United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JOHN ROBERT BLAKEY, District Judge.
Plaintiffs Ankush Seghal and Mohit Seghal seek to have this Court reverse the Board of Immigration Appeals' June 7, 2013 decision denying the Form I-130 Petition for Alien Relative filed by Ankush, an American citizen, on behalf of her husband Mohit, an Indian citizen. Defendants, principally, officers at the United States Citizenship and Immigration Services ("USCIS") and the United States Department of Homeland Security, seek to affirm the underlying decision.
Form I-130 is meant to assist relatives of American citizens immigrate to the United States. There is no present dispute that Mohit and Ankush entered into a bona fide marriage. The Board instead denied the Form I-130 on other grounds, that is, there was substantial and probative evidence that Mohit had entered into a sham marriage with his first wife, Renee Miller-another American citizen who also filed Form I-130s on behalf of Mohit. Under 8 U.S.C. § 1154(c), no Form 1-130 can be approved if the beneficiary has ever sought immigration benefits based on a sham marriage. That is the situation here.
The parties have cross-moved for summary judgment  . This Court grants Defendants' motion  and denies Plaintiffs' motion .
I. Legal Standards
A. Administrative Standard and Burden of Proof
When an American citizen marries a non-citizen, the couple can file a Form I-130 to petition the government to recognize the non-citizen as a legal permanent resident. The couple has the burden to persuade the government that they intended to establish a life together when they married. Matter of McKee, 17 I. & N. Dec. 332, 334-35 (BIA 1980).
Separate from the couple's burden, the government must deny the petition if it finds that the non-citizen ever entered into a sham marriage. All prior marriages can be considered, and if the government finds that any one of them is fraudulent, the beneficiary is forever barred from receiving immigration benefits through marriage. 8 U.S.C. § 1154(c); 8 C.F.R. § 204.2(a)(1)(ii); see also Ogbolumani v. Napolitano, 557 F.3d 729, 736 (7th Cir. 2009). That is a statutory bar that cannot be avoided. Ogbolumani, 557 F.3d at 733.
The burden initially is on the government. The government must find "substantial and probative evidence" that the marriage was a sham from its inception. 8 C.F.R. § 204.2(a)(1)(ii). The government may look at all relevant evidence, including evidence originating from the agency's prior dealings with the beneficiary. 8 C.F.R. § 204.2(a)(1)(ii); see also Matter of Tawfik, 20 I. & N. Dec. 166, 167-68 (BIA 1990). The beneficiary need not have been prosecuted or convicted of marriage fraud. 8 C.F.R. § 204.2(a)(1)(ii). If the government identifies substantial and probative evidence of marriage fraud, then the burden shifts to the couple to show otherwise. Matter of Kahy, 19 I. & N. Dec. 803, 806-07 (BIA 1988).
B. Standard of Review in this Court
The Administrative Procedure Act governs this Court's review of a final decision by the Board of Immigration Appeals. 5 U.S.C. §§ 702, 704. Under the Act, this Court's review is limited to the Administrative Record  (and, for this reason, this Court finds Defendants' failure to submit a statement of facts to be a harmless mistake, at worst). 5 U.S.C. § 706. This Court may reverse the Board's decision under limited circumstances, such as where the decision is arbitrary and capricious or without observance of procedure required by law. 5 U.S.C. § 706(2); Mt. Sinai Hospital Medical Center v. Shalala, 196 F.3d 703, 708 (7th Cir. 1999). These are demanding standards. So long as a reasonable mind could find adequate support for the administrative decision, it is not arbitrary or capricious. Ogbolumani, 557 F.3d at 733; Mt. Sinai Hospital Medical Center, 196 F.3d at 708-09. The decision need not be compelling or even convincing to be sufficient. Ogbolumani, 557 F.3d at 735; Ghaly v. Immigration and Naturalization Service, 48 F.3d 1426, 1430-31 (7th Cir. 1995).
A. The Two Marriages
Mohit is an Indian citizen who entered the United States on September 10, 2000 on a B-2 visitor's visa. Administrative Record ("AR") at 0097. This action concerns Mohit's marriages to two American citizens and corresponding efforts to obtain a green card.
On June 26, 2003, Mohit married Renee Miller (who will be called Renee for clarity because she took Mohit's last name during their marriage). AR at 0185. Later that summer, on August 22, Renee filed a Form I-130 on behalf of Mohit. AR at 0069-70, 0088. On February 2, 2005, Mohit and Renee appeared for an interview in connection with the Form I-130. AR at 0088, 0093. Also while the Form I-130 was pending, the couple submitted extensive evidence of their purported marriage, including TCF Bank statements and two affidavits from Mohit's mother dated February 1, 2005 and January 11, 2006. AR at 0089-90.
USCIS denied the Form I-130 on November 17, 2005. AR at 0088. The notice denying the Form I-130 stated that Renee claimed to be living in Mohit's parent's house until June 3, 2005. AR at 0088, 0093. Yet when an investigator called the house on March 16, 2005, Mohit's mother answered and stated, according to the notice, that "she had no idea where you [Renee] were and did not have a contact number for you." AR at 0088. Renee appealed the denial. AR at 0088. Yet the appeal was rendered moot when Mohit and Renee divorced on July 31, 2008. AR at 0088.
While the appeal from the first Form I-130 was pending, on October 26, 2006, Renee filed a second Form I-130 on behalf of Mohit. AR at 0071-72, 0088. The same day, Mohit filed a corresponding Form I-485 to change his residence status. AR at 0088. In connection with the second Form I-130, on February 12, 2007, Mohit and Renee appeared for an interview and gave their shared address as 1004 West Euclid Avenue, Arlington Heights, Illinois. AR at 0088.
Sometime in late 2007 (the exact date is redacted from the Administrative Record), Renee gave birth to a child. AR at 0089, 0091. Mohit is not the father. AR at 0091 n.3, 0185, 0247.
Returning to the second Form I-130, USCIS scheduled a second interview for January 29, 2008, but neither Mohit nor Renee appeared. AR at 0089. USCIS issued Requests for Evidence after the first and second interviews, requesting further proof of a genuine marriage. AR at 0088-89. USCIS received two letters in response, both purportedly from Mohit (as will be discussed below). AR at 0089-90. One letter was signed with the name Mohit; the other was unsigned. AR at 0089. Mohit and Renee also re-submitted many of the same documents sent with the first Form I-130. AR at 0090. They submitted new documents as well, including photographs with Renee's family in New Mexico. AR at 0090.
On July 31, 2008, Mohit and Renee divorced. AR at 0089, 0184-86. The Judgment for Dissolution of Marriage entered in Illinois state court stated that the parties had separated on or about October 2003. AR at 0089, 0185.
USCIS scheduled a third interview for December 8, 2008, again, neither Mohit nor Renee appeared. AR at 0089. As a result, on or about January 16, 2009, USCIS denied the second Form I-130 as abandoned. AR at 0089.
On September 9, 2009, Immigration and Customs Enforcement officers interviewed Mohit about his association with Tess Zarrabian and Mohit gave a five-page written statement. AR at 0091, 0390-95. Ms. Zarrabian was under investigation for certain immigration services she provided. See  at 3; [29-1] at 3. Mohit signed or initialed every page in his statement. AR at 0091, 0390-95. He also signed a Record of Sworn Statement witnessed by an immigration officer, swearing that he read or had read to him the statement and that it was true and correct. AR at 0091, 0395.
In the sworn statement, Mohit apologized "for putting myself in this situation and breaking the law." AR at 0091. Specifically, Mohit described how he entered into a fraudulent marriage with Renee to obtain permanent resident status. AR at 0091. Mohit first met Renee through Ms. Zarrabian at Ms. Zarrabian's office. AR at 0091. Mohit initially believed Ms. Zarrabian was a lawyer although she later said she was not. AR at 0091. Mohit paid Renee $6, 000 and Ms. Zarrabian thousands of dollars as well. AR at 0092.
Mohit explained the steps he and Renee took to create the false impression of a legitimate marriage to USCIS. AR at 0092. Many of the documents the two submitted were false. AR at 0092. For example: (1) a woman from Ms. Zarrabian's office took Mohit and Renee to a TCF Bank to open joint bank accounts; (2) Ms. Zarrabian took photographs of Mohit and Renee wearing different clothes at different locations to create the appearance that the pictures were taken on different days; and (3) after the February 12, 2007 interview, when USCIS requested more photos of the couple, Mohit and Renee flew to New Mexico to take pictures with Renee's family. AR at 0092.
Mohit also recounted that he and his parents visited Renee in January 2008, after the birth of her child, and offered Renee $500 to identify Mohit as the father. AR at 0092. Renee declined the offer, so Ms. Zarrabian told Mohit to ...