United States District Court, N.D. Illinois, Eastern Division
THOMAS VALDIVIA JR. et al., Plaintiffs,
WILLIAM BARR, Attorney General of the United States, et al., Defendants.
MEMORANDUM OPINION AND ORDER
M. ROWLAND UNITED STATES DISTRICT JUDGE.
case is before the Court on the parties' cross motions
for summary judgment  and . 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.
request that the Court reverse the 2017 BIA decision.
Defendants ask the Court to affirm that decision. For the
reasons stated below, Plaintiffs' motion  is granted
and Defendants' motion  is denied.
Administrative Standard and Burden of Proof
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).
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.
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.
Standard of Review
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).
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)).
Cheslerean's previous ...