Christopher Fliger v. Kirstjen M. Nielsen ( 2018 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 25, 2018
Decided July 26, 2018
Before
DANIEL A. MANION, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 17-2492
CHRISTOPHER FLIGER and ANNA Appeal from the United States
FLIGER, District Court for the Northern District
Plaintiffs-Appellants, of Illinois, Eastern Division.
v. No. 15-CV-5704
KIRSTJEN M. NIELSEN, Secretary of Jorge L. Alonso,
Homeland Security, et al., Judge.
Defendants-Appellees.
ORDER
Christopher and Anna Fliger appeal the denial of an I-130 visa petition that
Christopher filed, as a U.S. citizen, on Anna’s behalf asking the United States
Citizenship and Immigration Services (USCIS) to adjust Anna’s immigration status
based on their marriage. There is no question that Christopher and Anna’s marriage is
legitimate, but immigration authorities denied the petition based on Anna’s attempt to
gain permanent-resident status in the United States through an earlier fraudulent
marriage. Once a person has entered into a marriage to evade immigration laws, he or
she is ineligible for relief any time in the future. See 8 U.S.C. § 1154(c). Christopher and
Anna sought judicial review of the decision under the Administrative Procedure Act,
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5 U.S.C. §§ 701–06. The district judge entered summary judgment against them. We
affirm the district court’s judgment because substantial evidence supports the decision
that Anna and her previous husband entered into marriage primarily to evade
immigration laws.
Background
Anna, a citizen of Poland, married Fred Kirschnick in 1995 when she was
18 years old and he was 71. She had arrived in the United States in 1991 on a visa and
then “overstayed.” At the time of the marriage, Anna had neither been in immigration
proceedings nor had any prior contact with immigration authorities. The following
year, Fred filed a visa petition seeking to classify Anna as his spouse, and Anna applied
for an adjustment of status. For reasons the record does not disclose, Fred and Anna did
not receive an interview until approximately 11 years after filing their paperwork. At
oral argument, counsel for the agency agreed that 11 years was an unusually long
delay. By the time the interview took place in August 2007, Fred was 82 years old,
resided in a nursing home, experienced problems with his eyesight, and had suffered a
stroke.
Fred and Anna’s petition went awry when they told different stories of their
courtship in their interviews. See Nikrodhanondha v. Reno, 202 F.3d 922 (7th Cir. 2000)
(inconsistent statements made by couple may be basis for denial). Anna said that she
met Fred in 1991 when her sister was cleaning his house. She had dinner with him and
they began dating. Anna admitted that they did not live together immediately after
getting married, but she said that they had lived together for one year in 1999. That
ended when Fred encountered financial trouble. Then the couple became homeless until
Fred moved into a nursing home, and Anna moved in with her sister. She said they saw
each other about six times a month, as much as possible because of the distance
between their homes.
At the outset of his interview Fred acknowledged that he was answering
questions “freely and voluntarily.” He described meeting Anna through her sister, who
had been his housecleaner until she became pregnant, at which point Anna took over
the cleaning. When asked whose idea was it to file the petition, Fred responded that
Anna had suggested it. He said: “I found her crying while cleaning my house. She told
me she was going to be deported and I asked if there was anything I could do to help
her. She told me to marry her so she could stay here. We never lived together.”
When asked if Fred felt that Anna was using him for an immigration benefit or
money, Fred responded, “No, I never felt that way. In fact, I feel like I have taken
advantage of her because she is such a good looking girl. We have made love many
No. 17-2492 Page 3
times.” When asked about the time they spent together, Fred told the interviewer that
they saw each other about six times a month and that they had gone out to eat twice the
week of the interview. They spent holidays together. He said they had a joint bank
account, albeit one opened only three years before the interview, and that before that he
had signed blank checks for Anna.
At the end of the interview, Fred signed a form withdrawing the I-130 petition.
The typed statement read:
I met Anna through her sister. Her sister was a housecleaner for me. Anna
took over her sister’s housecleaning. While she was working for me, Anna
asked me to marry her so she wouldn’t be deported and so she could get an
immigration benefit. I never lived with Anna Pienkowski nor do I live with
her right now.
The form was signed by Fred, witnessed by another person, and signed by the
immigration official conducting the interview.
The withdrawal of the I-130 petition triggered an automatic denial of Anna’s
application to adjust her status. A month later Fred and Anna filed a motion to reopen
and reconsider the application. They included an “affidavit” that was signed (but not
dated or notarized, or executed under the penalty of perjury) by Fred and explained
that he had ongoing medical issues and, at the time of the interview, was preparing for
cataract surgery. He said that he had been using medication that interfered with his
vision and was unable to see the documents that he signed. He also said that he had
been confused and unable to understand all the questions. Fred further stated that he
and Anna had a good marriage despite their age difference, that he had resided with
her until he moved to a nursing home, and that he had never intended to withdraw the
petition.
The USCIS denied the motion to reopen because once a petitioner withdraws an
application it cannot be revived. See 8 C.F.R. § 103.2(b)(6). The agency also denied the
motion because “Anna’s arguments were to be ‘given little weight because no factual
evidence was submitted to support them.’” Anna was then placed into removal
proceedings in February 2010. Fred died the following month. Anna was the sole
beneficiary of his estate, and she made all the funeral arrangements. Anna started
dating her current husband, Christopher, one month after Fred’s death, and they
married the following January.
Christopher filed an I-130 petition on Anna’s behalf in March 2011. After
interviewing the couple, the USCIS sent a notice of its intent to deny the petition
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because of her previous fraudulent marriage. The notice included a quotation from
Fred’s signed withdrawal statement but did not provide a copy of the statement.
Christopher and Anna submitted additional evidence, including a medical record from
around the time of Fred’s cataract surgery stating without elaboration that he had
dementia, and records of regular phone calls between Fred and Anna. But the USCIS
nevertheless denied their petition.
The USCIS decision listed the evidence that had been considered and
acknowledged that the documents and evidence showed the development of a
long-term relationship between Fred and Anna. The agency concluded, however, that
case law bound the agency to examine the subjective states of mind of the parties at the
time they formed their marriage contract. The agency found that Fred’s signed request
to withdraw his petition made clear that they originally entered into their marriage to
obtain an immigration benefit. Other than a quotation from Fred’s signed request to
withdraw his petition, the agency included no primary-source documents to support its
reasoning. For example, counsel for the agency admitted at oral argument that the
agency did not provide a transcript of Fred’s statement withdrawing the petition until
the administrative record was created.
Christopher and Anna then appealed to the Board of Immigration Appeals. The
Board affirmed the denial of the petition and denied a motion to reconsider.
Christopher and Anna then filed suit. The district court agreed with the USCIS and BIA
denying their petition, and the Fligers appealed.
Analysis
The Fligers properly sued under the Administrative Procedure Act because the
decision to deny an I-130 petition is not a discretionary agency decision and Anna is not
yet subject to a removal order. See Sehgal v. Lynch, 813 F.3d 1025, 1027 (7th Cir. 2016);
Ogbolumani v. Napolitano, 557 F.3d 729, 733 (7th Cir. 2009). This court’s review is
deferential to the agency. Ogbolumani, 557 F.3d at 733. “The APA requires that an
agency’s decision be set aside only if it is arbitrary, capricious, an abuse of discretion,
unsupported by substantial evidence in the case, or not in accordance with law.” Little
Co. of Mary Hosp. v. Sebelius, 587 F.3d 849, 853 (7th Cir. 2009).
The burden is on the petitioner, Christopher, to establish by a preponderance of
the evidence that the beneficiary, Anna, is eligible for the benefit sought. See 8 U.S.C.
§ 1361. To establish that a marriage is or was not fraudulent, a couple must show that at
the time of the marriage, they intended to establish a life together. Surganova v. Holder,
612 F.3d 901, 904 (7th Cir. 2010) (discussing in removal context, where government has
burden to show couple “never intended to establish a life together”); Matter of Laureano,
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19 I&N Dec. 1, 2–3 (BIA 1983). The marriage will be considered fraudulent if it was
entered into with “the primary purpose of circumventing the immigration laws.” Matter
of Laureano, 19 I&N Dec. at 2; see also Guan v. INS, 49 F.3d 1259, 1260 (7th Cir. 1995)
(marriages undertaken primarily to evade immigration laws are shams). When
assessing the intent at the time of the marriage, the agency and “courts look to both the
period before and after the marriage [ceremony].” Surganova, 612 F.3d at 904.
On appeal the Fligers first argue that the immigration authorities’ decision was
arbitrary and capricious because they focused solely on Fred’s statement withdrawing
the petition. They contend that the agency ignored all the other evidence demonstrating
that their 15-year marriage was not a fraud. But Fred’s statement withdrawing the I-130
petition is alone sufficient to show that their marriage was not bona fide at its inception,
even though he attempted to recant it the following month. Fred signed a statement
saying: “While she was working for me, Anna asked me to marry her so she wouldn’t
be deported and so she could get an immigration benefit. I never lived with Anna
Pienkowski nor do I live with her right now.” The statement is clear; the primary
purpose at the outset of the marriage was for Anna to gain an immigration benefit. This
court has concluded before that a statement like this one (that does not explicitly
confess to a sham marriage) is sufficient to support an agency finding that a marriage
was fraudulent. See Ogbolumani, 557 F.3d at 733–34; see also Ghaly v. INS, 48 F.3d 1426,
1431 (holding that under APA review, agency decision must stand if a “reasonable
mind could find adequate support for the decision”).
Further, it was reasonable for the agency to discount Fred’s attempt to recant his
sworn statement. Courts tend to be suspicious of attempts to retract sworn testimony
after it produces some unfavorable result. See McCann v. Iroquois Mem’l Hosp., 622 F.3d
745, 750–51 (7th Cir. 2010) (stating change in testimony can affect credibility);
United States v. Peterson, 414 F.3d 825, 827 (7th Cir. 2005) (after pleading guilty in
criminal case, defendant must have compelling explanation for differences in motion to
withdraw plea and testimony in plea hearing).
The timing here supports a similarly skeptical view. Fred suddenly changed his
testimony the month after receiving an unfavorable result. He claimed that the eye
drops he was using rendered him unable to see what he was signing, but he did not
claim that it was not explained to him. He also said that he did not understand all the
questions, but in support, he said only vaguely that he was “in bad physical and mental
state.” The BIA reviewed the transcript of Fred’s testimony and did not find any
evidence that Fred was confused. And more generally, the interview proceedings
(which have been recorded in a certified transcript, and were observed by a third-party
No. 17-2492 Page 6
witness) have higher evidentiary value than Fred’s “affidavit,” which was neither
sworn nor dated. See Ghaly, 48 F.3d at 1432–33 (affirming agency’s decision discounting
rebuttal evidence presented after one spouse admitted fraud in sworn statement).
Likewise the Fligers do not make a persuasive argument that the medical records they
submitted to the agency establish that Fred was incompetent, nor do they explain his
apparent recovery of his mental faculties within a month of his interview.
The BIA did not rely solely on the written statement on the form withdrawing
the petition, as the Fligers argue. Fred first testified under oath that it was Anna’s idea
to get married and to file the petition. This statement is another important piece of
evidence demonstrating their intentions when they decided to marry. See Ghaly, 48 F.3d
at 1432 (affirming agency’s reliance on statement that marriage was fraudulent when no
relevant rebuttal evidence was offered). The BIA also listed and considered their
evidence about Anna and Fred’s 15-year relationship, including vacation photographs,
telephone records, a life-insurance policy with Anna as the beneficiary, and an email
from a nursing-home employee confirming Anna’s visits and support.
The problem with the evidence, as the USCIS, the BIA, and the district court have
all pointed out, is that, at best, the evidence supports a finding that Fred and Anna
developed a relationship with one another after getting married. There is little evidence
other than Fred’s oral account to show their intentions at the time they married, and he
made clear that the primary motivation was to obtain an immigration benefit for Anna.
Anna said nothing at all about it when interviewed, so she has no basis for
contradicting Fred’s statement now. The attachment to each other that Fred and Anna
developed after they got married does not overcome the evidence of their purpose in
marrying in the first place. Therefore, the Fligers have not met their burden to show
that, in its review of the evidence, the agency “entirely failed to consider an important
aspect” of the claim or offered an “implausible” rationale. See Motor Vehicles Mfrs. Ass’n
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
The agency’s attention to the Fligers’ evidence also contradicts their argument
that the agency made a decision based on a prejudicial assumption that the age
difference between Fred and Anna meant the marriage was a sham. Nothing in the
record supports the Fligers’ suspicion; to the contrary, Anna, and especially Fred, spoke
of each other with affection. In any case, considering an age difference is not improper;
it is one factor that the agency uses in assessing the legitimacy of a marriage in
combination with other fraud indicators such as a new marriage following quickly a
divorce (or, one might argue, a death), unusual marriage history, extreme nervousness,
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evasive or general answers, and so on. See USCIS Fraud Referral Sheet. But the record
does not reflect that age was considered in this case, let alone that it was decisive.
The Fligers’ second argument fares no better. They argue that the USCIS violated
its own regulation and the Due Process Clause by refusing to provide them with a copy
of the withdrawal request; instead the agency provided a summary. The regulation at
issue requires the agency to give the petitioner an opportunity “to inspect the record of
proceeding which constitutes the basis for the decision.” 8 C.F.R. § 103.2(b)(16). The
agency also must advise the petitioner if the adverse decision “is based on derogatory
information considered by the Service and of which the applicant or petitioner is
unaware” so that the petitioner can have the “opportunity to rebut the information and
present information in his/her own behalf.” Id.
We have repeatedly urged the agency to provide the actual statement on which it
relied, but we have acknowledged in the past that a summary can suffice. Sehgal,
813 F.3d at 1031–32; see Ghaly, 48 F.3d at 1437. In this case, the reason was so
straightforward that the document would not have been any more enlightening than
the verbatim summary. However, we warn the agency that it should not assume that
we will continue to tolerate a summary as a general rule. We strongly advise it to start
providing the actual evidence on which it relies to make its decision.
In this case, however, the judgment of the district court is AFFIRMED.