Sigitas Brinklys v. Secretary, Department of Homeland Security , 702 F. App'x 856 ( 2017 )

Case: 16-13215 Date Filed: 07/17/2017 Page: 1 of 15
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-13215
Non-Argument Calendar
________________________
D.C. Docket No. 3:14-cv-01211-MMH-MCR
SIGITAS BRINKLYS,
AURELIJA CARUSO,
Plaintiffs-Appellants,
versus
SECRETARY, DEPARTMENT OF HOMELAND SECURITY,
U.S. ATTORNEY GENERAL,
DIRECTOR, CITIZENSHIP AND IMMIGRATION SERVICES,
DIRECTOR, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(July 17, 2017)
Case: 16-13215 Date Filed: 07/17/2017 Page: 2 of 15
Before MARTIN, JULIE CARNES, and ANDERSON, Circuit Judges.
PER CURIAM:
Plaintiffs Sigitas Brinklys and Aurelija Caruso (“Aurelija”) appeal the
district court’s grant of summary judgment in favor of the defendants following the
denial of Brinklys’s I-130 petition seeking an immigrant visa on behalf of his
spouse, Aurelija. The United States Citizenship and Immigration Service (“CIS”)
denied the petition after concluding that Aurelija had previously entered into a
fraudulent marriage for the purpose of evading immigration laws. On appeal,
Plaintiffs argue that (1) the CIS violated its own regulations and Brinklys’s due
process rights by providing insufficient notice of the denial, and (2) the record did
not support the marriage fraud determination that prevented Brinklys’s visa
petition from being granted. After careful review, we affirm.
I. BACKGROUND
A. Factual Background
Aurelija and Raimondas Kalinauskas, both citizens of Lithuania, arrived in
the United States on visitor’s visas on February 10, 2000, with permission to stay
until August 9, 2000. Their visa applications listed the same intended address in
Blissfield, Ohio.
On February 21, 2003, Aurelija married United States citizen Frank Caruso
in Illinois. Approximately one month later, Kalinauskas married Luzmaria
2
Case: 16-13215 Date Filed: 07/17/2017 Page: 3 of 15
Martinez, also a United States citizen. On May 19, 2002, Martinez and Caruso
both filed I-130 petitions seeking immigrant visas for Kalinauskas and Aurelija,
respectively. In his petition, Caruso represented that he and Aurelija had lived
together on Arapahoe Court in Naperville, Illinois since February 2003. In 2007,
before the CIS adjudicated their petition, Caruso and Aurelija divorced.
In the meantime, U.S. Immigration and Customs Enforcement issued an
internal memorandum concluding that Caruso and Aurelija’s marriage was entered
into for the purpose of evading immigration laws. In support of this determination,
the memorandum made the following findings and observations. At their
immigration interview in September 2005, Caruso and Aurelija claimed to live
together at the same address. However, Caruso’s state identification bearing that
address was issued only three days before the immigration interview. Moreover,
an Illinois police report from February 2005 revealed that during an investigation
pertaining to an unrelated criminal matter, state law enforcement officers
encountered Kalinauskas and Aurelija at the same address. According to the police
report, Kalinauskas told officers that Aurelija was his girlfriend, and both Aurelija
and Kalinauskas admitted that they lived together and not with their U.S. citizen
spouses. Property records were obtained for that address and showed that Aurelija
and Kalinauskas purchased the property in 2003, and had identified themselves as
husband and wife. Moreover, agents interviewed Caruso’s mother, who stated that
3
Case: 16-13215 Date Filed: 07/17/2017 Page: 4 of 15
Caruso was not married and lived in an apartment in Carol Stream, Illinois. A
subsequent review of Caruso’s lease agreement for that apartment showed that
Caruso had listed his marital status as single and the only additional occupant as
Caruso’s son. Finally, agents interviewed Kalinauskas’s U.S. citizen spouse, who
admitted that her marriage to Kalinauskas was a sham and that she had been paid
approximately $1,700 to marry him. Based on these findings, U.S. Immigration
and Customs Enforcement concluded that Aurelija’s marriage to Caruso was not
legitimate.
On November 2, 2007, Aurelija married Brinklys in Palm Coast, Florida.
Brinklys later filed an I-130 petition for alien relative on behalf of Aurelija. The
petition stated that Brinklys and Aurelija had lived together since December 2005
on Seagirt Court in Palm Coast, Florida.
On May 23, 2011, the CIS issued a notice of intent to deny, informing
Brinklys that the CIS intended to deny his petition. The CIS explained that it
believed Aurelija’s prior marriage to Caruso was fraudulently entered into for the
purpose of obtaining immigration benefits. The CIS described the information—
obtained from the police report, the property records, the lease agreement, and the
statements of Caruso’s mother and Kalinauskas’s U.S. citizen wife—that had led
the CIS to question the validity of Aurelija’s prior marriage to Caruso. The CIS
4
Case: 16-13215 Date Filed: 07/17/2017 Page: 5 of 15
also stated that it suspected Brinklys and Aurelija’s marriage to be fraudulent. The
CIS provided Brinklys and Aurelija with thirty days to respond to the notice.
After Brinklys filed a response, the CIS denied his petition. The CIS
explained that the record showed that Aurelija’s prior marriage to Caruso was
fraudulent, as Aurelija and Caruso did not live together, Aurelija lived with
Kalinauskas, property records showed that Aurelija and Kalinauskas purchased
property together as husband and wife, Caruso’s mother told investigators that
Caruso was not married, and Kalinauskas’s U.S. citizen wife admitted that she
married Kalinauskas for money. Moreover, Aurelija had told officers at the time
of Kalinauskas’s arrest that they had been friends for eight years. However, she
later contradicted this statement during her interview with immigration officials by
claiming that Kalinauskas was her step-brother.
The CIS reviewed Brinklys’s response but concluded that he had failed to
overcome the suspicion that Aurelija’s prior marriage to Caruso was fraudulent,
and had also failed to establish that Aurelija and Brinklys had a bona fide marriage.
The CIS consequently denied the petition under 8 U.S.C. § 1154(c), a provision
that bars an alien beneficiary from obtaining a visa if the alien beneficiary has
previously entered a fraudulent marriage for the purpose of obtaining immigration
benefits.
5
Case: 16-13215 Date Filed: 07/17/2017 Page: 6 of 15
Plaintiffs appealed the CIS’s decision to the BIA. They asserted that the CIS
failed to provide substantial and probative evidence establishing that Aurelija’s
prior marriage to Caruso was fraudulent. They also argued that overwhelming
evidence established that both of Aurelija’s marriages were bona fide.
After conducting a de novo review, the BIA affirmed the denial of
Brinklys’s I-130 petition and dismissed the appeal. First, the BIA agreed that
substantial and probative evidence established that Aurelija had entered into a
fraudulent marriage with Caruso. The BIA explained that the evidence showed
that Caruso and Aurelija did not live together, Kalinauskas and Aurelija had
purchased and refinanced property together, in which they identified themselves as
husband and wife, and Caruso’s mother had stated that Caruso was not married.
The BIA rejected Plaintiffs’ argument that the police report was unreliable based
on Aurelija’s poor command of the English language because the report did not
mention Aurelija’s inability to communicate in English, nor did Aurelija provide
any evidence supporting this contention.
The BIA next addressed Plaintiffs’ argument that they were not provided
with the police report, property records, or the marriage fraud investigation reports
referenced in the notice of intent to deny. The BIA concluded that the CIS
provided Plaintiffs with sufficient information, as the CIS is only required to
provide petitioners with notice of the information that forms the basis for the denial
6
Case: 16-13215 Date Filed: 07/17/2017 Page: 7 of 15
of the petition. Stated another way, there is no requirement that the CIS provide
the actual documents that led to that decision. Finally, the BIA affirmed the CIS’s
determination that Brinklys and Aurelija had failed to establish that they entered
into a bona fide marriage.
B. Procedural History
In October 2014, Plaintiffs filed a federal action against the Secretary of the
Department of Homeland Security, the U.S. Attorney General, the Director of the
CIS, and the Director of the Executive Office for Immigration Review. Plaintiffs
filed the complaint pursuant to the Administrative Procedure Act (“APA”), and
challenged the BIA’s decision affirming the CIS’s denial of Brinklys’s visa
petition filed on behalf of Aurelija. Both parties filed cross-motions for summary
judgment.
The district court granted Defendants’ motion for summary judgment and
denied Plaintiffs’ cross-motion for summary judgment. The district court rejected
Plaintiffs’ argument that they were entitled to the documents containing the
“derogatory information” that the CIS relied upon in concluding that Aurelija’s
marriage to Caruso was fraudulent. The district court also determined that the
CIS’s conclusion that Aurelija and Caruso’s marriage was fraudulent was not
arbitrary and capricious, and was supported by substantial evidence. Given that
Brinklys’s visa petition was subject to denial based on the finding that Aurelija’s
7
Case: 16-13215 Date Filed: 07/17/2017 Page: 8 of 15
prior marriage was fraudulent, the district court did not address the bona fides of
Brinklys and Aurelija’s marriage. This appeal followed.
II. DISCUSSION
A. Standard of Review
We review the district court’s grant of summary judgment de novo.
O’Ferrell v. United States, 253 F.3d 1257, 1265 (11th Cir. 2001). The burden is
on the party moving for summary judgment to establish that no genuine issue of
material facts exists, and we view all evidence and draw all reasonable factual
inferences in favor of the nonmoving party. Id.“Under the APA, an agency action, finding, or conclusion can be set aside
where it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law’ or is ‘unsupported by substantial evidence.’” Mendoza v.
Sec’y, Dep’t of Homeland Sec., 851 F.3d 1348, 1352 (11th Cir. 2017) (quoting
5 U.S.C. § 706(2)(A), (E)). This standard “provides the reviewing court with very
limited discretion to reverse an agency decision.” Warshauer v. Solis, 577 F.3d
1330, 1335 (11th Cir. 2009) (quotations omitted).
Under the arbitrary and capricious standard, we do not substitute our own
judgment for the agency’s decision. Defenders of Wildlife v. U.S. Dep’t of Navy,
733 F.3d 1106, 1114–15 (11th Cir. 2013). Instead, we look only to whether the
agency reached a rational conclusion. Id. “We set aside an agency action as
8
Case: 16-13215 Date Filed: 07/17/2017 Page: 9 of 15
arbitrary and capricious only where (1) the agency relied on factors which
Congress has not intended it to consider, (2) the agency failed to consider an
important aspect of the problem, (3) the agency explained its decision in a way that
runs counter to the evidence, or (4) the action is so implausible that it could not be
ascribed to a difference in view or the product of agency expertise.” Mendoza, 851
F.3d at 1353 (quotations omitted).
B. Law Governing Alien Relative Visa Petitions
The Immigration and Nationality Act provides that “any citizen of the
United States claiming that an alien is entitled to . . . an immediate relative
status . . . may file a petition with the Attorney General for such classification.” 8
U.S.C. § 1154(a)(1)(A)(i). The term “immediate relative” includes spouses of
United States citizens. Id. § 1151(b)(2)(A)(i).
To obtain immediate relative status, a U.S. citizen petitioner must file a
Form I-130 petition for alien relative on behalf of his spouse. 8 C.F.R.
§ 204.1(a)(1). The petitioner carries the burden of proof for establishing that his
alien beneficiary is eligible for a visa. See 8 U.S.C. § 1361 (“Whenever any person
makes [an] application for a visa . . . the burden of proof shall be upon such person
to establish that he is eligible to receive such visa.”).
9
Case: 16-13215 Date Filed: 07/17/2017 Page: 10 of 15
C. Disclosure of Information under the Regulations
Plaintiffs first argue that the CIS violated its own regulations by failing to
provide Plaintiffs with the “derogatory information” upon which it based the denial
of Brinklys’s I-130 petition. Because the CIS determined that Plaintiffs were
statutorily ineligible for the visa based on Aurelija’s sham marriage to Caruso,
Plaintiffs argue that the regulations required the CIS to disclose the information it
relied upon in making this determination. Plaintiffs also argue that Brinklys’s due
process rights were violated because he was not provided with sufficient notice or
an opportunity to respond.
The regulations at issue provide that if the CIS determines that the petition
will be denied based on “derogatory information” for which the petitioner is
unaware, he “shall be advised of this fact and offered an opportunity to rebut the
information and present information in his . . . own behalf before the decision is
rendered.” 8 C.F.R. § 103.2(b)(16)(i). The CIS’s determination that an applicant
is statutorily ineligible for a visa “shall be based only on information contained in
the record of proceeding which is disclosed to the applicant or petitioner.” Id.§ 103.2(b)(16)(ii).
The CIS complied with these regulations by issuing Brinklys a notice of
intent to deny his I-130 petition filed on behalf of Aurelija. The notice of intent to
deny explained the facts and information that led the CIS to question the validity of
10
Case: 16-13215 Date Filed: 07/17/2017 Page: 11 of 15
Aurelija’s marriage to Caruso, and provided Brinklys an opportunity to rebut that
information and present information on his own behalf. In particular, the notice of
intent to deny summarized the relevant details of a police report, property records,
and statements of Caruso’s mother and Kalinauskas’s wife that supported a finding
that Aurelija’s prior marriage was a sham. Brinklys was able to offer a rebuttal
and provide his own evidence in response, including specific explanations for the
information contained in the police report and property records. Thus, the notice
of intent to deny sufficiently advised Plaintiffs of the derogatory information that
would form the basis for the denial of Brinklys’s petition. Cf. Ghaly v. I.N.S., 48
F.3d 1426, 1434–35 (7th Cir. 1995) (holding that the regulations do not require
that the petitioner be provided an opportunity to view the actual evidence
supporting the CIS’s reasons for revoking a visa petition, only that the petitioner be
provided sufficient information to put him on notice of the grounds for the
revocation).
Because the CIS complied with the regulations, Plaintiffs cannot show that
Brinklys’s due process rights were violated. Contrary to Plaintiffs’ arguments,
they were not “blissfully unaware” of the allegations the CIS relied upon to
conclude that Aurelija’s prior marriage to Caruso was a sham. Again, the CIS
issued a notice of intent to deny Brinklys’s petition, which sufficiently detailed the
evidence that supported the CIS’s determination that Aurelija and Caruso’s
11
Case: 16-13215 Date Filed: 07/17/2017 Page: 12 of 15
marriage was fraudulent and specifically provided Brinklys the opportunity to
submit rebuttal evidence and respond to the allegations regarding the prior
fraudulent marriage. Accordingly, the district court did not err by granting
Defendants’ motion for summary judgment on these claims.
D. Substantial and Probative Evidence of Marriage Fraud
Plaintiffs also assert that the record evidence does not support the BIA and
the CIS’s finding that Aurelija’s prior marriage to Caruso was fraudulent.
Under the Immigration and Nationality Act’s marriage-fraud bar, the CIS
cannot approve a visa petition if it determines that a marriage, including a prior
marriage, was fraudulently entered into for the purpose of obtaining immigration
benefits. See 8 U.S.C. § 1154(c). The regulations provide that the CIS “will deny
a petition for immigrant visa classification filed on behalf of an alien for whom
there is substantial and probative evidence of such an attempt or conspiracy [to
enter into a marriage for the purpose of evading immigration laws], regardless of
whether that alien received a benefit through the attempt or conspiracy.” 8 C.F.R.
§ 204.2(a)(1)(ii).
To determine whether a beneficiary’s marriage is fraudulent, “the relevant
inquiry is whether the ‘bride and groom intended to establish a life together at the
time they were married.’” Mendoza, 851 F.3d at 1354 (quoting Matter of
Laureano, 19 I. & N. Dec. 1, 2–3 (BIA 1983). Where the validity of the marriage
12
Case: 16-13215 Date Filed: 07/17/2017 Page: 13 of 15
is questioned, evidence that can support a finding that a marriage was not entered
into for the purpose of evading immigration laws includes “proof that the
beneficiary has been listed as the petitioner’s spouse on any insurance policies,
property leases, income tax forms, or bank accounts; and testimony or other
evidence regarding courtship, wedding ceremony, shared residence and
experiences.” Matter of Phillis, 15 I. & N. Dec. 385, 387 (BIA 1975).
The BIA and the CIS did not act arbitrarily or capriciously in determining
that substantial and probative evidence supported the finding that Aurelija and
Caruso fraudulently married for the purpose of obtaining immigration benefits. In
arriving at this conclusion, the BIA and the CIS considered the entire record,
including among other things, the police report, the property records, the lease
agreement, Caruso’s mother’s statements, and the statements of Kalinauskas’s U.S.
citizen spouse.
Although Aurelija and Caruso claimed to live together, the evidence showed
otherwise. Caruso’s mother told agents that Caruso was not married. Caruso also
leased his own apartment, in which he listed his marital status as single and stated
that the only other occupant of the apartment was his son. When Kalinauskas was
arrested, Kalinauskas told officers that Aurelija was his girlfriend. Moreover, both
Kalinauskas and Aurelija admitted to officers that they lived together and not with
their U.S. citizen spouses.
13
Case: 16-13215 Date Filed: 07/17/2017 Page: 14 of 15
Property records also showed that Aurelija and Kalinauskas purchased
property together and had identified themselves as husband and wife. Further,
Kalinauskas’s U.S. citizen wife admitted to agents that her marriage to Kalinauskas
was a sham and that she had been paid to marry him. What’s more is that
Kalinauskas and Aurelija had I-130 petitions filed on their behalf on the same day.
The BIA and the CIS considered Brinklys’s explanations for the issues identified
in the notice of intent to deny, including Aurelija’s poor command of the English
language, that Caruso’s mother did not know about their marriage, and that Caruso
and Aurelija had marital difficulties, but they were unpersuaded. Based on the
information gleaned from the property records, the police report, Caruso’s lease
agreement, and the statements of Caruso’s mother and Kalinauskas’s U.S. citizen
wife, in conjunction with Plaintiffs’ failure to provide persuasive explanations for
the issues identified by the CIS, the BIA and the CIS rationally concluded that
Aurelija’s prior marriage to Caruso was entered for purpose of evading
immigration laws.
Because we conclude that substantial and probative evidence supports the
determination that Aurelija’s prior marriage was fraudulent, and this conclusion
bars the grant of the I-130 petition, we need not consider whether Aurelija and
Brinklys entered a bona fide marriage.
14
Case: 16-13215 Date Filed: 07/17/2017 Page: 15 of 15
III. CONCLUSION
For the foregoing reasons, we affirm the district court’s grant of summary
judgment in favor of Defendants and the denial of Plaintiffs’ cross-motion for
summary judgment.
AFFIRMED.
15