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Mattson v. Kelly

United States District Court, D. Nevada

September 13, 2017




         Plaintiffs 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.[1]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.

         I. BACKGROUND

         Borisov came to the United States from Russia as a nonimmigrant student in July 2000. AR[2] 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.

         Borisov 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. AR 86.

         But the 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.

         Plaintiffs 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.

         USCIS 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.

         Plaintiffs 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. Id.

         The 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.

         The 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.

         Plaintiffs 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 196-200.

         The BIA 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.[3] AR at 11.

         The BIA 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 at 12.

         Third, 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. Id.

         Most 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.

         Finally, 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.

         Plaintiffs 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.


         Under 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).

         “Agency 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).

         A court 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.

         Finally, 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).


         The 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.

         A. Both parties violated the local rules.

         The court first admonishes the parties for violating the Local Rules. LR 56-1 governs motions for summary judgment and provides:

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 ...

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