Tkacz v. Duke

303 F.Supp.3d 1052

Jessica Lynn TKACZ, Plaintiff,

v.Elaine C. DUKE, et al., Defendants.

Case No. 2:14–cv–00092–RFB–CWH

United States District Court, D. Nevada.

Signed March 31, 2018

Constantinos G. Fountas, Fountas & Associates, Las Vegas, NV, for Plaintiff.

Jeffrey S. Robins, Jonathan Aaron Robbins, Department of Justice Office of Immigration litigation, Samuel P. Go, Washington, DC, Lindsy Michele Roberts, Justin E. Pingel, U.S. Attorney's Office, Las Vegas, NV, for Defendants.

ORDER

Motions for Summary Judgment (ECF Nos. 49 and 50)

RICHARD F. BOULWARE, II, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Before the Court is Plaintiff's Second Motion for Summary Judgment (ECF No. 49) and Defendants' Second Motion for Summary Judgment (ECF No. 50). For the reasons discussed below, Defendants' motion is granted and Plaintiff's motion is denied.

II. PROCEDURAL BACKGROUND

Plaintiff filed a Complaint in this case on January 1, 2014. ECF No. 1. The case was initially assigned to Judge Robert C. Jones and Magistrate Judge Carl W. Hoffman. ECF No. 2. The case was reassigned to Judge Richard F. Boulware, II on August 12, 2014. ECF No. 13. Plaintiff filed a Motion for Summary Judgment on August 30, 2014. ECF No. 15. Defendants filed a Cross Motion for Summary Judgment on September 16, 2015. ECF No. 17. Plaintiff filed a Motion to Amend/Correct Complaint on October 6, 2014. ECF No. 21. At a hearing on September 23, 2015, the Court denied without prejudice the Motions for Summary Judgment (ECF Nos. 15 and 17) and ordered Plaintiff to file a Motion to Amend that complied with local rules by attaching the proposed Amended Complaint. Plaintiff filed the revised Motion to Amend on October 7, 2015, which was granted at a hearing on December 16, 2015. ECF Nos. 31, 36. The Amended Complaint was filed on December 21, 2015. ECF No. 37. Defendants filed an Answer to the Amended Complaint on February 16, 2016. ECF No. 40. Defendants filed a Motion to Dismiss for Lack of Prosecution on January 27, 2017. ECF No. 43. On June 23, 2017, the Court held a hearing in which it denied the Motion to Dismiss for Lack of Prosecution and ordered that dispositive motions were due by August 25, 2017. ECF No. 48. Plaintiff and Defendants filed the instant Second Motions for Summary Judgment on August 25, 2017. ECF Nos. 49, 50.

III. LEGAL STANDARD

In deciding a motion for summary judgment challenging a final agency action, the function of the reviewing court is to determine whether, as a matter of law, the evidence in the administrative record permitted the agency to make the decision it did. Occidental Engineering Co. v. INS, 753 F.2d 766, 769 (9th Cir. 1985). The standard of review set forth in Fed. R. Civ. P. 56 is not applicable, but instead, the entire case on review under the Administrative Procedure Act (APA) is a question of law. Id. at 770. Summary judgment involving review of agency action does not require fact-finding by the district court. Rather, the court's review is limited to the administrative record. Northwest Motorcycle Ass'n. v. Dep't of Agriculture, 18 F.3d 1468, 1472 (9th Cir. 1994).

Under the APA, a Court may only hold unlawful and set aside an agency action that it finds to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A) ; Ariz. Cattle Growers' Ass'n v. U.S. Fish & Wildlife, 273 F.3d 1229, 1236 (9th Cir. 2001). "Agency action should be overturned only when the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Safari Aviation Inc. v. Garvey, 300 F.3d 1144, 1150 (9th Cir. 2002) (internal citations and quotations omitted). Although a court's review under the APA should be "searching and careful," it is not de novo. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). A district court may not substitute its judgment for that of the agency. Id.

An agency's factual findings are reviewed under the substantial evidence standard. Ramos–Vasquez v. INS, 57 F.3d 857, 861 (9th Cir. 1995). "Substantial evidence constitutes more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. If the evidence is susceptible of more than one rational interpretation, we must uphold [the agency's] findings." Bear Lake Watch, Inc. v. FERC, 324 F.3d 1071, 1076 (9th Cir. 2003) (internal citations omitted).

IV. BACKGROUND

The following facts are taken from the administrative record in this case.

A. Ferreira–Pedrosa Marriage

Plaintiff's husband and the intended beneficiary of her I–130 petition, Alayne Ferreira, married his first wife, Irsa Pedrosa, on June 8, 2007 in Orlando, Florida. On June 25, 2007, Pedrosa signed an I–130 Petition on Ferreira's behalf, which was filed on July 30, 2007 along with Ferreira's I–485 Application. On June 9, 2008, Ferreira and Pedrosa appeared for a United States Citizenship and Immigration Services (USCIS) interview regarding their marriage, where they both claimed, under oath, that they were residing together in a bona fide marital relationship.

On September 27, 2008, two USCIS Officers, Carol Lazaro and Ilene Valenzuela, conducted an unannounced site visit at the address on file for Ferreira and Pedrosa. The fraud verification memorandum created by Officer Lazaro is the only record of this event and provides the following information: Plaintiff Tkacz answered the door and told the officers she was living there as a roommate, and that Pedrosa and Ferreira were at work. Officer Lazaro then called Ferreira's cellular telephone number. Ferreira answered and told Officer Lazaro that he and his wife are the only residents at the address, and that his wife was at home that day. Officer Lazaro then explained to Ferreira that she knew Plaintiff was living at his home and that Pedrosa was not living in Las Vegas. Shortly after the phone call, Ferreira arrived at his house and spoke with the officers in person. The memorandum summarizes the interaction between Ferreira and the officers:

When Mr. FERREIRA arrived home, he invited myself and officer Valenzuela into his home. Jessica [Tkacz] did not seem pleased with our presence and went upstairs. Mr. FERREIRA, SIO Valenzuela and myself all sat down at the kitchen table to talk. Mr. FERREIRA was able to provide a current telephone number for Irsa PEDROSA, which was [ ], but was unaware of her current address, although he stated he believed she was either living in Florida or Puerto Rico. He stated Irsa PEDROSA had come to Las Vegas for the interview and then left town. He stated he just wanted to make a life in the United States and that Irsa had married him to help him. Mr. FERREIRA stated that about two months after filing the Form I–485, Application for Adjustment of Status, He met his current girlfriend Jessica TKACZ. They have been in a relationship ever since. At one point Jessica had become pregnant but had lost the baby.

On March 26, 2009, USCIS issued Ferreira and Pedrosa a Notice of Intent to Deny (NOID) their I–130 petition. A copy of the NOID was sent to Pedrosa's last known address, which was returned as "undeliverable," and to her attorney of record, John Doechung Lee. USCIS did not receive a response to the NOID and denied the I–130 petition on May 26, 2009.

Ferreira divorced Pedrosa on March 24, 2009 and married Plaintiff on May 8, 2009.

B. Tkacz–Ferreira I–130 Proceedings

Plaintiff filed an I–130 petition for Ferreira on July 23, 2010 and they appeared for an interview with USCIS on May 13, 2011. The interview was video recorded. At that interview, the USCIS Officer asked Ferreira if he had previously had an I–130 petition filed on his behalf and if he withdrew that petition, to which Ferreira responded yes. The Officer continued, "And according to the investigators, you withdrew that after admitting that you entered into the marriage for the sole purpose of getting your green card." Ferreira denied making this admission. The Officer then stated, "Well the person you admitted it to is right across the hall, she's a supervisor. Let me go ask her." The Officer then reminded Ferreira that he was under oath and left the interview room for a few minutes, presumably to speak to the supervisor he had referred to. When he returned, the Officer stated that they were all done for the day and he would send Ferreira something in the mail regarding his case. Ferreira's counsel asked where the supervisor was and said that she had accused Ferreira of something he did not do. The Officer responded that he had just asked the supervisor if she remembered Ferreira's case, to which Ferreira's counsel responded "yeah, that doesn't mean she was right. It doesn't mean he admitted that." The Officer then stated, "I'm taking [the supervisor's] word over his word, how's that?" Ferreira's counsel then stated that he would like to see the supervisor, at which point the Officer said in a raised voice, "so you're calling [the supervisor] a liar too?" Ferreira's counsel responded that he was not calling her a liar. Ferreira's counsel then stepped out of the interview room and had a conversation in private with the supervisor in question. While Ferreira's counsel was absent, the Officer told Ferreira that he had accused the supervisor of lying on a report, which was a very serious accusation and could send her to prison. He reiterated, "But I'm going to believe her—she's been here for 35 years." The Officer, Ferreira's counsel, and the supervisor then spoke in the hallway for a few minutes and the interview ended. The total interaction lasted less than 12 minutes.

After this interview, an NOID was issued based on an alleged sham marriage...