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Bodo v. McAleenan

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

August 12, 2019

BERNADETTE BODO and OVIDIU ANDREICA, wife and husband, Plaintiffs,
v.
KEVIN K. McALEENAN, [1] Acting Secretary, Department of Homeland Security, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Joan B. Gottschall United States District Judge.

         Bernadette 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 record.

         I. Administrative Proceedings

         This 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.

         A. Application, Initial Evidence, and First Denial

         Plaintiffs 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.

         The 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.

         Back to 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 ex-husband.” Id.

         USCIS 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 apartment 105.
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.

A.R. 313-14.

         Plaintiffs 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 id.[2]

         Bodo's 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.

         Plaintiffs 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.

         To 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.

         The 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 ...


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