Akkaya v. United States Citizenship and Immigration Services (USCIS)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

----------------------------------------------------x

MUSTAFA AKKAYA and IBRAHIM

HAKKI AKKAYA, MEMORANDUM AND ORDER

23-CV-6119 (RPK) (SIL)

Plaintiffs,

v.

UNITED STATES CITIZENSHIP AND

IMMIGRATION SERVICES (USCIS);

ALEJANDRO MAYORKAS, Secretary of

the Department of Homeland Security; UR

M. JADDOU, Director of USCIS; and

USCIS LONG ISLAND FIELD OFFICE,

Defendants.

----------------------------------------------------x

RACHEL P. KOVNER, United States District Judge:

U.S. Citizenship and Immigration Services (“USCIS”) denied a petition for preferential

immigration status that plaintiff Ibrahim Akkaya filed on behalf of his father, plaintiff Mustafa

Akkaya, because it determined that Mustafa Akkaya had previously entered a sham marriage for

the purpose of obtaining an immigration benefit. Plaintiffs filed this lawsuit challenging that

decision, and the parties have filed cross-motions for summary judgment. As explained below,

defendants’ motion is granted, and plaintiffs’ motion is denied, because USCIS did not act

arbitrarily or capriciously in denying plaintiffs’ petition.

BACKGROUND

The following facts are drawn from the certified administrative record unless otherwise

noted.

1. Immigration, Marriages, and Initial Immigration Petitions

Plaintiff Mustafa Akkaya, a citizen of Turkey, entered the United States in 1991.

Administrative Record (“AR”) 123 (Dkt. #15). Mustafa Akkaya divorced his wife, Munevver

Akkaya, on December 23, 1996, AR 94–99, 138–140, and on April 14, 1997, he married Tiffany

Turner, AR 136. In 1998, plaintiff Ibrahim Akkaya was born to Mustafa and Munevver Akkaya.

AR 71–72, 84.

In September 1998, Turner submitted an I-130 petition for “immediate relative” status on

behalf of Mustafa Akkaya. AR 122–27. An I-130 petition permits a U.S. citizen to seek

preferential immigration status on behalf of an alien spouse or close relative. 8 U.S.C.

§ 1154(a)(1)(A)(i). Mustafa Akkaya also submitted an I-485 application to adjust his immigration

status. AR 122–27. Turner’s and Mustafa Akkaya’s submissions indicated that they lived at the

same address. AR 123.

In May 2001, Mustafa Akkaya and Turner submitted a joint letter withdrawing the I-130

and I-485 applications. AR 110. Mustafa Akkaya and Turner divorced in October 2001. AR 92–

93. Mustafa Akkaya then remarried Munevver in January 2002. AR 67, 75.

In August 2004, Turner provided a sworn statement to an Immigration and Customs

Enforcement officer stating that her marriage to Akkaya had been fraudulent. She stated that “a

friend named Julie” had “asked if [she] was interested in marrying a Turkish guy so he could get

immigration status.” AR 100 (capitalization altered). According to Turner, she was “offered

$5,000 to marry Mustafa Akkaya,” and was ultimately paid $800. Ibid. (capitalization altered).

She stated that she “never lived with [Mustafa Akkaya], and it was never a real marr[ia]ge.” Ibid.

Turner passed away on February 1, 2017. AR 40. Her death certificate listed her as “Never

Married.” Ibid.

2. 2019 Immigration Petitions

Ibrahim Akkaya filed an I-130 petition on behalf of his father on June 10, 2019, requesting

that Mustafa be classified as his immediate relative. AR 11, 26. Mustafa Akkaya submitted an I-

485 application that same day. AR 22. USCIS interviewed Mustafa Akkaya on January 31, 2020.

AR 67–68. During the interview, he told immigration officials that he had lived with Turner for

about a year and that he did not pay Turner to marry him. Ibid. He described himself as having

been married “three times,” with his first and third marriage to Munevver Akkaya, and his second

marriage to Turner. AR 67.

On March 5, 2020, USCIS issued a notice of intent to deny the I-130 based on a provision

of the Immigration and Nationality Act (“INA”) that prohibits the agency from granting an I-130

petition concerning an alien who previously entered a sham marriage for the purpose of obtaining

an immigration benefit. See 8 U.S.C. § 1154(c); AR 63–66. The agency stated that it had not

received any evidence that Mustafa Akkaya ever resided with Turner; that “[t]here was also no

evidence provided to show that the spouses held themselves out to family and friends as husband

and wife”; and that the agency had a “detailed sworn statement where Tiffany Turner described

the fact that Mustafa Akkaya has offered and paid money to her to enter into a legal marriage to

obtain [an] immigration benefit.” AR 65 (capitalization altered). It also noted Mustafa Akkaya’s

statement that he had been married to Munevver Akkaya, then Turner, and then Munevver Akkaya

again. AR 66. While Akkaya had denied that the marriage was fraudulent in his USCIS interview,

AR 65, the agency stated that it appeared based on “the totality of the evidence, including the lack

of documentary evidence and testimony at interview,” that Mustafa Akkaya had entered into his

marriage to Turner for the purpose of evading immigration law. AR 66.

USCIS provided thirty days to submit rebuttal evidence. Ibid. The agency received several

submissions in response. See AR 27–28. An unsworn statement by Mustafa Akkaya stated that

although he and Turner had “lived together less than 2 years, [their] marriage was in good faith.”

AR 38. Mustafa Akkaya added that the two had “dated for about a year before [they] moved in

together,” and that the relationship had deteriorated because Turner used drugs. Ibid.

The agency also received Mustafa Akkaya’s tax returns from 1996–1999, including joint

returns filed by himself and Turner in 1997 and 1999 that listed a single home address. AR 42–

62. In addition, the agency received a 2017 death certificate for Turner, with “never married”

listed as the marital status. AR 27, 40. Mustafa Akkaya’s unsworn statement added that he did

“not have bank or phone records or utility bills from 20 years” ago, and that while he was “trying

to get a supporting affidavit from people who knew [them] at that time, . . . even this is difficult

20 years later.” AR 39.

USCIS denied the I-130 application in June 2020 based on the INA’s marriage-fraud bar,

AR 26–33, and it denied the I-485 application based on the I-130 denial, AR 22–25. The agency’s

denial of the I-130 petition again described the facts suggesting fraud, including Turner’s

statement, that “no evidence was provided to show that Mustafa Akkaya resided with Tiffany

Turner,” and that “[t]here was also no evidence provided to show that the spouses held themselves

out to family and friends as husband and wife.” AR 28 (capitalization altered). In addition, it

observed that Mustafa Akkaya had a child born in 1998 “with his ex-wife Munevver Akkaya at

the time of being married to Tiffany Turner,” and that he later remarried Munevver Akkaya.” Ibid.

(capitalization altered).

The agency noted that when the record contains evidence that a “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.” Ibid. Here, USCIS stated, the agency had notified the petitioner of the information

indicating that Mustafa Akkaya had engaged in marriage fraud and provided an opportunity to

rebut that conclusion. But the petitioner “ha[d] not overcome the grounds set forth in [the

agency’s] notice.” Ibid. As a result, the notice stated, the agency “independently conclude[d] that

[Mustafa Akkaya’s] prior marriage to Tiffany Turner was entered into for the sole purpose of

obtaining immigration benefits” based on “substantial and probative evidence and not merely on

reasonable inferences.” Ibid. Plaintiffs appealed to the Board of Immigration Appeals, but the

appeal was denied as procedurally defective. AR 1–21.

3. Plaintiffs’ Lawsuit

Plaintiffs filed this lawsuit contending that the agency acted arbitrarily and capriciously, in

violation of the Administrative Procedure Act (“APA”), when it denied their applications based

on the marriage-fraud bar.

Defendants have moved for dismissal under Federal Rule of Civil Procedure 12(b)(6) and,

in the alternative, for summary judgment. See Defs.’ Mot. Summ. J. (Dkt. #22). They argue that

the agency did not act arbitrarily or capriciously in determining that the agency was barred from

granting an adjustment of status to Mustafa Akkaya based on the INA’s marriage-fraud provision.

Plaintiffs have cross-moved for summary judgment. See Pls.’ Mot. Summ. J. (Dkt. #23-1). They

contend that USCIS’s actions were arbitrary and capricious because the agency lacked substantial

and probative evidence of marriage fraud, and because the agency failed to credit the evidence that

Mustafa Akkaya submitted to rebut the marriage-fraud claim.

STANDARD OF REVIEW

Under the APA, agency action may be set aside if it is “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Federal district courts

generally have jurisdiction to review the denial of I-130 petitions. See Ruiz v. Mukasey, 552 F.3d

269, 273–76 (2d Cir. 2009).

The scope of review under the arbitrary and capricious standard is “narrow and

deferential.” Kakar v. USCIS, 29 F.4th 129, 132 (2d Cir. 2022) (citation omitted). Agency action

is arbitrary and capricious “if the agency has relied on factors which Congress has not intended it

to consider, entirely failed to consider an important aspect of the problem, offered an explanation

for its decision that runs counter to the evidence before the agency, or is so implausible that it

could not be ascribed to a difference in view or the product of agency expertise.” Ibid. (citation

omitted). “In other words, so long as the agency examines the relevant data and has set out a

satisfactory explanation including a rational connection between the facts found and the choice

made, a reviewing court will uphold the agency action, even a decision that is not perfectly clear,

provided the agency’s path to its conclusion may reasonably be discerned.” Karpova v. Snow, 497

F.3d 262, 268 (2d Cir. 2007).

When a party challenges agency action under the APA, the district court acts as an

“appellate tribunal,” and the case on review presents “a question of law.” Am. Bioscience, Inc. v.

Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001); see, e.g., N.Y. Legal Assistance Grp. v. DeVos,

527 F. Supp. 3d 593, 599 (S.D.N.Y. 2021) (applying Thompson rule). Summary judgment is

generally an appropriate procedural vehicle to resolve such a case, see Aleutian Cap. Partners,

LLC v. Scalia, 975 F.3d 220, 229 (2d Cir. 2020); Clifford v. U.S. Coast Guard, 915 F. Supp. 2d

299, 307 (E.D.N.Y.) (“[T]he Second Circuit has allowed appeals of agency decisions to be styled

as motions for summary judgment.”), aff’d, 548 F. App’x 23 (2d Cir. 2013), but “the usual

summary judgment standard under Federal Rule of Civil Procedure 56 does not apply,” Seife v.

U.S. Dep’t of Health & Hum. Servs., 440 F. Supp. 3d 254, 271 (S.D.N.Y. 2020) (citation omitted).

Instead, the court decides the legal issue of whether the agency’s action was arbitrary and

capricious, 5 U.S.C. § 706(2)(A), by reviewing “the administrative record compiled by that agency

when it made the decision,” Clifford, 915 F. Supp. 2d at 307 (quoting Nat’l Audubon Soc’y v.

Hoffman, 132 F.3d 7, 14 (2d Cir. 1997)); accord Am. Steamship Owners Mut. Prot. & Indem.

Ass’n, Inc. v. United States, 489 F. Supp. 3d 106, 128 (E.D.N.Y. 2020) (citing Miller v. United

Welfare Fund, 72 F.3d 1066, 1071 (2d Cir. 1995)); Pandya v. Jaddou, 581 F. Supp. 3d 476, 480

(E.D.N.Y. 2022).

DISCUSSION

Defendants’ motion for summary judgment is granted, and plaintiffs’ cross-motion is

denied, because USCIS’s decision to deny plaintiffs’ I-130 petition was not arbitrary or capricious.

In denying plaintiffs’ I-130 petition, USCIS explained that its decision was based on 8

U.S.C. § 1154(c), the “sham-marriage bar.” Bouarfa v. Mayorkas, No. 23-583, 2024 WL 5048700,

at *3 (U.S. Dec. 10, 2024). Under that provision, the agency may not approve an I-130 petition

for a beneficiary who previously sought status through “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); accord Singh v. Bd. of Immigr. Appeals, 724 F. App’x 36, 37 (2d Cir. 2018). The

Attorney General’s “finding of a fraudulent marriage must be supported by ‘substantial and

probative’ evidence ‘documented in the alien’s file.’” Joseph F. Risoli, P.E., LLC v. Nielsen, 734

F. App’x 61, 62 (2d Cir. 2018) (quoting Matter of Tawfik, 20 I. & N. Dec. 166, 167 (B.I.A. 1990)).

Under this standard, “the evidence must establish that it is more than probably true that the

marriage is fraudulent”—a standard “higher than a preponderance of the evidence and closer to

clear and convincing evidence.” Matter of P. Singh, 27 I. & N. Dec. 598, 607 (B.I.A. 2019). If

substantial and probative evidence of fraud exists, then the burden shifts to the petitioner to rebut

the evidence of fraud. Singh, 724 F. App’x at 38 (citing Matter of Kahy, 19 I. & N. Dec. 803, 806–

07 (B.I.A. 1988)). Rebuttal evidence may include “proof that the beneficiary of the visa petition

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.” Risoli, 734 F. App’x at 63 (brackets and quotation marks omitted)

(quoting In re Riero, 24 I. & N. Dec. 267, 269 (B.I.A. 2007)).

The administrative record supports USCIS’s finding that substantial and probative

evidence indicated marriage fraud. Most notably, Turner made a sworn statement to immigration

authorities that she was offered money to marry Mustafa Akkaya so he could obtain an

immigration benefit, that she had never lived with him, and that her marriage to him was not a

genuine marriage. AR 100. USCIS also noted an absence of evidence that Mustafa Akkaya and

Turner held themselves out as husband and wife or lived together. See AR 26–29. These facts

together provided substantial and probative evidence that Mustafa Akkaya had entered a sham

marriage for the purpose of an immigration benefit. See, e.g., Bourisquot v. Holder, 569 F. App’x

35, 36 (2d Cir. 2014) (finding substantial and probative evidence of marriage fraud when former

husband stated in a sworn statement that marriage was not bona fide); see also Singh, 724 F. App’x

at 38–39 (same, even in the absence of a statement directly attesting to fraud, based on “a wealth

of inconsistencies” between the statements of purported spouses, and “a conspicuous lack of

documentary evidence” that the couple had lived together and shared resources). While plaintiffs

attack Turner’s affidavit as inadequately detailed, “the agency has significant discretion over the

weight to be afforded to the evidence before it,” Singh, 724 F. App’x at 39, and the agency could

rationally credit Turner’s sworn affidavit over Mustafa Akkaya’s self-serving denial, even though,

as plaintiffs note, Turner’s affidavit did not contain details about the identity of the individual who

approached Turner about marrying Akkaya and about who ultimately paid her. See Pls.’ Mot.

Summ. J. 12–13.

The administrative record also supports USCIS’s determination that the applicant failed to

rebut the evidence of marriage fraud. As evidence of a legitimate marriage, USCIS received tax

returns for 1996 to 1999, some of which listed Mustafa Akkaya and Turner as filing jointly and

having the same address. USCIS also received a statement by Mustafa Akkaya denying any

marriage fraud, stating that his marriage to Turner had broken down because of her drug use, and

explaining that he was unable to provide “bank or phone records or utility bills from 20 years” ago

and was “trying to get a supporting affidavit from people who knew us at that time” but that doing

so was “difficult 20 years later.” AR 39. Finally, USCIS received Turner’s death certificate,

listing a date in 2017 and a marital status of “never married.”

As evidence of a bona fide marriage, these submissions are far from compelling. Beyond

tax returns for several years listing the same address and Mustafa Akkaya’s self-serving

statements, plaintiffs provided no evidence of a shared residence. And the submissions are entirely

bereft of evidence (beyond Mustafa Akkaya’s own account) of a “courtship” or “wedding

ceremony,” shared “experiences,” or “regular visits or contact.” Risoli, 734 F. App’x at 63

(quoting In re Riero, 24 I. & N. Dec. at 269). Nor did plaintiffs submit “joint bank account

statements” or “joint bills,” or otherwise establish that Turner was listed as Mustafa Akkaya’s

spouse on leases or insurance policies. Ibid. Given the evidence of fraud—including Turner’s

sworn statement—and “the weakness of [plaintiffs’] rebuttal evidence,” the agency’s finding that

Mustafa Akkaya entered a fraudulent marriage was supported by substantial and probative

evidence, and the denial of the I-130 petition was not arbitrary or capricious. Ibid.; see Koffi v.

Holder, 487 F. App’x 658, 660 n.1 (2d Cir. 2012) (agency did not act arbitrarily and capriciously

in finding marriage fraud, despite shared financial accounts, when “record contain[ed] not a single

affidavit from a neighbor, friend, or acquaintance evincing a wedding ceremony or shared

activities and experiences, as might be expected when couples enter into bona fide marriages”).

While plaintiffs note that the agency’s denial of the I-130 petition contains several arguable

misdescriptions, those errors are harmless when the record is viewed as a whole. When an

agency’s decision contains an error, the Court need not remand when it “can state with confidence

that the [agency decisionmaker] would adhere to [its] decision if [the Court] were to remand.”

Ajdin v. Bureau of Citizenship & Immigr. Servs., 437 F.3d 261, 266 (2d Cir. 2006) (per curiam)

(quoting Xiao Ji Chen v. U.S. Dep’t of Just., 434 F.3d 144, 158 (2d Cir. 2006)); see 5 U.S.C. § 706

(directing that “due account shall be taken of the rule of prejudicial error” in APA review).

Here, plaintiffs challenge as inaccurate the district director’s statement in denying the

instant I-130 petition that there was “no evidence” that Turner and Mustafa Akkaya lived together

in a shared residence. See AR 13. In plaintiffs’ view, there was in fact some evidence—the tax

filings listing a shared address for Turner and Mustafa Akkaya, the I-130 application filed by

Turner, which stated that she and Akkaya lived together, and Mustafa Akkaya’s statement about

his marriage to Turner. Pls.’ Mot. Summ. J. 16. But even if “no evidence” is an overstatement,

the error is harmless because the record makes clear that the decisionmaker considered the

materials in question and simply did not find them persuasive. In finding that the sham-marriage

bar applied to Mustafa Akkaya, the district director specifically mentioned that the agency had

reviewed the submitted tax forms that the director noted were marked “MARRIED filing jointly”

and listed a shared address for Turner and Mustafa Akkaya. See AR 27–28. The district director’s

decision also expressly recognized that Turner had “filed [a] Form I-130 seeking to classify

Mustafa Akkaya as the spouse of a US citizen,” AR 28 (capitalization altered), and that Mustafa

Akkaya had submitted a statement to the agency about his marriage, AR 27. Because the district

director thus made plain that the agency had considered the tax returns, Turner’s I-130 application

on behalf of Mustafa Akkaya, and Mustafa Akkaya’s statement, the Court can “state with

confidence” that remand to consider those documents would not result in a different decision.

Ajdin, 437 F.3d at 266 (citation omitted).

Similarly, while plaintiffs fault the agency for stating that Turner claimed to have been paid

by Mustafa Akkaya, Pls.’ Mot. Summ. J. 4, when Turner in fact stated that she had been paid to

marry Akkaya without stating who had made the payment, AR 100, that misdescription is harmless

because it is immaterial. It is irrelevant to the application of the marriage-fraud bar whether Turner

was paid directly by Mustafa Akkaya or by someone else. Accordingly, the Court can say with

confidence that a remand based on that misdescription would not result in a different result.

Finally, plaintiffs are not entitled to relief because the district director mentioned in the

agency’s denial notice that Ibrahim Akkaya had been born to Mustafa and Munevver Akkaya while

Mustafa was married to Turner. Under 8 C.F.R. § 103.2(b)(8)(iv), an agency’s “notice of intent to

deny” must “specify . . . the bases for the proposed denial sufficient to give the applicant or

petitioner adequate notice and sufficient information to respond.” Here, the agency’s notice of

intent mentioned several pieces of evidence suggesting fraud—including Turner’s sworn statement

and Mustafa Akkaya’s prior and subsequent marriages to Munevver Akkaya—but it did not

mention the circumstances of Ibrahim Akkaya’s birth. See AR 35–37. Accordingly, the agency

may have erred in mentioning this birth in its denial decision in the section discussing the reasons

for denying the I-130 petition.

“Where the agency fails to follow its own regulations,” the Court “will remand to invalidate

the challenged proceeding only where the alien demonstrates ‘prejudice to the rights sought to be

protected by the subject regulation,’ or where the ‘regulation at issue is promulgated to protect a

fundamental right derived from the Constitution or a federal statute.’” Nolasco v. Holder, 637

F.3d 159, 163 (2d Cir. 2011) (per curiam) (quoting Waldron v. I.N.S., 17 F.3d 511, 518 (2d Cir.

1993)) (brackets omitted). Here, plaintiffs’ papers can be read to suggest that they suffered

prejudice because Mustafa Akkaya “was never asked about this supposed derogatory information”

and therefore “was never provided an opportunity to explain that fact.” [Pls.’ Mot. Summ. J. 16]

But plaintiffs fail to demonstrate the requisite prejudice because they “do[] not identify any

different or additional argument that [they] would have made” to the agency had the original notice

mentioned Ibrahim Akkaya’s birth. Ledesma v. Holder, 450 F. App’x 51, 53 (2d Cir. 2011); see

Nolasco, 637 F.3d at 165 (declining to remand when there was “no evidence” of an “adverse effect

on Petitioner’s ability to answer the Government’s charges”). Further, the agency’s decision

makes clear that remand would not lead to a different outcome because it explicitly states that

petitioners had not rebutted the grounds in the original notice. See AR 28 (stating that “[y]ou have

not overcome the grounds set forth in our notice,” and that “[i]n response to our notice, you have

not submitted relevant, probative and credible evidence to establish that the beneficiary’s prior

marriage was not entered into for immigration purposes”). And the strength of the evidence in the

original notice—including Turner’s sworn statement—reinforces that the agency’s decision did

not turn on the inclusion of the additional fact regarding Ibrahim Akkaya’s birth. See Xiao Ji Chen,

434 F.3d at 162 (directing courts to consider “the strength of the error-free portion” of the agency

decision in determining whether remand would be futile). Accordingly, the Court declines to

remand this case for a new decision based on the decision letter’s mention of Ibrahim Akkaya’s

birth.*

CONCLUSION

For the foregoing reasons, defendants’ summary judgment motion is granted, and

plaintiffs’ summary judgment motion is denied.

SO ORDERED.

/s/ Rachel Kovner

RACHEL P. KOVNER

United States District Judge

Dated: February 3, 2025

Brooklyn, New York

* Plaintiffs have never made, and have therefore forfeited, an argument that the agency’s failure to follow 8 C.F.R.

§ 103.2(b)(8)(iv) implicates a fundamental right derived from the Constitution or a federal statute. See, e.g., Reid v.

Garland, 120 F.4th 1127, 1147 (2d Cir. 2024) (stating that showing of prejudice is not required “[w]here . . . a

respondent claims that an agency ‘has failed to adhere to its own regulations regarding a fundamental right derived

from the Constitution or a federal statute’”) (brackets omitted); Ledesma, 450 F. App’x at 53 (plaintiff not entitled to

relief based on BIA’s non-compliance with regulation when plaintiff failed to “demonstrate ‘prejudice to the rights

sought to by protected by the subject regulation,’ or the regulation’s promulgation ‘to protect a fundamental right

derived from the Constitution or a federal statute’”) (emphasis added) (citation omitted).