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Fliger v. Kelly

United States District Court, N.D. Illinois, Eastern Division

June 23, 2017



          JORGE L. ALONSO United States District Judge

         Before the Court are the parties' cross-motions for summary judgment. For the reasons explained below, plaintiffs' motion is denied and defendants' motion is granted.


         Plaintiffs, Christopher Fliger (“Christopher”) and Anna Fliger (“Anna”), married on January 29, 2011. On March 24, 2011, Christopher filed a Form I-130, Petition for Alien Relative, on behalf of Anna, a citizen and national of Poland, with United States Citizenship and Immigration Services (“USCIS”). USCIS denied the petition on August 9, 2012. Although the agency did not question the validity of Christopher and Anna's marriage, it based the denial on the ground that federal law prohibited approval because Anna had previously sought to be accorded status as the spouse of another United States citizen by reason of a marriage that was determined to have been entered into for the purpose of evading the immigration laws. After de novo review, the Board of Immigration Appeals (“BIA”) affirmed USCIS's decision and dismissed the appeal on October 15, 2014. On May 29, 2015, the BIA denied Christopher's motion to reconsider the dismissal. Plaintiffs then filed this lawsuit, challenging the denial of the petition by the BIA and USCIS and seeking injunctive and declaratory relief under the Administrative Procedure Act (the “APA”), 5 U.S.C. §§ 701-706.[1]Plaintiffs assert a second claim for violation of their Fifth Amendment due process rights, in which they allege that USCIS refused to provide them with “the sole piece of derogatory evidence” upon which its decision was based. (ECF No. 1, Compl. ¶ 41.)


         Anna's birth name is Anna Pienkowski. On August 21, 1995, she married Fred Kirschnick, a United States citizen. At the time, Anna was 18 years old and Kirschnick was 71. Anna was not in immigration proceedings at the time, nor had she ever had contact with the immigration authorities.

         On June 20, 1996, Kirschnick filed a Form I-130, Petition for Alien Relative, on Anna's behalf, seeking to classify her as the spouse of a United States citizen. On October 6, 2003, Anna filed a Form I-485, Application to Adjust Status, to adjust her status to that of a permanent resident.

         On August 24, 2007, USCIS District Adjudications Officer Kevin O'Neill interviewed Kirschnick, while Kirschnick was living at Resurrection Nursing and Rehabilitation Center (“Resurrection”) in Park Ridge, Illinois. (A.R. 466.)[2] Kirschnick, a diabetic, was living there after having had his leg amputated a few years earlier and having suffered a stroke in 2007. According to USCIS's Record of Sworn Statement from the interview (which was prepared by O'Neill), when Kirschnick was asked where he had met Anna, he replied that they had met through Anna's sister, who had been Kirschnick's house cleaner until Anna took over the job. (Id. at 467.) When O'Neill asked whether they had “start[ed] living together right away after marriage, ” Kirschnick replied, “No. We didn't live together.” (Id.) O'Neill and Kirschnick discussed how often the couple saw each other (“[a]bout six times a month”), what they did together for holidays (exchange gifts and spend time together and with family), and when they first opened their bank account (“about 2004, ” and before then, Kirschnick “used to write her checks with just [his] signature and she would fill in the top”). O'Neill then asked, “Did you ever feel she was using you or taking advantage of you for an immigration benefit or money?” (Id. at 468.) Kirschnick replied, “No, I never felt that way. In fact, I feel like I have taken advantage of her because she is such a good looking girl. We have made love many times.” (Id.) When asked whose idea it had been for Kirschnick to file his petition, he replied, “She suggested it. I found her crying while cleaning my house. She told me she was going to be deported and I asked if there is anything I could do to help her. She told me to marry her so she could stay here. We never lived together.” (Id.) After O'Neill asked Kirschnick whether he understood all of the questions that he was asked and received a reply in the affirmative, the interview ended. (Id.) The Record of Sworn Statement bears the signatures of O'Neill, Kirschnick, and a witness. (Id.)

         At that interview, Kirschnick also signed a USCIS form titled “Withdrawing Petition for Alien Relative.” (Id. at 473.) The statement on this form reads as follows:

On June 20, 1996, I filed a Petition for Alien Relative (Form I-130) on behalf of Anna Pienkowski. I want to withdraw my petition because of the following:
I met Anna through her sister. Her sister was a housecleaner for me. Anna took over her sister's housecleaning. While she was working for me, Anna asked me to marry her so she wouldn't be deported and so she could get an immigration benefit. I never lived with Anna Pienkowski nor do I live with her right now.


         On the same date, August 24, 2007, O'Neill separately interviewed Anna. According to the Record of Sworn Statement from that interview, Anna corroborated many of Kirschnick's answers, although she varied on some details. (Id. at 470-71.) When asked whether she and Kirschnick had started living together right away after marriage, Anna said, “No[, ] it took a little while. In 1999 we started living together. We only lived together for a year. He lost his business from a business scam and we were homeless for a while. He went to a nursing home. I went to my sister's house.” (Id. at 470.)

         On the same date, USCIS formally acknowledged that Kirschnick's I-130 petition was withdrawn pursuant to his request, and it therefore denied Anna's I-485 petition (which was predicated on recognition as a spouse of a United States citizen through an I-130 petition). The notice to Anna of the decision stated: “When the visa petition filed on your behalf was withdrawn, you no longer had any basis to file for adjustment of status.” (Id. at 704.) It also stated: “[Y]ou attempted to obtain an immigration benefit by entering into a fraudulent marriage. The petitioner, Fred Kirschnick, informed the interviewing officer that he married you so that you could stay in the United States and not be deported. The petitioner also stated that you and he never lived together.” (Id.) Because Anna had entered into the marriage to obtain an immigration benefit fraudulently, the notice further stated, she was inadmissible to the United States, no longer eligible for employment authorization, and present in the United States in violation of law and thus required to depart, and her remaining in the United States without authorization could result in the initiation of removal proceedings. (Id. at 704-05.)

         On September 26, 2007, Anna filed a motion to reopen and reconsider the denial of her I-485 petition. (Id. at 696-97.) With the motion, she filed an affidavit by Kirschnick, who stated therein, among other things, that he had lived with Anna in a Des Plaines condominium from 1995 until 2000 and that when his leg was amputated, he had to move to a retirement home; at the time, he also had a house in Des Plaines; he and Anna had taken several trips together; their marriage was “a good one” despite their age difference; Anna visited him frequently and gave him a lot of support and courage; he was presently in a “bad mental and physical state”; at the time of the interview, he had been taking (unspecified) medications to prepare for cataract surgery; at that time, he could not “see anything” due to his use of eye drops; he did not understand some of O'Neill's questions; he was given documents to sign that he “did not know and could not see it”; he had “never intended to withdraw [his] petition to sponsor [his] wife and if such a document was presented to [him] and [he] signed it [he] did not know what [he] was signing”; and he did “not understand why this process takes 10 years for my wife to obtain her papers.” (Id. at 698-99.)[3]

         On May 9, 2008, USCIS denied the motion to reopen and reconsider the denial of Anna's petition. In its decision, USCIS stated that the brief in support of the motion was “given little weight because no factual evidence was submitted to support” the statements therein (that the unspecified medications Kirschnick had been taking caused him “temporary blindness and immobility [sic] to understand questions”) and that, pursuant to 8 C.F.R. § 103.2(b)(6), [4] Kirschnick could not retract his withdrawal of the I-130 petition. (Id. at 692-93.)

         Anna remained married to Kirschnick until his death on March 10, 2010. She made funeral arrangements and was the sole beneficiary of Kirschnick's estate. In mid-March, Anna and Christopher met, and they began dating the following month. (Id. at 481.) After they married in January 2011, Christopher filed an I-130 petition on Anna's behalf on March 24, 2011. On October 24, 2011, USCIS issued a Notice of Intent to Deny (“NOID”) the petition, (id. at 639-642), which stated that “it has been determined that Ms. Pienkowski entered into her previous marriage for the purpose of evading immigration laws and sought to obtain an immigration benefit based on a fraudulent marriage, ” and therefore it was USCIS's intent to deny Christopher's petition, (id. at 641). In the NOID, USCIS gave Christopher the opportunity to submit further evidence in support of the petition. (Id.)

         On November 22, 2011, Christopher submitted a number of additional materials in support of his petition; they are discussed below. On August 9, 2012, USCIS denied the petition. (Id. at 460-64.) Christopher then appealed to the BIA and requested to supplement the record with telephone records of Anna and Kirschnick's calls as well as Kirschnick's medical records. (Id. at 31-277; 288-435.)

         On October 15, 2014, the BIA issued a decision affirming the denial of the petition and dismissing the appeal, on the ground that Christopher had failed to overcome the substantial and probative evidence that Anna had married Kirschnick for the purpose of evading immigration laws. (Id. at 2-5.) Christopher filed a motion for reconsideration of the BIA's order, which the BIA denied on May 29, 2015 on the ground that Christopher had failed to present additional legal argument, a change of law, or ...

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