United States District Court, N.D. Illinois, Eastern Division
BERNADETTE BODO and OVIDIU ANDREICA, wife and husband, Plaintiffs,
KEVIN K. McALEENAN,  Acting Secretary, Department of Homeland Security, et al., Defendants.
MEMORANDUM OPINION AND ORDER
B. Gottschall United States District Judge.
Bodo (“Bodo”), who is a United States citizen,
married Ovidiu Andreica (“Andreica”), in 2011.
Later that year, they simultaneously filed a Form I-130
petition asking the U.S. Citizenship and Immigration Service
(“USCIS”) to recognize the relationship and a
Form I-485 application to adjust Andreica's status to
lawful permanent resident. The USCIS found Andreica and Bodo
did not enter the marriage in good faith and denied the I-130
petition. Obtaining a final decision took more than six
years, until November 21, 2017, and two trips to the Board of
Immigration Appeals (“BIA” or
“Board”). In this suit Bodo and Andreica seek
judicial review under the Administrative Procedure Act
(“APA”), 5 U.S.C. § 706 (2). They also plead
that their due process rights have been violated, and they
request a writ of mandamus. The present dispute concerns the
administrative record designated by the defendants as
“A.R.”, see ECF No. 22. Bodo and
Andreica move to supplement the administrative record and to
take limited discovery. They argue that the record is
incomplete and that supplementation is warranted by
defendant's bad faith conduct. The court grants the
motion in part and denies it in part, finding that the record
is incomplete, but deposing witnesses interviewed in the
underlying investigation is not justified on the present
case has a long and complicated procedural history. The BIA
ultimately upheld a decision of the Director of the U.S.
Citizenship and Immigration Services (“USCIS”)
Chicago Field Office (“Director”) concluding that
Bodo was living with her ex-husband, Flavius Petrasca
(“Petrasca”), and not with Andreica. A.R. 54-55.
Application, Initial Evidence, and First
applied to adjust Andreica's status by filing forms I-130
and I-485, and supporting materials, in or around June 2011.
A.R. 332-34. Plaintiffs tell the court that USCIS personnel
interviewed them twice in the Chicago Field Office on
September 12, 2011, and February 1, 2012. Mot Limited Disc.
3, ECF No. 33. After more than two years of waiting for a
decision, plaintiffs filed a pro se petition in this court,
No. 13-CV-2600, seeking a writ of mandamus compelling USCIS
to decide their applications. Id. at 3.
investigatory steps taken next became the lynchpin of the
denials at issue here. There is evidence in the
administrative record of an investigatory visit to two
residences on or around May 2, 2013. As explained below, the
investigative report in the record is dated over four years
after the events it describes and after the Director had
issued the two decisions at issue here.
the procedural chronology. On May 28, 2013, the Director sent
a notice of intent to deny the petitions and gave Bodo and
Andreica an opportunity to submit additional evidence. A.R.
312-14. The notice stated that the Director did not believe
that Bodo and Andreica's marriage was bona fide because
Bodo was still living with her ex-husband, Petrasca, and her
present husband, Andreica, lived at a different address.
Id. The notice explained that the Director had
evidence that Petrasca filed an insurance claim for water
damage in the basement of the building in which Bodo and
Andreica claimed to live, 1444 N. Washtenaw Avenue in
Chicago. A.R. 313. The notice further advised, “On May
2, 2013, USCIS conducted a site visit and interviewed two
neighbors of 1444 North Washtenaw. These two neighbors have
lived in the neighborhood for over thirty years, and they are
familiar with the owners of 1444 North Washtenaw. They have
identified you and your husband as ‘Alin,' your
officials also visited a building more than 40 blocks away on
the same street according to the notice, believing that
Andreica in fact lived there, 5616 N. Washtenaw, Chicago,
Illinois, Apartment 105. A.R. 313. The notice described this
visit as follows:
It was noted that the mailbox for apartment 105 listed the
name “Alin Flavius Petrasca, ” and, as such, Mr.
Petrasca likely still continues to use the 5616 N. Washtenaw
address as a mailing address. However, next-door neighbors
were interviewed and presented photographs of Flavius
Petrasca and Ovidiu Andreica. Both witnesses testified that
they had never seen Mr. Petrasca at the property. One of
these witnesses stated that Ovidiu Andreica resides in
Regarding the name listed on the mailbox, mentioned above,
the manager of 5616 North Washtenaw Apartment 105, Ms. Donna
Domes of Acorn Properties, confirmed that she has no
knowledge of any person named Alin Flavius Petrasca, and that
Mr. Petrasca's name is not authorized to be assigned to
the mailbox for unit 105. She informed USCIS that the lease
on file for the present tenant in unit 105 is Toma Basaraba.
responded to the notice with 31 pieces of additional
evidence. Bodo and Andreica averred in affidavits that they
lived on the second floor of the building at 1444 N.
Washtenaw and that the insurance claim for water damage was
limited to the downstairs apartment in which Petrasca and his
mother lived. Bodo Aff., A.R. 177; see also Andreica
Aff., A.R. 182; Petrasca Aff., A.R. 183. Bodo described her
reasons for making this arrangement in some detail,
explaining that she and Petrasca mistook a desire to be as
close as family for wanting to be married, that they agreed
that their relationship had become much like the relationship
of a brother and sister, that they divorced amicably, and
that the two remained friends. See A.R. 177, 180;
see also Andreica Aff., A.R. 181; Petrasca Aff.,
A.R. 183-84. Bodo also stated (and nothing in the record
contradicts this) that she purchased the multi-family
building at 1444 N. Washtenaw in 2006 and was initially
friendly with her neighbors. A.R. 178. That changed in or
around 2010 after she was robbed by a “so-called friend
from the neighborhood.” See A.R. 178. Bodo and
her then-husband stopped associating with the neighbors after
that. See id.; Petrasca Aff., A.R. 183. This
provided a perfectly plausible explanation for Bodo's
neighbors still thinking she was married to Petrasca. See
affidavit also responded to what she then knew about the
interviews with her neighbors at 1444 N. Washtenaw:
I did have a chance to speak with my next door neighbors, and
the De La Rosa's [sic] (who said they spoke with you).
They told me that they were questioned by your officers and
did not deny that Ovidiu [Andreica] lives here but only
confirmed that Flavius [Petrasca] and his mother do in a
separate section. They also said that they told your officer
that there were others living here but that they did not know
their names. They said they could not make a correct
identification from your photo of Ovidiu because “they
all look alike” and because they never learned
Ovidiu's name. Though Ovidiu says little but
“hi” or “bye” to these neighbors,
they are aware that he has lived here for the past couple of
years and they even know which car he drives as it is parked
in front of their house most evenings. These are the
neighbors that I was referring to when I said that Flavius
and I once spent a couple of summers socializing with
neighbors and they knew us as a couple.
Bodo Aff., A.R. 178.
also submitted at least 12 affidavits of friends and
relatives; one was from a foreign exchange student who lived
with Bodo and Andreica. See A.R. 185-99. Documentary
evidence was also presented for consideration: jointly filed
tax returns; bank and credit card statements; utility and
insurance bills; printouts of commonly used real estate
websites; and certificates and membership cards issued to
Bodo. See A.R. 166-289. The affidavits and documents
generally corroborated the averments of Bodo, Andreica, and
Petrasca concerning the nature of their relationships and
living arrangements. See A.R. 185-91, 193-99.
explain his name on the mailbox for the 5616 N. Washtenaw
apartment, Petrasca's affidavit averred that he
temporarily lived at the apartment from January-September
2012 before he moved back to the apartment beneath Bodo and
Andreica. A.R. 183. He got permission to continue receiving
mail at the 5616 N. Washtenaw address because he was tired of
mail sent to him at 1444 N. Washtenaw being lost or stolen.
A.R. 183. Plaintiffs also provided an affidavit from Toma
Basaraba, who held the lease to the 5616 N. Washtenaw
apartment (Unit 105) in 2012. Notice Intent to Deny 2, A.R.
314; Basaraba Aff., A.R. 192. He confirmed that Petrasca
lived in the apartment from January-September 2012. A.R. 192.
Basaraba also averred that Andreica has never been in the
building or lived in the apartment. Id.
Director denied Bodo's petition on July 9, 2013. A.R.
152-58; see also A.R. 159-65 (companion denial of
I-485 application). The Director dismissed nearly all of the
affidavits in a single sentence as
“self-serving.” A.R. 153. As for Bodo and
Andreica's affidavits, the Director stated that the two
floors had not been formally designated as apartments one and
two. A.R. 153-55 . The USCIS then pointed to various small
differences in the addresses given on the supporting
documents. See A.R. 154. Bodo and Andreica's tax
returns did not, for instance, use a separate apartment
number in the address; one bill listed ...