United States District Court, E.D. Virginia, Alexandria Division
M. HILTON, UNITED STATES DISTRICT JUDGE
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).
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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