finding that a one-sentence summary of the contents of an affidavit was sufficient because it provided “the crucial evidence” marking the marriage as fraudulent
How later courts described this case
- finding that a one-sentence summary of the contents of an affidavit was sufficient because it provided “the crucial evidence” marking the marriage as fraudulent
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
Ranjit Singh, et al., Case No. 1:20cv799
Plaintiffs,
-vs- JUDGE PAMELA A. BARKER
United States of America, MEMORANDUM OPINION AND
et al., ORDER
Defendants
This matter concerns the denial of a Form I-130 Petition for Alien Relative (“Form I-130
Petition”) filed by Plaintiff Kristine Singh (hereinafter “Ms. Singh”) on behalf of her husband
Plaintiff Ranjit Singh (hereinafter “Mr. Singh”). Ms. Singh’s Form I-130 Petition was denied by the
United States Citizenship and Immigration Services (“USCIS”) and the denial was affirmed by the
Board of Immigration Appeals (“BIA”). Plaintiffs seek review under the Administrative Procedure
Act (“APA”), 5 U.S.C. § 701 et seq.
Currently pending is the Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) filed by
Defendants United States of America; William P. Barr, Attorney General of the United States; Chad
Wolf, Acting Secretary of the Department of Homeland Security (“DHS”); Kenneth Cuccinelli,
Senior Official Performing Duties of the Director of USCIS; Anna Chau, District Director of USCIS
District N12; and Karyn Zarlenga, Cleveland Field Office Director of USCIS.1 (Doc. No. 5.)
Plaintiffs filed a Brief in Opposition on August 10, 2020, to which Defendants replied on August 24,
1 In the Complaint, Plaintiffs name Mark Koumans as the Director of USCIS and Mark Hansen as the District Director
of USCIS. (Doc. No. 1.) Pursuant to Fed. R. Civ. R. 25(d), Kenneth Cuccinelli and Anna Chau are substituted in place
of these Defendants, respectively. See Doc. No. 5 at p. 1.
2020. (Doc. Nos. 6, 7.) Plaintiffs thereafter filed a Response to Defendants’ Reply, which Defendants
have moved to strike. (Doc. Nos. 8, 9.)
For the following reasons, Defendants’ Motion to Strike (Doc. No. 9) is DENIED.
Defendants’ Motion to Dismiss (Doc. No. 5) is GRANTED IN PART and DENIED IN PART, as set
forth herein.
I. Background
The Complaint contains the following factual allegations. In September 1990, Mr. Singh
entered the United States without inspection at or near Brownsville, Texas. (Doc. No. 1 at ¶ 15.)
Eleven years later, in 2001, Mr. Singh married Heidi Newrones (hereinafter “Ms. Newrones”), a
United States citizen. (Id. at ¶ 16.) Ms. Newrones subsequently filed a Form I-130 Petition on Mr.
Singh’s behalf, and Mr. Singh concurrently filed a Form I-485 Application to Register Permanent
Residence or Adjust Status.2 (Id.)
Mr. Singh’s and Ms. Newrones’s marriage came to an end in 2003. Specifically, a Petition
for Dissolution of Marriage was filed on June 11, 2003 and an Entry and Decree of Dissolution of
Marriage was thereafter issued on August 28, 2003. (Id. at ¶ 17.) Two years later, in August 2005,
Ms. Newrones’s Form I-130 Petition was denied “as the marriage between Mr. Singh and Ms.
Newrones was terminated.” (Id. at ¶ 18.) In addition, Mr. Singh’s Form I-485 Petition was
administratively closed “as USCIS did not have jurisdiction to adjudicate the application, as Mr.
2 As discussed infra, the Immigration and Nationality Act (“INA”) provides that U.S. citizens may file a Form I-130
petition for classification of their alien spouse as “immediate relative status.” 8 U.S.C. § 1154. When a United States
citizen files a Form I-130 Petition, the government is required to review and adjudicate the petition. 8 U.S.C. §§
1151(b)(2)(A)(i), 1154. If the Form I-130 Petition is approved, the non-citizen spouse may apply for lawful permanent
resident status. See 8 U.S.C. § 1255(a). See Makhamreh v. Attorney General Dep’t of Justice, 2020 WL 6146593 at * 4
(S.D. Ohio Oct. 20, 2020); Sholanke v. U.S. Citizenship & Immigration Services, 2020 WL 1452449 at *4 (N.D. Ohio
March 25, 2020).
2
Singh was still under the jurisdiction of the Immigration Judge.” (Id.) See also Doc. No. 1-3 at
PageID# 14.
Several years later, on May 6, 2013, Mr. Singh married Plaintiff Kristine Singh (then-known
as Kristine Vincent) in Cleveland, Ohio. (Id. at ¶ 19.) Ms. Singh subsequently filed the instant Form
I-130 Petition on Mr. Singh’s behalf. (Id.) Attachments to the Complaint indicate that Ms. Singh
submitted various evidence in support of the Petition, including (1) joint checking account statements;
(2) bank cards; (3) a copy of a lease agreement for Plaintiffs’ purported marital residence; (4) various
bills in Mr. Singh’s name; (5) a Verizon wireless call log; (6) copies of Plaintiffs’ marriage license
and marriage record; (7) a copy of the Separation Agreement and Entry and Decree of Dissolution of
Marriage between Mr. Singh and Ms. Newrones; (8) six notarized statements attesting to the validity
of Plaintiffs’ marriage; and (9) copies of various photographs. See Doc. No. 1-3 at PageID#s 14-15.
In March 2016, Mr. and Ms. Singh appeared for an interview with an Immigration Services
officer in connection with the Form I-130 Petition. (Doc. No. 1 at ¶ 20.) Based on statements made
by Plaintiffs during the interview, and USCIS’s review of the evidence submitted, USCIS determined
that “the testimony and documentary evidence in the record did not establish the claimed relationship”
between Mr. and Ms. Singh. (Doc. No. 1-3 at PageID# 15.) USCIS therefore referred Ms. Singh’s
Form I-130 Petition for “further investigation regarding the bona fides of [Plaintiffs’] current
marriage and [Mr. Singh’s] prior marriage to Heidi Newrones.” (Id.)
“Unbeknownst to Plaintiffs,” immigration officials subsequently contacted Ms. Newrones in
August 2016 regarding her previous marriage to Mr. Singh. (Doc. No. 1 at ¶ 21.) USCIS later
summarized its conversation with Ms. Newrones as follows:
USCIS officers spoke with the beneficiary's prior spouse, Heidi Newrones. Newrones
stated that she met the beneficiary through a friend who worked with the beneficiary's
3
cousin and had known him for seven years prior to the marriage. She admitted the
beneficiary asked her several times to marry him as a favor before she complied. She
stated that she felt bad and was concerned for his safety if he returned back to India.
She stated they signed a lease together at 147 Deerfield Lane, Aurora, Ohio, however
the beneficiary never moved in with her. She stated the beneficiary lived in Maple
Heights, exact address was unknown. She stated the beneficiary paid half the rent.
She stated the marriage was never consummated and a bona fide girlfriend/boyfriend
relationship never existed and admitted it was not a real marriage. She stated that she
was never paid to marry the beneficiary and admitted to being in a relationship with
her current spouse during the entire marriage.
(Doc. No. 1-3 at PageID#s 15-16.) In the Complaint, Plaintiffs allege that Ms. Newrones was coerced
into making the above statements, alleging that “immigration officials confronted Ms. Newrones,
accused her of fraud, and threatened her with fines and jail time if she did not admit her marriage to
Mr. Singh was a sham.” (Doc. No. 1 at ¶ 21.) In addition, Plaintiffs allege that, at the time of her
interview with USCIS, Ms. Newrones was in severe pain and awaiting back surgery. (Id.)
Attachments to the Complaint indicate that USCIS also conducted an unannounced visit to
Plaintiffs’ marital residence as part of its further investigation regarding Ms. Singh’s Form I-130
Petition. (Doc. No. 1-3 at PageID# 16.) The Immigration officers noted that Mr. Singh was not at
the residence at the time of the visit and, further, that a visual inspection of the residence revealed
“minimum [sic] personal belongings” of Mr. Singh.3 (Id. at PageID#s 16-17.) The officers noted
that there were no daily transactions or withdrawals in the Plaintiffs’ joint checking account and that
Ms. Singh admitted she had a personal account at a different bank which she used on a daily basis.
(Id.) The USCIS officers then visited the home of Ms. Singh’s mother, Linda Abood. (Id. at PageID#
17.) According to the officers, Ms. Abood made several statements that contradicted statements made
3 During the March 2016 interview, Plaintiffs stated that Mr. Singh worked in Akron and that he sometimes spent the
night in Akron with a friend because he (Mr. Singh) did not have a driver’s license and Ms. Singh did not drive on the
highway. (Doc. No. 1-3 at PageID# 15.) Ms. Singh reiterated this information during the officers’ unannounced visit.
(Id. at PageID# 16.)
4
by Ms. Singh. (Id.) Lastly, the USCIS officers visited one of Plaintiffs’ neighbors. (Id.) This
neighbor was able to identify Ms. Singh and her two children but did not recognize a photo of Mr.
Singh. (Id.)
On August 10, 2017, USCIS issued a Notice of Intent to Deny (“NOID”) Ms. Singh’s Form
I-130 Petition. (Id. at ¶ 22.) Therein, the USCIS advised Ms. Singh that “the evidence supporting
the Form I-130 Petition was insufficient to establish eligibility for the benefit sought.” (Doc. No. 1-
3 at PageDI#s 17-18.) Plaintiffs do not attach the NOID to the Complaint; however, the subsequent
decision of the USCIS denying the Petition indicates that the NOID specifically cited the
“discrepancies and evidentiary shortcomings” discussed above and provided Plaintiffs the
opportunity to respond. (Id. at PageID# 18.)
On September 18, 2017, Plaintiffs responded to the NOID and submitted additional pieces of
evidence in support of the Petition, including (1) a brief from Plaintiffs’ attorney; (2) copies of joint
bank statements and personal money orders; (3) utility bills; and (4) affidavits from Ms. Singh, Mr.
Singh, and Ms. Singh’s son M. R. (Doc. No. 1 at ¶ 23; Doc. No. 1-3 at PageID# 18.) In addition, on
May 2, 2018, Plaintiffs submitted additional evidence in support of the Petition, after requesting and
receiving information in response to a Freedom of Information Privacy Act (“FOIA”) request. (Doc.
No. 1-3 at PageID# 18.) The additional evidence submitted in support of the Petition included the
following: (1) a brief from Plaintiffs’ attorney; (2) copies of letters from USCIS’s FOIA Operations
division; (3) copies of six redacted affidavits obtained via Plaintiffs’ FOIA request; and (4) copies of
an Immigration Officer’s notes, also obtained via the FOIA request. (Id.)
5
According to USCIS’s summary,4 in his affidavit, Mr. Singh averred that he did not marry
either Ms. Newrones or Ms. Singh for immigration purposes. (Id. at PageID# 19.) He explained that
he did not have substantial personal items at his marital residence with Ms. Singh “as he sometimes
remains in Akron because of work.” (Id.) He further stated that there were, in fact, other personal
items of his in the marital residence that USCIS did not see during the unannounced visit. (Id.)
Likewise, in her affidavit, Ms. Singh insisted that she and Mr. Singh are in a bona fide relationship.
(Id. at PageID# 18.) She explained that, due to several health issues, she is unable to drive Mr. Singh
back and forth from his job in Akron and, therefore, many nights he has to stay in Akron. (Id. at
PageID# 18.) Ms. Singh indicated that she and Mr. Singh do, in fact, regularly use their joint bank
account and, further, that many of Mr. Singh’s personal belongings are located at their marital
residence. (Id.) Finally, Ms. Singh indicated that her mother (Ms. Abood) may have been confused
by the Immigration officers’ questions, and that the neighbor may not have ever seen Mr. Singh
because of his (Mr. Singh’s) work schedule in Akron. (Id.)
On July 13, 2018, USCIS issued a lengthy decision in which it denied Ms. Singh’s Form I-
130 Petition. (Doc. No. 1 at ¶ 23.) Specifically, after discussing all of the above in detail, the USCIS
determined that (1) “the record contains substantial and probative evidence demonstrating that [Mr.
Singh] married Heidi Newrones for the purpose of evading the immigration laws;” and (2) “you have
failed to demonstrate by a preponderance of the evidence that you and your spouse have entered into
4 The Court does not have the Administrative Record before it at this stage of the proceedings, and Plaintiffs do not attach
the affidavits in support of Ms. Singh’s Form I-130 Petition to the Complaint. The above summary of these affidavits is
taken from the July 30, 2018 USCIS decision denying the Petition, which is attached to the Complaint as Doc. No. 1-3.
Neither party argues that this Court is precluded from considering the attachments to the Complaint (including the July
30, 2018 USCIS decision) in resolving the instant motion. See Bassett v. National Collegiate Athletic Ass'n., 528 F.3d
426, 430 (6th Cir.2008) (finding that, in ruling on a Rule 12(b)(6) motion, a court “may consider the Complaint and any
exhibits attached thereto, public records, items appearing in the record of the case and exhibits attached to defendant’s
motion to dismiss so long as they are referred to in the Complaint and are central to the claims contained therein.” )
6
a bona fide marital relationship and not for the purpose of obtaining immigration benefits for your
spouse.” (Doc. No. 1-3 at PageID# 20.)
On August 9, 2018, Plaintiffs timely appealed the USCIS decision to the Board of
Immigration Appeals (“BIA”). (Doc. No. 1 at ¶ 24.) On September 10, 2018, Plaintiffs’ counsel
submitted a brief in support of the appeal, which included additional evidence in support of Ms.
Singh’s Petition. (Id. at ¶ 25.) This additional evidence included (1) affidavits from Ms. Newrones,
Mr. Singh, and Ms. Singh; (2) a lease agreement; (3) letters from loved ones; and (4) utility bills,
joint bank account statements, and an auto insurance policy. (Id.)
Plaintiffs attach Ms. Newrones’s affidavit as an Exhibit to the Complaint. It is dated August
30, 2018 and provides (in relevant part) as follows:
1. I was formerly married to Ranjit Singh. We later divorced and I then married my
current husband, and took his last name, "Fredrickson."
2. I married Ranjit in good faith, and because I loved him.
3. As I asserted to the USCIS-- nobody paid me or gave me anything of value to
induce me to marry Ranjit.
***
6. The USCIS officer accused me of entering into a sham marriage to help Ranjit get
his "green card." The USCIS officer accused me of "defrauding the USA" or
something like that, and threatened me with jail time, fines, or both. I was in severe
pain and awaiting back surgery. I was weak and felt alone. I was vulnerable and felt
threatened. The USCIS officer saw my weakness and coerced me into saying things
that were not true.
7. Hence I want to set the record straight:
a. I did live with Ranjit; we had a lease for our apartment at 147 Deerfield Lane
in Aurora, OH. As my husband, Ranjit did pay half the rent.
7
b. I did consummate my marriage with Ranjit; I lied earlier because I felt
threatened and ashamed, thinking that USCIS would besmirch my reputation
before my family and children.
c. I shared a joint bank account with Ranjit at First National Bank of Ohio, (now
PNC Bank), Aurora, Ohio into which we deposited money we earned and paid
our bills. Ranjit did contribute to our household.
d. My children loved Ranjit; he used to do things with them, such as take them
to get ice cream as a treat. My children still love him.
e. My sister . . . knew I was married to Ranjit.
f. I did not marry Ranjit as a "favor," as the USCIS states. I knew Ranjit for
several years before we got married. I got to know and love the kind of man
that he was.
g. Ranjit told me openly about his immigration status, because he did not want
to "surprise" me or make me feel like he had married me just so I could help
him. I married Ranjit because I loved him and because when you love someone,
you want to help them.
8. Our marriage fell apart because of Ranjit's work schedule - as a truck driver, he
was gone from our home for extended periods of time and I became lonely. I really
needed a husband and a father for my children.
9. Ranjit is a really, really good guy. If he were not, I would not have married him.
10. I married Ranjit in good faith, for love, and not for money, or to help him with
"immigration."
11. I am able to state these facts now because I am strong in my marriage and trust
my husband, and my husband understands the prior relationship I had with Ranjit.
(Doc. No. 1-2.)
On November 18, 2019, the BIA conducted a de novo review and dismissed the appeal. In
relevant part, the BIA found as follows:
We will affirm the Director's determination of fraud in the beneficiary's prior marriage.
Section 204(c) of the Act provides for a mandatory bar to the approval of any
subsequent visa petition filed on behalf of an alien who previously was found to have
entered into a marriage in order to evade immigration laws. Matter of Cabeliza, 11
8
I&N Dec. 812 (BIA 1966). Our decision in Matter of Tawfik, 20 I&N Dec. 166 (BIA
1990), states that the evidence of a fraudulent marriage "must be documented in the
alien's file and must be substantial and probative." Id. at 167. Further, the "[D]irector
should not give conclusive effect to determinations made in a prior proceeding." Id. at
168. Where the record contains evidence that the beneficiary married a United States
citizen to evade immigration laws, the burden then shifts to the petitioner to establish
that the beneficiary did not seek an immigration benefit based on a prior fraudulent
marriage. Matter of Kahy,19 I&N Dec. 803, 806-07 (BIA 1988).
In this matter, the record contains the memorialization by a USCIS officer of a
telephone conversation with the beneficiary's prior spouse, in which she admitted to
marrying the beneficiary as a "favor" in view of his lack of immigration status but
denied receiving compensation to do so. According to the notes of this telephone
conversation, which occurred in August 2016, the former spouse stated that the
beneficiary never lived with her and the marriage was never consummated.
Furthermore, the former spouse stated that she was in a relationship with another man
during her entire marriage to the beneficiary. On appeal, the petitioner submits a
sworn affidavit from the beneficiary's prior spouse disavowing her August 2016
statements to users and stating that she did not marry the beneficiary for immigration
reasons, but rather that she married him for bona fide reasons after knowing him for
several years. See Petitioner's Br. at Attachment A. The petitioner does not indicate
why this affidavit was not provided previously in response to the NOID. Therefore,
we will not consider it for the first time on appeal. See Matter of Fedorenko, 19 I&N
Dec. 57, 74 (BIA 1984).
In view of the entire record including the prior spouse's statement to officers, her new
affidavit, and the lack of evidence in the record indicating that the beneficiary and his
prior spouse shared a bona fide relationship, we find that the evidence of a
fraudulent marriage in this record is "substantial and probative" and that, therefore,
the denial of the instant visa petition is supported on this record. Matter of Tawfik, 20
I&N Dec. at 167.
(Doc. No. 1-6.)
On April 14, 2020, Plaintiffs filed the instant action, challenging the denial of Ms. Singh’s
Form I-130 Petition. (Doc. No. 1.) The Complaint does not set forth specific Counts but, rather, sets
forth a series of single-sentence paragraphs which it describes as “Claims.” (Id. at pp. 7-8.) In these
“Claims,” Plaintiffs allege that the USCIS decision denying Ms. Singh’s Form I-130 Petition:
“violated the governing statute and regulations, is arbitrary and capricious, an
abuse of discretion, and not otherwise in accordance with law;”
9
“was improper, as USCIS based its conclusions on conjecture and speculation,
instead of fact;”
“is based on flawed reasoning;” and
“is unsupported by the evidence in the record.”
(Id. at p. 7.) In addition, Plaintiffs allege that the “decision denying Plaintiffs’ 2015 I-130 Petition”:
“failed to reach an independent conclusion based on the evidence and violates
Matter of Tawfik, 20 I&N Dec. 166 (BIA 1990);”
“was incorrect because Mr. Singh’s file does not contain substantial and
probative evidence that he attempted or conspired to enter into a marriage for
the purpose of evading immigration laws;” and
“failed to permit Plaintiffs’ [sic] the opportunity to examine and rebut adverse
evidence in violation of 8 C.F.R. § 103.2(b)(16).”
(Id.) Finally, Plaintiffs allege that their due process rights were violated because they were not given
the opportunity to examine and rebut adverse evidence. (Id. at p. 8.)
On July 15, 2020, Defendants filed a Motion to Dismiss the Complaint in its entirety for
failure to state a claim upon which relief may be granted pursuant to Fed. R. Civ. P. 12(b)(6). (Doc.
No. 5.) Plaintiffs filed a Brief in Opposition on August 10, 2020, to which Defendants replied on
August 24, 2020. (Doc. Nos. 6, 7.) On September 2, 2020, Plaintiffs filed a sur-reply to Defendants’
Reply Brief. (Doc. No. 8.)
On that same date, Defendants filed a Motion to Strike Plaintiffs’ sur-reply, on the grounds
that Plaintiffs failed to either seek leave or demonstrate that a sur-reply is warranted. (Doc. No. 9.)
Plaintiffs did not file a response. Upon review, the Court declines to strike Plaintiffs’ sur-reply.
Although Defendants are correct that Plaintiffs failed to properly seek leave before filing their sur-
reply, courts have found that motions to strike are disfavored and should be sparingly granted because
they are a “drastic remedy.” Braun v. Ultimate Jetcharters, Inc., 2014 WL 12584328 at * 1 (N.D.
10
Ohio Feb. 25, 2014) (quoting Resolution Trust Corp. v. Vanderweele, 833 F. Supp. 1383, 1387 (N.D.
Ind. 1993)). See also Brown & Williamson Tobacco Corp. v. United States, 201 F.2d 819, 822 (6th
Cir. 1953). Here, the Court prefers to resolve the issues on the merits rather than through a motion
to strike. Accordingly, Defendants’ Motion to Strike (Doc. No. 9) is denied. Plaintiffs, however, are
reminded of their obligation to seek leave before filing any sur-replies in the instant action, and
expressly cautioned that the failure to seek leave may result in the striking of any future non-
compliant filings.
The Court will now proceed to consider Defendants’ Motion to Dismiss pursuant to Fed. R.
Civ. P. 12(b)(6).
II. Standards of Review
A. Fed. R. Civ. P. 12(b)(6)
Under Fed. R. Civ. P. 12(b)(6), the Court accepts the plaintiff’s factual allegations as true and
construes the Complaint in the light most favorable to the plaintiff. See Gunasekara v. Irwin, 551
F.3d 461, 466 (6th Cir. 2009). In order to survive a motion to dismiss under this Rule, “a complaint
must contain (1) ‘enough facts to state a claim to relief that is plausible,’ (2) more than ‘formulaic
recitation of a cause of action's elements,’ and (3) allegations that suggest a ‘right to relief above a
speculative level.’” Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009)
(quoting in part Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–556 (2007)).
The measure of a Rule 12(b)(6) challenge — whether the Complaint raises a right to relief
above the speculative level — “does not ‘require heightened fact pleading of specifics, but only
enough facts to state a claim to relief that is plausible on its face.’” Bassett v. National Collegiate
Athletic Ass'n., 528 F.3d 426, 430 (6th Cir.2008) (quoting in part Twombly, 550 U.S. at 555–556).
11
“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.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). Deciding whether a complaint states a claim for relief that is plausible is
a “context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Id. at 679.
Consequently, examination of a complaint for a plausible claim for relief is undertaken in
conjunction with the “well-established principle that ‘Federal Rule of Civil Procedure 8(a)(2) requires
only a short and plain statement of the claim showing that the pleader is entitled to relief.’ Specific
facts are not necessary; the statement need only ‘give the defendant fair notice of what the ... claim
is and the grounds upon which it rests.’” Gunasekera, 551 F.3d at 466 (quoting in part Erickson v.
Pardus, 551 U.S. 89 (2007)) (quoting Twombly, 127 S.Ct. at 1964).
B. The Administrative Procedure Act (“APA”)
District courts have jurisdiction to review a decision on the merits of a Form I–130 petition
to classify an alien as a relative of a United States citizen. Adi v. U.S., 498 Fed. Appx. 478, 480 (6th
Cir. 2012) (citations omitted). See also Daraghma v. U.S. Citizenship and Immigration Services, 228
F.Supp.3d 818, 822 (N.D. Ohio 2017). Pursuant to the APA, courts 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.” 5 U.S.C. § 706(2)(A). An agency decision is
arbitrary and capricious if the agency fails to examine the relevant evidence or articulate a satisfactory
explanation for the decision. See Bangura v. Hansen, 434 F.3d 487, 502 (6th Cir. 2006).
This standard of review is narrow and deferential, and courts “should accept the agency's
factual findings if those findings are supported by substantial evidence on the record as a whole.”
12
Arkansas v. Oklahoma, 503 U.S. 91, 113 (1992). “Even when an agency explains its decision with
less than ideal clarity,” the decision will not be overturned “on that account if the agency's path may
reasonably be discerned.” Bangura, 434 F.3d at 502 (quoting Alaska Dep't of Env't Conservation v.
EPA, 540 U.S. 461, 497 (2004)). Courts should make a “searching and careful” inquiry into the facts,
but an agency's factual findings should be accepted if they are supported by substantial evidence on
the record. See National Cotton Council of America v. US. EPA, 553 F.3d 927, 934 (6th Cir. 2009);
Ky. Waterways Alliance v. Johnson, 540 F.3d 466, 474 (6th Cir. 2008). See also Arkansas, 503 U.S.
at 113. As a general matter, only the administrative record, which includes all the materials before
the agency at the time it made its decision, will be considered. See Sierra Club v. Slater, 120 F.3d
623, 638 (6th Cir. 1997); Makhamreh v. Attorney General Dep’t of Justice, 2020 WL 6146593 at * 4
(S.D. Ohio Oct. 20, 2020).
A court must not substitute its judgment for that of the agency and it cannot reweigh the
evidence if the agency's conclusion was reasonable. See Daraghma, 228 F.Supp.3d at 822. Instead,
“the evidence ‘must compel a different decision to be arbitrary and capricious.’” Id. (quoting Adi v.
United States, 2011 WL 9613 at * 5 (N.D. Ohio Jan. 3, 2011) aff’d 498 Fed. Appx. 478 (6th Cir.
2012).
III. Legal Framework for I-130 Visa Petitions
When a United States citizen marries a non-citizen immigrant, there is a process the couple
may go through to obtain permanent residence or other adjustment in immigrant status for the non-
citizen spouse. See 8 C.F.R. §§ 204.1, 204.2. See also Sholanke v. U.S. Citizenship & Immigration
Services, 2020 WL 1452449 at * 4 (N.D. Ohio March 25, 2020); El Mokhamad v. Kelly, 2018 WL
488953 at * 1 (E.D. Mich. Jan. 19, 2018). The first step in that process is a Form I-130 Petition
13
which, if approved, allows a citizen to obtain an immigrant visa for an immediate relative. 8 U.S.C.
§ 1154(b). When a Form I-130 Petition is filed based on marriage, the petitioner must show by a
preponderance of the evidence that the marriage was bona fide at its inception; i.e. that the couple
intended to establish a life together at the time they got married. See Sholanke, 2020 WL 1452449 at
* 4; Makhamreh, 2020 WL 6146593 at * 4. See also Matter of Soriano, 19 1. & N. Dec. 764 (B.I.A.
1988) (“The central question is whether the bride and groom intended to establish a life together at
the time they were married”); Matter of Laureano, 19 I. & N. Dec. 1 (B.I.A. 1983) (same).
In order to guard against individuals attempting to subvert immigration laws by fraudulently
claiming marriage, USCIS investigates each couple seeking approval of a Form I-130 Petition. The
investigation may include interviews of the couple, their friends, and/or family. See 8 C.F.R. §
103.2(b). USCIS may also review the couples' financial records and consider their daily activities
such as whether they live together and whether they associate with one another's friends and family.
Petitioners may submit evidence of a bona fide marriage to USCIS throughout this process, but they
are not afforded a hearing prior to USCIS issuing its decision. It is the petitioner’s burden to establish
eligibility in visa petition proceedings. See Matter of Brantigan, 11 I&N Dec. 493, 495 (BIA 1966).
A visa petition may be denied pursuant to 8 U.S.C. § 1154(c) (also known as INA § 204(c))
where there is evidence in the record to indicate that an alien previously conspired to enter into a
fraudulent marriage. Matter of Laureano, 19 I. & N. Dec. 1 (BIA 1983). Section 204(c) of the
Immigration and Nationality Act (“INA”) states:
Notwithstanding the provisions of subsection (b) 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
14
alien has attempted or conspired to enter into a marriage for the purpose of evading
the immigration laws.
8 U.S.C. § 1154(c); INA § 204(c). In order for a visa petition to be barred by INA § 204(c), there
must be “substantial and probative evidence” of such an attempt or conspiracy and the derogatory
evidence must be contained in the alien's file. See 8 C.F.R §§ 103.2(b)(16)(i), 204.2(a)(1)(ii). See
also Bangura, 434 F.3d at 502-503; Sholanke, 2020 WL 1452449 at * 4; Matter of Tawfik, 20 I&N
Dec. 166, 167 (BIA 1990). Substantial and probative evidence of marriage fraud is evidence that
“must establish that it is more than probably true that the marriage is fraudulent.” Matter of Singh,
27 I & N Dec. 598, 607 (BIA 2019). Such evidence can be direct or circumstantial. Id. The
substantial and probative evidence standard is less than “clear and convincing evidence,” which
requires proof that something is “highly probably true,” but more than a “preponderance of the
evidence,” which only requires proof that something is “probably true.” Id. at n. 7.
An officer who intends to deny a Form I-130 Petition based on INA § 204(c) cannot depend
solely on the determinations made by other officers in prior proceedings. See Sholanke, 2020 WL
1452449 at * 4; Tawfik, 20 I&N Dec. at 166-68. The officer must form his or her own independent
conclusion as to whether the beneficiary previously committed marriage fraud based on all of the
evidence in the record. Id. If USCIS identifies substantial and probative evidence in the record
suggesting the beneficiary's marriage was fraudulent, USCIS issues a NOID advising the petitioner
of the derogatory evidence and affords the petitioner an opportunity to respond. 8 C.F.R. §§
103.2(b)(16), 204.2(a)(1)(ii).
Once it is determined that a beneficiary entered a prior marriage for the purpose of evading
the immigration laws, all subsequent Form I-130 Petitions filed on behalf of that beneficiary must be
denied. See 8 U.S.C. § 1154(c); Makhamreh, 2020 WL 6146593 at * 5.
15
IV. Analysis
Defendants move to dismiss Plaintiffs’ APA and due process claims for failure to state a claim
upon relief may be granted. (Doc. Nos. 5, 7.) The Court will address these claims separately, as set
forth below.
A. APA Claims
As an initial matter, neither party clearly identifies the specific APA claims asserted in the
Complaint and the parties’ briefing is inconsistent regarding this issue. Thus, the Court begins by
clarifying the particular APA claims at issue in this dispute.
Plaintiffs’ Complaint is not a model of clarity with respect to the specific claims asserted
under the APA. Several of the “claims” set forth in Paragraphs 32 through 38 of the Complaint
specifically challenge the USCIS decision denying Ms. Singh’s Form I-130 Petition. See Doc. No. 1
at ¶¶ 32, 33, 34, 35. Others generally challenge the “decision” denying Ms. Singh’s Petition, which
could be interpreted as referring to either the USCIS decision or the November 2019 BIA decision.
Id. at ¶¶ 36, 37, 38. None of the “claims” in Paragraphs 32 through 38 identify the specific findings
that are being challenged; i.e., none of the claims state whether Plaintiffs are challenging (1) the
finding of prior marriage fraud with respect to the marriage between Mr. Singh and Ms. Newrones;
and/or (2) the determination that Plaintiffs failed to establish that their current marriage was bona
fide at its inception.
Plaintiffs’ briefing has been inconsistent with respect to the precise nature of their APA claims
as well. In their Brief in Opposition to Defendants’ Motion to Dismiss, Plaintiffs argue, at some
length, that the USCIS’s determination regarding Plaintiffs’ current marriage (i.e., USCIS’s finding
that Plaintiffs failed to establish that their current marriage is bona fide) is arbitrary and capricious.
16
(Doc. No. 6 at pp. 7-11.) However, in their sur-reply, Plaintiffs acknowledge that only the BIA
decision affirming a finding of prior marriage fraud is at issue in this appeal.5 (Doc. No. 8 at p. 1)
As noted supra, in that decision, the BIA reviewed the USCIS decision de novo and issued a separate
written opinion affirming the USCIS’s “determination of fraud in the beneficiary’s prior marriage.”
(Doc. No. 1-6) (emphasis added). The BIA did not consider or address the USCIS’s additional
determination that the marriage between Mr. and Ms. Singh is not bona fide. (Doc. No. 1-6.)
The Court construes the Complaint as challenging the BIA’s November 2019 decision. This
construction is consistent both with the Plaintiffs’ representations in their sur-reply and with
prevailing law in this Circuit. See Makhamreh, 2020 WL 6146593 at fn 2 (“The Sixth Circuit
‘reviews the BIA’s decision as the final agency determination.’”) (quoting Kamar v. Sessions, 875
F.3d 811, 817 (6th Cir. 2017)); Haddad v. Napolitano, 2014 WL 11309784 at * 4 (W.D. Mich. Dec.
31, 2014) (“When the BIA reviews an immigration decision de novo and issues a separate opinion
instead of summarily affirming the decision, the district court reviews the BIA's decision as the final
agency determination.”) (citing Khalili v. Holder, 557 F.3d 429, 435 (6th Cir.2009)). 6 Thus, and in
light of the fact that the BIA limited its decision to the issue of prior marriage fraud with respect to
5 Specifically, Plaintiffs state as follows: “Defendants are correct in the assertion that ‘[t]he only issue in this case is
whether Plaintiffs can meet their burden under the [APA] to show that the Board of Immigration Appeal’s . . . decision
to affirm United States Citizenship and Immigration Services’ (‘USCIS’) denial of [Ms. Singh’s] I-130 visa petition,
based on a finding of marriage fraud, was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law.’” (Doc. No. 8 at p. 1) (emphasis added).
6 The Sixth Circuit has noted that, where the BIA adopts the immigration judge’s reasoning, the court reviews the
immigration judge’s decision directly to determine whether the decision of the BIA should be upheld on appeal. See
Fang Huang v. Mukasey, 523 F.3d 640, 649 (6th Cir.2008). Here, the BIA reviewed the petition de novo and issued a
written decision setting forth its own analysis regarding Mr. Singh’s prior marriage to Ms. Newrones. Plaintiffs do not
argue that the BIA adopted or summarily affirmed the USCIS’s reasoning and, indeed, the Court’s own review indicates
that it did not. Thus, this Court will review the BIA decision herein.
17
the marriage between Mr. Singh and Ms. Newrones, the Court finds that Plaintiffs’ APA claims are
limited to challenging the BIA’s decision with respect to that issue.
Proceeding to the issue of Mr. Singh’s alleged prior marriage fraud, Defendants argue that
“Plaintiffs fail to state an APA claim because they have not and cannot plausibly allege that the
Board’s or USCIS’s actions were arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” (Doc. No. 5-1 at p. 5.) Specifically, Defendants assert that Plaintiffs have not
plausibly alleged an APA claim because the Complaint contains only a “boilerplate recitation that
USCIS’s denial decision is arbitrary and capricious, without specifying how it could be so.” (Id. at
p. 8.) Defendants maintain that Plaintiffs cannot plausibly allege a claim under the APA because the
BIA decision makes clear that the BIA considered all of the evidence that Plaintiffs provided but
nonetheless found that there was substantial and probative evidence of prior marriage fraud in the
record. (Id.) Defendants argue that Plaintiffs’ APA claim must therefore fail because “[t]he only
way this Court could reach a contrary conclusion would be to re-weigh the evidence and side with
Plaintiffs, and the Supreme Court has repeatedly held that is not a proper role for a district court
reviewing an agency action.” (Id.)
Plaintiffs argue that the November 2019 BIA decision is arbitrary and capricious, an abuse of
discretion, and/or otherwise not accordance in law because (1) Plaintiffs were not given the
opportunity to examine and rebut adverse evidence in violation of 8 C.F.R. § 103.2(b)(16); (2) the
BIA violated the APA by “effectively ex post facto reopening” Ms. Newrones’s Petition and basing
its finding of prior marriage fraud on the basis of information obtained well after the termination of
that Petition; and (3) the BIA’s finding of prior marriage fraud is not based on substantial and
probative evidence in the record. The Court will address each of these APA claims in turn, below.
18
1. Failure to permit opportunity to examine and rebut adverse evidence
Plaintiffs first argue that the BIA decision is arbitrary and capricious, an abuse of discretion,
or otherwise not in accordance with law because USCIS failed to provide Plaintiffs with the
derogatory information that formed the basis of its finding of prior marriage fraud. Specifically,
Plaintiffs assert that, pursuant to 8 C.F.R. § 103.2(b)(16), USCIS was required to provide Plaintiffs
with the following: (1) a sworn statement from Ms. Newrones that her marriage to Mr. Singh was not
bona fide; and (2) a copy of the Immigration officers’ notes from their August 2016 interview with
Ms. Newrones. (Doc. No. 6 at p. 6.) Plaintiffs argue that, if these documents exist, “Defendants have
a duty to provide them to [Plaintiffs] so that they may have a meaningful opportunity to rebut the
derogatory information.” (Id. at pp. 6-7.)
Defendants maintain that this claim should be dismissed as a matter of law because (1) the
NOID specified the derogatory information (including Ms. Newrones’s statement that her prior
marriage to Mr. Singh was a sham) and provided Plaintiffs the opportunity to respond, and (2)
Plaintiffs did, in fact, respond to the NOID by filing a brief and submitting additional evidence,
including Ms. Newrones’s August 2018 affidavit. (Doc. No. 5 at pp. 8-9.)
The Court notes, with some frustration, that neither party cites any law in support of their
respective positions with respect to this issue. The Court’s own research reveals the following. The
regulations governing a petitioner's right to inspect evidence related to the adjudication of an I-130
petition are set forth at 8 C.F.R. § 103.2(b)(16) and provide as follows:
(16) Inspection of evidence. An applicant or petitioner shall be permitted to inspect
the record of proceeding which constitutes the basis for the decision, except as
provided in the following paragraphs.
(i) Derogatory information unknown to petitioner or applicant. If the decision will be
adverse to the applicant or petitioner and is based on derogatory information
19
considered by the Service and of which the applicant or petitioner is unaware, he/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 except as
provided in paragraphs (b)(16)(ii), (iii), and (iv) of this section. Any explanation,
rebuttal, or information presented by or in behalf of the applicant or petitioner shall be
included in the record of proceeding.
(ii) Determination of statutory eligibility. A determination of statutory eligibility shall
be based only on information contained in the record of proceeding which is disclosed
to the applicant or petitioner ....
8 C.F.R. § 103.2(b)(16). Numerous courts (including the Third, Fifth, Seventh, and Eleventh
Circuits) have held that the above provisions do not require USCIS to provide a petitioner with the
original evidence underlying the derogatory information on which it intends to rely when denying a
Form I-130 Petition. See, e.g., Ogbolumani v. Napolitano, 557 F.3d 729, 735 (7th Cir. 2009); Zizi v.
Field Office Director, 753 Fed. Appx. 116 (3rd Cir. 2019); Mangwiro v. Johnson, 554 Fed. Appx.
255, 261 (5th Cir. 2014); Diaz v. USCIS, 499 Fed. Appx. 853, 855-856 (11th Cir. 2012); Brinklys v.
DHS, 702 Fed. Appx. 856, 861 (11th Cir. 2017). See also Opoku-Agyeman v. Perez, 886 F.Supp.2d
1143, 1149-1150 (W.D. Mo. 2012); Gadzhieva v. Lynch, 2017 WL 11457230 at * 6-7 (S.D. Ohio
July 20, 2017); Mullaj v. Napolitano, 2013 WL 2397390 at * 5 (E.D. Mich. May 31, 2013).
Rather, these courts have held that, while the plain language of § 103.2(b)(16)(i) and (ii)
requires that USCIS disclose to and advise the petitioners of the “derogatory information” that forms
the basis for a denial, those provisions do not require USCIS to provide “documentary evidence of
the information, but only sufficient information to allow the petitioners to rebut the allegations.”
Mangwiro, 554 Fed. Appx. at 261. See also Diaz, 499 Fed. Appx. at 856 (USCIS complied with §
103.2(b)(16)(i) by issuing a NOID “that indicated that [the] petition would be denied based on the
discrepancies at the interview, and specifically gave [the petitioner] the opportunity to provide
rebuttal evidence and to explain the discrepancies”); Brinklys, 702 Fed. Appx. at 861; (finding that
20
USCIS complied with § 103.2(b)(16)(i) and (ii) by issuing notices that listed and summarized the
derogatory information and provided plaintiffs with the opportunity to respond); Owusu-Boakye v.
Barr, 376 F.Supp.3d 663, 679 (E.D. Va. 2019) (same), aff’d, 2020 WL 6707333 at fn 2 (4th Cir. Nov.
16, 2020). Thus, courts have held that, “under the regulations, in an adjudication of an I-130 petition
USCIS must disclose and advise the petitioner of adverse ‘information’ and ‘information’ upon which
it relies, but the petitioner is not entitled to production of or access to the evidence or witnesses that
constitute the basis of such ‘information.’” Owusu-Boakye, 376 F.Supp.3d at 679.
In light of the above, the Court rejects Plaintiffs’ argument that USCIS improperly failed to
provide Plaintiffs with either a sworn statement from Ms. Newrones and/or a copy of the Immigration
officer’s interview notes. (Doc. No. 6 at p. 6.) In the Complaint, Plaintiffs acknowledge that USCIS
issued a NOID on August 10, 2017, in which it stated that it intended to deny the Petition because
“Mr. Singh’s previous marriage to Ms. Newsome [sic] was for the purpose of evading immigration
laws, and thus the 2015 I-130 Petition was prohibited under INA § 204(c).” (Doc. No. 1 at ¶ 22.)
The Court does not have the NOID before it; however, Plaintiffs do attach the July 2018 USCIS
decision denying the instant Petition to the Complaint. (Doc. No. 1-3.) Therein, the USCIS states
that the “NOID cited the discrepancies and evidentiary shortcomings set forth above.” (Id. at
PageID# 18.) As noted supra, the USCIS decision summarizes Ms. Newrones’s August 2016
interview with Immigration officers, including her admission that her marriage to Mr. Singh was not
bona fide. (Id. at PageID#s 15-16.) Thus, the USCIS decision indicates (and Plaintiffs do not contest)
that the NOID informed Plaintiffs that USCIS intended to deny Ms. Singh’s Petition because Ms.
Newrones told USCIS that her marriage to Mr. Singh was “not a real marriage.” (Id. at PageID# 15-
16, 18.) In addition, Plaintiffs acknowledge that they had the opportunity to respond (and did, in fact,
21
respond) to the NOID before USCIS ultimately denied the Petition in July 2018.7 (Doc. No. 1 at ¶
23.)
Based on the above, the Court finds Plaintiffs have failed to state an APA claim based on
USCIS’s failure to provide them with either a sworn statement from Ms. Newrones or the interview
notes of the Immigration officer(s) who spoke to her in August 2016. Consistent with the Circuit and
District court decisions noted above, the Court finds that USCIS’s summary of Ms. Newrones’s
August 2016 interview was sufficient to inform Plaintiffs of, and allow them an opportunity to rebut,
the allegations of marriage fraud. 8 The summary provided adequate notice to Plaintiffs of the key
evidence of marriage fraud that they were required to rebut. See, e.g., Ghaly v. INS, 48 F.3d 1426,
1434-1435 (7th Cir. 1995) (finding that a one-sentence summary of the contents of an affidavit was
sufficient because it provided “the crucial evidence” marking the marriage as fraudulent). Plaintiffs
had an opportunity to rebut the information by submitting additional information in response to the
NOID.
Accordingly, Defendants are entitled to judgment in their favor with respect to this claim.
7 In their brief in opposition and sur-reply, Plaintiffs appear to suggest that the USCIS’s August 2016 interview of Ms.
Newrones did not, in fact, take place. See Doc. No. 6 at p. 6 (referring to the “lack of evidence that th[e] purported
interview [of Ms. Newrones] with USCIS officers took place”). This suggestion, however, is directly contrary both to
(1) the allegation in Plaintiff’s Complaint that USCIS contacted and spoke with Ms. Newrones in August 2016 (Doc. No.
1 at ¶ 21); and (2) Ms. Newrones’s own affidavit dated August 30, 2018, in which she avers that “USCIS agents spoke to
me to investigate my marriage to Ranjit” (Doc. No. 1-2 at ¶ 4.)
8 The Court acknowledges that the Ninth Circuit Court of Appeals has reached a different conclusion with respect to this
issue. See Mattson v. Wolf, 826 Fed. Appx. 603 (9th Cir. 2020) (in reviewing denial of I-130 visa petition, finding that
USCIS’s failure to provide plaintiff with a complete copy of his former wife’s written statement violated both the APA
and principles of procedural due process); Zerezghi v. USCIS, 955 F.3d 802 (9th Cir. 2020) (finding that USCIS’s failure
to provide underlying documentation violated plaintiffs’ procedural due process rights). The Sixth Circuit does not appear
to have directly addressed this particular issue in the context of the denial of a Form I-130 visa Petition. As noted above,
the majority of Circuit courts to have considered the issue have found that neither § 103.2(b)(16) nor due process
principles require USCIS to disclose the underlying evidence or witnesses for examination. The Court agrees with the
reasoning of these courts.
22
2. “Ex Post Facto” Evidence of Prior Marriage Fraud
Plaintiffs next argue that the BIA’s decision is arbitrary and capricious, an abuse of discretion
and not otherwise in accordance with law, because it is based on evidence of prior marriage fraud
that was developed years after the prior fraud allegedly occurred and is not contained in the “file” of
Petition pertaining to that previous marriage. (Doc. No. 6 at pp. 1-2.) Specifically, Plaintiffs assert
that, because Mr. Singh’s marriage to Ms. Newrones was terminated prior to final adjudication of
Ms. Newrones’s I-130 Petition, there was no finding of fraud by USCIS prior to the termination of
either that marriage or that Petition. (Id. at p. 4-5.) Plaintiffs assert that, therefore, “there is no
evidence regarding Mr. Singh’s alleged marriage fraud contained in the file for the prior 2001
Newrones I-130 Petition, as required by regulation.” (Id. at p. 5.) Rather, Plaintiffs argue that
Defendants have improperly “effectively ex post facto reopened Mr. Singh’s previous I-130 Petition
. . . claimed it was fraudulent based on facts and evidence not contained in the record, and used this
finding to deny Plaintiffs’ present Petition,” in violation of the APA. (Id.)
Defendants argue that the BIA decision is not arbitrary or capricious, an abuse of discretion,
or otherwise contrary to law because USCIS is statutorily authorized to review a beneficiary’s
background and any prior marriages in connection with its investigation of a Form I-130 visa petition.
(Doc. No. 7 at pp. 4-5.)
For the following reasons, the Court agrees with Defendants. The relevant regulation
provides as follows:
(ii) Fraudulent marriage prohibition. Section 204(c) of the Act prohibits the approval
of a visa petition filed on behalf of an alien who has attempted or conspired to enter
into a marriage for the purpose of evading the immigration laws. The director will
deny a petition for immigrant visa classification filed on behalf of any alien for whom
there is substantial and probative evidence of such an attempt or conspiracy, regardless
of whether that alien received a benefit through the attempt or conspiracy. Although
23
it is not necessary that the alien have been convicted of, or even prosecuted for, the
attempt or conspiracy, the evidence of the attempt or conspiracy must be contained
in the alien's file.
8 C.F.R. § 204.2(a)(1)(ii) (emphasis added). The Court rejects Plaintiffs’ argument that the phrase
“contained in the alien’s file” in the above regulation necessarily means that evidence of prior
marriage fraud must be contained in the file created by USCIS in connection with a previous I-130
Petition regarding the same alien. There is nothing in the plain language of either the above regulation
or INA § 204(c) that suggests such a narrow reading, and Plaintiffs cite no authority whatsoever in
support of their position.
To the contrary, as Defendants correctly note, at least one district court has considered this
precise issue and rejected Plaintiff’s argument. In Bangura v. Whitaker, 2019 WL 418858 (E.D. Va.
Feb. 1, 2019), plaintiff Momoh Bangura, a native and citizen of Sierra Leone, married Lashonna
Baylor, a U.S. citizen. While they were married, Baylor submitted an I-130 petition on behalf of
Momoh with USCIS. The couple later divorced and the petition was withdrawn. Notably, USCIS
had not made a determination on the petition at the time it was withdrawn. Several years later,
Momoh married plaintiff Fatmata Bangura. Fatmata filed an I-130 petition on behalf of Momoh,
which the USCIS denied on the grounds that Momoh had previously entered into a fraudulent
marriage with Baylor and thus was ineligible for this classification pursuant to 8 U.S.C. § 1154(c).
Plaintiffs appealed to the BIA, which affirmed USCIS's decision.
On appeal to the district court, Plaintiffs argued that it was error for the agency to have rested
its decision on a finding of prior marriage fraud made well after the withdrawal of Baylor’s Form I-
130 Petition. The district court considered and rejected this argument as follows:
In its decision, the BIA noted that it is the agency's duty to investigate past
relationships in determining whether to grant or deny an I-130 petition, rejecting
24
Plaintiffs argument that the agency had abused it discretion in investigating a marriage
from 10 years ago. This Court agrees. The relevant statute, 8 U.S.C. § 1154 (b) and
(c), states that an I-130 petition shall not be issued if the agency finds the alien entered
into a previous fraudulent marriage. The Plaintiffs seems to suggest that the agency
must have made this determination at the time the supposed fraudulent marriage
occurred, 10 years ago in this case. However, USCIS “may rely on any relevant
evidence, including evidence having its origin in prior USCIS proceedings involving
the” alien in assessing I-130 petitions. Matter of Tawfik, 20 I&N Dec. 166, 167 (BIA
1990). In this case, evidence of Momoh's marriage to Baylor and the couple's I-130
petition was in the record, and USCIS acted within its discretion in investigating the
marriage to determine whether it was fraudulent. For these reasons, the agency did
not abuse its discretion in investigating and determining Momoh previously entered
into a fraudulent marriage with Baylor.
Id. at * 2. 9
The Court agrees with the above reasoning and rejects Plaintiffs’ argument that it was error
for the BIA to rely on evidence of prior marriage fraud that was not developed at the time of Ms.
Newrones’ 2001 Form I-130 Petition. To the contrary, the Court finds that USCIS properly
investigated Mr. Singh’s previous marriage to Ms. Newrones in connection with Ms. Singh’s Form
I-130 Petition. Evidence that Mr. Singh’s marriage to Ms. Newrones was fraudulent was made part
of the “file” relating to Ms. Singh’s Petition and, as discussed above, Plaintiffs were provided the
opportunity to respond (and did respond) to that evidence.
Accordingly, the Court finds that Plaintiffs’ argument is without merit and Defendants are
entitled to judgment in their favor with respect to this claim.
3. Substantial and probative evidence of prior marriage fraud
In the Complaint, Plaintiffs allege that the denial of Ms. Singh’s Form I-130 Petition was
arbitrary and capricious, an abuse of discretion, and not otherwise in accordance with law because it
9 The Fourth Circuit Court of Appeals subsequently affirmed the district court’s opinion, finding in a brief, unpublished
decision that “[w]hile the Banguras raise various challenges to the agency's decision to investigate a prior marriage, the
Banguras do not cite any error of law.” Bangura v. Whitaker, 784 Fed. Appx. 179 (Mem.) (4th Cir. Nov. 15, 2019).
25
is not supported by substantial and probative evidence of prior marriage fraud. In particular, Plaintiffs
allege that (1) the dismissal of Ms. Newrones’s 2018 Affidavit is based on “flawed reasoning,” (2)
the denial of Ms. Singh’s Petition is “unsupported by the record;” (3) the BIA failed to reach an
independent conclusion based on the evidence; and (4) “Mr. Singh’s file does not contain substantial
and probative evidence that he attempted or conspired to enter into a marriage for the purpose of
evading immigration laws.” (Doc. No. 1 at ¶¶ 32, 34, 35, 36, 37.)
Defendants argue that Plaintiffs cannot plausibly state a claim upon which relief may be
granted with respect to this claim because the BIA considered all of the evidence concerning Mr.
Singh’s prior marriage to Ms. Newrones, including Ms. Newrones’ statements to USCIS in August
2016 and her subsequent affidavit recanting those statements. (Doc. No. 5-1 at pp. 5-9.) Defendants
assert that “the Board further evidenced its examination of the complete record when it listed the
evidence it reviewed, including USCIS’s decision denying Plaintiffs I-130 visa petition, the NOID,
Plaintiffs’ response to the NOID, and Plaintiffs’ brief on appeal, which contains the exhibits Plaintiffs
mention in their complaint.” (Id. at p. 7.) Defendants argue that “in light of the entire record,” the
BIA properly concluded that the evidence of prior marriage fraud is “substantial and probative.” (Id.)
Defendants maintain Plaintiffs’ claim that the BIA decision is arbitrary and capricious and not
supported by the record is nothing more than a request that the Court reweigh the evidence and
consider the credibility of witnesses, which is improper under the APA. (Id.)
Plaintiffs argue that the only evidence of prior marriage fraud in this case “appears to be the
sole conversation by Ms. Newrones by an unknown USCIS employee.” (Doc. No. 8 at p. 4.)
Plaintiffs further assert that the BIA improperly found that the alleged “lack of evidence” that Mr.
Singh and Ms. Newrones shared a bona fide relationship constituted a finding of “substantial and
26
probative evidence” of prior marriage fraud. (Doc. No. 6 at p. 7.) Plaintiffs argue that they “are not
asking this Court to reweigh the evidence, but rather to determine if Defendants even placed it on the
scale in the first place.” (Doc. No. 8 at p. 4.)
For the following reasons, the Court finds that Defendants’ request that this claim be
dismissed is premature and, therefore, denied. While the parties’ briefing appears to suggest that the
only evidence in the administrative record regarding the issue of Mr. Singh’s alleged prior marriage
fraud is USCIS’s summary of its August 2016 interview with Ms. Newrones and Ms. Newrones’
August 2018 affidavit, the Court notes that the Administrative Record has not yet been filed in this
case. Thus, the Court has no independent knowledge or understanding of the contents of that record.
Moreover, as Defendants themselves acknowledge, the BIA states that it considered “the entire
record” in rendering its decision and based its decision, in part, on the “lack of evidence” in that
record indicating that the Mr. Singh and Ms. Newrones shared a bona fide relationship. As this Court
does not have the “entire record” before it, it is not in a position to evaluate whether the BIA’s
decision is unsupported by the record or “based on flawed reasoning.” This particular claim,
therefore, will have to be resolved after the Administrative Record is filed with the Court and the
parties have submitted briefing with respect thereto.
Accordingly, Defendants’ Motion to Dismiss is denied with respect to Plaintiffs’ claim that
the BIA’s finding of prior marriage fraud is arbitrary and capricious, an abuse of discretion, or
otherwise not in accordance in law because it is unsupported by the record and/or based on flawed
reasoning.
B. Due Process Claim
27
In the Complaint, Plaintiffs allege that their “due process rights were violated because they
were not given the opportunity to examine and rebut adverse evidence.” (Doc. No. 1 at ¶ 39.)
Defendants argue that, to the extent Plaintiffs claim a violation of due process rights, “they have failed
to allege a protected interest or engage in any of the required due process analysis.” (Doc. No. 7 at
fn 9.) Plaintiffs failed to respond to this argument.10 (Doc. No. 8.)
Under the Fifth Amendment no person shall “be deprived of life, liberty, or property, without
due process of law.” This clause has been interpreted to protect an individual's right to both
procedural and substantive due process. With regard to substantive due process, the Sixth Circuit has
held that “[g]enerally, a plaintiff adequately alleges a substantive due process claim where the
plaintiff pleads that a statute or government action burdens a fundamental right and cannot withstand
strict scrutiny.” Bangura, 434 F.3d at 494. “In immigration cases, however, federal courts apply a
much more deferential standard of review to substantive due process challenges even where the
immigration law interferes with a plaintiff's fundamental rights.” Id. at 494-495 (citing Fiallo v. Bell,
430 U.S. 787, 798–99 (1977)). The government's action need only be “conceivably related to the
achievement of a federal interest.” Almario v. Attorney General, 872 F.2d 147, 152 (6th Cir. 1989).
The Sixth Circuit has opined that “this standard may be even lower than rational basis review.”
Bangura, 434 F.3d at 494-495.
Procedural due process requires the government to provide an individual fair process before
depriving him of a protected liberty or property interest. Due process rights only attach, however,
10 Defendants requested dismissal of Plaintiffs’ due process claim for the first time in their Reply Brief. Ordinarily, the
Court would deem the argument waived on the grounds that Defendants had failed to properly raise it in their opening
brief. Here, however, Plaintiffs filed a sur-reply and were afforded an opportunity to respond to Defendants’ argument.
Thus, the Court will consider Defendants’ argument that Plaintiffs’ due process claim fails to state a claim upon which
relief can be granted under Rule 12(b)(6).
28
once a plaintiff asserts a liberty or property interest. Bangura, 434 F.3d at 495. See also Almario,
872 F.2d at 151. To establish a liberty or property interest, the plaintiff must demonstrate that the
Constitution or a federal or state statute grants him a protected right. Id. See Almario, 872 F.2d at
151.
Here, the Court finds Plaintiffs have failed to state either a substantive or procedural due
process claim. Plaintiffs allege that Defendants violated their due process rights by failing to provide
“an opportunity for Plaintiffs to examine and rebut adverse evidence.” (Doc. No. 1 at ¶ 39.) The
Complaint does not contain any further detail regarding the basis for this claim and, therefore, fails
to identify with sufficient particularity either a fundamental right or a protected liberty and/or property
interest. Moreover, standing alone, the bald assertion that Plaintiffs were deprived of an opportunity
to examine and rebut adverse evidence is directly contradicted by other allegations in the Complaint,
including allegations that (1) USCIS issued a NOID that identified the basis for its intended denial of
Ms. Singh’s Petition; (2) Plaintiffs responded to the NOID by submitting additional evidence in
support of their Petition in September 2017 and May 2018; and (3) Plaintiffs submitted further
evidence in support of their appeal to the BIA in September 2018. (Doc. No. 1 at ¶¶ 22, 23, 25; Doc.
No. 1-3 at PageID# 18.) Thus, the Court finds that the allegations in the Complaint fail to plausibly
allege a violation of either Plaintiffs’ substantive or procedural due process rights.
The Court notes that, in their Brief in Opposition to Defendants’ Motion, Plaintiffs argue,
summarily, that Defendants’ failure to produce either a sworn statement from Ms. Newrones or a
copy of the Immigration officer’s notes of his interview with Ms. Newrones, violates their due process
rights. (Doc. No. 6 at p. 7.) This argument is without merit. As discussed at length supra, this Court
has already determined, as a matter of law, that USCIS’s summary of Ms. Newrones’s August 2016
29
interview was sufficient to inform Plaintiffs of, and allow them an opportunity to rebut, the allegations
of prior marriage fraud. Accordingly, and in the absence of any meaningful argument from Plaintiffs
to the contrary, the Court finds that Plaintiffs have failed to state a claim for either a substantive or
due process claim on this basis. See, e.g., Opoku-Agyeman, 886 F.Supp.2d at 1149-1150 (“A due
process argument will fail if a petitioner cannot show USCIS violated § 103.2”); Mullaj, 2013 WL
2397390 at * 5 (finding that petitioner failed to state a claim for a due process violation where USCIS
“produced a summary of the pertinent discrepancies, rather than producing all the ‘evidence’ on
which Respondents intend to rely.”). See also Diaz, 499 Fed. Appx. at 855-856; Mangwiro, 554 Fed.
Appx. at 261-262.
Accordingly, Defendants’ Motion to Dismiss Plaintiffs’ due process claim is granted.11
V. Conclusion
For all the foregoing reasons, Defendants’ Motion to Dismiss (Doc. No. 5) is GRANTED IN
PART and DENIED IN PART, as set forth herein. Defendants’ Motion to Strike (Doc. No. 9) is
DENIED.
IT IS SO ORDERED.
s/Pamela A. Barker
PAMELA A. BARKER
Date: January 22, 2021 U. S. DISTRICT JUDGE
11 Defendants also argue that “to the extent Plaintiffs have stated in their complaint that jurisdiction arises under the
Mandamus Act, they have failed to allege any facts that would support that cause of action.” (Doc. No. 7 at fn. 9.)
Plaintiffs failed to respond to this argument. (Doc. No. 8.) While the Complaint summarily references 28 U.S.C. § 1361
as a basis for jurisdiction, the Court finds that the Complaint does not sufficiently assert a claim for mandamus relief.
Moreover, even assuming arguendo that it did, such a claim would be subject to dismissal since USCIS and the BIA have
already issued decisions on Ms. Singh’s I-130 Petition. See, e.g., Sholanke, 2020 WL 1452449 at fn 1 (“The Mandamus
Act also does not apply in this case as USCIS has already adjudicated the visa petition.”)
30