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Armah-El-Aziz v. Zanotti

United States District Court, E.D. Virginia, Alexandria Division

July 16, 2015

MERCY D. ARMAH-EL-AZIZ, et al., Plaintiffs,


JAMES C. CACHERIS, District Judge.

This action brought pursuant to the Administrative Procedures Act, 5 U.S.C. § 702 et seq. ("APA"), is before the Court on the parties' cross-motions for summary judgment. [Dkts. 7, 11.] For the following reasons, the Court will deny Plaintiffs' motion for summary judgment and grant Defendants' motion for summary judgment.

I. Background

The following facts, taken from the parties' briefs and the administrative record [Dkts. 6-1, 6-2, 6-3], are undisputed unless otherwise indicated. The Court will refer to the Plaintiffs individually by their first names, as both individuals now share the surname "El-Aziz."

Plaintiff Rashid El-Aziz (hereinafter "Rashid") is a citizen of Ghana. (R. 134, 148-49.) Rashid entered the United States on March 5, 2005 pursuant to a visitor visa that expired on April 30, 2005. (R. 111, 134.) In May of 2005, shortly after his visa expired, Rashid met Ms. Celeste Dempsey (hereinafter "Ms. Dempsey"). (R. 125 ¶ 1.) On October 4, 2005, Rashid and Ms. Dempsey were married in Carrabus County, North Carolina. (R. 228.) On December 19, 2005, Ms. Dempsey filed an I-130 Petition for Alien Relative on behalf of Rashid.[1] (R. 223-25.) Ms. Dempsey named Rashid as her spouse and beneficiary. (Id.) In the petition, Ms. Dempsey stated that both she and Rashid presently resided at 6314 South Kings Highway, Alexandria, Virginia, and that they intended to reside there in the future. (Id.) Ms. Dempsey also stated that she was presently employed by the Charlotte Observer as an Independent Carrier in North Carolina. (R. 225.)

In support of the I-130 Petition, Ms. Dempsey submitted: (1) a residential lease for "Rashid and Celeste El-Aziz" at 6314 South Kings Highway, Alexandria, Virginia for the term of January 1, 2006 to December 31, 2008 (R. 49-51); (2) a letter from the Charlotte Observer dated October 5, 2005 that confirmed Ms. Dempsey's employment as an Independent Carrier for the Charlotte Observer (R. 53); and (3) tax forms in Ms. Dempsey's name for 2002 with an address in Columbia, South Carolina, for 2003 with an address in Camden, South Carolina, and for 2004 with an address in Charlotte, North Carolina (R. 55-60). On July 19, 2006, after an interview with a representative from the United States Citizenship and Immigration Services ("USCIS"), Ms. Dempsey withdrew the I-130 Petition, stating:

I handwrote the answers to the application and he typed/or had it typed up. I did not submit the letter from the Charlotte Observer, the figures on the W-2 have been changed. I also did not submit the lease.
Celeste Dempsey 12222 Old Timber Rd. Charlotte, NC 28269

(R. 222.)[2] On December 16, 2009, [3] USCIS acknowledged the withdrawal and deemed the I-130 Petition null and void. (R. 221.)

On November 9, 2007, Ms. Dempsey and Rashid were divorced by a "Decree of Divorce a Vinculo Matrimonii" entered in the Circuit Court of the City of Alexandria. (R. 196-98.) The Divorce Decree stated that "since December 18, 2005, the parties have been living separate and apart without cohabitation or interruption, " which was a little over two months after they were married and one day before the I-130 Petition was filed. (R. 196.) On September 23, 2009, the United States Department of Homeland Security (hereinafter "Homeland Security") determined that Rashid married Ms. Dempsey "for the purpose of evading provisions of the immigration laws." (R. 212-13.) Four days later, on September 27, 2009, Homeland Security created a "Record of Deportable/Inadmissible Alien" for Rashid based on the alleged marriage fraud with Ms. Dempsey. (R. 214-15.) On January 12, 2010, Homeland Security ordered Rashid to appear before an immigration judge through a "Notice to Appear" in removal proceedings under section 240 of the Immigration and Nationality Act ("INA"). (R. 216-220.)[4]

On November 6, 2010, Rashid married Plaintiff Mercy Armah (hereinafter "Mercy") in Springfield, Virginia. (R. 202.) Mercy, also originally from Ghana, became a naturalized United States citizen on February 11, 2003. (R. 143-44.) On May 12, 2011, Mercy, through counsel, filed an I-130 Petition for Alien Relative on behalf of Rashid. (R. 134-35.) On August 2, 2011, Rashid and Mercy were interviewed by a USCIS representative. During that interview, Rashid made the following sworn statement regarding his previous marriage to Ms. Dempsey:

During our time of marriage, Celeste was making reservations and arrangements to finally move to Virginia. She visited often and I did too. She was residing with an aunt of hers in Charlotte, N.C. We were working very hard to resolve our living arrangements. She would visit me and stay for a week and I would visit for about 2 days because I was working at that time. She visited and stayed for before Thanksgiving 2005. I also visited a few times in 2005 also [sic].

(R. 138.) On September 29, 2011, USCIS issued a "Notice of Intent to Deny Visa Petition" ("NOID") and allowed Mercy thirty days to submit additional evidence in opposition. (R. 128-31.) On October 28, 2011, Mercy submitted, through counsel, a letter opposing conclusions reached in the NOID and attached a new affidavit from Rashid. (R. 101-127.) On September 27, 2012, USCIS issued its final denial of the I-130 Petition after finding that Rashid entered into his previous marriage with Ms. Dempsey with the intent of evading immigration laws, which barred approval of the Second Petition under section 204(c) of the INA. (R. 95-100.)

On October 25, 2012, Mercy and Rashid, through counsel, noticed an appeal from USCIS's decision to the Board of Immigration Appeals ("BIA"). (R. 77-94.) Homeland Security filed a response to the appeal on December 20, 2012. (R. 73-74.) On December 11, 2013, the BIA remanded the petition back to USCIS to "place into the record" missing documents that were necessary for review. (R. 69-70.) USCIS subsequently moved the BIA to accept the missing documents into the record. (R. 24-26.) Mercy and Rashid, through counsel, filed another brief in response. (R. 14-20.) On October 15, 2014, the BIA dismissed the appeal and concluded "that there is substantial and probative evidence to support the finding that the beneficiary previously ...

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