Mukui v. Chau, Case No. 19-cv-03249-JMY

JUANITA MUKUI and STANLEY MUKUI, Plaintiffs v. ANNA CHAU, Philadelphia District Director, U.S. Citizenship & Immigration Services,KENNETH T. CUCCINELLI, Acting Director of USCIS,CHAD F. WOLF, Acting Secretary,U.S. Department of Homeland Security,¹ WILLIAM BARR, U.S. Attorney General, Defendants

Case No. 19-cv-03249-JMY

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JUNE 17, 2020

MEMORANDUM

YOUNGE, J.

Juanita Lea Mukui, an American citizen (hereinafter, "Ms. Mukui" or "Petitioner"), filed an I-130 petition with the United States Citizenship and Immigration Services ("USCIS") on behalf of Stanley Gicharu Mukui, an alien (hereinafter, "Mr. Mukui" or "Beneficiary") (collectively, the "Plaintiffs"), requesting that USCIS grant Mr. Mukui immediate relative status as her spouse.² USCIS denied the petition, finding that Mr. Mukui had previously engaged in a sham marriage in violation of 8 U.S.C. § 1154(c). Ms. Mukui appealed that decision to the Board of Immigration Appeals ("BIA"), which ruled that substantial and probative evidencesupported USCIS's finding that the purpose of Mr. Mukui's prior marriage was to evade the immigration laws of the United States.

Plaintiffs now seek review of the BIA decision, arguing that the decision was arbitrary and capricious, and that the denial violated their due process rights. The parties agree that the material facts of this case are undisputed, and both have filed cross-motions for summary judgment. (Def.'s MSJ and Mem., ECF Nos. 8, 8-1; Plf.'s MSJ and Mem., ECF Nos. 13, 11.) The Court finds this matter appropriate for resolution without oral argument. Fed. R. Civ. P. 78; L.R. 7.1(f). For the reasons that follow, Plaintiffs' motion will be denied, Defendants' motion will be granted, and judgment will be entered for Defendants.

I. BACKGROUND³

A. Immigration Statutes and Regulatory Framework

United States citizens may petition the Government to issue to an alien spouse or relative an immigrant visa pursuant to the procedures set forth in the INA. See generally 8 U.S.C. §§ 1151(b), 1154. For an alien spouse of a United States citizen to obtain lawful permanent resident status, the United States citizen spouse must file a Form I-130 Petition for Alien Relative on behalf of the alien spouse beneficiary to classify him or her as an "immediate relative." Id. § 1154(a). Immediate relatives—which include children, spouses, and parents of a United States citizen—are not subject to the annual quotas imposed on other family-based immigration classifications and may receive priority over other applicants by immediately applying for lawful permanent resident status. Id. § 1151(b)(2)(A)(i).

The United States citizen bears the burden of proving that the alien beneficiary is eligible to receive the benefits of the I-130 petition. Id. § 1361; see Matter of Brantigan, 11 I. & N. Dec.493, 494 (B.I.A. 1966); see also Salvador v. Sessions, No. 18-1608, 2019 WL 1545182, at *3 (E.D. Pa. Apr. 9, 2019) ("The petitioner bears the burden of proving eligibility and can do so by presenting evidence of a valid marriage."). Evidence of a valid marriage revolves around "[t]he central question" as to "whether the bride and groom intended to establish a life together at the time they were married." Matter of Laureano, 19 I. & N. Dec. 1, 2-3 (B.I.A. 1983).

When a petition is filed, USCIS conducts an investigation with respect to the matters presented in the I-130 Form, and then decides whether to approve or deny the petition. See 8 U.S.C. § 1154(b); see also 8 C.F.R. § 204.2. Once a petitioner proves that their relationship with an immediate relative meets the requirements for the approval of an I-130, he or she is generally entitled, as a matter of law, to the approval of the petition. See 8 C.F.R. § 204.2. However, the INA bars USCIS from approving visa petitions with respect to an alien who has attempted, conspired, or actually "[e]ntered into a marriage for the purpose of evading the immigration laws." 8 U.S.C. § 1154(c); see also 8 C.F.R. § 204.2(a)(1)(ii) (USCIS "will deny a petition . . . filed on behalf of any alien for whom there is substantial and probative evidence of . . . an attempt or conspiracy" to enter into a fraudulent marriage). This also applies to any prior marriage found to have been entered into for the purpose of evading immigration laws. 8 C.F.R. § 204.2(a)(1)(ii).

To support the denial of an I-130 petition based on a fraudulent marriage, USCIS must find that there is "substantial and probative evidence" that the marriage was a sham. Matter of Kahy, 19 I. & N. Dec. 803, 806 (B.I.A. 1988); see also Salvador, 2019 WL 1545182, at *3. Substantial evidence is defined as "more than a scintilla, but . . . something less than apreponderance of the evidence." Salvador, 2019 WL 1545182, at *3 (internal quotation marks and citation omitted).⁴

If USCIS gathers what it believes is substantial evidence of marriage fraud, it must issue a Notice of Intent to Deny ("NOID") to the petitioner. 8 C.F.R. § 103.2(b)(8)(iv). The NOID informs the petitioner of "the derogatory information" and provides the petitioner with a chance to rebut it. Salvador, 2019 WL 1545182, at * 3; see also 8 C.F.R. § 103.2(b)(16)(i). Thus, when the petitioner receives a NOID, "the burden shifts to the petitioner to establish that the beneficiary did not seek non-quota or preference status based on a prior fraudulent marriage." Matter of Kahy, 19 I. & N. Dec. at 806-07; see also Salvador, 2019 WL 1545182, at *3 ("The petitioner must establish by clear and convincing evidence that the prior marriage was not entered into for the purpose of evading the immigration laws."). If the petitioner submits a response to the NOID to USCIS, the agency evaluates the response and then determines whether the I-130 petition should be approved. See 6 U.S.C. § 271(b)(1); 8 C.F.R. § 204.2(a)(1)(ii).

An unfavorable decision of the USCIS may be appealed to the BIA. See 8 C.F.R. § 1204.1. An unfavorable decision by the BIA may then be challenged in a federal district court.

B. Facts & Procedural History

Mr. Mukui, who is a native and citizen of Kenya, was admitted lawfully to the United States as a student on August 18, 2005. (Certified Administrative Record ("AR"), ECF No. 7-1 at 83.) On February 28, 2006, Mr. Mukui married Kyeisha McNeill (hereinafter "Ms. McNeill"),a United States citizen. (AR 7-4 at 17.) On April 13, 2007, Ms. McNeill filed a Form I-130 petition on behalf of Mr. Mukui to initiate the process for Mr. Mukui to become a lawful permanent resident of the United States. (Id. at 6.) In support of the petition, Ms. McNeill submitted several documents to establish that their marriage was genuine, including a copy of their marriage certificate. (Id. at 20-22.)

On August 21, 2007, USCIS interviewed Ms. McNeill and Mr. Mukui in connection with the I-130 petition. (AR 7-3 at 244-52.) The interviewer questioned Ms. McNeill about the circumstances of her marriage to Mr. Mukui. (Id. at 248-52.) Toward the end of the interview, Ms. McNeill signed a Request for Withdrawal of I-130 Petition Form (hereinafter, the "Withdrawal Statement"), in which she stated that Mr. Mukui paid her $1,000 to marry her, that they never consummated the marriage, and that they never lived together. (Id. at 247.) The Withdrawal Statement was also signed by Ms. McNeill's attorney, who was present during the interview. (Id.) On October 29, 2007, USCIS terminated Ms. McNeill's I-130 petition on behalf of Mr. Mukui. (Id. at 246.)

Mr. Mukui and Ms. McNeill divorced on December 31, 2007. (AR 7-1 at 100.) Thereafter, Mr. Mukui and Ms. Mukui married on July 18, 2008 in Las Vegas, Nevada. (AR 7 at 115.) On August 20, 2013, Ms. Mukui filed an I-130 petition (hereinafter, the "Petition") on behalf of Mr. Mukui. (Id.) In support of the Petition, Ms. Mukui submitted several documents, including three affidavits signed and sworn by Ms. McNeill, in which she retracts the statements she made in the Withdrawal Statement. (AR 7 at 154-58.) Specifically, Ms. McNeill asserts in her 2011 affidavit:

[T]he interviewing officer began to say things which made me panic. The officer said that our marriage wasn't real and threatened me with jail. He said that if I cooperated with him and signed a paper that I would not go to jail. I was only 19 and I was very scared.

We had a lawyer and the lawyer did not say a word. The lawyer sat behind me and did not say anything. I was confused and scared. At that point, I "cooperated" by saying yes to whatever the officer said. I ended up signing a paper saying [Mr. Mukui] paid me $1000 to marry him. This is not true. However, I felt that if I did not go along with what the officer said, I would be handcuffed then and there and be taken to jail. I later receive [(sic)] a paper saying I had withdrawn the petition. I never requested to withdraw the petition knowingly.

(Id. at 154.) In addition, Ms. Mukui submitted several affidavits from friends and family attesting to the bona fides of Mr. Mukui and Ms. McNeill's relationship (see AR 7 at 182-195), along with additional documentary evidence (e.g., bank records, insurance records, utility records, tax records and photos) (see AR 7 at 147-153, 219, 235, 238, 240-268; AR 7-1 at 1-5, 15-56).

On April 22, 2015, USCIS issued a NOID, explaining that the agency intended to deny Ms. Mukui's pending Petition "because the beneficiary has previously sought to be accorded immediate relative classification by a marriage determined by USCIS to have been entered into for the purpose of evading the immigration laws of the United States." (AR 7 at 105.) The NOID provided the Plaintiffs thirty days to respond and submit evidence that might overcome the grounds for the intended denial. (Id. at 109.) On May 26, 2015, the Plaintiffs timely responded to the NOID. (Id. at 74-91.)

On July 21, 2015, USCIS denied the Petition. (Id. at 65-71.) The agency determined that Mr. Mukui was subject to the marriage fraud bar of ...