Manor v. Nielsen

MICHELLE MANOR and OREN MANOR, Plaintiffs, v. KIRSTJEN NIELSEN, Secretary, Department of Homeland Security;JEFFERSON B. SESSIONS, III, U.S. Attorney General, U.S. Department of Justice;L. FRANCIS CISSNA, Director, U.S. Citizenship and Immigration Services;ANNE ARRIES CORSANO, District Director, Immigration Services;and ANYA RONSHAUGEN, Portland Field Office Director,U.S. Citizenship and Immigration Services, Defendants.

Case No. 3:18-cv-00522-AC

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

July 6, 2020

FINDINGS AND RECOMMENDATION

ACOSTA, Magistrate Judge:

Plaintiffs appeal the denial by U.S. Citizenship and Immigration Services ("USCIS") of the Petition for Alien Relative ("Form I-130") filed by Plaintiff Michelle Manor ("Mrs. Manor"), a United States citizen, on behalf of Plaintiff Oren Manor ("Manor") (collectively "Plaintiffs"), an Israeli citizen. USCIS denied the Form I-130 petition pursuant to Section 204(c) of the Immigration and Nationality Act, 8 U.S.C. § 1154(c), based on a finding that Manor's prior marriage was fraudulent. This court has jurisdiction pursuant to 5 U.S.C. §§ 701 et seq., and 28 U.S.C. §§ 1331, 2201. The parties have filed cross-motions for summary judgment (ECF Nos. 34, 37). For the following reasons, Defendants' motion should be granted and Plaintiffs' motion should be denied.

Factual Background

Mrs. Manor is a United States citizen. Admin. Record ("AR") 49, ECF No. 23-1. Manor is an Israeli citizen. AR 566. Mrs. Manor and Manor were married on December 2, 2010, and they have two children. AR 8. On January 9, 2011, Mrs. Manor filed a Form I-130 petition on behalf of Manor seeking to classify him as an "immediate relative" under section 201 of the INA. AR 74. On March 28, 2012, Mrs. Manor and Manor were interviewed by USCIS regarding their marriage. AR 75. On March 22, 2013, USCIS issued a Notice of Intent to Deny ("NOID") the I-130 petition based on prior marriage fraud. AR 3.

USCIS based its decision on Manor's first marriage to Casey Lee Brace ("Brace"), a U.S. citizen. AR 74, 80. Manor was first admitted to the United States on May 1, 2006, as a nonimmigrant visitor. AR 74. On October 11, 2006, Manor married Brace. Id. On May 25, 2007, Brace submitted a Form I-130 on Manor's behalf, which was approved on October 10, 2007, without an interview. Id. However, USCIS sought additional information when Manor sought to adjust his status to that of legal permanent resident based on his marriage to Brace. AR 4, 555.

On September 15, 2008, USCIS interviewed Manor and Brace in Charleston, South Carolina. Id. During the interview, while under oath, Manor and Brace informed the USCIS officer that they did not live together for the first eight months of their marriage. AR 6, 82.Following the interview, USCIS requested additional information and issued a Form I-72, Request for Evidence ("RFE"). AR 6, 82. Manor and Brace responded to the request, but USCIS found the documents insufficient and issued another RFE, including complete banking records, copies of residential leases, phone statements, a medical examination for Manor, and pay stubs. AR 6. On December 4, 2008, Adam Pugh, an attorney representing Manor and Brace, sent a response, including checking account statements, and medical examination records for Manor. AR 6, 82.

To further investigate, USCIS scheduled another interview with Manor and Brace on July 15, 2009, in Charleston, South Carolina. AR 7. Neither Manor nor Brace appeared for the July 2009 interview. AR 7, 83. USCIS discovered that Manor requested that his address be changed to 3439 NE Sandy Blvd. #618, Portland, OR 97323 in May 2009. AR 7. The Sandy Boulevard address is a post office box. AR 7, 83. USCIS discovered that Manor's address was 6804 Lexington Road, Austin, Texas. AR 7. On July 29, 2009, USCIS received a request from Michael Meltzer, Manor's attorney, to transfer the case to Portland, Oregon. AR 7. The case was transferred to Portland and an interview scheduled for November 5, 2009. Id.

Neither Manor nor Brace appeared for the November 2009 interview. AR 7, 83. On November 6, 2009, Manor sent a letter advising that he and his family had the flu and had been advised to avoid contact with others. AR 83, 354. The interview was rescheduled for January 28, 2010. AR 83, 352. On December 23, 2009, Manor included Brace as the sole beneficiary of his life insurance policy. AR 80, 243-44, 729-30.

Brace did not appear for the January 28, 2010 interview. AR 83. At the January 2010 interview, Manor appeared with counsel and claimed that Brace was caring for her grandmother in Missouri, was four months pregnant, and was unable to attend. AR 84, 347. USCIS scheduled another interview for March 4, 2010, so that Brace could appear. AR 84.

In late January or early February 2010, Brace's alleged then-boyfriend, Chris Paschall, called a USCIS tip hotline and claimed that Brace had been paid to marry Manor. AR 7, 302-09. Paschall also stated that Brace was offered additional money if she would appear at the interview and that Brace was then pregnant with his child. AR 8. Shortly thereafter, Jeff Klingensmith, Brace's ex-boyfriend, also called the tip line claiming that Brace's marriage was fraudulent. AR 7.

On March 4, 2010, Manor and Brace appeared for the interview without counsel and were interviewed separately. AR 7-8, 84. Brace stated that she had flown to Portland the previous day and was planning to fly to Charleston later that day. AR 84. At the end of the interview, Brace withdrew her Form I-130 petition on Manor's behalf and admitted that she married Manor solely to assist him in obtaining immigration benefits. AR 316-17. On June 23, 2010, Manor's adjustment of status application was denied and a Notice to Appear for Removal Proceedings was issued.¹ AR75, 557; Compl. Ex. J, ECF No. 1-10. Manor and Brace separated shortly thereafter, and their divorce became final on October 4, 2010. AR 75, 788.

On September 6, 2016, USCIS denied Mrs. Manor's I-130 visa petition on Manor's behalf based on the fraudulent marriage bar, 8 U.S.C. § 1154(c). AR 73-88. Mrs. Manor appealed the decision to the Board of Immigration Appeals ("BIA"), which denied her appeal, finding that USCIS's decision was based on substantial and probative evidence. AR 12-15. Plaintiffs filed this action on March 27, 2018.

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Legal Standard

The claims in this case involve the termination of an immigration petition, which is subject to judicial review under the APA. Singh v. Clinton, 618 F.3d 1085, 1088 (9th Cir. 2010) (citing 5 U.S.C. § 706). When a party seeks review under the APA, the district court "sits as an appellate tribunal" and the "entire case on review is a question of law." Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) (internal quotations omitted); Carlsson v. U.S. Citizenship and Immigration Servs., No. 2:12-cv-07893-CAS(AGRx), 2015 WL 1467174, at *4 (C.D. Cal. Mar. 23, 2015). "Where a court reviews the decision of an administrative agency, 'a motion for summary judgment stands in a somewhat unusual light, in that the administrative record provides the complete factual predicate for the court's review.'" Achampoma v. Board of Immigration Appeals, Case No. 1:16-cv-00668-GBL-MSN, 2016 WL 8732313, at *3 (E.D. Va. Dec. 2, 2016) (quoting Chan v. U.S. Citizenship & Immigration Servs., 141 F. Supp. 3d 461, 464 (W.D.N.C. 2015)). "Summary judgment thus serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review." Gill v. Dep't of Justice, 246 F. Supp. 3d 1264, 1268 (N.D. Cal. 2017 (quoting Stuttering Found of Am. v. Springer, 498 F. Supp. 2d 203, 207 (D.D.C. 2007)); Chan y. U.S. Citizenship and Immigration Servs., 141 F. Supp. 3d 461, 464 (W.D.N.C. 2015)).

Under the APA, an agency's decision must be set aside if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); Family Inc. v. USCIS, 469 F.3d 1313, 1315 (9th Cir. 2006). The standard of review is narrow and assesses "whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 105 (1977). Thecourt may not substitute its judgment for that of the agency. Overton Park, 401 U.S. at 416; Barnes v. U.S. Dep't of Transp., 655 F.3d 1124, 1132 (9th Cir. 2011). The court is not required to resolve any facts where relief is sought under the APA; rather, the court determines whether the evidence in the administrative record permitted the agency to make the decision it did. Occidental Eng'g Co. v. Immigration & Naturalization Serv., 753 F.2d 766, 769 (9th Cir. 1985). The court considers the administrative record in existence at the time of the decision. Carlsson, 2015 WL 1467174, at *4. The court must uphold an agency's decision even if it is of less than ideal clarity where the "the agency's path may reasonably be discerned." Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1478 (9th Cir. 1994) (citing Motor Vehicle Mfr. Ass'n v. State Farm Mut. Ins. Co., 463 U.S. 29, 43 (1983)). An agency's decision will be upheld under the arbitrary and capricious standard if the "evidence before the agency provided a rational and ample basis for its decision." Nw. Motorcycle, 18 F.3d at 1471.

The agency's factual findings are reviewed for substantial evidence. Family Inc., 469 F.3d at 1315. The court "will not disturb the agency's findings under this deferential standard 'unless the evidence presented would compel a reasonable finder of fact to reach a contrary result.'" Id. at 1316 (quoting Monjaraz-Munoz v. INS, 327 F.3d 892, 895 (9th Cir. 2003), amended by 339 F.3d 1012 (9th Cir. 2003) (emphasis in Family Inc.). "When the 'BIA...