The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
ALA NOFAN MAKHAMREH, et .
al.,
Plaintiffs,
Case No. 3:18-cv-227
. JUDGE WALTER H. RICE
(to be filed under seal)
ATTORNEY GENERAL
DEPARTMENT OF JUSTICE, et
al.,
Defendants.
DECISION AND ENTRY OVERRULING PLAINTIFFS’ MOTION FOR SUMMARY
JUDGMENT (DOC. #28) AND SUSTAINING DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT (DOC. #30); JUDGMENT TO BE ENTERED IN FAVOR OF
DEFENDANTS AND AGAINST PLAINTIFFS; TERMINATION ENTRY
The issue before this Court is the denial of a Form |-130 Petition for Alien
Relative (“I-130 Petition” or “Petition”) by the United States Citizenship and
Immigration Services (“USCIS”). The I-130 Petition was filed by Plaintiff, Melissa
Riley (“Riley” or “Petitioner”), on behalf of her husband, Plaintiff, Ala Makhamreh
(“Makhamreh” or “Beneficiary”) (collectively, “Plaintiffs”). Riley’s I-130 Petition
was denied by the USCIS and the denial was affirmed by the Board of
Immigration Appeals (“BIA”). Plaintiffs have filed a motion for summary
judgment, Doc. #28 (“Plaintiffs’ Motion”). They request that the Court, under the
Administrative Procedure Act (“APA"), 5 U.S.C. 8 706(2)(A), “hold unlawful and set
aside” the decision of the BIA. They contend that Makhamreh’s alien file contains
no “substantial and probative evidence” of an attempt or conspiracy to enter into
a marriage for the purpose of evading the immigration law within the purview of
§204 (c) of the Immigration and Nationality Act, (“INA”) 8 U.S.C.8 1154(c).7
Accordingly, they assert that no genuine issue of material fact exists and that
Plaintiffs are entitled to judgment as a matter of law.
Defendants, William P. Barr, Attorney General of the United States of
America, the United States Department of Justice (“DOJ”); Kevin K. McAleenan,
Acting Secretary, U.S. Department of Homeland Security (“DHS”); Kenneth T.
Cuccinelli, Director, USCIS; Mark Hansen, District Director, USCIS; and David L.
Neal, Chairman Board of Immigration Appeals (collectively, “Defendants”), have
filed a cross-motion for summary judgment and response to Plaintiffs’ Motion,
Doc. #30, (“Defendants’ Motion”). They contend that the sole issue is whether the
decisions of the USCIS and the BIA are supported by the administrative record,
and are otherwise consistent with the APA’s “deferential standard of review” in
In Matter of P. Singh, 27 |.& N. Dec. 598 (BIA 2019), the BIA analyzed the phrase
“substantial and probative evidence” and explained the type and extent of evidence
necessary to meet that standard in determining marriage fraud under 8 204(c) of the INA,
8 U.S.C. § 1154(c) (2012). Although Singh is a 2019 decision issued after the agencies’
decisions in this case, the Board stated that its decision is consistent with the
standard it had been applying in adjudicating visa petitions involving marriage
fraud, /d. at 607. Because the Sixth Circuit gives “substantial deference” to the
“BIA's interpretation of the INA and accompanying regulations,” Shewchun v.
Holder, 658 F.3d 557, 561-62 (6th Cir.)(citation omitted), the Court will rely on
these decisions’ analyses of the type and extent of evidence necessary to satisfy
the “substantial and probative” standard of proof.
immigration cases. Bangura v. Hansen, 434 F.3d 487, 502 (6th Cir. 2006). They
assert that the administrative record supports the denial by the agencies? of the
Form I-130, that Plaintiffs’ Motion should be denied and that Defendants are
entitled to judgment as a matter of law. After consideration of the issues and a full
review of the all relevant authority, Defendants’ Motion, Doc. #30, is sustained and
Plaintiff's Motion is overruled. Doc. #28.
I. Factual and Procedural History
A. The Brandy Ferguson Marriage
Makhamreh, a citizen of Jordan, came to the United States on March 29,
2013, on a six-month visa. Doc. #27-15, PAGEID#527. He met Brandy Ferguson
(“Ferguson”), a United States citizen, in June or July of 2013. They were married
on August 23, 2013. Doc. #27-9, PAGEID##389-90; Doc. #27-15, PAGEID#525. On
September 23, 2013, Ferguson filed a Form |-130 and Makhamreh filed his I-485
application for permanent residency with the USCIS. Doc. # 27-14, PAGEID#512.°
*The BIA, located in the Executive Office for Immigration Review, is the highest
administrative body interpreting and applying immigration laws. It authorized twenty-
three Appellate Immigration Judges, a Chief Appellate Judge and two Deputy Chief
Appellate Judges. https://www.justice.gov/eoir. The Sixth Circuit “reviews the BIA’s
decision as the final agency determination.” Kamar v. Sessions, 875 F.3d 811, 817 (6th Cir.
2017) (citation omitted).
3When a United States citizen marries a non-citizen, the United States citizen can file a
Form I-130 for an immediate relative visa. INA § 204(a), 8 U.S.C. § 1154(a); 8 C.F.R. §
204.2(a); see INA § 201(b)(2)(A)(i), 8 U.S.C. § 1151(b)(2)(A)(i). The petitioner must establish
that the marriage was bona fide at its inception by a preponderance of the evidence. If the
Form I-130 is approved, the beneficiary may seek lawful permanent residence by filing a
On October 1, 2013, one week after filing the Petition and approximately
forty-one days after they were married, Ferguson submitted a signed letter to the
USCIS. In the letter, she requested that the agency withdraw her Petition. Stating
that Makhamreh had “possibly married me for reasons other than a relationship
with me.” Doc. #27-14, PAGEID#514.
| would like to withdrawal [sic] my application for petition for
alien relative for my husband Ala Makhamreh. Soon after we
got married | have begun to believe he possibly married me for
reasons other than a relationship with me. We are not living
together. He refuses to let me meet his relatives who he see’s
[sic] weekly. He has also refused me a key to where he is living.
| don't see him often as he says he doesn’t have the mood or is
busy with his relatives. The problems have escalated and he
has now physically assaulted me. | plan to file for divorce and
he is aware of that. We are no longer in contact. His USCIS
mail that has been coming to my parents [sic] home where |
am living has been returned to your office.
My contact information hasn't changed. | am not sure of his
address at this time. His phone number is still valid-
[Redacted].
Id.
On October 29, 2013, the USCIS acknowledged the withdrawal and denied
Makhamreh’s I-485 application. Doc. #27-6, PAGEID##321-322. Ferguson’s divorce
from Makhamreh was final on May 29, 2014. Doc. #27-13, PAGEID#495.
On April 16, 2014, DHS issued Makhamreh a Notice to Appear for removal
proceedings. He was arrested by the Immigration and Customs Enforcement
agency (“ICE”) and later released on bond. Doc. #27-11, PAGEID #428.
Form 1-485, Application to Register Permanent Residence or Adjust Status. See INA §
245(a), 8 U.S.C. 8 1255(a).
B. Riley Marriage and November 4, 2014, I-130 Petition
On August 14, 2014, Makhamreh married Riley in Butler County, Ohio, and
on November 4, 2014, Riley filed a Form I-130 for her husband. Doc. #27-7,
PAGEID##342-343. Included with her Petition were a Certificate Abstract of
Marriage, their birth certificates, affidavits by Plaintiffs, family members and
friends, photographs of them at various events, a copy of Makhamreh’s I-94 and
visa page, a memo from Attorney Jack Grayer supporting his observations of
Riley’s marriage and the divorce decrees from their prior marriages. Doc. #27-10,
PAGEID##419-420; Doc. #27-12, PAGEID#459 through Doc. #27-14, PAGEID#503.
Plaintiffs were interviewed on June 19, 2015. Doc. #27-7, PAGEID#343. As a result
of certain discrepancies in the Riley-Makhamreh’s interview, USCIS contacted
Ferguson on August 14, 2015, by telephone for an interview.
C. Ferguson Telephone Interview and USCIS October 17, 2016, NOID
On August 14, 2015, USCIS interviewed Ferguson by telephone concerning
her marriage to Makhamreh. Doc. 27-11, PAGEID##429-30. The interviewer’s
notes indicate that Ferguson repeated the allegations she had made in her
October 1, 2013, withdrawal letter. She also expressed fear of him due to an
alleged assault. During the interview, Ferguson agreed to review a sworn
statement that would be sent to her, have her signature notarized and return the
responses to USCIS. Doc. #27-11, PAGEID##440-444. Ferguson never returned the
questionnaire.
On November 23, 2015, USCIS interviewed Makhamreh regarding his
marriage to Ferguson. Doc. #27-11, PAGEID 430. He admitted that he never lived
with Ferguson or introduced her to his family. He denied that he ever physically
assaulted her or that he did not give her access to his residence. /a.
On January 19, 2016, the Fraud Detection and National Directorate of the
USCIS prepared a Fraud Referral Statement of Findings which was used to
support the USCIS denial of Riley’s I-130 Petition. Doc. #27-11, PAGEID##423-433.
On October 17, 2016, USCIS issued Petitioner a Notice of Intent to Deny
(“NOID”), citing Makhamreh’s prior marriage to Ferguson, the allegations in her
withdrawal letter and certain discrepancies between Plaintiffs’ statements during
their interview concerning their own marriage. Doc. #27-10, PAGEID##410-14.
Plaintiffs’ submitted a detailed response to the NOID including: (1)
Makhamreh’s affidavit providing a narrative of his marriage to Ferguson, Doc.
#27-9, PAGEID##389-90; (2) a one-page statement that Makhamreh alleges he
wrote with Ferguson on September 15, 2013, which describes their relationship,
Doc. #27-7, PAGEID#323; (3) a copy of the cover letter for Ferguson’s Petition, Doc.
#27-5, PAGEID#275; (4) a copy of the co-sponsor Form I-864 from Ferguson’‘s step-
father, Jeffrey Proffitt, that was submitted along with the Ferguson Form I-130,
Doc. #27-4, PAGEID##260-70; (5) documentation of the couple’s marriage and
divorce, Doc. #27-5, PAGEID##277-82; (6) photos of prescription medications for
Ferguson, Doc. #27-4, PAGEID##271-72; (7) a residence ledger for Makhamreh
documenting his place of residence immediately following his marriage to
Ferguson, Doc. #27-5, PAGEID##283-84; (8) a criminal index search showing that
Makhamreh had never been charged with assaulting Ferguson, Doc. #27-5,
PAGEID#273; and (9) a picture of a shirt that Makhamreh alleges Ferguson tore
during an altercation they had. /d., at PAGEID#285.
D. USCIS May 1, 2017, Decision Denying Riley’s I-130 Petition
On May 1, 2017, the USCIS issued its Decision denying Riley's I-130
Petition. Doc. #27-7, PAGEID##341-347 and Doc. #27-8, PAGEID#348. The denial
by the agency referenced Ferguson's October 1, 2013, withdrawal letter and her
later telephone interview, along with a number of discrepancies in the addresses
Makhamreh had given for his residence during and after his marriage to
Ferguson, and exhibits he submitted in response to the NOID, contradicting his
earlier statement that he did not live with Ferguson due to a lack of finances. /d.,
PAGEID 345-47. The denial also referenced that the marriage to Riley occurred
after his removal proceedings. /d.
E. BIA Appeal and June 4, 2018, Decision
Riley timely filed a Notice of Appeal to the BIA arguing that USCIS
committed error in finding substantial and probative evidence that the Ferguson
marriage was for the purpose of evading immigration law. She asserted that the
BIA erroneously concluded that she did not sustain her burden of a good faith
marriage to Makhamreh.
On June 4, 2018, the BIA dismissed Petitioner's appeal and affirmed the
USCIS’s Decision. Doc. #27, PAGEID#179. It specifically found that the Ferguson
marriage was entered into for the purpose of evading the immigration laws and
that “evidence regarding the beneficiary and |[Ferguson]’s failure to live together
and hold each other out as a married couple” is probative of this finding. /a. The
BIA made no finding regarding the portion of USCIS’s decision dealing with
Plaintiffs’ current marriage and its observation that Plaintiffs were married after
Makhamreh’'s removal proceedings began. The BIA considered and cited all the
allegations in Ferguson’s October 1, 2013, withdrawal letter, although it agreed
with Petitioner that any alleged assault on Ferguson did not constitute marriage
fraud. /d., PAGEID#178. Additionally, the BIA agreed with USCIS’s conclusion
that Makhamreh had “been less than forthcoming in providing USCIS with an
accurate record of his previous residences” and that the residence ledger he
submitted contradicted any suggestion that he did not live with Ferguson due to a
lack of finances. /d. at PAGEID#179.
Il. Standard of Review
In reviewing Fed. R. Civ. P. 56 (a) motions for summary judgment filed in
an appeal of an agency’s decision under the APA, the Court applies a different
standard of review. Specifically, the Sixth Circuit has cautioned against the
“improper consideration of evidence outside the administrative record and
reliance upon post hoc rationalizations for the agency's action.” Alexander v.
Merit Sys. Protection Bd., 165 F.3d 474, 480-81 (6th Cir. 1999). Under the APA, an
agency decision can only be set aside if it is “arbitrary, capricious, an abuse of
discretion or otherwise not in accordance with law.” Bangura v. Hansen, 434 F.3d
487, 502 (6th Cir. 2006) (citing 5 U.S.C. 8 706(2)(A)). An agency's decision is
arbitrary and capricious “if the agency fails to examine relevant evidence or
articulate a satisfactory explanation for the decision.” /ad. The judgment of the
court cannot be substituted for the judgment of the agency. Motor Vehicle Mfrs.
Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, (1983).
“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, 124 S.Ct. 983, 157 (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. Ky. Waterways Alliance v. Johnson, 540 F.3d 466, 474 (6th Cir. 2008);
Arkansas v. Oklahoma, 503 U.S. 91, 113 (1992). Only the administrative record,
which includes all the materials before the agency at the time it made its decision,
will be considered. A/exander v. Merit Sys. Protection Bd., 165 F.3d at 480; Serra
Club v. Slater, 120 F.3d 623, 638 (6th Cir.1997).
To determine whether the agency's decision is “otherwise not in
accordance with the law,” 5 U.S.C. 8706(2)(A), the Court in this case looks to the
law and regulations governing the I-130 Petitions.
A United States citizen who marries a non-citizen can file a Petition to
classify the citizen’s spouse as an immediate relative so that the relative receives a
preference status. INA § 204(a), 8 U.S.C. § 1154(a); 8 C.F.R. § 204.2(a); see INA
§ 201(b)(2)(A)(i), 8 U.S.C. § 1151(b)(2)(A)(i). When a 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. Matter of Soriano, 19 1. & N. Dec. 764,
Interim Decision 3081 (B.1.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 |. & N. Dec. 1, Interim Decision 2951 (B.1.A.1983) (same).
The USCIS investigates the claimed marital relations, underlying circumstances of
the marriage and marital history of the petitioner and beneficiary before
conferring immigration benefits. 8 U.S.C. § 1103(a). In visa Petition proceedings,
it is the petitioner’s burden to establish eligibility for the requested immigration
benefit sought under the INA. See Matter of Brantigan, 11 |. & N. Dec. 493, 495
(BIA 1966). Following the review, adjudication and approval of the I-130 Petition,
the non-citizen spouse then may apply for lawful permanent resident status. See 8
U.S.C. 1255(a).
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If during the USCIS’s review, it identifies “substantial and probative
evidence” that the beneficiary had a prior marriage to a United States citizen or
lawful permanent resident that was for the purpose of evading the immigration
laws, it will issue a NOID. 8 C.F.R. 88 103.2(b)(16), 204.2(a)(1)(ii). Upon receipt of
this notice, the petitioner may respond and to be successful must establish that
the suspected marriage was legitimate and not fraudulent. Matter of Kahy, 19 |. &
N. Dec. 803, 806-07 (BIA 1988).
Section 204(c) of the INA denies a visa to an alien’s immediate relative on
the basis of a fraudulent or sham marriage when it is found that
(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 alien has
attempted or conspired to enter into a marriage for the
purpose of evading the immigration laws.
8 U.S.C. § 1154(c).
A decision finding marriage fraud pursuant to § 204(c) must be supported
by substantial and probative evidence. Bangura, 434 F.3d at 502-503 (citations
omitted). Substantial and probative evidence of marriage fraud is evidence that
“must establish that it is more than probably true that the marriage is fraudulent.”
Singh. 27 | & N Dec. at 607. Such evidence can be direct and or circumstantial. □□□
The substantial and probative evidence standard is less than “clear and
convincing evidence,” which requires proof that something is “highly probably
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true,” but more than a “preponderance of the evidence,” which only requires
proof that something is “probably true.” /d. atn. 7. Once it is determined that a
beneficiary entered a prior marriage for the purpose of evading the immigration
laws, all subsequent I-130 Petitions filed on behalf of that beneficiary must be
denied. 8 U.S.C. 1154(c); Matter of Kahy, 19 |. & N. Dec. at 805 n. 2.
The Court will review the agencies’ decisions to determine if it is supported
by substantial and probative evidence.
Hil. LEGAL ANALYSIS
Because the Administrative Record Contains Substantial and Probative
Evidence that Makhamreh’s Marriage to Ferguson Was Entered into for the
Purpose of Evading the Immigration Laws, and that Plaintiffs Failed to
Provide Persuasive Proof of the Bona Fides of that Marriage, the Agencies’
Decisions Are Not Arbitrary, Capricious, an Abuse of Discretion or
Otherwise not in Accordance with Law
In challenging the agencies’ denial of the I-130 Petition on the ground that
the Ferguson marriage was a sham marriage under 8 204(c), Plaintiffs argue that
the Ferguson marriage was a “failed marriage and not a fraudulent marriage.”
Doc. #28, PAGEID#548. They further assert that any questions concerning
Makhamreh’s non-disclosure of prior addresses are “clearly explained” in his
affidavit. Doc. #28, PAGEID#548. Accordingly, they contend that there was no
substantial and probative evidence of fraud and that the decisions of the agencies
are arbitrary, capricious, not in accordance with law and “without observance or
procedure required by law.” /ad. at PAGEID#549. The Court will examine the BIA’s
12
de novo review of the facts as gathered and explained in the decision of the
USCIS.
In conducting its de novo review of the evidence, the BIA noted that for
§ 204(c) to bar approval of the Petition, “an affirmative finding” that the Ferguson
marriage was “actually fraudulent,” based upon substantial and probative
evidence, is required. Doc. #27, PAGEID#177. The BIA’s decision stated that the
October 17, 2016, NOID set out the basis for the conclusion that the Ferguson
marriage was fraudulent.
The Director noted that the beneficiary had entered the United States
on March 29, 2013, as a nonimmigrant visitor with authorization to
remain in the United States until September 28, 2013. On August 23,
2013, Makhamreh married [Ferguson], a United States citizen, who
submitted her Petition for Alien Relative (Form |-130) for the
beneficiary on September 23, 2013. However, approximately 1 week
later, on October 1, 2013, [Ferguson] submitted a letter withdrawing
the Form I-130, stating that she realized that the marriage may have
been for reasons other than a relationship with her, that she did not
live with the beneficiary, that the beneficiary visited his relatives
regularly, that he never visited her at her residence and did not
provide [her] with access to his residence, that the beneficiary
physically assaulted her|,] and that she planned to file for divorce.
Doc. #27, PAGEID#178.
The BIA also noted that when Plaintiffs appeared for a follow-up interview
on November 23, 2015, Makhamreh did not explain “the circumstances of his
separate living arrangements” during his marriage to Ferguson. /ad. at
PAGEID#178. Moreover, in response to the NOID, Petitioner Riley produced a
number of documents including affidavits and a resident ledger for Makhamreh
and a Jonathan Adamson for a rental in Lawrenceburg, Kentucky. /a. According
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to the BIA decision, the May 1, 2017, denial by the USCIS listed various
discrepancies in addresses provided by Makhamreh. Additionally, his statement
in his affidavit that he was unable to live with Ferguson during the marriage due
to their lack of income was refuted by a payment history in the resident ledger.
This document established that the Beneficiary shared the rental with Jonathan
Adamson from October 2, 2013, to October 31, 2014. /a.; Doc. #27-5,
PAGEID##283-284. The BIA noted that the rental ledger showed an application fee
and security deposit paid on August 14, 2013, 10 days before Makhamreh’s
marriage to Ferguson. /d. The BIA’s decision found that the failure of Makhamreh
and Ferguson to live together and “hold each other out as a married couple” was
probative evidence that the marriage was entered into for the purpose of evading
the immigration laws. /d. PAGEID#178.
Petitioner bears the burden to show that a prior marriage was bona fide.
See Matter of Tawfik, 20 |. & N. Dec. 166, 167 (BIA 1990); Matter of Kahy, 19 |. & N.
Dec. 803, 806-07 (BIA 1988); 8 C.F.R. § 204.2(a)(1)(ii). Such evidence generally
includes “proof that the beneficiary has been listed as the petitioner's spouse on
insurance policies, property leases, income tax forms, or bank accounts; and
testimony or other evidence regarding courtship, wedding ceremony, shared
residence, and experiences.” Laureano, 19 |. & N. at 3. In this case, because of the
short-term nature of the marriage and alleged lack of funds, the Court accepts that
some of this evidence may not have been available. There is no dispute,
however, that at no time during their marriage did Ferguson and Makhamreh live
14
together and there is evidence, as noted above, that there were discrepancies in
the Beneficiary’s addresses on his submissions to the USCIS and that he appears
to have entered into a new rental arrangement with a Jonathan Adamson ten
days before his marriage to Ferguson. Doc. #27-5, PAGEID#283. Moreover,
although Makhamreh visited his family weekly, he did not introduce Ferguson to
his family.
The Court finds that the decision of the BIA to deny Petitioner's I-130
Petition was not arbitrary, capricious, an abuse of discretion, and otherwise not in
accordance with law, and that there is substantial and probative evidence in the
administrative record to support the BIA's finding that the Ferguson and
Makhamreh marriage was a sham.
IV. Conclusion
For the above stated reasons, Defendants’ Motion for Summary Judgment,
Doc. #30, is SUSTAINED and Plaintiffs’ Motion for Summary Judgment, Doc. #28,
is OVERRULED.
Judgment shall be entered in favor of Defendants and against Plaintiffs.
The captioned case is hereby terminated upon the docket records of the
United States District Court for the Southern District of Ohio, Western Division at
Dayton.
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Date: October 20, 2020 tein em.
WALTER H. RICE
UNITED STATES DISTRICT JUDGE
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