United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. Grimm United States District Judge
Marthe Poh filed a Form I-130 Petition for Alien Relative
(“I-130 Petition” or “Petition”) with
U.S. Citizenship and Immigration Services
(“USCIS”) on April 21, 2016, seeking an I-130
visa for her husband, Plaintiff Emmanuel Tcheukam, who was in
removal proceedings at the time and had been in removal
proceedings when the couple married. Am. Compl. ¶¶
12-14, ECF No. 15. After more than a year passed without an
adjudication, Plaintiffs filed suit in this Court on December
29, 2017, seeking to compel Defendants Kirstjen Nielsen,
Secretary of the Department of Homeland Security
(“Secretary”), L. Francis Cissna, Director of
USCIS, and Gregory Collett, Director of the Baltimore
District Office of USCIS to rule on the I-130 Petition.
Compl., ECF No. 1. USCIS then denied the Petition, finding
that Poh failed to show that Tcheukam qualified for the bona
fide marriage exemption to the rule that an undocumented
spouse could not receive an I-130 visa if he was in removal
proceedings at the time of his marriage and did not
thereafter live abroad for two or more years. Plaintiffs
amended their complaint to allege that Defendants acted
arbitrarily and capriciously and abused their discretion in
denying the Petition because, in Plaintiffs' view, they
submitted “overwhelming evidence” to support
their position that they qualified for the exemption. Am.
Compl. ¶¶ 1-3.
pending is Defendants' Motion to Dismiss, ECF No. 16, in
which they argue that this Court lacks jurisdiction over the
action because the determination of whether Plaintiffs could
invoke the bona fide marriage exemption was a discretionary
determination reserved to the Secretary. This Court does
not have jurisdiction to review decisions committed to the
discretion of the Secretary, and the determination that
Plaintiffs did not qualify for the bona fide marriage
exemption was a discretionary one. Therefore, this Court
lacks jurisdiction, and I must dismiss this case.
defendant asserts that “a complaint simply fails to
allege facts upon which subject matter jurisdiction can be
based, ” as Defendants do here, “the facts
alleged in the complaint are assumed to be true and the
plaintiff, in effect, is afforded the same procedural
protection as he would receive under a 12(b)(6)
consideration.” Adams v. Bain, 697 F.2d 1213,
1219 (4th Cir. 1982). Thus, “the facts alleged in the
complaint are taken as true, and the motion must be denied if
the complaint alleges sufficient facts to invoke subject
matter jurisdiction.” Kerns v. United States,
585 F.3d 187, 192 (4th Cir. 2009). This Court must act
“on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56
(2007) (citations omitted).
“is a native and citizen of Cameroon who entered the
United States as a visitor on April 11, 2006.” Am.
Compl. ¶ 11. He remained in the United States longer
than authorized, seeking asylum on November 1, 2006.
Id. On January 11, 2007, he was issued a notice to
appear, which began his removal proceedings. Id.
¶ 12. As of the filing of the Amended Complaint on July
25, 2018, his removal proceedings remained pending, see
id.; the parties have not notified the Court of any
subsequent action in those proceedings.
and Poh, who is a U.S. citizen, met in about 2010 and, after
Tcheukam's divorce from his former wife was finalized in
Cameroon, Poh and Tcheukam married on June 15, 2015.
Id. ¶ 13. Tcheukam's removal proceedings
were pending when they met and when they married. See
Id. ¶¶ 12-13.
filed an I-130 Petition on Tcheukam's behalf on April 21,
2016, while he still was in removal proceedings. Id.
¶ 14. A I-130 Petition is a means by which a U.S.
citizen such as Poh may “petition for immediate
relative status on behalf of [her] alien spouse so that the
alien spouse may immigrate to the United States.”
Roland v. United States Citizenship & Immigration
Servs., 850 F.3d 625, 629 (4th Cir. 2017) (citing 8
U.S.C. § 1154(a)(1)(A)(i)); see also 8 U.S.C.
§ 1151(b)(2)(A)(i) (defining “immediate
relatives” to include the “children, spouses, and
parents” of a U.S. citizen). An undocumented individual
who secures “immediate relative status” is not
subject to the immigration limits imposed in 8 U.S.C. §
1151(a), see 8 U.S.C. § 1151(b)(2)(A)(i), and
may apply to adjust his status to “an alien lawfully
admitted for permanent residence, ” 8 U.S.C. §
more than a year passed without a ruling on the I-130
Petition, Plaintiffs filed a Complaint for a Writ in the
Nature of Mandamus to Compel the Defendants to Make a
Determination on the Plaintiffs' Petition for Alien
Relative on December 27, 2017. Compl. “In response to
the mandamus suit, the Defendants scheduled the Plaintiffs
for an interview on their I-130 visa petition in the
Baltimore Field Office of the USCIS for February 6, 2018 at
9:00 a.m., ” at which time “Plaintiffs appeared
for the interview and brought additional evidence of the bona
fides of their marriage to the interview and gave that
evidence to the Defendants.” Am. Compl. ¶¶
17-18. After the interview, Plaintiffs received a Notice of
Intent to Deny (“NOID”) the Petition “based
on a plethora of alleged discrepancies, ” and they were
afforded thirty-three days to respond. Id. ¶
19. They felt that “hardly any of [the discrepancies]
were raised at the interview on February 6, 2018.”
Id. They responded with an affidavit and additional
documentary evidence, id. ¶ 20, but Defendants
denied the Petition in a June 6, 2018 denial letter
(“Denial Letter”), id. ¶ 21.
then amended their complaint to challenge the denial of the
I-130 Petition as a violation of the Administrative Procedure
Act, 5 U.S.C. § 702 (“APA”), and to seek
declaratory and injunctive relief pursuant to the APA. Am.
Compl. ¶¶ 1-2, 26.
citizen may submit an I-130 visa petition to obtain
“immediate relief status” for his or her
undocumented spouse, “so that the alien spouse may
immigrate to the United States.” Roland v. United
States Citizenship & Immigration Servs., 850 F.3d
625, 629 (4th Cir. 2017) (citing 8 U.S.C. §
1154(a)(1)(A)(i)). The petitioner has the burden of proving
eligibility by a preponderance of the evidence. See In re
Brantigan, 11 I. & N. Dec. 493, 493 (BIA), 1966 WL
14282 (1966). Once USCIS approves the petition, the
undocumented spouse may apply to adjust his status to
“lawfully admitted for permanent residence, ” 8
U.S.C. § 1255(a), and no longer is subject to the
immigration limits imposed in 8 U.S.C. § 1151(a),
see 8 U.S.C. § 1151(b)(2)(A)(i).
USCIS investigates an I-130 petition and finds that
“the facts stated in the petition are true and that the
alien on behalf of whom the petition is made is an immediate
relative, ” then it “shall . . . approve the
petition.” 8 U.S.C. § 1154(b). If the petitioner
is the undocumented individual's spouse and married him
or her while he or she was in removal proceedings, however,
then USCIS cannot approve the petition unless “the
alien has resided outside the United States for a 2-year
period beginning after the date of the marriage.” 8
U.S.C. § 1154(g). Under these circumstances, there is
“a statutory presumption that the marriage itself is
fraudulent.” Barenboy v. Sec'y, U.S. Dep't