United States District Court, D. Nevada
R. HICKS, UNITED STATES DISTRICT JUDGE.
Heather Mattson and Roman Borisov seek review of a decision
by the Board of Immigration Appeals (“BIA”) under
the Administrative Procedure Act (“APA”). ECF No.
12. Plaintiffs moved for summary judgment. ECF No. 64.
Defendants John F. Kelly, Al Gallmann, Jeanne Kent, Jeff
Sessions, and Daniel Bogden also moved for summary judgment.
ECF No. 62.The parties both filed responses and
replies to the competing motions. See ECF Nos. 69,
68, 70, 71. After considering the Administrative Record and
the parties' arguments, the court grants Defendants'
motion and denies Plaintiffs' motion.
came to the United States from Russia as a nonimmigrant
student in July 2000. AR at 55. He then married Georgia
Bufalino, a United States citizen, in November 2003. AR at
156. Bufalino submitted an I-130 petition with the United
States Citizenship and Immigration Services
(“USCIS”), seeking to adjust Borisov's
classification to immediate-relative status. AR at 153.
Borisov simultaneously filed an I-485 application, seeking to
adjust his status to lawful permanent resident. AR at 153.
USCIS interviewed Bufalino and Borisov in January 2005
regarding the I-130 petition. AR at 3, 5. At the interview,
Bufalino and Borisov presented utility statements as evidence
of a bona fide marriage. Id. But Bufalino
subsequently withdrew her I-130 petition. AR at 3, 50. She
also filed an annulment petition but later withdrew that
petition as well. AR at 145-46. The two were divorced in
December 2005. AR at 140-44.
married Mattson, another United States citizen, in February
2012. AR at. 147. Like Bufalino, Mattson filed an I-130
petition to adjust Borisov's classification to
immediate-relative status. AR at 131-32. Again, Borisov
simultaneously filed an I-485 application. AR at 67. The
USCIS granted Mattson's I-130 petition in November 2012.
USCIS issued a Notice of Intent to Revoke
(“NOIR”) Mattson's approved I-130 petition in
April 2013 based on Borisov previously entering into a
marriage to evade immigration laws. AR at 6-7. Under the
Immigration and Nationality Act § 204(c), an I-130
petition cannot be approved if an alien previously entered
into a marriage for the purpose of evading immigration laws.
AR at 6. In the NOIR, the USCIS explained two events formed
its belief that Borisov entered into a fraudulent marriage in
violation of 204(c). AR at 7. First, Borisov “admitted
that he had entered into a fraudulent marriage with Georgia
Bufalino for the sole purpose of obtaining permanent resident
status in the United States” during a discussion with
immigration agents in May 2005. Id. The alleged
confession led to Borisov's arrest. See Id.
Second, Bufalino advised the immigration agents that she
filed an annulment petition for her marriage to Borisov and
stated that Borisov married her to acquire citizenship.
Id. She also stated she withdrew her I-130 petition.
Id. Plaintiffs were given thirty days to refute the
USCIS's findings. Id.
responded to the NOIR in May 2013. AR at 98. In the response,
Borisov challenged the content of the May 2005 conversation
he shared with the immigration agents. AR 109-10. He first
stated he “had no reason to evade immigration laws at
the time” based on his student visa. AR at 110. He then
argued the alleged admission was taken out of context.
Id.; AR at 109-10. Specifically, Borisov stated he
did not know immigration proceedings occurred prior to
deportation; he instead believed immigration agents
determined who could remain in the country. AR at 109.
Accordingly, Borisov did not attempt to clarify that he
married Bufalino in good faith “when [he] agreed with
[the immigration agent] about the status of his
marriage.” Id. Borisov argued the admission
failed to fully describe the nature of his relationship with
Bufalino. AR at 110. He also stated that the immigration
agent promised not to raise the issue of marriage fraud and
that he and Bufalino were not interviewed in January 2005. AR
at 99, 108. Plaintiffs requested “photocopies of any
and all notes, memoranda, or other similar evidence”
which USCIS relied on in making their decision to seek
revocation of Mattson's I-130 petition. AR at 99.
issued a second NOIR in May 2013. AR at 2-3. The second NOIR
included a copy of the immigration agent's report
detailing his May 2005 conversation with Borisov and the
subsequent arrest of Borisov. AR at 4-5. The USCIS did not
include Bufalino's written statement. See Id.
Instead, the USCIS repeated that immigration agents contacted
Bufalino, who then advised the immigration agents she filed
for an annulment and that Borisov married her to acquire
citizenship. AR at 3.
then challenged the second NOIR. AR at 58-85. Plaintiffs
reasserted the argument that Borisov married Bufalino in good
faith. AR at 59, 62, 84. Plaintiffs argued Borisov agreed the
marriage was not bona fide at the time of the May 2005
conversation because the couple were living separately as a
result of the marriage deteriorating. AR at 59, 65-66, 84.
Plaintiffs also attacked Bufalino's credibility by
alleging that Bufalino “was in a very dark place in her
life when she made” the statement to the immigration
agents and that she possibly was intoxicated when making the
statement. AR at 66. Plaintiffs also averred Bufalino never
filed for an annulment and the USCIS never charged Borisov
with marriage fraud during his removal proceedings in 2005.
AR at 59, 66; see also AR at 73. Finally, Plaintiffs
concluded the USCIS failed to provide evidence to support its
finding that Borisov fraudulently married Bufalino.
USCIS revoked Mattson's I-130 petition in June 2013
“based on [Borisov's] previous attempt to enter
into a marriage for the purpose of evading the immigration
laws.” AR at 53-57. The USCIS cited to INA §
204(c) and summarized the above procedural and factual
history. AR at 54-55. Then, the USCIS concluded that it could
not grant Mattson's I-130 petition “[d]ue to the
fact that [Borisov] previously entered into a sham
marriage” based on sufficient and probative evidence.
AR at 55, 57.
USCIS arrived at its conclusion, making several
determinations. AR at 56-57. First, the USCIS rejected
Plaintiffs' argument that Borisov and Bufalino were not
interviewed in January 2005 because forms existed with
markings and notes indicating otherwise. AR at 56. Second,
the USCIS explained it considered Plaintiffs' submitted
photographs and greeting cards but assigned the evidence
minimal probative value for two reasons: (1) the signatures
were illegible and (2) the evidence was provided for removal
proceedings rather than the I-130 petition determination. AR
at 56. Third, the USCIS deemed Borisov as incredible based on
his claims that he was not interviewed in January 2005, that
he had no reason to evade immigration laws despite his
student visa being expired, that Bufalino never filed for an
annulment, and that he had a difficult time in obtaining a
divorce from Bufalino (which only took four months). AR at
56-57. Fourth, the USCIS determined Borisov provided no
supporting evidence that Bufalino's father was a border
patrol agent who sought to have him deported. AR at 57. As a
result, the USCIS chose to accept the immigration agent's
word over that of Borisov. Id. Finally, the USCIS
explained the Declaration of Nathan Sironen was insufficient
to outweigh the other evidence. Id.
appealed the USCIS's revocation to the BIA. AR at 37-38,
179. Plaintiffs first argued the January 2005 interview was
cut short, depriving Bufalino and Borisov from an opportunity
to present evidence of their bona fide marriage. AR at
183-86. Plaintiffs next argued the immigration agent's
arrest report failed to establish substantial and probative
evidence due to its suspicious and unreliable nature. AR at
186-94. Plaintiffs finally argued they submitted evidence
sufficient to refute the allegation that Borisov entered into
a fraudulent marriage, which USCIS failed to rebut. AR at
conducted a de novo review of Plaintiffs' appeal
and then affirmed the USCIS' revocation of Mattson's
I-130 petition based on “substantial and probative
evidence that the [Borisov's] marriage to [Bufalino] was
fraudulent.” AR at 10-13. In making its decision, the
BIA first relied on the immigration agent's arrest report
of Borisov in 2005. AR at 11. The BIA dismissed
Plaintiffs' arguments that the report was hearsay, was a
result of a “back-door deal” with the immigration
agents, and was made by an unreliable agent. AR at 11.
next relied on Bufalino's statements to the immigration
agents. AR at 11-12. The BIA described the statement as a
“handwritten statement from Ms. Bufalino acknowledging
that [Borisov] married her to obtain citizenship.” AR
at 11. It also summarized other content from the written
statement, including Bufalino's allegation that Borisov
threatened her as well as Bufalino's assertion that she
had not seen him since March 2005 or lived with him since
2004. AR at 11-12. These allegations were not included in the
first or the second NOIR. See AR at 2- 3, 6-7. The
BIA dismissed Plaintiffs' complaint that Bufalino's
statement was not in the record and that it was hearsay. AR
the BIA discussed Borisov's declaration. AR at 12. The
BIA found Borisov's declaration merely speculated as to
Bufalino's credibility. Id. It then dismissed
Borisov's complaint that the USCIS never charged him with
marriage fraud during the 2005 removal proceedings.
importantly, the BIA found Plaintiffs' evidence did not
sufficiently establish that Borisov married Bufalino for a
purpose other than evading the immigration laws. Id.
The BIA explained it considered the wedding photos, the
greeting cards, and the Declaration of Sironen. Id.
Because the Sironen declaration failed to testify to a shared
relationship or the nature of the marriage, the BIA concluded
that the wedding photos and the greeting cards were of little
probative value. Id.
the BIA declined to accept additional utility bills and an
additional declaration from a previous roommate as evidence.
Id. However, the BIA stated that additional evidence
would not have affected its decision because it was
insufficient to establish that Bufalino and Borisov's
marriage was bona fide and to overcome the evidence of
marriage fraud. AR at 12-13.
filed a complaint in this court, seeking review of the
BIA's affirmation. ECF Nos. 2, 12. Both parties moved for
summary judgment. ECF Nos. 62, 64.
the APA, a district court must uphold an agency action unless
it is “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with the law.” 5 U.S.C.
§ 706(2)(A). “[T]he standard of review is highly
deferential, ” and “the agency's decision is
entitled to a presumption of regularity[.]” San
Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d
581, 601 (9th Cir. 2014). The review is narrow in scope,
meaning the district court must not “substitute its
judgment for that of the agency.” Judulang v.
Holder, 132 S.Ct. 476, 483 (2011) (internal citations
and quotation marks omitted). The district court must instead
assess “whether the decision was based on a
consideration of the relevant factors and whether there has
been a clear error of judgment.” Id. (internal
citation and quotation marks omitted).
action is valid if a reasonable basis exists for the
agency's decision. A reasonable basis exists where the
agency considered the relevant factors and articulated a
rational connection between the facts found and the choices
made.” Arrington v. Daniels, 516 F.3d 1106,
1112 (9th Cir. 2008) (internal citations and punctuation
marks removed). The district court “[examines] the
reasons for agency decisions-or, as the case may be, the
absence of such reasons.” Judulang, 132 S.Ct.
at 484. However, “if the evidence is susceptible of
more than one rational interpretation, the court must uphold
the agency's findings.” San Luis &
Delta-Mendota Water Auth., 747 F.3d at 581 (internal
citation and punctuation marks removed).
may only review a final agency action. Mamigonian v.
Biggs, 710 F.3d 936, 941- 42 (9th Cir. 2013). Agency
actions are final when the action marks the end of the
agency's decision-making process and determines rights
and obligations from which legal consequences will flow.
Id. at 942.
a court generally grants summary judgment when there are no
genuine issues of material fact and the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a);
see also Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). But in APA reviews, the court's review is based
on the administrative record. See Lujan v. Nat'l
Wildlife Fed'n, 497 U.S. 871, 883-84 (1990).
court first addresses violations of the Local Rules. The
court next addresses Defendants' argument that Plaintiffs
failed to exhaust their remedies, thus failing to preserve
certain arguments. The court then turns to the equitable
doctrines of estoppel and laches. Finally, the court
considers the legality of the BIA's decision.
Both parties violated the local rules.
court first admonishes the parties for violating the Local
Rules. LR 56-1 governs motions for summary judgment and
Motions for summary judgment and responses thereto must
include a concise statement setting forth each fact material
to the disposition of the motion that the party claims
is or is not genuinely in issue, citing the particular
portions of any pleading, affidavit, deposition,
interrogatory, answer, admission, or other evidence on which
the party relies. The statement of facts will be counted
toward the applicable page limit in LR 7-3.
LR 56-1 (emphasis added). LR 7-3 governs the page limits for
motions for summary judgment and provides:
Motions for summary judgment and responses to motions for
summary judgment are limited to 30 pages, excluding
exhibits. Replies in support of a motion for summary ...