United States District Court, D. Maryland
ELLEN LIPTON HOLLANDER, District Judge.
Ibiolajosi Agnes Akinjiola and Hakeem Akanni Ademuyiwa, plaintiffs, filed suit against Attorney General Eric Holder, Jr. and Gregory Collett, District Director, United States Citizenship and Immigration Services ("USCIS"), in their official capacities, seeking judicial review of an Order of the Board of Immigration Appeals ("BIA"), pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 702. In particular, they challenge the BIA's decision affirming USCIS's denial of the I-130 visa petition filed by Akinjiola in 2007 on behalf of her husband, Ademuyiwa.
The parties filed cross-motions for summary judgment, see ECF 19, 20, which have been fully briefed. The Certified Administrative Record ("CAR") has also been submitted to the Court. No hearing is necessary to resolve the motions, see Local Rule 105.6, and, for the reasons that follow, I will deny plaintiffs' motion (ECF 19) and grant defendants' motion (ECF 20).
On or about August 19, 2002, Ademuyiwa, a citizen of Nigeria, entered the United States through a B-2 visitor visa. CAR 127. Under the terms of his visa, Ademuyiwa was authorized to remain in the United States until February 18, 2003. Id. at 127. On Ademuyiwa's Nonimmigrant Visa Application, which he signed on July 26, 2002, Ademuyiwa indicated that he was married. CAR 13. His Supplemental Nonimmigrant Visa Application, filed concurrently, identified Tola Ademuyiwa as his spouse. Id. at 12. However, on September 21, 2002, approximately one month after Ademuyiwa's arrival, he married Linda Mills, a United States citizen. Id. at 157. Ademuyiwa and Mills were divorced less than fifteen months later, on December 3, 2003. Id. at 158.
Just over a month after his divorce, on January 10, 2004, Ademuyiwa married Bernerdeen McDowell, also a United States citizen. Id. at 322. On March 4, 2004, McDowell filed a Form I-130, Petition for Alien Relative for Ademuyiwa, seeking to establish Ademuyiwa as her spouse for visa purposes. Id. at 307. The I-130 petition indicated that Ademuyiwa had only been married once before, and identified Mills as his former spouse. Id. at 307. On the same date, Ademuyiwa filed a Form I-485, Application to Register Permanent Residence or Adjust Status. Id. at 382-85. The I-485 application reflected that Ademuyiwa has two children, both born in Nigeria. Id. at 383. On the Form G-325 for Biographic Information, which was filed in conjunction with the I-485 application, Ademuyiwa indicated that he had only been married once before, and he identified Mills as his former spouse. Id. at 386-88.
USCIS held an adjustment of status interview on June 1, 2004. CAR 76, 82. At the interview, Ademuyiwa submitted a sworn affidavit stating that he and a woman named Lanke Kuteyi have two children together but were never married. Id. at 107-08. USCIS subsequently asked Ademuyiwa to submit a letter from the civil registry in Lagos, Nigeria to document that there was no record of a marriage between Ademuyiwa and Kuteyi. Id. at 83-84. It appears that, in response to this request, Ademuyiwa submitted a letter from the Odi-Olowo/Ojuwoye Local Government in Nigeria, which stated that Ademuyiwa had never entered into a marriage within its jurisdiction. See id. at 15, 82, 106.
USCIS interviewed McDowell and Ademuyiwa separately, under oath, on October 18, 2004, in Sacramento, California. Id. at 273. On that same day, Ademuyiwa and McDowell signed affidavits containing their sworn statements. Id. at 257-61. According to the defendants, the two applicants were asked essentially the same questions. Def. Memo., ECF 20-1 at 3 (citing CAR at 273). On November 16, 2004, USCIS issued a Notice of Intent to Deny ("NOID"). CAR at 273-75. The NOID explained that there were material discrepancies in the couple's testimony regarding (1) their living arrangements; (2) the layout of Ademuyiwa's studio apartment; (3) the side of the bed on which McDowell slept; (4) whether McDowell used the debit card from their joint account; and (5) the last restaurant they dined at together. Id. at 273-74. The NOID also noted that when McDowell was shown a photo album compiled by Ademuyiwa subsequent to the date of their wedding, McDowell was only able to identify Ademuyiwa and her own family members, and misidentified two people as Ademuyiwa's sisters. Id. at 274. According to the NOID, the testimony of McDowell and Ademuyiwa indicated that they (1) did not live together; (2) did not sleep together; (3) did not share finances; and (4) appeared to know little about each other. Id. at 274-75. The NOID provided McDowell thirty days to explain and submit evidence showing that the marriage was not a sham. Id. at 275.
On December 15, 2004, McDowell responded to the NOID by submitting a Declaration dated December 13, 2004, which attempted to explain her answers to the USCIS interview questions. Id. at 282-88. McDowell asked USCIS to reconsider previously submitted evidence, which included letters from doctors who described McDowell's memory loss and other medical problems; letters and affidavits from family and friends attesting to the validity of their marriage; a letter from a pastor stating that Ademuyiwa and McDowell attended his church for the previous few months; a motor vehicle credit application; wedding cards sent to Ademuyiwa's home; the couple's drivers' licenses, showing a common address at Ademuyiwa's home; mail addressed to McDowell at Ademuyiwa's home; and mail addressed to Ademuyiwa at Ademuyiwa's home. Id. at 276-78. She also provided bank statements and a license to operate a childcare facility issued to "Bener McDowell." Id. at 276, 289-300.
USCIS denied McDowell's spousal petition by letter dated February 12, 2005 ("2005 Denial Letter"). Id. at 250-53. In the 2005 Denial Letter, USCIS addressed McDowell's explanations for the divergent testimony as well as the documentary evidence and concluded that it was insufficient to rebut the finding that the marriage was contracted for the primary purpose of evading immigration laws. Id. McDowell did not appeal. About two years later, on March 5, 2007, McDowell and Ademuyiwa filed for divorce, which was effective on July 10, 2007. Id. at 160.
Nine days later, on July 19, 2007, Ademuyiwa married Akinjiola, a native of Nigeria and a naturalized United States citizen. Id. at 159. Soon after, on July 27, 2007, Akinjiola filed an I-130 petition on Ademuyiwa's behalf. Id. at 142-43. In support of the I-130 petition, Akinjiola submitted various documents purporting to support the legitimacy of her marriage to Ademuyiwa. See id. at 139-40. The I-130 petition indicated that Ademuyiwa has two children, both born in Nigeria. Id. at 143. It also indicated that Ademuyiwa had been married previously to Mills and McDowell. Id. at 142. On the same date, Ademuyiwa filed a new I-485 application to adjust his status. Id. at 142, 511.
USCIS interviewed Ademuyiwa and Akinjiola separately on January 23, 2008, and again on May 15, 2008. Id. at 55, 138, 164-68, 784-95. On September 8, 2010, USCIS issued a NOID, explaining that it intended to deny the petition because Akinjiola had failed to meet her burden of establishing that her marriage to Ademuyiwa was bona fide, and Akinjiola had failed to meet her burden of establishing Ademuyiwa's previous marriage to McDowell was not entered for the purpose of circumventing immigration laws. Id. at 140. The 2010 NOID reiterated the discrepancies that arose during the 2004 interviews of McDowell and Ademuyiwa, and the reasons that USCIS found McDowell's explanations for these discrepancies to be inadequate. Id. at 136-40. USCIS also reiterated its prior conclusion that the documentary evidence McDowell submitted in response to the 2004 NOID was insufficient to show that the marriage was bona fide. Id. at 136-38. The 2010 NOID noted discrepant testimony provided by Ademuyiwa and Akinjiola during their respective interviews, id. at 138-39, and explained that the documentary evidence Akinjiola had provided did not establish that the marriage to Ademuyiwa was bona fide. Id. at 139-40. The NOID advised Akinjiola: "Your burden in these proceedings is not only to establish that you are engaged in a bona fide marriage with the beneficiary but to also establish that the beneficiary's previous marriage to Benerdeen McDowell was not entered into for the sole purpose of circumventing U.S. immigration laws." CAR 140 (emphasis in original). The NOID provided Akinjiola thirty days to rebut the conclusion that Akinjiola "ha[d] failed to meet that burden, " CAR 140, and to submit supplemental evidence in support of the visa petition. Id. at 141.
On October 8, 2010, USCIS received Akinjiola's response to the NOID, which included additional documentary evidence regarding her marriage to Ademuyiwa. Id. at 127, 612-66. Akinjiola also submitted documents to support the validity of Ademuyiwa's marriage to McDowell, almost all of which were already contained in the USCIS record and had been previously submitted in response to the 2004 NOID. Id. at 129.
By letter dated March 3, 2011 ("2011 Denial Letter"), USCIS denied the spousal petition. Id. at 125-34. USCIS concluded that Section 204(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1154(c), precluded approval of the petition because Ademuyiwa had previously entered into a fraudulent marriage with McDowell for the purpose of circumventing immigration laws. CAR at 133. In so finding, USCIS addressed the evidence in the record, as well as the prior attorney's arguments as to why the Ademuyiwa-McDowell marriage was bona fide, and explained why the evidence failed to establish the legitimacy of the Ademuyiwa-McDowell marriage. Id. at 127-33. USCIS also observed that it appeared Ademuyiwa was "still married to Tola Ademuyiwa and was not free to marry [Akinjiola] on July 19, 2007." Id. at 133. Although the 2011 Denial Letter recognized that Akinjiola's "relationship with the beneficiary may be bona fide, " USCIS said that "the beneficiary's previous sham marriage, as well as his failure to disclose his marriage to Tola Ademuyiwa or produce a divorce decree from Ms. Ademuyiwa, preclude[d] USCIS from approving [her] ...