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Ngonga v. Zanotti

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

April 16, 2019

ERNEST NGONGA, et al., Plaintiffs,
v.
KIMBERLY J. ZANOTTI, Field Office Director, USCIS Washington Field Office, et al., Defendants.

          MEMORANDUM OPINION

          CLAUDE M. HILTON, UNITED STATES DISTRICT JUDGE

         Plaintiff Ernest Ngonga filed an I-130 Immigration Petition for Alien Relative on behalf of his wife, Plaintiff Danny Fokou. Defendant, U.S. Citizenship and Immigration Services (USCIS), denied the Petition under 8 U.S.C. § 1154(c) because it determined that Ms. Fokou had previously entered a marriage with Valery Nkwingwah Keyi for the purpose of evading the United States' immigration laws. Plaintiffs appealed the denial to the Board of Immigration Appeals (BIA) which affirmed USCIS' determination. Plaintiffs allege that the denial of the petition and its affirmance were arbitrary and capricious in violation of the Administrative Procedure Act (APA). This matter comes before the Court on the parties' cross Motions for Summary Judgment (Dkts. 24 & 27).

         Ms. Fokou is native to and a citizen of Cameroon who has resided in the United States since July 2003. Ms. Fokou was initially admitted on a visitor visa for a temporary period not to exceed January 3, 2004. Ms. Fokou did not leave the United States prior to the expiration of her visa.

         Upon arrival in the United States, Ms. Fokou was married to a fellow Cameroonian who she divorced in October of 2003. She remained in the United States and married a Mr. McFadden in July of 2004 in Virginia. While still married to Mr. McFadden in December 2004, Ms. Fokou gave birth to a child fathered by Mr. Ngonga. Ms. Fokou subsequently divorced Mr. McFadden in February of 2008.

         Shortly after her divorce from Mr. McFadden, Ms. Fokou married Mr. Keyi, a United States citizen and Virginia resident, in May 2008. Approximately one month after this marriage began, Ms. Fokou gave birth to a second child fathered by Mr. Ngonga in June of 2008.

         On July 8, 2008, Mr. Keyi signed an I-130 Petition for Alien Relative that named Ms. Fokou as his spouse and beneficiary. This petition was initially approved by USCIS on March 24, 2009.

         In May of 2009, Mr. Keyi and Ms. Fokou began living separately and apart in preparation for a divorce action. While still legally separated, the couple appeared before the USCIS Field Office in Fairfax, Virginia on August 28, 2009 for an interview on the pending I-130 petition. During the interview, Mr. Keyi and Ms. Fokou indicated that they were still married and living together. The officer interviewing the couple recorded their responses in a written format. Mr. Keyi initialed and dated each page of his statement but eventually refused to sign it. At the same interview, Mr. Keyi signed a letter withdrawing the I-130 petition, as well as a letter stating that he did not enter into the marriage with Ms. Fokou to assist in her receiving a green card. Due to this withdrawal, USCIS automatically revoked the petition on August 31, 2009. On December 12, 2011, Ms. Fokou appealed the revocation of the petition to the BIA which dismissed the appeal on April 18, 2012 for lack of standing.

         During Ms. Fokou's marriage to Mr. Keyi, the couple shared a residence with Mr. Ngonga. While living together, Ms. Fokou and Mr. Ngonga engaged in relations typical of a married couple. Plaintiffs state that Ms. Fokou and Mr. Ngonga wanted to be together for many years as evidenced by their frequent interludes, but that Mr. Ngonga was not able to commit to and support Ms. Fokou and their children. Mr. Keyi and Ms. Fokou were ultimately divorced on July 23, 2010.

         In June of 2010, Mr. Ngonga, who was previously on asylee status, received approval of his 1-485 Application to Register Permanent Residence or Adjust Status, granting him lawful permanent resident status.

         Nearly three months later and two months after her divorce, Ms. Fokou married Mr. Ngonga on September 25, 2010. Ms. Fokou gave birth to her third child fathered by Mr. Ngonga in April 2011. On October 15, 2010, Mr. Ngonga signed an I-130 Petition naming Ms. Fokou as the beneficiary.

         On September 4, 2014, Mr. Ngonga was interviewed under oath for his pending application to become a naturalized citizen, Form N-400. During the interview, Mr. Ngonga made numerous statements in English that were transcribed. Mr. Ngonga signed the memorialized statements at the end of the interview, as did the immigration officer conducting the interview. One question asked of Mr. Ngonga concerned Ms. Fokou's prior marriages and whether they were to help her immigration status; the interviewer raised no specific marriage of Ms. Fokou's. Mr. Ngonga stated that, "I know she married the last one, [Mr. Keyi] for that. She told me that."

         Approximately four months after Mr. Ngonga's N-400 interview and two days before Ms. Fokou's I-130 petition interview, Mr. Keyi signed a statement that he and Ms. Fokou had married each other for love.

         On March 14, 2017, USCIS issued a Notice of Intent to Deny (NOID) to Mr. Ngonga regarding his I-130 petition on behalf of Ms. Fokou. The NOID stated that the record established that Ms. Fokou's marriage to Mr. Keyi had been intended to evade immigration laws. The NOID provided numerous evidence based reasons for this determination including (1) the couple's driver's licenses had different addresses as opposed to the shared address claimed in the first I-130 petition, (2) discrepancies in the testimonies each gave at the prior I-130 interview, (3) Mr. Keyi's withdrawal of the prior petition, (4) Mr. Ngonga's statement made at his naturalization interview, (5) the suggestion of a romantic relationship between Ms. Fokou and Mr. Ngonga during her marriage to Mr. Keyi as shown by her bearing Mr. Ngonga's children while married to other men, and (6) Mr. Ngonga's appearance in photos with Ms. Fokou and Mr. Keyi as further evidence of a prior romantic relationship. The NOID concluded that USCIS could not approve Mr. Ngonga's I-130 petition for Ms. Fokou because of Section 204(c) of the Immigration and Nationality Act and allowed Mr. Ngonga 30 days to rebut the evidence.

         Through counsel, Mr. Ngonga provided a response to the NOID. This response included a statement from Mr. Keyi that stated that he and Ms. Fokou did live together during their marriage and he withdrew his I-130 petition on her behalf because he was hurt and embarrassed by some of the questioning of the immigration officer. Mr. Ngonga also submitted a sworn statement that his prior answer regarding Ms. Fokou's previous marriage was inaccurate and that he did not mean to ...


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