Johnson v. Sessions

DENISE ANN JOHNSON, et al., Plaintiffs, v. JEFFERSON B. SESSIONS, III, Attorney General of the United States, et al., Defendants.

Civil Action No. RDB-15-3317

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

June 8, 2018

MEMORANDUM OPINION

On December 13, 2006, the United States Citizenship and Immigration Services ("USCIS") denied Plaintiff Denise Ann Johnson's ("Johnson") I-130 Petition to establish Plaintiff John Andoh ("Andoh"), a native and citizen of Ghana, as her spouse for visa purposes on the ground that the Petition was based on a fraudulent or sham marriage, entered into only to procure Andoh's admission into the United States. Johnson appealed the denial to the Board of Immigration Appeals ("BIA"), which denied Johnson's appeal and her subsequent Motion to Reopen and/or for Reconsideration of the Petition. On October 3, 2013, Plaintiffs Johnson and Andoh filed a petition for review of the BIA's denial of Johnson's motion,¹ which culminated into a Complaint in this Court against the Attorney General of the United States, the Secretary of the United States Department of Homeland Security, the Director of the United States Citizenship and Immigration Services, and theBaltimore Field Director of USCIS (collectively, "Defendants").² (ECF Nos. 1, 65.) Specifically, Plaintiffs initially alleged that the USCIS and the BIA violated the Administrative Procedure Act ("APA"), 5 U.S.C. § 701, et seq., in the processing and review of Johnson's Petition. (ECF No. 65.) The Plaintiffs also initially sought relief under the Mandamus Act, 28 U.S.C. § 1361, and the Declaratory Judgment Act, 28 U.S.C. § 2201. (Id.)

By Memorandum Opinion and Order (ECF Nos. 74, 75), this Court granted Defendants' Motion to Dismiss with respect to the claims under the Mandamus Act and the Declaratory Judgment Act. However, the Motion to Dismiss was denied as to the APA claim and this Court permitted the Plaintiffs' claims seeking review under the APA of USCIS' denial of the Petition and the BIA's subsequent denial of Johnson's appeal and Motion to Reopen and/or Reconsider the Petition. Subsequently, this Court granted the parties' four motions for extension of time to file Summary Judgment Motions. Currently pending before this Court are the parties' Cross-Motions for Summary Judgment. (ECF Nos. 89, 94.) The parties' submissions, in addition to the Certified Administrative Record ("A.R."), have been reviewed and no hearing is necessary. See Local R. 105.6 (D. Md. 2016). For the reasons that follow, Plaintiffs' Motion for Summary Judgment (ECF No. 89) is DENIED and Defendants' Motion for Summary Judgment (ECF No. 94) is GRANTED.

BACKGROUND

The full background of this case is set forth in this Court's previous Memorandum Opinion and is briefly summarized herein. (ECF No. 74; Johnson v. Sessions, No. RDB-15-3317, 2017 WL 1207537 (D. Md. Apr. 3, 2017).) Plaintiff John Andoh is a native and citizen of Ghana who entered the United States on or about October 4, 2004 using a nonimmigrant visa. (A.R. at 27.) Andoh married Plaintiff Denise Johnson, a United States citizen, on March 9, 2006. (Id. at 16.) On April 30, 2006, Johnson filed an I-130 Petition to establish Andoh as her spouse for visa purposes. (Id. at 16.) Ultimately, this Petition was denied by the United States Citizenship and Immigration Services ("USCIS") after Plaintiffs terminated their interview with USCIS.³ On February 8, 2007, the Immigration and Customs Enforcement ("ICE") initiated removal proceedings against Andoh, which were continued on the ground that Johnson intended to file a second I-130 Petition. (Id. at 438-39, 450-53.)

On February 21, 2007, Johnson filed a second I-130 Petition ("the Petition"). (Id. at 26.) On September 14, 2007, the USCIS interviewed Johnson and Andoh. (Id. at 27.) Finding during the interview that Plaintiffs failed to present clear and convincing evidence that their marriage was bona fide, USCIS conducted a second interview of Plaintiffs on August 13, 2008.⁴ (Id.) The USCIS officer's notes from the second interview indicate that the officer found discrepancies between Johnson and Andoh's answers for nine of the twelve categories of questions. (Id. at 588-92.)

Three years after the second interview, on the morning of August 8, 2011 at approximately 5:00 a.m., USCIS officers conducted an unannounced investigation at the residence which Andoh and Johnson had indicated they shared on Riverdale Road (the "Riverdale residence").⁵ (Id. at 34.) When the officers arrived, Andoh claimed that no one was in the apartment other than himself and his roommate. (Id.) Upon examining the apartment, however, officers encountered a woman "hiding in the apartment's bathroom." (Id.) Johnson was not present in the apartment. (Id.) Andoh told the officers that the woman was the wife of his roommate and her name was "Deborah." (Id.) When asked for her identification, however, the woman proceeded to Andoh's bedroom where she pulled her purse from a closet and presented two Ghanian passports bearing the name Doris Baido-Ageyekum. (Id.) The woman then admitted that her name was Doris, and she further stated that she and Andoh had been living together in the apartment alone for the past eight months. (Id.) According to the two USCIS officers at the residence, Andoh whispered something to Doris after she made this statement. (Id. at 34.) Doris then suddenly recanted her prior statement and claimed that Johnson also lived at the residence and was there the night before. (Id. at 34.) The notes from the onsite visit then detail an array of inconsistent statements made by Andoh and Doris.⁶

On December 16, 2011, over four months after the early morning investigation was conducted, USCIS issued a Notice of Intent to Deny ("NOID") Johnson's Petition. (Id. at 30-36.) The NOID summarized the procedural history of Johnson's two I-130 Petitions andlisted discrepancies that USCIS asserted existed between Johnson and Andoh's testimonies during the August 13, 2008 interview. (Id. at 32-33.) In the NOID, the USCIS also noted that a routine background inquiry indicated that Johnson and Andoh lived in separate residences and in fact had never lived together. (Id. at 34.) Finally, the NOID described the above morning investigation at the Riverdale residence. (Id. at 34-35.) Based on all of the above, the NOID concluded that:

It is clear by the testimony and documents submitted that you and the beneficiary have conspired to mislead USCIS as to the nature of your marriage. As USCIS records demonstrate, you and the beneficiary are not living in a bona fide marital union. You have entered into this relationship for the sole purpose of procuring an immigration benefit . . ..

(Id. at 35.) On January 13, 2012, Plaintiffs filed a response to the NOID, "respond[ing] to the alleged inconsistencies" in Johnson and Andoh's testimony, addressing why she was not present during the onsite visit at the Riverdale residence, and attaching various documents. (Id. at 37-46.) Further, Johnson asserted that separation after marriage, alone, is not a basis for declaring that Johnson and Andoh's marriage was not bona fide. (Id. at 37-39.)

Two months later on March 26, 2012, USCIS denied Johnson's Petition. (Id. at 124.) USCIS's denial was set forth in a six-page letter containing a three-page narrative addressing Johnson's response to the NOID and listing the reasons for USCIS's determination that Johnson and Andoh's marriage was a sham. (Id. at 126-28.) A month later on April 25, 2012, Plaintiffs filed a timely Notice of Appeal of USCIS's decision denying the second I-130 Petition. (Id. at 327.) The Notice of Entry of Appearance (Form EOIR-27), however, stated that counsel was only appearing on behalf of Andoh; it did not indicate that counsel also represented Johnson. (Id. at 328.) The Notice of Appeal Form (EOIR-29) stated that "[i]fthe factual or legal basis for the appeal is not sufficiently described, the appeal may be summarily dismissed." (Id. at 327.) In handwritten text, the Form identified the basis for the appeal as:

The marriage entered into by I-130 petitioner Denise Johnson and her husband John Andoh was not for the purpose of conferring immigration benefits and evading immigration laws. In essence, the couple did not enter into a sham marriage. The documentation submitted by the couple to prove a bona fide marriage complied with the controlling regulation, 8 C.F.R. § 204.2(a)(1)(i)(B), and the I-130 petition instructions as to the documents to submit to establish a bona fide marriage.

(Id.) In a letter accompanying the Notice of Appeal and Notice of Entry of Appearance forms, counsel stated that a "legal brief will follow the filing of this appeal." (Id. at 326.)

Seven months later, after having granted counsel's two requests for extension of time, the BIA dismissed the appeal. (Id. at 306.) The BIA dismissed the appeal for lack of jurisdiction because the "Notice of Appeal, . . . Form EOIR-29, in this case is neither signed by the petitioner nor accompanied by a Notice of Entry of Appearance as Attorney or Representative before the Board, Form EOIR-27, by petitioner's counsel as required by 8 C.F.R. § 1003.3(a)(3)." (Id. at 306.) Thus, the BIA noted, "[i]t is not clear from the record that the appeal was initiated by the petitioner or her authorized representative." (Id.) Alternatively, the Board also stated that:

Even if the appeal had been properly filed, the petitioner does not meaningfully identify the reasons for the appeal on the Notice of Appeal or any other paper filed with it. . . Although the petitioner indicated on the Notice of Appeal that she intended to file a separate written brief or statement, no such submission has been received.

(Id.)⁷

On December 21, 2012, Johnson filed a Motion to Reopen and/or for Reconsideration. (Id. at 307.) The Motion included a new notice of appearance and a brief addressing the inconsistencies identified by USCIS, arguing that the Notice of Appeal...