Bourisquot v. Holder , 569 F. App'x 35 ( 2014 )

13-2984-cv
Bourisquot v. Holder
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A
PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED
BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
New York, on the 17th day of June, two thousand fourteen.
PRESENT: BARRINGTON D. PARKER,
DENNY CHIN,
Circuit Judges,
WILLIAM K. SESSIONS, III,
District Judge.*
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GISELE BOURISQUOT, JEAN MARIE BOURSIQUOT,
Plaintiffs-Appellants,
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ERIC H. HOLDER, JR., United States Attorney General,
ALEJANDRO MAYORKAS, Director, United States
Citizenship & Immigration Services,
Defendants-Appellees.†
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*The Honorable William K. Sessions, III, of the United States District Court for the District of Vermont,
sitting by designation.
† The Clerk of the Court is directed to amend the caption to conform to the above.
FOR PLAINTIFFS-APPELLANTS: ELYSSA N. WILLIAMS (Glenn L. Formica, on
the brief), Formica Williams, PC, New Haven,
Connecticut.
FOR DEFENDANTS-APPELLEES: CAROLYN A. IKARI, Assistant United States
Attorney (Edward Chang, Assistant United
States Attorney, on the brief), for Deirdre M.
Daly, United States Attorney for the District of
Connecticut, New Haven, Connecticut.
Appeal from the United States District Court for the District of Connecticut
(Chatigny, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiffs-appellants Gisele Bourisquot ("Gisele") and Jean Marie Bourisquot
("Jean Marie") appeal from the district court's judgment entered September 9, 2013
granting summary judgment to defendants-appellees and dismissing the Bourisquots'
complaint seeking review under the Administrative Procedure Act, 5 U.S.C. §§ 701-706,
of a decision by the Board of Immigration Appeals ("BIA"). The district court upheld
the BIA's decision, which in turn affirmed the decision of the U.S. Citizenship and
Immigration Services to deny Gisele's I-130 Petition for "immediate relative" status on
behalf of her husband Jean Marie. We assume the parties' familiarity with the facts,
procedural history, and issues on appeal.
Our review of the district court's decision is de novo, Karpova v. Snow, 497 F.3d
262, 267 (2d Cir. 2007), but we may only overturn an agency decision if it is "arbitrary,
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capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S.C.
§ 706(2)(A); accord Egan v. Weiss, 119 F.3d 106, 107 (2d Cir. 1997) (per curiam).
A U.S. citizen (the "petitioner") may seek preferential immigration status on
behalf of an alien spouse (the "beneficiary") by filing a Form I-130 Petition. 8 U.S.C.
§ 1154(a)(1)(A)(i). Pursuant to the marriage-fraud bar, however, an I-130 Petition must
be denied if there is "substantial and probative evidence" that (1) the beneficiary "has
previously been accorded, or has sought to be accorded," immediate relative status
based on a marriage "entered into for the purpose of evading the immigration laws," or
(2) the beneficiary "has attempted or conspired to enter into a marriage for the purpose
of evading the immigration laws." 8 U.S.C. § 1154(c); accord 8 C.F.R. § 204.2(a)(1)(ii).
The petitioner carries the burden of proving the beneficiary's visa eligibility, and must
therefore rebut any evidence of marriage fraud "in the alien's file" with proof that the
prior marriage was bona fide, i.e., not fraudulent. 8 C.F.R. § 204.2(a)(1)(ii); accord In re
Kahy, 19 I. & N. Dec. 803, 805-07 (BIA 1988); In re Laureano, 19 I. & N. Dec. 1, 2-3 (BIA
1983).
Substantial and probative evidence supports the BIA's decision here. In two
sworn statements, Jean Marie admitted the following: his previous marriage to
Mirlande Lauture, a naturalized U.S. citizen, was not bona fide; the two separated
immediately after the marriage and never spoke to or saw each other again; and they
never shared any assets or property. Jean Marie further admitted that he knew his
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cousin arranged for Lauture to travel to Haiti to help him obtain U.S. residency. The
agency reasonably concluded that Jean Marie knew he was entering into a marriage, as
the marriage certificate he signed was clearly labeled. The agency also reasonably
inferred, based on Jean Marie's misrepresentations about his previous marriage, that he
had intended to evade the immigration laws through a sham marriage.
We have considered the Bourisquots' remaining arguments and find them to be
without merit. Accordingly, the judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
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