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Saleh v. Holder

United States District Court, D. Nevada

September 18, 2014

ABDUL SALEH, beneficiary of a Visa, Petition filed by TEHETENA DAGNA TEKLEWOLD, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General of the United States, Respondent

Page 1164

For Abdul Saleh, Beneficiary of a visa Petition file by other, Tehetena Dagna Teklewood, Petitioner: Dan M. Winder, LEAD ATTORNEY, Law Office of Dan M. Winder, PC, Las Vegas, NV.

For Eric H Holder, Respondent: Patrick A Rose, LEAD ATTORNEY, U.S. Attorney's Office, Las Vegas, NV; Sarah Maloney, LEAD ATTORNEY, U.S. Dep't of Justice, Washington, DC; Timothy M Belsan, United States Department of Justice - Civil Division - Office, Washington, DC.

Page 1165

ORDER

Gloria M. Navarro, Chief United States District Judge.

Pending before the Court is the Motion for Summary Judgment (ECF No. 27) filed by Respondent Eric H. Holder, Jr. (" Respondent" ) on December 10, 2013 and the Motion for Summary Judgment (ECF No. 28) filed by Petitioner Abdul Saleh (" Petitioner" ) that same day. The parties filed their Responses in Opposition (ECF Nos. 32-33) on February 10, 2014. Respondent filed his Reply to Petitioner's Response (ECF No. 34) on February 24, 2014.

For the reasons discussed in this Order, the Court Denies Respondent's Motion for Summary Judgment (ECF No. 27) and Grants Petitioner's Motion for Summary Judgment (ECF No. 28).

I. BACKGROUND

This matter arises from an appeal filed by Petitioner pursuant to the Administrative Procedure Act, 5 U.S.C. § 701 (the " APA" ), seeking review of a Board of Immigration Appeals' (the " BIA" ) decision affirming the denial of his Form I-130 Petition to classify him as an immediate relative of a United States citizen. The operative facts are as follows:

Petitioner is a thirty-four-year-old native and citizen of Eritrea. (Undisputed Facts ¶ 1, ECF No. 27-2; I-130 Petition, Admin. Record at 93). On April 12, 2010, he arrived in the United States with permission to remain in the country for only three months. (I-130 Petition, Admin. Record at 93). Less than two months after his arrival in the United States, Petitioner married Tehetena Dagna Teklewold (" Teklewold" ), a fifty-one-year-old native of Ethiopia and a naturalized American citizen, in Las Vegas, Nevada on June 1, 2010. (Undisputed Facts ¶ ¶ 2, 4-5, ECF No. 27-2; I-130 Petition, Admin. Record at 93). A month later on July 9, 2010, Teklewold filed an I-130 Petition with the United States Citizenship and Immigration Services (the " USCIS" ) on behalf of Petitioner. ( Id. ¶ 6). According to the I-130 Petition, Petitioner had been married to Yesra M. Ferej, until their marriage ended on April 6, 2010, six days prior to his arrival in the United States. (I-130 Petition, Admin. Record at 93).

On November 8, 2010, Petitioner and Teklewold participated in an interview with a USCIS officer. (Undisputed Facts ¶ 7, ECF No. 27-2). During the interview, Petitioner could not remember the name of his former spouse, to whom he had purportedly been married for five years, nor

Page 1166

could he remember the address of the home where he purportedly had been living with Teklewold for the previous five months. (NOID, ECF No. 5-1; G-325 Bio. Information, Admin. Record at 95). However, Petitioner was able to remember the address of the home where his sister lived. (NOID, ECF No. 5-1). Additionally, the only documentary evidence provided by Petitioner and Teklewold at the interview was an order for checks for a joint banking account placed six days prior to the interview. ( Id.).

On December 9, 2010, USCIS officers conducted a site visit at the purported home of Petitioner and Teklewold and at the purported home of Petitioner's sister. (Undisputed Facts ΒΆ 8, ECF No. 27-2). During the site visit of Petitioner's purported home with Teklewold, the USCIS officers encountered Teklewold and a fifty-year-old man named Shekib Abubeker, whom Teklewold described as her best friend for over ten years. (USCIS Site Visit Memo, Admin. Record at 89). Petitioner was not at the home, and Teklewold claimed ...


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