Koffi v. Holder , 487 F. App'x 658 ( 2012 )

11-3170-cv
Koffi 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
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 11th day of July, two thousand twelve.
PRESENT:
PETER W. HALL,
SUSAN L. CARNEY,
Circuit Judges,
RICHARD M. BERMAN,*
District Judge.
______________________________________________
Bruno Ngoran Koffi, Beneficiary of Visa Petition
filed by Gayle Karen Koffi, Gayle Karen Koffi,
Petitioners - Appellants,
v. 11-3170-cv
Eric H. Holder, Jr.,
United States Attorney General,
Respondent - Appellee.
______________________________________________
FOR APPELLANTS: Glenn L. Formica, Elyssa N. Williams, Formica, P.C., New
Haven, Connecticut.
*
Judge Richard M. Berman, of the United States District Court for the Southern District
of New York, sitting by designation.
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FOR APPELLEE: Neelam Ihsanullah, Trial Attorney, U.S. Dep’t of Justice,
Theodore W. Atkinson, Senior Litigation Counsel, David J.
Kline, Director, Office of Immigration Litigation, Tony
West, Assistant Attorney General, U.S. Dep’t of Justice,
Washington D.C.
Appeal from a judgment of the United States District Court for the District of
Connecticut (Bryant, J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Appellants Bruno Koffi and Gayle Koffi (together, “Appellants”) appeal from a grant of
summary judgment in favor of Appellee Eric H. Holder Jr., Attorney General of the United
States, on their claim under the Administrative Procedure Act (“APA”), 5 U.S.C. § 702, that the
United States Customs and Immigration Service (“USCIS”) and the Board of Immigration
Appeals (“BIA”) erroneously and without substantial evidence concluded that Appellant Bruno
Koffi entered into a fraudulent marriage with his first wife, Alexine Odom, for the purpose of
evading immigration laws. Based on that determination, the district director of USCIS denied
Appellant Gayle Koffi’s Form I-130 immediate-relative petition that she had filed on her
husband Bruno Koffi’s behalf. The BIA affirmed the denial. We assume the parties’ familiarity
with the underlying facts and procedural history of the case, and we discuss those only as
necessary for our review.
While we review de novo the district court’s grant of summary judgment, we afford
“appropriate deference” to the BIA’s and district director’s decisions “in light of the widespread
fraud associated with immediate-relative petitions.” Egan v. Weiss, 119 F.3d 106, 107 (2d Cir.
1997). Under the APA, we may set aside agency decisions if they are “arbitrary, capricious, [or]
an abuse of discretion,” 5 U.S.C. § 706(2)(A), or “unsupported by substantial evidence.” Id.§ 706(2)(E). “Substantial evidence means more than a mere scintilla. It means such relevant
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evidence as a reasonable mind might accept as adequate to support a conclusion.” Burgess v.
Astrue, 537 F.3d 117, 127 (2d Cir. 2008) (internal quotation marks omitted).
A Form I-130 petition for an immediate relative must be denied if there is “substantial
and probative evidence” of conspiracy to enter into a marriage, including previous marriages,
“for the purpose of evading the immigration laws.” 8 C.F.R. § 204.2(a)(1)(ii); see 8 U.S.C. §
1154(c). “Although it is not necessary that the alien have been convicted of, or even prosecuted
for the . . . conspiracy, the evidence . . . must be contained in the alien’s file.” 8 C.F.R.
§ 204.2(a)(1)(ii). Under our narrow scope of review applicable to the issues in this case, we
affirm the decisions of the BIA and the district director.
During the review of Appellants’ Form I-130 immediate-relative petition, the government
presented evidence indicating that Mr. Koffi’s first marriage, to Alexine Odom, was obtained as
part of a complex marriage fraud ring led by Mr. Koffi’s former immigration attorney. After the
USCIS informed Mr. Koffi of these allegations, Mr. Koffi submitted certain proof to
demonstrate the bona fide nature of his marriage to Ms. Odom.1 The BIA and district director
found this evidence insufficient to rebut the serious allegations of marriage fraud. Unlike the
1
While Mr. Koffi submitted a number of documents indicating that he and Ms. Odom
shared financial accounts, the record contains not a single affidavit from a neighbor, friend, or
acquaintance evincing a wedding ceremony or shared activities and experiences, as might be
expected when couples enter into bona fide marriages. See In re Steve Estrada, A96 003 508,
2008 WL 2783077 (B.I.A. June 10, 2008) (noting that the “the lack of affidavits from neighbors
and others who would be better able to corroborate the residence of the respondent and his
spouse in the United States, as well as the lack of a single photograph showing the couple
together” is evidence that can support a finding of marriage fraud). To the extent Appellants
offer new evidence or new argument here, we abide by the well-settled rule that “an appellate
court will not consider an issue raised for the first time on appeal.” In re Nortel Networks Corp.
Sec. Litig., 539 F.3d 129, 133 (2d Cir. 2008). Similarly, the BIA was not required to consider
any new evidence not before the district director. See Ye v. Dep’t of Homeland Sec., 446 F.3d
289, 296 (2d Cir. 2006).
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facts of In re Khaled Azzab, A79 053 230, 2007 WL 3301607 (B.I.A. Sept. 28, 2007), the
government’s source indicating that Mr. Koffi had obtained a marriage for the purpose of
evading immigration laws was not so lacking in indicia of reliability as to be given no weight.
Given the state of the evidence, a reasonable mind might accept the conclusion that Mr. Koffi’s
first marriage was entered into for the purpose of evading the immigration laws. Thus, the
agencies’ conclusion to this effect is supported by substantial evidence. See Friends of
Ompompanoosuc v. FERC, 968 F.2d 1549, 1554 (2d Cir. 1992). We have no basis to disturb
their decisions.
Appellants also argue that the government’s failure to challenge Mr. Koffi’s marriage to
Ms. Odom in 1996, when another Form I-130 (based on his second marriage to a United States
citizen) was approved, and the government’s failure to provide Mr. Koffi with documentary
proof supporting the government’s position until 2010, prejudiced his ability to counter the
charges. Mr. Koffi, however, has been aware of the charges since at least 1999, when the
government notified Mr. Koffi that his former attorney had been investigated for and convicted
of arranging fraudulent marriages and that Mr. Koffi’s and Ms. Odom’s names were identified
by one of his attorney’s “arrangers” as being parties to a fraudulent marriage. In addition, when
Mr. Koffi’s second Form I-130 was approved in 1996, the government agency responsible for
approving the petition did not yet suspect him of fraud. Once the review of Mr. Koffi’s file
revealed allegations of marriage fraud, however, the government sought to revoke the Form I-
130 it had previously granted. To rebut the charges, Mr. Koffi submitted essentially the same
evidence he now submits in order to prove that his marriage to Ms. Odom was bona fide. The
government has thus pressed its case against Mr. Koffi since at least 1999, and Mr. Koffi has
responded each time with substantially the same evidence. Mr. Koffi does not articulate what
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documentation or evidence may have been lost because of the government’s failure to assert the
allegation in 1996. Koffi having shown no prejudice, we decline to disturb the agencies’
decisions.
With regard to Appellants’ argument that the actual documentation bearing the
allegations needed to be disclosed, the regulations state that Mr. Koffi need only be “advised of”
the derogatory information in the case of an adverse decision. 8 C.F.R. § 103.2(b)(16)(i). The
actual documents are not required to be disclosed. See In re Liedtke, A070 656 080, 2009 WL
5548116 (B.I.A. Dec. 31, 2009) (“[T]he regulations do not place upon USCIS a requirement that
the actual documents be provided to a petitioner in order to comply with due process.”). We
conclude, therefore, that the government properly advised Mr. Koffi of the derogatory
information in his file and gave him a meaningful opportunity to rebut it.
We have considered the Appellants’ remaining arguments and find them without merit.
Accordingly, the judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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