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Johnson v. Sessions

United States District Court, D. Maryland

April 3, 2017

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

          MEMORANDUM OPINION

          Richard D. Bennett United States District Judge.

         Plaintiffs Denise Ann Johnson (“Johnson”) and John Andoh (“Andoh”) (collectively, “plaintiffs”) have filed 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 (“USCIS”), and the Baltimore Field Director of USCIS.[1] Plaintiffs challenge decisions by United States Citizenship and Immigration Services and the Board of Immigration Appeals (“BIA”) relating to USCIS's denial of Johnson's I-130 Petition for Alien Relative (the “Petition”) for her husband Andoh, a Ghanian national. (ECF No. 65.) Specifically, plaintiffs allege that 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. (Id.) Plaintiffs seek relief under the APA, as well as under the Mandamus Act, 28 U.S.C. § 1361, and the Declaratory Judgment Act, 28 U.S.C. § 2201. (Id.)

         Now pending before this Court is defendants Jefferson B. Sessions, III, John F. Kelly, Lori L. Scialabba, and Conrad Zaragoza's (collectively, “defendants”) Motion to Dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. (“Defendants' Motion”) (ECF No. 68.) The parties' submissions have been reviewed, and no hearing is necessary.[2] See Loc. R. 105.6 (D. Md. 2016.) For the reasons stated below, Defendants' Motion (ECF No. 68) is GRANTED IN PART and DENIED IN PART. The Motion is GRANTED as to plaintiffs' claims under the Mandamus Act, 28 U.S.C. § 1361, and the Declaratory Judgment Act, 28 U.S.C. § 2201. Defendants' Motion is DENIED as to the claims of plaintiff Andoh and plaintiff Johnson brought pursuant to the APA.

         BACKGROUND

         The pending case began as a petition for review before the United States Court of Appeals for the Fourth Circuit. (ECF No. 1.) The Certified Administrative Record before the Fourth Circuit was docketed in this case.[3] (ECF No. 10.) On October 29, 2015, the Fourth Circuit transferred petitioner Johnson's case to this Court in the interest of justice pursuant to 28 U.S.C. § 1631. (ECF No. 57.) Following a teleconference with the Court, which granted Johnson's request for an extension of time, plaintiffs filed their Complaint on September 7, 2016. (ECF Nos. 64, 65.)

         Plaintiff 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 Johnson, a United States citizen, on March 9, 2006, and just over one month later, on April 30, 2006, Johnson filed an initial I-130 Petition to establish Andoh as her spouse for visa purposes. (Id. at 16.) USCIS denied the petition on December 13, 2006 after plaintiffs terminated their interview with USCIS officers. (Id. at 17.) Following the denial of the first I-130 Petition, Immigration and Customs Enforcement (“ICE”) initiated removal proceedings against Andoh by filing a Notice to Appear (“NTA”) in Immigration Court on January 17, 2007. (Id. at 573.) The NTA alleged that Andoh was removable from the United States based on the fact that he overstayed his nonimmigrant visa. (Id. at 448-49.) On February 8, 2007, Andoh conceded in immigration court that he was removable as charged. (Id. at 448-49, 573.) Andoh's counsel also indicated to the immigration judge that Johnson intended to file a second I-130 Petition on Andoh's behalf, and counsel therefore requested a continuance of the case to allow for processing of the petition. (Id. at 450-53.)

         Johnson filed a second I-130 several weeks later, on February 21, 2007. (A.R. at 26.) A USCIS officer interviewed Johnson and Andoh on September 14, 2007. (Id. at 27.) Finding that plaintiffs had failed to present clear and convincing evidence that their marriage was bona fide, USCIS conducted a second interview of plaintiffs on August 13, 2008. (Id.) It does not appear that USCIS took any further action with respect to the Petition at that time.

         Nearly three years later, on the morning of August 8, 2011 at approximately 5:00 a.m., USCIS officers conducted an unannounced investigation of the residence which Andoh and Johnson purportedly shared. (A.R. at 34.) When the officers arrived at the residence, at approximately 5:00 a.m., Andoh claimed that no one was in the apartment other than himself and his roommate, George. (Id.) Upon examining the apartment, however, USCIS officers encountered a woman “hiding in the apartment's bathroom.” (Id.) Andoh told the officers that the woman was the wife of his roommate, and that her name was “Deborah.” (Id.) The officers further reported that When the woman came out of the bathroom, she led the officers to the bedroom where she alleged she was staying (a bedroom not occupied by Andoh). (Id.) After failing to find her identification in that bedroom, she then proceeded to Andoh's bedroom, where she pulled her purse from the closet and presented two Ghanaian passports bearing the name Doris Baido-Ageyekum. (Id.) The woman then admitted that her name is Doris, and she stated that she and Andoh had been living together in the apartment alone for the past eight months. (Id.)

         According to the USCIS agents on the scene, Andoh whispered something to Doris, who then immediately recanted her prior statement and claimed that Johnson lived at the residence as well. (A.R. at 34.) Doris further claimed that she had been sleeping on the couch for the past eight months, but USCIS officers did not observe any blankets or pillows on the couch, despite the fact that the visit occurred at 5 a.m. (Id.) When asked about Andoh's claim that she was married to George, Doris refused to answer. (Id.) Likewise, when asked who resided in the apartment, Andoh refused to respond and indicated that he wished to remain silent. (Id. at 31.) At another point during the visit, however, Andoh indicated to the officers that Doris slept in the second bedroom with Andoh's brother, George. (Id.) Andoh later stated that George was not his brother, but a family friend. (Id.)

         On December 16, 2011-over four months after the early morning investigation was conducted and nearly five years after the filing of the second I-130 Petition-USCIS issued a Notice of Intent to Deny (“NOID”) Johnson's petition based on a finding that Johnson and Andoh's petition was based on “a fraudulent or ‘sham' marriage, entered into for the sole purpose of procuring the beneficiary's admission as an immigrant.” (A.R. at 31.) Plaintiffs filed a response to the NOID on January 13, 2012, disputing USCIS's findings and attempting to explain several of the factual discrepancies identified by USCIS. (Id. at 37.)

         On March 26, 2012-over five years after the filing of the second I-130 Petition and nearly six years after the date of Johnson and Andoh's marriage-USCIS denied the petition. (A.R. at 124.) USCIS's denial was set forth in a six page letter containing a three page narrative of the reasons for USCIS's determination that Johnson and Andoh's marriage was a sham. (Id. at 126-28.)

         Plaintiffs filed a timely Notice of Appeal[4] of USCIS's decision denying the second I-130 Petition on April 25, 2012. (A.R. at 327.) The Notice of Appeal identified the case as “In the Matter of / Petitioner (I-130) Denise Ann Johnson / Beneficiary John Yaw Andoh / A# 096778846.” (Id.) In handwritten text submitted by counsel, the Notice of Appeal to the Board of Immigration Appeals states as the basis for the appeal that:

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.) The Notice of Entry of Appearance (Form EOIR-27) filed by counsel stated that counsel was appearing on behalf of Andoh; it did not mention expressly that counsel also represented petitioner Johnson. (Id. at 328.) In an accompanying letter, counsel for Johnson and Andoh stated that a “legal brief will follow the filing of this appeal.” (A.R. at 326.) The letter's subject line stated: “Re: Appeal Of USCIS March 26, 2012 Decision Regarding I-130 Petition Filed by Denise Johnson For Her Beneficiary Husband, John Andoh, A# 096 778 846.” (Id.)

         On May 21, 2012, plaintiffs' counsel filed a request for an extension of time to submit a brief in support of the appeal, indicating that counsel was undergoing hip replacement surgery and would be out of the office for several weeks. (A.R. at 338.) Counsel requested an additional extension of time to file the brief on July 13, 2012. (Id. at 341.) Ultimately, however, no timely brief was filed.

         No brief having been filed in support of the appeal, the BIA issued its decision on November 23, 2012. (A.R. 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.” (A.R. 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.) As an alternative basis for its decision, the BIA stated that “[e]ven 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.” (Id.) The BIA further noted that while “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.)[5]

         On December 21, 2012, petitioner Johnson filed a Motion to Reopen and/or for Reconsideration before the BIA. (A.R. at 307.) The Motion included a new notice of appearance, indicating that counsel represented Johnson, and a brief addressing the inconsistencies identified by USCIS in its Denial of the Petition. The Motion further argued that the Notice of Appeal sufficiently put the BIA on notice of the basis for the appeal and asserted that counsel's surgery and extended recuperation made re-opening the case appropriate. (Id. at 307-24.) By Order dated September 6, 2013, the BIA denied the Motion on the basis that the Motion failed to identify errors of fact or law in the prior BIA decision, that the new evidence produced had been previously available (and, thus, inappropriate for review on appeal), and that the failure to file a brief in the six months between counsel's request for an extension of time and USCIS's decision was not excused. (ECF No. 17-3 at 4-5.)

         On October 3, 2013, plaintiffs filed a petition for review of the BIA's September 6, 2013 decision before the Fourth Circuit. (ECF No. 1.) As noted above, on October 29, 2015, the Fourth Circuit transferred petitioner Johnson's case to this Court in the interest of justice pursuant to 28 U.S.C. § 1631. (ECF No. 57.) Following a teleconference with the Court, plaintiffs filed a three-count Complaint on September 7, 2016. (ECF No. 65.) Defendants now seek to dismiss plaintiffs' Complaint. (ECF No. 68.)

         STANDARDS OF REVIEW

         I. Motion to Dismiss ...


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