United States District Court, D. Connecticut
RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
Jeffrey Alker Meyer United States District Judge.
and Adam Giza have filed a petition for review of the
decision of the Board of Immigration Appeals
(“BIA”) to deny Sonia's I-130 petition. The
Gizas filed this complaint under the Administrative Procedure
Act, 5 U.S.C. §§ 701-706, alleging that the
agency's decision was arbitrary and
capricious. The parties have cross-moved for summary
judgment. I will grant the Government's motion for
summary judgment and deny the Gizas' cross-motion for the
reasons set forth below.
Giza is a Polish citizen who first arrived in the United
States in 2004 on a visitor visa with his then-wife, Bozena
Giza, and their minor son. Doc. #24-1 at 2. He has overstayed
his visa and remained in the country since then.
Ibid. Adam and Bozena divorced in 2006. Id.
at 3. Around June of 2009, U.S. Immigration and Customs
Enforcement commenced removal proceedings against Adam. Doc.
#27-1 at 7. While these proceedings were pending, he married
Sonia Giza in May 2010. Ibid.
the Immigration and Nationality Act, 8 U.S.C. §§
1101 et seq., a non-citizen who seeks to obtain an
immigration visa based on his relationship with a United
States citizen must have the citizen file an I-130 petition
on his behalf. An I-130 petition “in and of itself does
not confer legal status on an individual, but if the petition
is granted, the beneficiary becomes eligible to apply for a
visa or adjustment of status to lawful permanent
resident.” Maldonado v. Holder, 2015 WL
1097364, at *1 (D. Conn. 2015) (citing 8 U.S.C. §§
1154, 1255). When “the beneficiary and petitioner are
married after the beneficiary is already in removal
proceedings, the beneficiary must reside outside the United
States for a two-year period beginning after the date of the
marriage, unless the beneficiary can establish ‘by
clear and convincing evidence to the satisfaction of the
Attorney General' that he qualifies for the bona fide
marriage exemption: that is, that the marriage was entered
into in good faith … and the marriage was not entered
into for the purpose of procuring the [beneficiary's]
admission ….'” Ibid. (quoting 8
U.S.C. § 1255(e)(3)).
first I-130 petition on Adam's behalf was denied by the
U.S. Customs and Immigration Service (USCIS) on August 3,
2011. Doc. #27-1 at 7. The denial “cited discrepant
answers during [Sonia's] interview, an investigative
field visit, an unconvincing response to the information
obtained from the field visit, and a lack of details in
various letters seeking to substantiate the marriage.”
after the BIA affirmed the denial on appeal, Sonia filed a
second I-130 petition on September 28, 2012. Ibid.
Several years later, USCIS issued a Notice of Intent to Deny
the petition on February 22, 2017, advising Sonia that the
evidence supporting the petition was insufficient to
establish that her marriage to Adam was entered into in good
faith, and providing an opportunity to submit additional
evidence on this point. Ibid. After Sonia provided
more documentation, see Id. at 7-8, USCIS denied the
petition on April 12, 2017, concluding that the Gizas had not
established by clear and convincing evidence that their
marriage was bona fide and not commenced for the purposes of
circumventing immigration laws. Id. at 6. The notice
of decision from USCIS discussed why it did not conclude that
the supplemental information furnished by Sonia was
persuasive. It cited, for example, evidence from a field
visit to Sonia's landlord who was unwilling to confirm
that Adam was a co-tenant, that he was included on the lease,
or that he resided with Sonia. Id. at 8.
“Although the beneficiary may come and go at unusual
hours as you claim, it is reasonable to conclude that your
landlord, who occupies the other side of the two-family
residence and who shares walls with you, would be able to
speak credibly to the beneficiary's presence at the
property.” Ibid. The USCIS additionally cited
evidence from field visit interviews with neighbors of Bozena
to suggest that Adam was living with Bozena. Id. at
appealed to the Board of Immigration Appeals, and the BIA
dismissed the appeal by decision on April 20, 2018.
Id. at 4. It summarized the evidence relied on by
the USCIS and why it did not find that the Gizas had carried
their burden to show that the marriage was entered into in
good faith. Id. at 4-5.
later filed this case in federal court, alleging that the
decision to deny the I-130 petition was arbitrary and
capricious because the agency did not adequately consider the
rebuttal evidence they submitted in response to the Notice of
Intent to Deny and instead based its decision on
“impermissible speculation and conjecture.” Doc.
#26 at 9, 12. The parties have filed cross-motions for
summary judgment. Docs. #24, 26.
principles governing the Court's review of a motion for
summary judgment are well established. Summary judgment may
be granted only if “the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). I must view the facts in the light most favorable to
the party who opposes the motion for summary judgment and
then decide if those facts would be enough-if eventually
proved at trial-to allow a reasonable jury to decide the case
in favor of the opposing party. My role at summary judgment
is not to judge the credibility of witnesses or to resolve
closely contested issues but solely to decide if there are
enough facts that remain in dispute to warrant a trial.
See generally Tolan v. Cotton, 572 U.S. 650, 656-57
(2014) (per curiam); Pollard v. N.Y. Methodist
Hosp., 861 F.3d 374, 378 (2d Cir. 2017).
threshold matter, I consider whether the Court has
jurisdiction over the agency's decision. Federal courts
do not generally have jurisdiction over any “decision
or action of the Attorney General or the Secretary of
Homeland Security the authority for which is specified under
this subchapter to be in the discretion of the Attorney
General or the Secretary of Homeland Security.” 8
U.S.C. § 1252(a)(2)(B)(ii). As noted above, the marriage
fraud provision at issue in this case allows for an exception
only if the beneficiary “establishes by clear and
convincing evidence to the satisfaction of the Attorney
General that the marriage was entered into in good
faith.” 8 U.S.C. § 1255(e)(3) (emphasis added).
courts have previously ruled at the Government's behest
that the statutory requirement that the evidence be “to
the satisfaction of the Attorney General” implied that
the Attorney General retained discretion of the type that is
unreviewable under § 1252(a)(2)(B)(ii). See Barenboy
v. Sec'y, U.S. Dep't of Homeland Sec., 411
Fed.Appx. 512, 516 (3d Cir. 2010); Poh v.
Nielsen, 2019 WL 1002596, at *3 (D. Md. 2019);
Maldonado, 2015 WL 1097364, at *3. Here, however,
the Government expressly disclaimed its prior position in
these cases after I raised this issue sua sponte.
Doc. #31. In light of the Government's reasons for its
change of position and in light of the statutory language
that requires a finding by the Attorney General of a specific
fact (“good faith”) by clear and convincing
evidence, I conclude that-notwithstanding the statute's
reference to the “satisfaction of the Attorney
General”-Congress did not intend to leave this
particular determination to the general and non-reviewable
discretion of the Attorney General. See also 8
U.S.C. § 1154(b) (requiring approval of I-130 petition
“if [the agency] determines that the facts stated in
the petition are true and that the alien in behalf of whom
the petition is made is an immediate
relative….”); Ruiz v. Mukasey, 552 F.3d
269, 275-76 (2d Cir. 2009) (holding that §
1252(a)(2)(B)(ii) does not preclude judicial review of denial
of I-130 petition pursuant to § 1154(b)).
brings me to the merits of the Gizas' challenge. In a
case like this one that challenges the decision of an
administrative agency, the Court's review is ordinarily
limited to the administrative record. See 5 U.S.C.
§ 706; Camp v. Pitts, 411 U.S. 138, 142 (1973).
And my task is not to second-guess the agency but solely to
determine if the agency acted no less than arbitrarily or
capriciously in reaching its determination. See Simko v.
Bd. of Immigration App., 156 F.Supp.3d 300, 308 (D.
Conn. 2015) (explaining why the arbitrary-and-capricious
standard applies to a court's reviews of the denial of a
I-130 petition). This is a deferential standard: I must
uphold an agency's decision “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.” Kumar v. Dir., U.S.
Citizenship & Immigration Servs., 735 Fed.Appx. 13,
14 (2d Cir. 2018) (citing Karpova v. Snow, 497 F.3d
262, 266 (2d Cir. 2007)). I cannot substitute my judgment for
that of the agency and may only set aside the decision if the
agency “entirely failed to consider an important aspect
of the problem, ...