# Westreicher v. United States Attorney General

> District Court, S.D. Ohio · August 30, 2022

URL: https://www.frixlaw.com/law-library/cases/10380783

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** August 30, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION - CINCINNATI
KATHRYN WESTREICHER, et al., : Case No. 1:20-cv-191
Plaintiff, Judge Matthew W. McFarland

v. :
MERRICK GARLAND, United States :
Attorney General, et al., :
Defendants. :

ORDER AND OPINION

This case is before the Court on the parties’ cross motions for summary judgment
on the certified administrative record. Upon review of the record and the parties’ briefs,
the Court GRANTS the Government's motion for summary judgment (Doc. 18) and
DENIES Plaintiffs’ motion for summary judgment (Doc. 13).
FACTS
Plaintiff Erick Westreicher is a citizen of Peru. In August 2005, he entered the
United States using a B-2 visitor’s visa. On January 30, 2008, Erick married Geralys
Martinez. In September 2008, Geralys filed a Form I-130 Petition for Alien Relative, under
section 204 of the Immigration and Nationality Act (INA). (Certified Administrative
Record (“CAR”), Doc. 11, Pg. ID 1062.) On January 30, 2009, the couple’s one-year
anniversary, the United States Citizenship and Immigration Services (USCIS)
interviewed Geralys and Erick. (Id. at Pg. ID 1201.)

To show that their marriage was bona fide, Geralys submitted various documents,
including her Ohio identification card and magazines with their marital address, a letter
from their church, a paystub, a bank letter, a checking statement, and pictures. (Id. at Pg.
ID 1299-1318.) At the interview, Geralys and Erick claimed to live together at the same
address on Ross Road in Fairfield, Ohio. Geralys was five months pregnant and the
couple “strongly implied” that Erick was the father. (Id. at Pg. ID 810.) By the end of the
interview, the interviewing officer found the relationship questionable. (Id.)
The USCIS Fraud Detection and National Security Directorate (FDNS) unit
investigated. The FDNS discovered court records showing that, in June 2008— when
Geralys claimed to live with Erick on Ross Road—an eviction action had been filed
against her relating to a different address, located on Woodbridge Boulevard in Fairfield.
The investigation also inquired into a third address, this one on Rubicon Place in
Cincinnati, Ohio. The Rubicon Place landlord reported that Geralys lived there with her
boyfriend, Felix Ramirez. Geralys and Felix had signed a lease for the Rubicon Place
address in January 2009—two days before the Form I-130 interview when Geralys and
Erick had claimed that they lived together on Ross Road. In May 2009, a few months
after moving in with Felix, Geralys gave birth to a child. The birth certificate listed Felix
as the father. This, even though she had implied the child was Erick’s during the
interview. She had also had a child two months before she married Erick, with someone
other than Erick. (Id.)
On March 1, 2020, USCIS issued a Notice of Intent to Deny (NOID) the Form I-130.
(Id.) It stated that, although Geralys had submitted some documentation in support of

her marriage to Erick, other evidence suggested the two of them had “never resided
together in marital union.” (Id. at Pg. ID 1278.) The NOID cited the suspicious
circumstances of the wedding, where Geralys’s half-sister married Erick’s brother at the

same place and same day as them. Furthermore, Geralys had obtained a temporary
driver’s license on March 13, 2009, listing the Rubicon Place address, where Erick had

never lived. The Rubicon Place landlord had confirmed that she lived there with Felix
since February 2008—a month after she had married Erick—and did not recognize
pictures of Erick. The NOID gave her 30 days to respond in writing. (Id. at Pg. ID 1279.)
Geralys responded to the NOID. She included documentation showing that the
Rubicon Place lease had begun in February 2009, not February 2008 as the NOID had
reported. (Id. at Pg. ID 893.) Nevertheless, on April 5, 2010, USCIS denied Geralys’s Form
]-130. She appealed that decision to the Board of Immigration Appeals (BIA). Because
the record was incomplete, the BIA remanded the case to USCIS without determining the
merits. Over the next few years, USCIS interviewed the couple two more times and
eventually issued another NOID. (Id. at Pg. ID 811.) Based on all the testimony and
documentation in the record, USCIS concluded that Geralys had not met her burden of
proof in demonstrating the bona fide nature of her marriage to Erick. Thus, on November
8, 2013, USCIS denied her Form I-130. (/d. at Pg. ID 815.) A year later, Erick and Geralys
divorced. (Id. at Pg. ID 793.)
About two weeks after the divorce, Erick married his current wife, Plaintiff
Kathryn Westreicher. (Id.) Kathryn is also a United States citizen. On February 26, 2015,
she filed an I-130 petition on Erick’s behalf. (Id. at Pg. ID 908-09.) Later that year, USCIS

interviewed the couple. This time, USCIS was left with the impression that the marriage
was bona fide. But instead of approving Kathryn’s petition, USCIS indicated its intent to
deny her petition. (Id. at Pg. ID 909.)
The reason was Erick’s prior marriage to Geralys. USCIS had found that union to
not be a bona fide relationship, but rather “likely entered into solely for the purpose of
obtaining immigration benefits.” (Id. at Pg. ID 916.) That meant that § 204(c) of the INA,
8 U.S.C. § 1154(c), prohibited approval of the later petition. (Id.) Kathryn and Erick
responded to the NOID, to no avail. The agency found that § 204(c) prohibited approval
of the petition, based on Erick’s prior marriage to Geralys. (Id. at Pg. ID 819.)
Both decisions—the denial of Geralys’s petition and the denial of Kathryn's
petition were appealed. On December 5, 2017, the BIA affirmed both decisions. (Id. at
Pg. ID 773-77 (Kathryn’s petition); Pg. ID 1009-12 (Geralys’s petition).) The decision
affirming the denial of Geralys’s petition found that the record below was insufficient to
establish by a preponderance of the evidence that her marriage to Erick was valid for
immigration purposes. (Id. at Pg. ID 1011-12.) The decision pertaining to Kathryn's
petition concluded that Erick married Geralys for the primary purpose of evading
immigration laws. On that ground, the BIA found § 204(c) barred approval of Kathryn’s
petition. (Id. at Pg. ID 777.)
Kathryn and Erick filed this lawsuit to challenge the agency’s decision denying
their Form 1-130. (Am. Compl., Doc. 3, ¢ 1.)
LAW AND ANALYSIS
The Administrative Procedure Act (APA), § 702, gives district courts jurisdiction

over claims of agency wrongdoing. 5 U.S.C. § 702; Bangura v. Hansen, 434 F.3d 487, 498
(6th Cir. 2006); Qing Tian v. United States, No. 1:15CV264, 2017 WL 2964910, at *2 (S.D.
Ohio July 12, 2017). When analyzing motions for summary judgment under Fed. R. Civ.
P. 56, courts only consider evidence within the administrative record. Alexander v. Merit
Sys. Prot. Bd., 165 F.3d 474, 480 (6th Cir. 1999). A court reviews agency action to
determine if it was “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with the law.” 5 U.S.C. § 706(2)(A). An agency decision is arbitrary and
capricious if it fails to consider relevant evidence or articulate a satisfactory explanation
for its decision. Bangura, 434 F.3d at 502. Importantly, however, even when an agency
explains its decision with less than ideal clarity, a district court will not reverse that
decision as long as it can reasonably discern how the agency got there. Alaska Dep’t of
Conservation v. E.P.A., 540 U.S. 461, 497 (2004).
Here, the agency issued decisions on two different petitions. First, USCIS denied
Geralys’s petition. (CAR, Doc. 11, 9/18/2013 NOID, Pg. ID 1062; 11/08/2013 USCIS
Decision, Pg. ID 1046; 12/5/2017 BIA Decision, Pg. ID 1009-12.) Later, it did the same for
Kathryn’s petition. (/d., 1/11/2016 NOID, Pg. ID 908; 08/04/2016 Decision, Doc. 11, Pg.
ID 808; 12/05/2017 BIA Decision, Pg. ID 777.) Because the second decision relies on the
first, the Court will examine USCIS’s decision in Geralys’s petition, then proceed to
Kathryn’s petition to determine whether USCIS’s decision was arbitrary, capricious, or
out of accord with applicable law.
The first question is whether the decision to deny Geralys’s petition was arbitrary

or capricious. It was not. USCIS articulated a reasonable explanation for denying the
petition. So it holds up under this court's review.
Although Geralys and Erick submitted some material in support of the legitimacy
of their marriage, suspicious circumstances surrounding much of the material undercut
its value. For instance, the couple provided printouts from a bank showing they had a
joint checking account. But the account had a balance of $0.00 and an address where
neither of them had ever claimed to reside. Another joint checking account existed, but
they had opened it eleven months into their marriage, just one month before their January
2009 interview with USCIS. They also appeared to have a shared cell phone plan. But
this too they opened eleven months after they had been married and just two weeks
before their interview. A similar issue plagued the magazines they provided —they were
all January 2009 issues. The couple had a joint car insurance policy, but it only insured
Erick; Geralys was an excluded driver. And the policy only became effective three days
before their interview.
This pattern of recently opened shared or joint accounts played out for the
majority, if not the entirety, of the documentary evidence they submitted in support of
their marriage. It was problematic from the agency’s perspective because it came into
being mere weeks before the couple’s I-130 interview. The letter requesting the couple to
appear for the interview instructed them to bring supporting evidence of their
relationship, such as documentation regarding joint assets or liabilities. (CAR, Doc. 11,
Pg. ID 1201.) The fact that most of the couple’s supporting documentation came into
being just before the interview suggests an eleventh-hour rush to substantiate the

relationship. And, against the facts of Geralys’s relationship with Felix— becoming
pregnant with him shortly after marrying Erick, living with him at the Rubicon Place
address while still married to Erick— USCIS concluded that the preponderance of the
evidence showed that Erick and Geralys had not entered into a bona fide marriage. (Id.
at Pg. ID 1068.)
In short, USCIS considered the evidence for Geralys’s petition, but found it
inadequate to countervail the contrary evidence that suggested their marriage was not
bona fide for immigration purposes. The record supports the agency’s explanation for
denying the petition. That makes the agency’s decision neither arbitrary or capricious.
USCIS based its decision to deny Kathryn’s petition on its finding that the
marriage between Geralys and Erick was not a bona fide relationship for immigration
purposes and that they likely got married solely to obtain immigration benefits. The next
question is whether the agency’s denial of Kathryn’s petition holds up under the APA’s
deferential review. It does, for the reasons that follow.
Section 204(c) of the INA requires the Attorney General to deny a petition by an
immigrant who 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. . .
by reason of a marriage determined by the Attorney General to have been entered into
for the purpose of evading the immigration laws.” 8 U.S.C. § 1154(c). In other words,
federal law leaves no room for an agency to approve an otherwise lawful petition if the

intended beneficiary has used marriage to skirt the immigration laws and obtain an
immigration benefit.
The immigration agency must base its determination of marriage fraud on
substantial and probative evidence. E.g., Bangura, 434 F.3d at 487. The “substantial and
probative evidence” standard requires a court to examine all the relevant evidence, direct
and circumstantial, and determine whether that evidence, viewed in its totality, reveals
to a high probability that that marriage was fraudulent. Matter of P. Singh, 27 1. & N. Dec.
598, 607 (BIA 2019). The quantum of evidence that satisfies this standard is less than
“clear and convincing evidence,” but more than a “preponderance of the evidence.” See
Makhamreh v. Att'y Gen. Dep't of Just., No. 3:18-CV-227, 2020 WL 6146593, at *7 (S.D. Ohio
Oct. 20, 2020). If substantial and probative evidence supports the agency’s decision, a
reviewing court will affirm. Id.
The question, then, is whether substantial and probative evidence supports the
agency’s finding of marriage fraud. It does. In ruling on Kathryn’s petition, USCIS
delved into the record surrounding Geralys’s petition. And in that review, it discovered
the suspicious timing of almost all of Geralys’s and Erick’s documentary evidence □
much of it had come into being almost a year after they had been married, but just in time
for their interview. The absence of signs of a shared financial life or a shared “emotional”
or “family” life suggests the couple founded their relationship on reasons other than
seeking a bona fide marriage. Sinadinovski v. INS, 92 F.3d 1186, *3 (6th Cir. 1996). See also
Lutwak v. United States, 344 U.S. 604, 611 (1953) (the common understanding of marriage
is that two parties undertake to establish a life together); Bark v. INS, 511 F.2d 1200, 1201

(9th Cir. 1975) (a marriage is a sham marriage if the bride and groom do not intend to
establish a life together at the time they are married).
More problematic was Geralys’s association with the Rubicon Place address. Her
connection to that residence indicates fraud for two reasons. First, she lived there with
Felix while still married to Erick. Second, Geralys did not tell USCIS about the Rubicon
Place address. Both these facts strongly indicate fraud. As it concerns the extramarital
relationship, the Rubicon Place property manager confirmed that Geralys had lived there
with Felix from February 2008—one month after she had married Erick. The property
manager did not recognize pictures of Erick. (CAR, Doc. 11, Pg. ID 810.) And Geralys
does not deny that she was romantically involved with Felix. A married person’s
involvement with another romantic partner —especially when that fact is concealed, as
here — strongly suggests that the marriage is fraudulent. Oddo v. Reno, 175 F.3d 1015 (4th
Cir. 1999) (it is reasonable to conclude that a marriage was entered into to evade
immigration laws when the couple attempted to conceal that they had separated and the
husband was involved with another woman); Singh, 27 I. & N. Dec. at 609 (“Evidence that
the parties have other romantic partners, with whom they may have children, is also a
significant consideration, especially when these facts are either not disclosed or are
deliberately concealed.”). So does the deliberate misleading or deceiving immigration
officials about where one lives. Singh, 27 I. & N. Dec. at 609. (“evidence that the parties
knowingly and deliberately attempted to mislead or deceive immigration officials
regarding their cohabitation, joint finances, or other aspects of the marriage strongly
indicate[s] fraud”). Thus, the circumstances surrounding the Rubicon Place address

support the agency’s finding that the marriage was fraudulent.
Plaintiffs argue, with some supporting evidence, that the Rubicon Place lease did
not begin in February 2008, as it reflects in the record, but actually began in February
2009. That may be accurate as it applies to the lease provided, but it does not contradict
the USCIS’s report that the landlord independently “stated that [Geralys] had lived [on
Rubicon Place] along with Felix Ramirez... from February 2008, up to the date of contact
(December 21, 2009).” (CAR, Doc. 11-2, Pg. ID 1047.) But even accepting that Geralys
did not live with Felix until February 1, 2009, that means she signed the lease with him
just two days before she participated in the USCIS interview meant to evaluate the bona
fides of her marriage to Erick. (Id. at 1047.) Either scenario, then— whether she lived with
Felix almost immediately after her marriage to Erick, or whether she planned to move in
with Felix even as she took part in an interview designed to gauge the integrity of her
marriage to Erick — bears the signs of a fraudulent marriage. Singh, 271. & N. Dec. at 609.
The existence of another residence, which Geralys failed to disclose, also indicated
fraud: the Woodbridge Boulevard address. It is true that Geralys averred she had rented
the Woodbridge residence on behalf of a relative. (CAR, Doc. 11-3, Pg. ID 379-80.) But
affidavits alone generally fall short of overcoming evidence of marriage fraud without
objective documentary evidence to corroborate those claims. 8 C.F.R. § 204.2(a)(1)(i)(B)(5)
(“Affidavits should be supported, if possible, by one or more types of documentary
evidence... .”). Regardless, a residence leased under her name implicates the issues of
cohabitation and the mingling of legal responsibilities, which are relevant to assessing
whether the marriage was fraudulent or not. The failure to inform USCIS of such
10

information indicates fraud. Singh, 27 I. & N. Dec. at 609.
For all these reasons, substantial and probative evidence supports the finding that
Erick’s marriage to Geralys was fraudulent, and entered into for the purpose of evading
immigration laws. 8 U.S.C. § 1154(c). Consequently, the agency had no choice but to
deny Kathryn’s later petition. Id. Accordingly, the agency did not act in an arbitrary or
capricious manner, and its decision was in accord with the applicable laws. Sholanke v.
United States Citizenship & Immigr. Servs., 854 F. App'x 23, 29 (6th Cir. 2021).
Plaintiffs argue that the BIA decisions on both petitions on the same day were
arbitrary and capricious because they were conflicting. Their argument proceeds this
way: for Geralys’s petition, the BIA simply found that the evidence failed to meet the
applicable burden of proof (preponderance of the evidence), but for Kathryn’s petition,
the BIA went further and found that the Geralys-Erick marriage was formed solely to
evade immigration laws (an analysis subject to the more demanding “substantial and
probative evidence” standard). The two decisions, they claim, were “completely at odds”
and arbitrary and capricious. (Doc. 13, Pg. ID 1351.)
This argument fails to appreciate the breadth of § 204(c). The text’s plain language
does not foreclose application of the § 204(c) bar when a prior denial, based on a failure
to establish a bona fide marital relationship, does not at the same time make the further
determination that the marriage was fraudulent. Matter of Pak, 28 I. & N. Dec. 113, 116-
17 (BIA 2020). The statute applies to beneficiaries who “ [have] previously been accorded”
preference status and beneficiaries who “ [have] sought to be accorded” preference status.
11

8 U.S.C. § 1154(c). Both these categories indicate that the agency’s § 204(c) review is
backwards-looking. And the “sought to be accorded” category reasonably includes
beneficiaries who have tried and failed to be accorded preference status. So the statute
permits USCIS to review a beneficiary’s complete record, including failed attempts to
obtain preference status, to determine if his efforts to become a citizen through marriage
are in accord with the law. And whenever it becomes clear that there is substantial and
probative evidence of an attempt to enter into a marriage to evade immigration laws, §
204(c) applies. Id. at 117. See also 8 C.F.R. § 204.2 (instructing that the agency will deny
a petition that contains substantial and probative evidence of a fraudulent marriage,
regardless of whether the beneficiary received the benefit, as long as evidence of the
attempt is contained in his file).
Given the breadth of the § 204(c) bar, and the lack of a temporal constraint on when
the § 204(c) review takes place, the agency did not err when it concluded that Erick’s
marriage to Geralys was made for the purpose of evading the immigration laws. USCIS
thus properly denied Kathryn’s petition under § 204(c).
CONCLUSION
For the reasons above, the Court GRANTS the Attorney General’s motion for
summary judgment (Doc. 18) and DENIES Plaintiffs’ motion for summary judgment.
IT IS SO ORDERED.
UNITED STATES DISTRICT COURT
Nard. DISTRICT OF OHIO
ay: Mead W- uta J
JUDGE MATTHEW W. McFARLAND
BP

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10380783. Public record. Not legal advice.