Court: District Court, D. Massachusetts; September 19, 2016; Federal District Court
Rebecca Roman and Oleg Bondarev are challenging the denial of Bondarev's Form I-130 petition by USCIS and the subsequent affirmation by the BIA under the Administrative Procedures Act (APA). Both parties submitted cross-motions for summary judgment, with the court ultimately denying the Plaintiffs’ motion and granting the Defendants’. The court’s standard of review under the APA is stringent; it may only overturn an agency’s decision if it is deemed arbitrary, capricious, or not supported by substantial evidence. This standard emphasizes deference to agency findings, meaning that the court cannot substitute its judgment even if it disagrees with the agency.
Bondarev, a Russian national, entered the U.S. in 2002 on a B-1 visa and married U.S. citizen Victoria Burns in 2005. In December 2005, Burns filed an I-130 petition for him, which she later withdrew in June 2006. In her withdrawal request, Burns alleged that Bondarev had proposed marriage to obtain a green card, offered her drugs in exchange for marriage, and stated they never lived together, while indicating she acted without coercion. Two USCIS officers witnessed her statement.
On July 28, 2006, USCIS confirmed Burns' withdrawal of an I-130 petition for Bondarev, which she did not contest or replace. Burns and Bondarev divorced on August 29, 2011. Bondarev married Roman, a U.S. citizen, on April 6, 2012, and Roman filed a new I-130 petition for Bondarev on July 24, 2012. During their December 3, 2012, USCIS interview regarding the petition, the couple provided inconsistent answers on various personal details and their living situation, alongside contradictory documentary evidence. As a result, USCIS issued a Notice of Intent to Deny (NOID) the petition, citing insufficient establishment of a genuine spousal relationship.
Roman responded to the initial NOID with an affidavit addressing the discrepancies and additional evidence. However, USCIS issued a second NOID on May 22, 2014, noting that approval was barred under 8 U.S.C. 1154(c) due to Bondarev's prior fraudulent marriage to Burns. Roman's response included Burns' recantation, where she stated the marriage was genuine and denied claims of drug-related coercion. She also provided further affidavits and evidence supporting the authenticity of Bondarev's prior relationship with Burns.
On July 28, 2014, USCIS ultimately denied Roman's petition, concluding that the marriage had not been proven bona fide and reaffirming that any petition for Bondarev was precluded due to the previous fraudulent marriage. USCIS found that the evidence presented did not sufficiently counter the established indications of marriage fraud, particularly highlighting Burns' statements in her recantation as supporting the reliability of her initial withdrawal.
USCIS assigned limited weight to a letter from Bondarev's former landlord due to inconsistencies with other evidence, such as a 2010 joint bank account statement indicating that Bondarev and Burns were still living together after the claimed separation. An affidavit from Bondarev's friend, which suggested infidelity, was deemed unhelpful in proving the marriage's legitimacy. Additionally, a letter from Bondarev's employer was considered irrelevant regarding drug use allegations. Plaintiffs appealed USCIS's I-130 petition denial to the BIA, including a polygraph test result indicating no deception about drug-related marriage benefits. The BIA conducted a de novo review and upheld USCIS's decision, stating that Bondarev's self-serving statements were insufficient to counter the negative evidence. The BIA found the friend's affidavit too general and dismissed Plaintiffs' claim regarding Burns' memory of signing a withdrawal request, citing her substance abuse issues at the time. The polygraph test did not address the marriage's bona fide nature, and Plaintiffs failed to clarify discrepancies in their testimonies. The BIA noted that the lease agreement lacked Roman's signature and other documents did not sufficiently demonstrate their cohabitation, ultimately concluding that the evidence was inadequate to establish a legitimate marriage. The BIA affirmed the denial of the I-130 petition based on these findings. Under 8 U.S.C. 1154(c), an alien is ineligible for permanent resident status if the marriage is found to have been entered into to evade immigration laws.
The determination regarding prior marriages applies to those entered to evade immigration laws. The government bears the initial burden to provide substantial evidence that a marriage is a sham, as established in legal precedents. Substantial evidence is defined as relevant evidence sufficient to support a conclusion. If the government meets this burden, it must issue a Notice of Intent to Deny (NOID), allowing the petitioner to rebut the evidence before a final decision is made. The burden then shifts to the petitioner to prove that the marriage was not fraudulent. In cases reviewed by the district court, agency findings on marriage legitimacy are treated as factual findings, reviewed under the substantial evidence standard, which requires that a reasonable adjudicator would not reach a contrary conclusion. Credibility determinations are also factual findings and are upheld if the agency provides specific reasons for its conclusions. In the case at hand, the Board of Immigration Appeals (BIA) supported the U.S. Citizenship and Immigration Services (USCIS) denial, prompting a combined review of both decisions. Plaintiffs challenge the BIA's reliance on a withdrawal request by Burns as insufficient evidence of marriage fraud, citing several points: Burns denies signing the request; questions about the voluntary nature of her signature; the request was typed by a USCIS officer; it was unsworn; and a lack of corroborating evidence. They argue that the record supports the authenticity of the marriage based on Burns’ recantation.
The BIA and USCIS did not abuse their discretion in determining that Bondarev’s marriage to Burns was fraudulent, supported by substantial evidence in the record. Burns’ withdrawal statement, prepared on agency letterhead and signed in front of two USCIS officers, is presumed reliable due to the presumption of regularity in government actions. The lack of an oath does not diminish the statement's significance, as sworn statements are not mandatory.
The BIA and USCIS acknowledged Burns' sworn affidavit recanting her withdrawal but deemed it not credible, particularly due to inconsistencies regarding the drug Bondarev allegedly provided her. They questioned her ability to accurately recall events during her drug use at the time of the withdrawal statement. This does not imply that her signing was not voluntary; rather, it suggests that her impaired memory affected her recantation’s reliability.
Additionally, the BIA and USCIS based their findings on more evidence beyond the withdrawal request, which demonstrated that Bondarev’s marriage was fraudulent. While conflicting evidence suggesting the marriage was bona fide was presented, the BIA and USCIS found this evidence incredible, irrelevant, or unreliable. Thus, the BIA and USCIS's conclusion that Bondarev’s marriage to Burns was fraudulent is supported by substantial evidence, resulting in a bar to Roman’s I-130 petition on behalf of Bondarev.
The BIA and USCIS determined that the Plaintiffs did not enter into a bona fide marriage, a decision deemed not an abuse of discretion. Evidence presented was considered questionable, with indications that much was fabricated after the first NOID was issued to Roman. The USCIS and BIA identified significant inconsistencies in the Plaintiffs' statements regarding their relationship, including details about their initial meeting, Bondarev's relocation to Massachusetts, their activities on the day of the USCIS interview, and knowledge about Roman’s children. Furthermore, Roman's responses to two NOIDs failed to clarify these discrepancies. The BIA concluded that these inconsistencies undermined the claim of a legitimate marriage. Consequently, the court denied the Plaintiffs' Motion for Summary Judgment and granted the Defendants’ Motion for Summary Judgment, ruling in favor of the Defendants. Additionally, the withdrawal statement from Burns claimed Bondarev had given her a controlled substance as part of their marriage arrangement, but she later recanted this assertion. Despite finding Roman statutorily barred from filing an I-130 petition for Bondarev, the BIA and USCIS also evaluated whether the marriage was fraudulent, which the court addressed for thoroughness.
