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Valdivia v. Barr

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

November 5, 2019

THOMAS VALDIVIA JR. et al., Plaintiffs,
v.
WILLIAM BARR[1], Attorney General of the United States, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          MARY M. ROWLAND UNITED STATES DISTRICT JUDGE.

         This case is before the Court on the parties' cross motions for summary judgment [21] and [23]. Plaintiff Thomas Valdivia, Jr. (“Valdivia”), a United States citizen, brings this case pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., challenging the denial of his Form I-130 Petition for Alien Relative (“I-130 Petition”), filed on behalf of his husband, Plaintiff Radu Cheslerean (“Cheslerean”), a citizen of Romania. Valdivia and Cheslerean were married in May 2015. The bona fide nature of this marriage is not in dispute before this Court. However, on March 29, 2017, the United States Citizenship and Immigration Services (“USCIS”) denied Valdivia's I-130 Petition under Section 204(c) of the Immigration and Nationality Act, 8 U.S.C. § 1154(c) because of Cheslerean's prior marriage. Under 8 U.S.C. § 1154(c), a Form 1-130 cannot be approved if the beneficiary has ever sought immigration benefits based on a marriage entered into to evade immigration laws (a “sham marriage”). The USCIS's decision was upheld on appeal by the Board of Immigration Appeals (“BIA”) on December 14, 2017.

         Plaintiffs request that the Court reverse the 2017 BIA decision. Defendants ask the Court to affirm that decision. For the reasons stated below, Plaintiffs' motion [21] is granted and Defendants' motion [23] is denied.[2]

         I. Legal Standards

         A. Administrative Standard and Burden of Proof

         When a United States 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. For the petition to be approved, the couple must 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). Separately, if USCIS finds that the non-citizen ever entered a sham marriage, it must deny the I-130 petition. 8 U.S.C. § 1154(c); see also Ogbolumani v. Napolitano, 557 F.3d 729, 733 (7th Cir. 2009).

         Under the immigration regulations, 8 C.F.R. § 204.2(a)(1)(ii),

Section 204(c) of the Act prohibits the approval of a visa petition filed on behalf of an alien who has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws. The director will deny a petition for immigrant visa classification filed on behalf of any alien for whom there is substantial and probative evidence of such an attempt or conspiracy, regardless of whether that alien received a benefit through the attempt or conspiracy.

         The initial burden is on the government to identify substantial and probative evidence of marriage fraud. “[T]he evidence of such attempt or conspiracy must be documented in the alien's file and must be substantial and probative.” Matter of Tawfik, 20 I. & N. Dec. 166, 167 (B.I.A. 1990). Only if that is established does the burden shift to the couple to refute that finding. Matter of Kahy, 19 I. & N. Dec. 803, 807 (B.I.A. 1988).

         B. Standard of Review

         The APA governs this Court's review of the final decision by the BIA. 5 U.S.C. §§ 702, 704. On appeal to this Court, the facts are drawn from the certified administrative record. Dkt. 14; see Little Co. of Mary Hosp. v. Sebelius, 587 F.3d 849, 856 (7th Cir. 2009) (under the APA, review of agency's decision limited to the administrative record). “The APA requires that an agency's decision be set aside only if it is arbitrary, capricious, an abuse of discretion, unsupported by substantial evidence in the case, or not in accordance with law.” Fliger v. Nielsen, 743 Fed.Appx. 684, 687 (7th Cir. 2018) (citation and quotations omitted). The agency decision must stand if a “reasonable mind could find adequate support for the decision.” Id. at 688 (citation omitted). “The factual findings underlying the INS's decision that [the] marriage…violated Section 204(c) of the Act must be supported by substantial evidence….Substantial evidence is evidence a reasonable mind would find adequate to support a conclusion.” Ghaly v. INS, 48 F.3d 1426, 1431 (7th Cir. 1995) (internal citation omitted).

         “The scope of review…is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.'” Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). “[W]e may not supply a reasoned basis for the agency's action that the agency itself has not given.” Id. (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)).

         II. Factual Background

         A. Cheslerean's previous ...


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