Lacey Ogbolumani v. Janet A. Napolitano ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2143
L ACEY O GBOLUMANI and D AVID O GBOLUMANI,
Plaintiffs-Appellants,
v.
JANET A. N APOLITANO, Secretary of the Department of
Homeland Security, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 C 6009—Samuel Der-Yeghiayan, Judge.
A RGUED D ECEMBER 1, 2008—D ECIDED F EBRUARY 20, 2009
Before B AUER, R OVNER, and E VANS, Circuit Judges.
E VANS, Circuit Judge. David and Lacey Ogbolumani
have been married for the past eight years and have
spent much of that time raising their young daughter,
2 No. 08-2143
Isabella. David 1 is not a citizen of the United States but
Lacey is, so at first blush it would seem that David’s
immigration status is on the up-and-up. But David was
married before, and the United States Citizenship and
Immigration Services (USCIS), one of the predecessors
of the now defunct INS, concluded after an extensive
investigation that his first marriage was a sham that he
entered into to evade immigration laws. Based on this
conclusion, the visa petition Lacey filed on David’s
behalf was denied. David and Lacey appealed this denial
to the BIA, with no success, and then turned to the
district court. After dismissing their constitutional chal-
lenge to the denial, the court granted summary judgment
in USCIS’s favor. David and Lacey now appeal.
David, a citizen of Nigeria, entered the United States in
1990 2 when he crossed the Canadian border at Niagara
Falls, New York, without inspection. Consequently, his
first years here were as an undocumented immigrant.
But his situation could have changed in 1997 when he
1
David, his ex-wife Jamiler, and his current wife Lacey have
all, at one time or another, shared the same last name. In
order to avoid confusion, we will use their first names through-
out this opinion.
2
Ironically, 1990 was also the year that the movie Green Card
hit the screen. The movie involved an INS investigation into
the legitimacy of a marriage of convenience involving a
husky French musician (Gerard Depardieu) seeking a green
card and a beautiful American horticulturist (Andie
MacDowell) seeking a greenhouse. The investigation in this
case was not unlike the one that was undertaken in Green Card.
No. 08-2143 3
married Jamiler Cooper. Shortly after they married,
Jamiler, who is a United States citizen, filed an I-130 visa
petition on David’s behalf to pave the way for his ap-
plication for permanent residency. USCIS eventually
called the couple in for an interview and told them to
bring whatever documentary evidence they had to sub-
stantiate their marriage. But, according to the official who
interviewed them, the documents they produced were
inadequate, and a field investigation into the marriage
was ordered to make sure that their union was legitimate.
The investigation took place 15 months later, and by
then David’s circumstances had changed drastically. His
brief marriage to Jamiler had fallen apart—David claims
that the two separated shortly after their interview with
USCIS. During their separation David met and began
dating Lacey, who, like Jamiler, was a United States
citizen. Once his divorce to Jamiler was finalized, Lacey
and David married, and three months later their
daughter was born. That same month, USCIS began its
investigation into David’s first marriage.
That investigation uncovered evidence suggesting that
David’s first marriage was a fraud. Special agents for
USCIS interviewed Jamiler’s sister-in-law, who said that
Jamiler received $5,000 to marry David and that the
marriage was a “scam,” while other relatives told the
investigators that they knew nothing about the marriage.
According to the human resources manager at David’s
place of employment, David claimed that he was single
on his tax withholding statements and insurance forms,
even while he was married to Jamiler. But the most damag-
4 No. 08-2143
ing evidence came from David and Jamiler themselves.
Jamiler told investigators that David offered her money
and that she accepted payment for her schooling as part
of the marriage arrangement. When David was inter-
viewed, investigators found him evasive and vague
when it came to the circumstances of his purported
cohabitation with Jamiler. Ultimately, when confronted
with evidence that he had paid Jamiler to marry him,
David said, “I felt I had no other way to obtain my immi-
gration benefits. I did what I felt I had to do. You are
intelligent investigators and basically have my head on a
platter. However, I can’t bring myself to ‘mouth’ the
words that will destroy any remaining hope I may
have.” Based on this investigation, USCIS concluded
that David’s marriage to Jamiler was a sham. Jamiler,
however, withdrew the petition before it could be denied.
Lacey then filed her own visa petition on David’s behalf,
but the previous investigation haunted the couple. In a
written notice, USCIS informed Lacey that it intended
to deny her petition because David had previously
entered into a marriage for the purposes of evading
immigration laws. See 8 U.S.C. § 1154(c). The agency
went on to list several pieces of evidence uncovered
during the investigation, including Jamiler’s admission
that David paid her tuition as a term of the marriage
arrangement, the statement of Jamiler’s sister-in-law
confirming that the marriage was a scam, and David’s
incriminating statements. At the end of the notice, USCIS
invited Lacey to respond to the allegations and submit
any countervailing evidence.
No. 08-2143 5
Lacey, with the help of an attorney, submitted a re-
sponse, arguing that David’s first marriage was legiti-
mate. She attached to the response two leases that
David and Jamiler signed together, electric bills and car
insurance cards in both of their names, and a letter from
a bank certifying that they had opened a joint checking
account. But USCIS found this response inadequate.
After listing the evidence that Lacey submitted, USCIS
explained that “[a]ll the submitted documents have been
reviewed and taken into proper consideration,” but that
the evidence “failed to overcome the allegations listed
in the Notice of Intent to Deny Petition for Alien Rela-
tive.” Lacey appealed the decision to the BIA, adding
two affidavits, one from herself and one from David. In
his affidavit David did not deny making Jamiler’s tuition
payments or the accuracy of his incriminating statement,
but he nonetheless asserted that he had been genuinely
in love with Jamiler when they married. The BIA sum-
marily affirmed USCIS’s denial of the petition.
David and Lacey then turned to the federal courts.
They filed a complaint against the USCIS alleging that the
denial of Lacey’s petition violated the Administrative
Procedure Act, 5 U.S.C. § 706, and the Due Process
Clause because it was arbitrary and based on unreliable
evidence. USCIS filed a motion to dismiss the complaint,
arguing that the district court lacked jurisdiction because
the denial of the petition was a discretionary decision
shielded from judicial review by the REAL ID Act of 2005,
8 U.S.C. § 1252(a)(2)(B)(ii). The district court disagreed,
concluding that a statutory framework—not USCIS’s
discretion—governed how the petition had to be adjudi-
6 No. 08-2143
cated. But USCIS’s motion to dismiss wasn’t a complete
bust. In it, USCIS also argued that David and Lacey failed
to state a claim under the Due Process Clause, and the
district court agreed, dismissing that claim. Both parties
then filed competing motions for summary judgment.
The district court concluded that USCIS had relied on
substantial evidence when denying Lacey’s I-130 petition
and granted summary judgment in USCIS’s favor. David
and Lacey now appeal.
While USCIS does not resurrect its jurisdictional chal-
lenge here, we nonetheless begin by tackling this issue
since it’s our responsibility to ensure that a case falls
within the scope of our review. United States v. Lawrence,
535 F.3d 631, 636 (7th Cir. 2008). The controversy here
revolves around our inability to review a “decision or
action of the Attorney General or the Secretary of Home-
land Security the authority for which is specified under
this title to be in the discretion of the Attorney General or
the Secretary of Homeland Security . . . .” 8 U.S.C.
§ 1252(a)(2)(B)(ii). The key to this jurisdictional bar is the
statutory language that governs the decision being chal-
lenged. That statute must explicitly provide discretionary
authority to immigration officials before we close the
courthouse doors. Soltane v. U.S. Dep’t of Justice, 381 F.3d
143, 146 (3d Cir. 2004).
The statutory basis for Lacey’s petition is 8 U.S.C.
§ 1154(b), which states that an immigration officer “shall,
if he determines that the facts stated in the petition are
true and that the alien in behalf of whom the petition
is made is an immediate relative . . . approve the
No. 08-2143 7
petition . . . .” The statute goes on to state that “no petition
shall be approved” if an alien has received (or tried to
receive) immigration benefits through a sham marriage.
Id. at § 1154(c). So, if an alien is an immediate relative
(spouses of United States citizens are included in this
group, 8 U.S.C. § 1151(b)(2)(A)(i)), the petition must be
granted unless there is a history of fraud lurking in the
background. We agree with the district court that this
statute leaves no discretionary wiggle room; instead, the
resolution of this type of petition is circumscribed by
an explicit legal standard. Ayanbadejo v. Chertoff, 517
F.3d 273, 277-78 (5th Cir. 2008) (concluding that the
court has jurisdiction to review denial of immediate
relative petition); compare El-Khader v. Monica, 366 F.3d
562, 567 (7th Cir. 2004) (holding that court lacked juris-
diction to review revocation of visa because, under the
statute, official “may, at any time, for what he deems to
be good and sufficient cause” do so). Accordingly, we
have jurisdiction to review this appeal.
On, then, to the heart of David and Lacey’s appeal. The
Ogbolumanis first argue that the denial of the petition
was not supported by substantial evidence, in violation of
the Administrative Procedure Act. 5 U.S.C. § 706(2).
They have a high hurdle to jump. It’s not enough that we
might have reached a different conclusion; so long as a
reasonable mind could find adequate support for the
decision, it must stand. Ghaly v. INS, 48 F.3d 1426, 1431 (7th
Cir. 1995). Here, given the wealth of evidence uncovered
during USCIS’s investigation, that high hurdle is insur-
mountable.
8 No. 08-2143
David’s own words wreak considerable havoc to his
cause. Repeating what we just said, David told investiga-
tors, “I felt I had no other way to obtain my immigration
benefits. I did what I felt I had to do. You are intelligent
investigators and basically have my head on a platter.”
David does not take issue with the accuracy of the quota-
tion but instead points out that the statement falls short
of an outright confession of marriage fraud. But at this
stage our task is not to mince words. USCIS acted rea-
sonably by reading what was written between the lines
and interpreting David’s statement as an admission, in
the face of mounting evidence, that he faked the mar-
riage. In fact, its hard to imagine what else David could
have meant when uttering those words. He attempts to
render them innocuous by claiming that he wasn’t re-
sponding to the allegations of fraud but, instead, explain-
ing why he chose not to apply for a visa through his
job. But even if David is right about the immediate con-
text, it does him little good. In either case, David was
talking about the way he actually tried to obtain a
visa—his marriage to Jamiler—acknowledging both that
he pursued the visa out of desperation and that the in-
vestigators had caught him red-handed.
What’s more, David’s admission was far from the
only piece of evidence on which USCIS relied. For
example, when interviewed, Jamiler admitted that
David offered her money—and she accepted payment
for her schooling—in exchange for the marriage. While
paying a spouse’s tuition is not necessarily an indicia of
fraud, it becomes more than a bit fishy when the payout
is used as an inducement for the marriage. Jamiler’s sister-
No. 08-2143 9
in-law also confirmed that the marriage was a sham,
although she described the terms of payment differently.
Despite this inconsistency, both Jamiler and her sister-in-
law acknowledged that the marriage was founded upon
a quid pro quo—financial support in exchange for mar-
riage—instead of a genuine desire to start a life together.
David and Lacey try to discount this evidence by point-
ing out that USCIS relied not on sworn statements by
Jamiler and her sister-in-law, but summaries of what they
had said, written by USCIS investigators. While sworn
statements would have bolstered USCIS’s case, they are
not, as David and Lacey urge, required. Their dissatisfac-
tion with the summaries is a hearsay objection of sorts—in
essence they argue that, to ensure the reliability of such
damaging evidence, the statements must come straight
from the horse’s mouth. But even in removal proceedings,
hearsay is admissible so long as it’s probative and its
use is not fundamentally unfair. Olowo v. Ashcroft, 368
F.3d 692, 699 (7th Cir. 2004). Here, David and Lacey
point to nothing that suggests that the summaries are
inaccurate or unreliable beyond the general “inherent
risks” that come with using a synopsis and suspicions,
ungrounded in the record, that Jamiler lied out of spite
for David. Such speculation is not enough to call into
question the investigators’ report. See Doumbia v. Gonzales,
472 F.3d 957, 963 (7th Cir. 2007).
David and Lacey also contend that the denial of the
visa petition should be set aside as arbitrary and
capricious because it inadequately explains why the
evidence they provided was insufficient. See 5 U.S.C.
10 No. 08-2143
§ 706(a)(2)(A). The denial is light on reasoning, but it
nonetheless provides an adequate explanation for the
decision, and nothing more is required. After listing all
the evidence that Lacey provided and emphasizing
that “the submitted documents have been reviewed and
taken into proper consideration,” USCIS concluded that
the evidence “failed to overcome the allegations listed
in the Notice of Intent to Deny Petition for Alien Rela-
tive.” Importantly, the documents that Lacey submitted
left two key pieces of the USCIS’s evidence unrebut-
ted—the accuracy of David’s all-but-confession and
Jamiler’s receipt of compensation, in the form of tuition
payments, to marry David. USCIS could have fleshed out
why it found each piece of the Ogbolumanis’s evidence
unpersuasive, but we have never required the agency to
“write an exegesis on every contention” raised. Rashiah v.
Ashcroft, 388 F.3d 1126, 1130 (7th Cir. 2004) (citations
omitted). Instead, USCIS need only “announce its decision
in terms sufficient to enable a reviewing court to
perceive that it has heard and thought and not merely
reacted.” Id. at 1130-31 (citations omitted); see also Ghaly,
48 F.3d at 1431 (noting that an agency’s decision “need
not be compelling, or even convincing, to be sufficient”).
By providing the evidentiary and legal basis for its deci-
sion and considering the countervailing evidence pro-
vided by the Ogbolumanis, USCIS has fulfilled its obliga-
tion here.
Next, the Ogbolumanis argue that the denial of Lacey’s
petition is arbitrary and capricious because USCIS de-
parted from two of its regulations when adjudicating
it. The first regulation prohibits the agency from con-
No. 08-2143 11
sidering evidence outside of an alien’s file when adju-
dicating a visa petition. 8 C.F.R. § 204.2(a)(1)(ii). But our
review of the record reveals that David’s file was missing
no evidence. The Ogbolumanis point out that USCIS
accused David of claiming that he was single on his tax
withholding statements and insurance forms but that
neither of those forms were part of the record. But the
investigators got this information over the phone from
the human resources manager at David’s place of employ-
ment, and a summary of that phone call is part of David’s
file. The absence of the forms themselves, which were
never relied upon, is immaterial.
The second regulation that the Ogbolumanis claim
was ignored requires USCIS to give them an oppor-
tunity to rebut the derogatory information it uncovered.
8 C.F.R. § 103.2(b)(16)(i). This argument misses the
mark, and by a lot. Lacey received a notice explaining
that USCIS intended to deny the petition, listing the
evidence uncovered by the investigation into David’s
first marriage, and providing her with an opportunity,
which she took, to respond. David and Lacey complain
that the notice did not exhaustively list all the evidence
USCIS found. For example, it omitted the names of
Jamiler’s relatives who told investigators that they
knew nothing about her marriage to David. But
the regulation does not require USCIS to provide, in
painstaking detail, the evidence of fraud it finds. Not
all the witnesses were identified by name, but the impor-
tant ones were, including Jamiler’s sister-in-law, who
repeatedly told investigators that the marriage was a
scam. What’s more, Lacey and David didn’t need the
12 No. 08-2143
names of the other relatives to rebut the evidence. They
could have, but did not, submit statements from the
members of Jamiler’s family that supposedly knew about
the marriage, including Jamiler’s grandmother and aunt,
whom David claimed in his affidavit to have met. Our
review is deferential, and nit-picking the exact character-
ization of the evidence would overstep our limited role.
Finally, the Ogbolumanis argue that the district court
erred when it dismissed their due process challenge. In the
complaint, the Ogbolumanis claimed that USCIS’s “arbi-
trary and capricious decision-making” amounted to a
violation of their right to due process, essentially
recasting their arguments under the Administrative
Procedure Act as constitutional ones. But arbitrary
rulings do not necessarily infringe upon the right to due
process, Subhan v. Ashcroft, 383 F.3d 591, 595-596 (7th
Cir. 2004), only “egregious administrative irregularities
may amount to constitutional violations.” Sokolov v.
Gonzales, 442 F.3d 566, 569 (7th Cir. 2006). If anything,
the information in the complaint undermines the
Ogbolumanis’ constitutional claim. The complaint in-
cluded copies of the notice giving Lacey an opportunity
to respond to the allegations of fraud and the denial of her
petition, both of which demonstrate that USCIS
followed its procedures, not that it radically departed
from them. By doing nothing more than dressing up
their claims under the Administrative Procedure Act as
constitutional violations, the Ogbolumanis failed to state
a claim. See Limestone Dev. Corp. v. Village of Lemont, Ill.,
520 F.3d 797, 802-03 (7th Cir. 2008) (holding that a com-
plaint must contain “enough detail, factual or argumenta-
tive, to indicate that the plaintiff has a substantial case”).
No. 08-2143 13
We end by noting that throughout this whole process
nobody has questioned the legitimacy of David and
Lacey’s marriage,3 not even counsel for USCIS, Craig
Oswald. We acknowledge that the denial of the I-130
petition will undoubtedly upend the lives of David,
Lacey, and their now eight-year-old daughter. Although
we are mindful of the profound disruption that this
family faces, we are constrained to affirm the district
court’s decision. However, we encourage Mr. Oswald
and the government to take a fresh look at David—who
by all accounts has been a loving father, a financial
support for his family, and, except for the mistake with
Jamiler, a law-abiding resident of the United States for
the past 18 years—and consider all its options before
seeking his deportation. If there is some way David’s
grave error in judgment in connection with Jamiler can
be forgiven (even the movie Green Card—see our footnote
on page 2—involved true love), we urge the government
to consider doing so.
The judgment of the district court is A FFIRMED.
3
They are obviously in love, just like the two characters in
Green Card (see our footnote 2) turned out to be.
2-20-09