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Gyau v. Whitaker

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

March 6, 2019

NANAGYAU, et al., Plaintiffs,
v.
MATTHEW G. WHITAKER, Acting Attorney General of the United States, et al, Defendants.

          MEMORANDUM OPINION & ORDER

          Liam O'Grady, United States District Judge

         Plaintiff Elizabeth Toku filed an 1-130 Immigration Petition for Alien Relative on behalf of her husband, Plaintiff Nana Gyau. Defendants denied the Petition under 8 U.S.C. § 1154(c) because they determined that Mr. Gyau had previously entered into a marriage with Latasha Robinson for the purpose of evading the United States' immigration laws. Plaintiffs allege that the denial of the Petition was arbitrary and capricious in violation of the Administrative Procedure Act and violated their due process rights. Now before the Court are the parties' cross Motions for Summary Judgment (Dkts. 26 & 30). The motions were fully briefed and the Court heard oral argument on February 22, 2018. For the reasons stated below, and for good cause shown. Plaintiffs' Motion for Summary Judgment (Dkt. 26) is hereby DENIED and Defendants' Motion for Summary Judgment (Dkt. 30) is hereby GRANTED.

         I. BACKGROUND

         A. Regulatory Background.

         If a non-citizen marries a United States citizen, the non-citizen's citizen-spouse can file an 1-130 Petition with the United States Citizenship and Immigration Services ("USCIS") for the non-citizen-spouse to obtain an immigrant visa. See 8 U.S.C. § 1154(a). After the citizen-spouse provides documentation of his/her bona fide marriage to the non-citizen, United States Citizenship and Immigration Services ("USCIS') undertakes an investigation to determine whether to grant the petition. See § 1154(b). An 1-130 Petition must be denied if there is "substantial and probative evidence" demonstrating that the alien-beneficiary had previously entered into a fraudulent marriage "for the purpose of evading the immigration laws." 8 C.F.R. § 204.2(a)(1)(ii); accord 8 U.S.C. § 1154(c); Armah-El-Aziz v. Zanotii, 2015 WL 4394576, at *4 (E.D.Va. July 16, 2015).

         If USCIS determines that the non-citizen has previously entered into a fraudulent marriage, it issues a Notice of Intent to Deny the Petition ("NOID"). 8 C.F.R. § 103.2(b)(8)(iv). The petitioner then has an opportunity to submit additional documentation and written argument in response to USCIS's rationale for its intended denial. Id. §§ 103.2(b)(l 1), (b)(16)(i). If, after receiving and considering the petitioner's response, USCIS denies the Petition, the petitioner may then appeal to the Board of Immigration Appeals ('-BIA"). See 8 C.F.R. § 1204.1. The BIA reviews all issues in a USCIS decision de novo. 8 C.F.R. § 1003.1(d)(3)(iii).

         If the BIA dismisses the appeal, the petitioner can then appeal to a United States District Court under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., for a determination of whether the BIA's decision is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," § 706(2)(A).

         B. Factual Background.

         Mr. Gyau is citizen a Ghana who has lived in the United States since 2004. AR955, AR1052. Mr. Gyau's visitor visa expired on November 23, 2004, but he did not leave the country. AR1052. Instead, less than four months later, Mr. Gyau married Latasha Robinson on March 8, 2005. Id.

         i. Mr. Gyau 's Marriage to Ms. Robinson & Ms. Robinson's Two 1-130 Petitions.

         Two months after their marriage, in May 2005, Ms. Robinson filed an 1-130 Petition on behalf on Mr. Gyau. AR1052-53. On September 1, 2005, Ms. Robinson wrote and signed a handwritten letter withdrawing her sponsorship of Mr. Gyau, stating that she stopped living with Mr. Gyau in early July 2005.[1] AR925.

         On September 5, 2009, Mr. Gyau and Ms. Robinson formally separated. AR829.

         Ms. Robinson then conducted an interview with USCIS on March 16, 2010 regarding her 1-130 Petition for Mr. Gyau. See AR923-24. During that interview, Ms. Robinson signed a handwritten "•admission" that her marriage to Mr. Gyau was fraudulent, she had never lived with him, and she was withdrawing her sponsorship of him. AR924. Her letter reads, in its entirety:

I Latasha Robinson married Nana Obour Gyau to help him get a green card. I got 500.00 dollars down and 300.00 dollars a month for 5 years. I have never lived with him. I want to withdraw all support from this petition. I never ...

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