Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Poh v. Nielsen

United States District Court, D. Maryland, Southern Division

March 1, 2019

MARTHE POH, et al., Plaintiffs,
v.
KIRSTJEN NIELSEN, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Paul W. Grimm United States District Judge

         Plaintiff 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.[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.

         Now 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.[2] 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.

         Standard of Review

         When a 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).

         Background

         Tcheukam “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.

         Tcheukam 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.

         Poh 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. § 1255(a).

         When 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.

         Plaintiffs 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.

         Discussion

         A U.S. 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).

         If 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 of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.