United States District Court, E.D. Virginia, Alexandria Division
Ellis, III, United States District Judge.
matter arises from the final decision of the Board of
Immigration Appeals ("BIA") affirming the United
States Citizenship & Immigration Services'
("USCIS") decision to deny plaintiffs 1-130 alien
relative petition to grant a visa to plaintiffs spouse. In
short, BIA and USCIS justified the denial of plaintiffs
petition on the ground that there was substantial and
probative evidence that plaintiffs spouse had previously
entered into a fraudulent marriage for the purpose of evading
immigration law and was thus ineligible for an immediate
relative visa. In the Amended Complaint, plaintiff has
challenged BIA's decision on several grounds, and the
parties have each moved for summary judgment on plaintiffs
Administrative Procedure Act ("APA") confines judicial
review of agency decisions to the administrative record of
proceedings before the pertinent agency. See 5
U.S.C. § 706; see also Camp v. Pitts, 411 U.S.
138, 142 (1973). Put another way, "when a party seeks
review of agency action under the APA, the district judge
sits as an appellate tribunal." Am. Bioscience, Inc.
v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001). Given
the district court's limited role in reviewing the
administrative record, courts have noted that the usual
summary judgment standard does not apply in cases where a
district court exercises review of a final agency action
under the APA. See, e.g., Spelman v. McHugh, 65
F.Supp.3d 40, 44 (D.D.C. 2014). The key difference in an APA
case is that "all relevant facts are contained in the
administrative record for such a case, and, as a result,
there are no material facts in dispute." Maine v.
Norton, 257 F.Supp.2d 357, 363 (D. Me. 2003). Therefore,
in a review of agency action under the APA, "[t]he
'entire case' on review is a question of law."
Am. Bioscience, Inc., 269 F.3d at 1083.
administrative record pertaining to plaintiffs underlying
proceedings before BIA and USCIS reflects the following
• Auddismart Adubofour is a citizen and national of
Ghana. Adubofour was admitted to the United States on August
16, 2001, on a temporary visitor visa that was set to expire
on February 15, 2002.
• Over a year after the expiration of her authorized
stay, on July 29, 2003, Adubofour married a man named Lennard
King. They were married by a Civil Magistrate at the
Arlington County, Virginia Courthouse, over fifty miles away
from their residence in Pikesville, Maryland. And on that
same day, Adubofour submitted herself to a detailed medical
examination that would allow her to apply for immigration
• Two days after their marriage, on July 31, 2003, King
submitted to USCIS an 1-130 alien relative petition on
Adubofour's behalf. On the same date, Adubofour submitted
to USCIS an application seeking to adjust her status to that
of lawful permanent resident. USCIS approved King's alien
relative petition on January 22, 2004.
• On March 17, 2008, USCIS issued to King a Notice of
Intent to Revoke ("NIR") its prior approval of the
alien relative petition. In that NIR, USCIS first noted that
it believed that the "petition may have been approved in
error," because the agency had "reason to suspect
that [King's] marriage to . . . Adubofour is a sham
marriage, entered into solely for immigration purposes."
USCIS informed King that he had sixty days to submit any
rebuttal to the NIR, including any evidence in support of
such a rebuttal. The NIR listed and summarized, inter
alia, the following information and reasoning supporting
its intention to revoke the alien relative petition based on
the conclusion that King and Adubofour's marriage was
o One fact noted by USCIS as a reason for suspecting the
marriage was not bona fide was that King and
Adubofour had "failed to submit credible evidence of
commingling of [their] assets." Among other reasons,
this conclusion was supported by the fact that King and
Adubofour had entered into two purported apartment rental
leases that were terminated within one month's time.
Adubofour also could not remember the address of one of these
latter rentals when questioned in January 2008.
o In addition, USCIS noted that public records reflected that
King's address of record remained in Lanham, Maryland,
notwithstanding his statement to USCIS officials that he
resided in Germantown, Maryland with Adubofour. Thus, USCIS
stated, there was not "credible evidence to establish
that [King] and [Adubofour] maintained a shared
o Finally, USCIS explained that in January 2008, the agency
had summoned both King and Adubofour to USCIS's Baltimore
Field Office for independent sworn interviews. USCIS detailed
dozens of inconsistent answers that King and Adubofour
provided to the same questions about each other and their
relationship. For example, Adubofour testified that King did
"not have any distinguishing features, such as
tattoos," whereas King testified that he had "three
(3) tattoos, one on each arm." Adubofour also testified
that she and King did "not have a jointly held mutual
checking or savings account," whereas King identified
such a jointly held account.
• On May 12, 2008, King responded to the NIR through a
letter consisting of a single page of three short paragraphs.
In essence, King declared that his marriage to Adubofour was
legitimate and blamed the various inconsistencies on his
incarceration "during most of [their] marriage,"
but did not submit any additional evidence in support of this
• King and Adubofour's marriage officially ended
through the entry of a divorce decree on January 9, 2009.
• On June 18, 2009, after considering King's
response along with the remaining record, USCIS issued its
final decision revoking its prior approval of King's
alien relative petition. USCIS explained that King's
rebuttal was not corroborated by any independent, objective
evidence and "failed to address several of the
discrepancies" that USCIS noted in the NIR. In addition,
USCIS explained that the regulations mandated the automatic
revocation of a grant of an alien relative petition if the
beneficiary and the petitioner are divorced before a final
adjudication of the beneficiary's application for
adjustment of status.
• Although USCIS informed King that he could appeal the
revocation of his petition to BIA, the record does not
reflect that King sought any fbrther review of USCIS's
• On March 14, 2009, two months after her divorce from
King was officially decreed, Adubofour married plaintiff at a
church located in Woodbridge, Virginia.
• On May 6, 2009, plaintiff submitted to USCIS a new
I-130 alien relative petition on Adubofour's behalf, and
Adubofour simultaneously submitted a new application to
adjust her status to that of lawful permanent resident.
• On July 16, 2013, USCIS issued to plaintiff a Notice
of Intent to Deny ("NID") his alien relative
petition, explaining that it appeared that Adubofour's
previous marriage to King was a sham marriage entered into
solely to procure immigration benefits, which rendered
Adubofour ineligible for immigration benefits under federal
statute. USCIS provided plaintiff with thirty days to respond
to the NID with any rebuttal and supporting evidence. The NID
listed and summarized, inter alia, the following
information and reasoning that supported USCIS's
intention to deny the alien relative petition based on the
conclusion that Adubofour's previous marriage was
o USCIS again noted the inconsistent answers that King and
Adubofour provided in their independent interviews with
agency officials in January 2008 in response to questions
about King's tattoos, their alleged then-current
residence, the existence of joint bank accounts, and where
their wedding bands were purchased. USCIS also again noted
that the short lease terms for rental properties submitted by
King and Adubofour failed to constitute credible evidence of
commingling of assets or a shared residence.
o USCIS also summarized the sworn statements that King had
provided in an interview with agency officers in April 2013.
In that interview, King acknowledged in writing that he was
giving testimony to a federal official under oath and that
his statements were truthful. The NID explained that King had
admitted that, he had never resided in Germantown, Maryland
(contrary to the prior statements he and Adubofour made to
USCIS in January 2008), he never told anyone in his family
about his marriage to Adubofour when it occurred (and only
told his mother and brother later), and he had no explanation
for Adubofour's lack of knowledge about his tattoos.
o Finally, USCIS noted that public records reflected that in
May 2004 King had listed his official address as his
mother's house in Lanham, Maryland.
• Plaintiff, through counsel, submitted a response to
USCIS's NID on August 13, 2013. In addition to a
narrative response, plaintiff submitted additional evidence,
including a declaration from Adubofour.
o Plaintiffs narrative response conceded that King and
Adubofour "did not completely move in with one
another," but alleged that this was the result of near
immediate marital difficulties and that the couple
"spent many nights together." Plaintiff also argued
that any inconsistencies in King and Adubofour's
statements to USCIS stemmed from the fact that marital and
legal problems caused them to be apart. Plaintiff also argued
that statements from King's April 2013 interview with
USCIS reflected merely that the couple had marital problems
and not that they schemed to evade immigration laws. In
addition, plaintiff attacked King's statements as
"highly unreliable." o Adubofour's declaration
provided that she got married at the Arlington County
Courthouse in Virginia because that was the only courthouse
of which she was aware, and that other friends had gotten
married there. Adubofour also testified that she obtained her
medical examination on her wedding day "because [they]
traveled to Virginia anyway for the marriage." Adubofour
also attributed the discrepancies in her and King's
testimony to their marital difficulties; with respect to a
number of inconsistencies between her and King's answers
to the same questions in January 2008, Adubofour testified
that King simply must have been "incorrect."
• On September 24, 2013, USCIS issued a detailed
decision denying plaintiffs alien relative petition on the
grounds that there was "substantial and probative
evidence" that Adubofour and King's marriage was
fraudulent and that plaintiff had not sufficiently rebutted
that evidence. After reciting the allegations in the NID,
USCIS listed the following reasons, and information
supporting those reasons, for its decision to deny plaintiffs
o USCIS explained that plaintiff had not provided a plausible
explanation for the many inconsistencies in the record
evidence. For example, USCIS noted that plaintiff did not
explain why King provided only a single page response to
USCIS's March 2008 NIR, and that the explanation provided
for the short-term nature of their leases (that Adubofour did
not notice it) and for Adubofour's statement that King
did not have tattoos (that he did not have such tattoos when
they were dating) was not reasonable. With respect to the