government’s motion as to

plaintiffs’ constitutional claims.

LEGAL BACKGROUND

Certain “immediate relatives” of U.S. citizens, including spouses, qualify for immigrant

visas to the United States by virtue of their family relationships. 8 U.S.C. § 1151(b). These visas

are attractive to applicants because no numerical limitations constrain the total number of visas

given to these types of relatives. Id. An I-130 petition “is the first step in helping an eligible

[immediate] relative apply to immigrate to the United States and get [a] Green Card.” I-130,

Petition for Alien Relative, U.S. Citizenship & Immigr. Servs. (“USCIS”),

https://www.uscis.gov/i-130 (last updated Feb. 19, 2021) (“USCIS I-130 Webpage”).1 A U.S.

citizen submits an I-130 petition to USCIS on behalf of a relative, who is considered the

beneficiary. See 8 U.S.C. § 1153(d). The agency then assesses whether the beneficiary qualifies as

an “immediate relative” under the Immigration and Nationality Act (“INA”). 8 U.S.C. §

1154(a)(1). If so, USCIS “shall . . . approve the petition.” 8 U.S.C. § 1154(b). “USCIS’s approval

of a petition does not automatically cause the agency to issue a visa or grant permanent lawful

resident status to the beneficiary; instead, the beneficiary receives a place in line to wait for a visa.”

Li v. Renaud, 654 F.3d 376, 378 (2d Cir. 2011); see also USCIS I-130 Webpage (“The filing or

approval of [an I-130] petition does not give [the beneficiary] any immigration status or benefit.”).

The decision of whether to grant or deny an immigrant visa occurs later, and the process is different

depending on the beneficiary’s preexisting immigration status. See USCIS I-130 Webpage.

If USCIS denies an I-130 petition, the applicant may appeal this decision to the Board of

Immigration Appeals (“BIA”) within the Department of Justice. See 8 C.F.R. §§ 103.3(a)(1)(ii),

1003.1(a)(1), 1003.1(b)(5). The BIA reviews USCIS’s decision de novo. 8 C.F.R. §

1003.l(d)(3)(iii).

One reason USCIS may deny an I-130 petition is if it finds that the beneficiary has engaged

in marriage fraud. INA § 204(c) provides that:

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

1 “Courts routinely take judicial notice” of “documents retrieved from official government

websites.” Wells Fargo Bank, N.A. v. Wrights Mill Holdings, LLC, 127 F. Supp. 3d 156, 166

(S.D.N.Y. 2015).

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).

FACTUAL BACKGROUND

Plaintiffs challenge the denial of an I-130 petition submitted by plaintiff Bakhriya Agayeva

on behalf of her husband, plaintiff Zaur Mamedov. Compl. ¶¶ 2, 7, ECF No. 1. USCIS denied Ms.

Agayeva’s I-130 petition for Mr. Mamedov on October 3, 2013, and the BIA affirmed the denial

on May 15, 2015. See BIA Decision 1, Compl. Ex. A. In adjudicating the appeal, the BIA reviewed

“the record of proceedings, including the decision of the Director, the May 14, 2013, Notice of

Intent to Deny (NOID) [Ms. Agayeva’s I-130 petition], [Ms. Agayeva]’s response to the NOID,

and [Ms. Agayeva]’s contentions on appeal.” Id.

The BIA noted that, in denying the petition, USCIS had found that Mr. Mamedov’s

previous marriage to Karen Anne Joyce “was entered into for the purpose of evading the

immigration laws and, consequently, came within the purview of section 204(c) of the Immigration

and Nationality Act, 8 U.S.C. § 1154(c).” Id. The BIA recounted that Ms. Joyce had filed an I-130

petition for Mr. Mamedov on July 9, 2003, but on December 18, 2006, she signed a sworn

statement that “she entered into the marriage with the beneficiary to ‘help him get his green card

and become a U.S. citizen,’ [and] that he offered to pay her $5000 that she expected to receive

‘when everything was approved.’” Id. Ms. Agayeva had argued that a recantation statement Ms.

Joyce gave in 2012, along with further “evidence of the bona fides of the marriage,” proves that §

204(c) should not bar approval of her I-130 petition for Mr. Mamedov. Id. at 1–2. But the BIA

found this evidence was insufficient “to overcome Ms. Joyce’s detailed statement made

contemporaneous to the interview on her petition.” Id. at 2. The BIA also examined tax returns, a

joint business license, and two letters from Mr. Mamedov’s friends in reaching this conclusion. Id.

at 1–2.

While not mentioned in the complaint or the BIA decision, the government submits that

USCIS determined that Mr. Mamedov’s marriage to Ms. Joyce was fraudulent in denying Ms.

Agayeva’s first I-130 petition on Mr. Mamedov’s behalf in 2010. See 2010 USCIS Denial 2–3,

Price Decl. Ex. B, ECF No. 12-4. Ms. Agayeva appealed that decision but later withdrew the

appeal, and the BIA dismissed it on April 23, 2012. See 2010 Appeal Notice, Price Decl. Ex. C,

ECF No. 12-5; 2010 Withdrawal, Price Decl. Ex. D, ECF No. 12-6; 2012 Appeal Dismissal, Price

Decl. Ex. E, ECF No. 12-7.

Plaintiffs filed their complaint on February 26, 2020. See Compl. The government filed the

instant motion to dismiss on December 21, 2020. Gov’t’s Mot. Plaintiffs filed their opposition on

January 11, 2021, Pls.’ Opp’n, and the government filed its reply on January 15, 2021, Gov’t’s

Reply, ECF No. 16.

LEGAL STANDARD

In reviewing a complaint for lack of subject matter jurisdiction under Federal Rule of Civil

Procedure 12(b)(1), I must “accept[] as true all material [factual] allegations of the complaint” and

“draw[] all reasonable inferences in favor of the plaintiff,” but I also may consider evidence outside

the pleadings submitted by either party. Carter v. HealthPort Techs., LLC, 822 F.3d 47, 56–57 (2d

Cir. 2016) (quoting Lunney v. United States, 319 F.3d 550, 554 (2d Cir. 2003)).

In reviewing a complaint for failure to state a claim under Federal Rule of Civil Procedure

12(b)(6), I must “constru[e] [it] liberally, accepting all factual allegations in the complaint as true,

and drawing all reasonable inferences in the plaintiff’s favor.” Bacon v. Phelps, 961 F.3d 533, 540

(2d Cir. 2020) (citation omitted). I may consider only those “facts stated on the face of

the complaint, in documents appended to the complaint or incorporated in the complaint by

reference, and to matters of which judicial notice may be taken.” Allen v. WestPoint-Pepperell,

Inc., 945 F.2d 40, 44 (2d Cir. 1991). “To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and quotation marks omitted). A claim is

facially plausible “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.

DISCUSSION

I. Plaintiffs’ Claims Are Not Moot.

The government argues that plaintiffs’ claims are moot because USCIS’s 2010

determination that Mr. Mamedov’s marriage to Ms. Joyce was fraudulent triggered a permanent

bar under INA § 204(c) such that the agency can never grant a subsequent I-130 petition for Mr.

Mamedov.2 Gov’t’s Mot. 14–15. “When a case becomes moot, the federal courts lack[] subject

matter jurisdiction over the action.” Fox v. Bd. of Trs. of State Univ. of New York, 42 F.3d 135,

140 (2d Cir. 1994) (citation and quotation marks omitted). Accordingly, courts evaluate mootness

on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1). Doyle v. Midland Credit

Mgmt., Inc., 722 F.3d 78, 80 (2d Cir. 2013). A case is moot when “it is impossible for the court to

grant any effectual relief whatever to a prevailing party.” In re Kurtzman, 194 F.3d 54, 58 (2d Cir.

1999) (citation and quotation marks omitted).

Here, plaintiffs seek an order either remanding the I-130 decision to the agency or granting

2 Even though the 2010 USCIS determination does not appear on the face of the complaint, I

unquestionably can consider this document in evaluating jurisdiction under Rule 12(b)(1). See

Carter, 822 F.3d at 56–57.

the petition. Compl. ¶ 18. In general, I have the power to issue either order. See, e.g., Simko v. BIA,

156 F. Supp. 3d 300, 317 (D. Conn. 2015). USCIS’s 2010 determination that Mr. Mamedov’s

marriage to Ms. Joyce was fraudulent does not change that. The BIA has held that in analyzing

whether § 204(c) precludes granting a particular visa petition, USCIS “should not give conclusive

effect to determinations made in a prior proceeding, but, rather, should reach [its] own independent

conclusion based on the evidence before [it.].” Matter of Pak, 28 I. & N. Dec. 113, 117 (BIA 2020)

(quoting Matter of Tawfik, 20 I. & N. Dec. 166, 168 (BIA 1990)). Accordingly, “the approvability

of the subsequent visa petition will depend on a determination of whether there is, at present,

sufficient evidence, inclusive of evidence relied upon in the determination of the first visa petition,

to support the contention that the beneficiary’s previous marriage to a United States citizen was

entered into for purposes of evading the immigration laws.” Id. at 117–18 (citation and quotation

marks omitted); see also Singh v. United States, No. 20-CV-799 (PAB), 2021 WL 229963, at *9

(N.D. Ohio Jan. 22, 2021).3 Therefore, if I remand Ms. Agayeva’s I-130 petition, USCIS would

be required to independently assess the applicability of § 204(c) based on the full evidentiary

record. Through that process, the agency could find that Mr. Mamedov never engaged in marriage

fraud and grant Ms. Agayeva’s petition on that basis. Thus, I could grant effectual relief in this

case, and the government’s mootness argument fails.

3 The two cases the government cites are unpersuasive. First, the court in Ruiz v. Dep’t of

Homeland Sec. did not rely on USCIS’s previous marriage-fraud determination in dismissing the

plaintiffs’ appeal of a subsequent I-130 petition but instead reviewed the entire administrative

record. No. 09-CV-95 (CFD), 2010 WL 3257641, at *4 (D. Conn. Aug. 16, 2010). Second, in

Samsundar v. Mukasey, a nonprecedential summary order, the Second Circuit held that it needed

not remand the appellant’s case for consideration of her appeal of the revocation of an I-130

form upon which she sought to adjust her status because an immigration judge found, and the

BIA affirmed, that she had entered into a fraudulent marriage. 296 F. App’x 106, 107 (2d Cir.

2008). But the court did not state whether the plaintiff had raised new evidence in her I-130

petition that could have called into question the immigration judge’s determination on marriage

fraud.

II. Plaintiffs Have Stated an Arbitrary-and-Capricious Claim Under the APA.

In addition to mootness, the government argues that collateral estoppel bars plaintiffs’

arbitrary-and-capricious claim challenging the 2015 BIA decision because USCIS’s 2010

determination that Mr. Mamedov’s marriage to Ms. Joyce was fraudulent has preclusive effect.

Gov’t’s Mot. 8–11. Plaintiffs counter that USCIS’s 2010 denial is outside the scope of my review

because the BIA did not rely on it in the 2015 decision under review, and that in any event,

collateral estoppel does not apply. Pls.’ Opp’n 5–6.

The APA requires agencies to engage in “reasoned decisionmaking,” Michigan v. EPA,

576 U.S. 743, 750 (2015) (citation omitted), and directs that a “reviewing court shall . . . set aside”

final agency actions that are “arbitrary” or “capricious,” 5 U.S.C. §§ 704, 706(2)(A). In applying

this standard, “a court is not to substitute its judgment for that of the agency.” FCC v. Fox

Television Stations, Inc., 556 U.S. 502, 513 (2009) (citation omitted). Rather, a court “must judge

the propriety” of agency action “solely by the grounds invoked by the agency,” SEC v. Chenery

Corp., 332 U.S. 194, 196 (1947), and supported by the “facts . . . before the agency at the time it

acted,” Dopico v. Goldschmidt, 687 F.2d 644, 654 (2d Cir. 1982) (citing Citizens to Pres. Overton

Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971), abrogated on other grounds by Califano v. Sanders,

430 U.S. 99 (1977)); see also Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.

Co., 463 U.S. 29, 50 (1983) (“It is well-established that an agency’s action must be upheld, if at

all, on the basis articulated by the agency itself.”); Camp v. Pitts, 411 U.S. 138, 142 (1973) (noting

that “the focal point for [APA] review should be the administrative record already in existence,

not some new record made initially in the reviewing court”). In other words, “courts may not

accept . . . counsel’s post hoc rationalizations for agency action.” State Farm, 463 U.S. at 50.

Plaintiffs’ arbitrary-and-capricious claim pertains only to the 2015 BIA decision affirming

USCIS’s 2013 denial of Ms. Agayeva’s I-130 petition for Mr. Mamedov. Compl. ¶¶ 7–8. The

administrative record has yet to be produced, but in its 2015 decision, the BIA stated that it found

Mr. Mamedov’s previous marriage to Ms. Joyce to be fraudulent based on Ms. Joyce’s 2005 sworn

statement, Ms. Joyce’s 2012 recantation, tax returns, a joint business license, and two letters from

Mr. Mamedov’s friends. BIA Decision 1–2. The government does not argue that the BIA’s

decision was reasonable based on this record. It instead justifies the agency’s decision only on the

ground that USCIS’s 2010 denial of Ms. Agayeva’s first I-130 petition for Mr. Mamedov has

preclusive effect. This is an impermissible “post hoc rationalization[].” State Farm, 463 U.S. at

50. The BIA did not deny Ms. Agayeva’s 2013 I-130 petition because of USCIS’s 2010 denial,

nor did it even mention that denial in its 2015 decision under review. Therefore, regardless of

whether the BIA could have relied on collateral estoppel to justify its 2015 decision, I “may not

accept” the government’s argument as a basis for dismissing plaintiffs’ arbitrary-and-capricious

claim because it was not one of the agency’s stated reasons for doing so.4 Id.; Chenery, 332 U.S.

at 196.

III. Plaintiffs Have Failed to State a Procedural Due Process Claim.

Plaintiffs assert an as-applied constitutional claim that “[t]he determination that Zaur

Mamedov’s marriage to Karen Anne Joyce was solely for immigration purposes violated

applicable law and the due process clause of the Fifth Amendment in not providing Mr. Mamedov

with meaningful access to assertedly derogatory information and in not affording him with a trial

type hearing before a neutral adjudicator on the issue of the bona fides of his marriage to Karen

4 Because the government’s argument based on the 2010 denial and related documents is

foreclosed as a post hoc rationalization, I need not decide whether these documents are integral

to the complaint such that I can consider their contents on a Rule 12(b)(6) motion.

Anne Joyce.”5 Compl. ¶¶ 16, 18. The government argues that this claim must be dismissed because

plaintiffs have not pleaded sufficient facts and in any event they failed to allege a protected liberty

interest or to provide a “statutory or other basis for any alleged right” to a “trial type hearing before

a neutral adjudicator.”6 Gov’t’s Mot. 12. Plaintiffs contend that they have a property interest in the

grant of an I-130 petition, which entitles them to due process protections. Pls.’ Opp’n 8–10.

I need not determine whether plaintiffs have a property interest in an I-130 grant because

regardless, they have failed to plead sufficient facts regarding the process they did receive. While

USCIS was required by regulation to disclose to plaintiffs all evidence on which it evaluated

marriage fraud, 8 C.F.R. § 103.2(b)(16)(ii), plaintiffs have not alleged that they lacked access to

any particular evidence. Nor did plaintiffs describe the process they received from the agency in

reviewing their I-130 petition beyond stating that they filed such a petition with USCIS and

appealed the denial to the BIA. Compl. ¶ 7. Plaintiffs claim their due process rights were violated

because they did not receive a “trial type hearing before a neutral decisionmaker,” but I cannot

evaluate the plausibility of this claim without a description of the process they actually received.

See, e.g., Zizi v. Bausman, 306 F. Supp. 3d 697, 708–09 (E.D. Pa. 2018) (evaluating due process

challenge to I-130 procedures based on process actually received), aff’d sub nom. Zizi v. Field

Office Dir., 753 F. App’x 116 (3d Cir. 2019).

5 Plaintiffs agreed to withdraw their Eighth Amendment claim. Pls.’ Opp’n 7. To the extent

plaintiffs also pleaded a facial constitutional challenge to INA § 204(c), they appear to have

abandoned it because they did not respond to the government’s arguments challenging it in their

opposition. See Jackson v. Fed. Exp., 766 F.3d 189, 198 (2d Cir. 2014) (“[I]n the case of a

counseled party, a court may . . . infer from a party’s partial opposition that relevant claims or

defenses that are not defended have been abandoned.”).

6 The government’s argument that plaintiffs’ due process claims are untimely fails because

plaintiffs only challenge the 2015 BIA decision. Pls.’ Opp’n 7; see Sai Kwan Wong v. Doar, 571

F.3d 247, 263 (2d Cir. 2009) (noting six-year statute of limitations applies to the APA).

Thus, I grant the government’s motion to dismiss plaintiffs’ constitutional claims without

prejudice.

CONCLUSION

For the foregoing reasons, I deny the government’s motion to dismiss plaintiffs’ arbitrary-

and-capricious claim, and I grant the government’s motion to dismiss plaintiffs’ constitutional

claims.

SO ORDERED.

____/s/_________________

Allyne R. Ross

United States District Judge

Dated: March 1, 2021

Brooklyn, New York