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Simko v. Board of Immigration Appeals

United States District Court, D. Connecticut

December 30, 2015

NAZAR SIMKO, et al., Plaintiffs,


Janet C. Hall United States District Judge


This case concerns the denial of a Form I-130 Petition for Alien Relative (“I-130 Petition”) filed by plaintiff Karolina Simko on behalf of plaintiff Nazar Simko. See Compl. at 1 ¶ 1 (Doc. No. 1). Karolina Simko’s I-130 Petition was denied by United States Citizenship and Immigration Services, and that decision was affirmed by the Board of Immigration Appeals (collectively, “the agency”).[1] See id. Plaintiffs seek review of the agency’s decision pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. § 701, et seq. See Compl. at 2 ¶ 4 (Doc. No. 1).[2]

The parties have filed opposing Motions for Summary Judgment. See Pls.’ Mot. for Summ. J. (Doc. No. 26); Defs.’ Mot. for Summ. J. (Doc. No. 27). For the reasons set forth below, plaintiffs’ Motion for Summary Judgment (Doc. No. 26) is GRANTED, and defendants’ Motion for Summary Judgment (Doc. No. 27) is DENIED.


Plaintiff Nazar Simko (“Simko”) is a native and citizen of Ukraine. See Pls.’ L.R. 56(a)1 Stmt. at 1 ¶ 5 (Doc. No. 26-1). He arrived in the United States in 2001 as a visitor with permission to remain for a period of six months. Id. at 1 ¶ 6. Simko has remained in the U.S. beyond this six-month period without authorization.[4] See A.R. 546.

On April 10, 2006, Simko married Sherrie Terry (“Terry”), a U.S. citizen. See A.R. 85. Terry filed an I-130 Petition on behalf of Simko on August 15, 2006. See A.R. 267-68. On the same day, Simko filed a Form I-485, Application to Register Permanent Residence or Adjust Status. See A.R. 559-62.

The United States Citizen and Immigration Services (“USCIS”) held interviews with Terry and Simko regarding their I-130 Petition and I-485 Application on April 19, 2007. See A.R. 341. The interviewing officer noted that there were “no discrepancies in [their] answers” to the interview questions, but that Terry and Simko had “no joint info[rmation], ” as neither of them worked and they lived with Terry’s mother. Id. The officer also noted that, although Simko said he met Terry and began his relationship with her while he was in Ohio to visit a friend named Alex, Simko could not remember Alex’s last name. See A.R. 564. With respect to Terry’s answers, the officer noted that Terry reported that she had not signed any immigration-related paperwork for Simko. See A.R. 342. However, when the officer showed Terry the I-130 Petition that had been submitted on Simko’s behalf, she confirmed that her signature was on the document. See id. Terry told the officer that she had not known about Simko’s immigration status at the time of their marriage and, that if she had been aware of his immigration situation, she would not have married him. See id.

Following the interviews with Terry and Simko, USCIS sent Simko and Terry separate requests for additional information, including an affidavit from Terry’s mother attesting that Simko and Terry resided with her, as well as additional documentation of the bona fide nature of Terry’s and Simko’s marriage. See A.R. 263-64, 665-66. Simko did not provide all of the requested information, however, and his I-485 Application was denied due to abandonment in August 2007. See A.R. 555-56. At that same month, a USCIS officer drafted a Fraud Referral Sheet related to Terry’s I-130 Petition and Simko’s I-485 Application. See A.R. 326-29. It is not clear whether the Fraud Referral Sheet was ever submitted but, if it was, it does not appear that the Fraud Detection and National Security Directorate (“FDNS”) took further action on it at that time. See A.R. 329-30. Like Simko, Terry failed to provide the information and documentation requested by USCIS and, as a result, her I-130 Petition was denied due to abandonment in November 2007. A.R. 265-66. Simko initiated divorce proceedings against Terry in Connecticut in late 2008, and their divorce was finalized in April 2009. See A.R. 523.

In February 2009, before his divorce from Terry was finalized, Simko submitted an I-360 Petition seeking classification as the self-petitioning spouse of an abusive U.S. citizen. See A.R. 399-404. Simko’s I-360 Petition triggered further investigation by USCIS and FDNS for possible marriage fraud. See A.R. 301-06. The USCIS officer who conducted the investigation compiled her findings into a Summary of Findings (“the Salyer Report”), which is part of the Administrative Record in this case. See id. The Salyer Report states that a record check as part of the fraud investigation revealed that Terry had “been identified as a participant in a marriage fraud ring” operating in Cincinnati and northern Kentucky. A.R. 304. The marriage fraud ring with which Terry was connected often worked by matching “Eastern European males living in the Northeastern part of the US” with “young United States Citizen females from the Cincinnati or Northern Kentucky region.” A.R. 304-05. Furthermore, the Salyer Report noted that the pastor who performed Simko’s marriage to Terry solemnized at least one other marriage connected to the fraud ring. See A.R. 305. On the basis of these and other facts, the Salyer Report concluded that it “is probable that SUBJECT SIMKO was a willing participant, if not the main perpetrator of the marriage fraud in this instance.” A.R. 301.

In September 2010, USCIS asked Simko for additional documentation related to his I-360 Petition, including proof of the bona fide nature of his marriage to Terry. See A.R. 497-502. In response, Simko submitted a collection of affidavits and photographs. See A.R. 504-18. USCIS denied Simko’s I-360 Petition in May 2011 for, among other things, failure to demonstrate that he entered into his marriage with Terry in good faith. See A.R. 343-46.

In June 2011, Simko married Karolina Simko, the second plaintiff in this matter. See A.R. 241. The parties agree that Simko’s marriage to Karolina Simko is bona fide. Mem. of Law in Supp. of Defs.’ Mot. for Summ. J. at 12 (Doc. No. 27-1). Karolina Simko, who is a United States citizen, filed an I-130 Petition on behalf of Simko shortly after their marriage. See A.R. 110-12. Nazar and Karolina Simko were interviewed by USCIS in May 2012 regarding the I-130 Petition filed by Karolina Simko. See A.R. 294-95. After that interview, an officer with USCIS filled out another Fraud Referral Sheet related to Simko’s prior marriage to Terry, but FDNS indicated that there was a “previous entry” on this matter and does not appear to have taken further action. A.R. 291-93. In April 2013, USCIS issued a Notice of Intent to Deny (“NOID”) Karolina Simko’s I-130 Petition because Nazar Simko’s marriage to Terry was fraudulent. See A.R. 376-80. Karolina Simko was given thirty days to submit evidence to rebut the agency’s conclusion that Simko’s marriage to Terry was a sham. See A.R. 380.

In response to USCIS’s NOID, Karolina Simko submitted a packet of documents, including the following:

• Affidavits from Simko, his parents, Terry, Terry’s mother, and Terry’s sister;
• Simko’s and Terry’s marriage license;
• Photographs showing Simko’s and Terry’s wedding;
• Sprint phone bills in Simko’s name that were mailed to Terry’s mother’s address in Ohio;
• Two Western Union money transfers (one for $150 and a second for $30) sent from Simko to Terry in March 2008;
• A letter from a care facility confirming Terry was in treatment and counseling for ...

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