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Zemeka v. Holder

United States District Court, District Circuit

November 20, 2013

ERIC DAVID ZEMEKA, et al., Plaintiffs,
v.
ERIC H. HOLDER, JR., Attorney General of the United States, et al., Defendants.

MEMORANDUM OPINION

JAMES E. BOASBERG, District Judge.

Plaintiffs Eric and Annie Zemeka were married in March 2010 in Maryland. Annie, an American citizen, then filed an I-130 petition with the U.S. Citizenship and Immigration Service to obtain "immediate relative" status for Eric, a native of Cameroon. USCIS denied the petition on the ground that Eric's prior wife had previously filed an I-130 petition for him based on a sham marriage. Under 8 U.S.C. § 1154(c), a prior fraudulent petition results in a lifetime bar to any subsequent I-130 petition. The Zemekas do not challenge the statute, but argue that Eric was blameless in the earlier incident. As a result, they ask this Court to find USCIS's determination arbitrary and capricious. Defendants have now moved for summary judgment, contending that their decision was supported by the agency record. As they are correct, judgment on their behalf is warranted.

I. Background

A. Factual Background

In its Opinion and Order of August 28, 2013, denying without prejudice Defendants' prior Motion to Dismiss, the Court specifically required the parties to rely only on those facts contained in the Administrative Record, unless they could show that a recognized exception applied to this rule of administrative review. See ECF No. 14. Although Plaintiffs nowhere contend that the Court may appropriately consider material outside of the Administrative Record, they nonetheless cite to a new Affidavit of Eric Zemeka. See Opp. at 3-7. The Court may not consider this piece of evidence. See, e.g., Theodore Roosevelt Conservation P'ship v. Salazar , 616 F.3d 497, 514 (D.C. Cir. 2010) ("The APA limits judicial review to the administrative record except when there has been a strong showing of bad faith or improper behavior or when the record is so bare that it prevents effective judicial review.") (internal quotation marks omitted).

As described in the Administrative Record, then, Eric Zemeka is a native and citizen of Cameroon. He was first admitted to the United States on November 14, 2005, on an F-1 nonimmigrant student visa to attend Montgomery College in Rockville, Maryland. See AR 47. On May 26, 2006, in Fulton County, Georgia, he married his first wife, Sabrina Stephens. Id. at 220, 232-33, 419. Stephens then filed an I-130 petition with USCIS on his behalf on July 2 of that year. Id. at 106, 217. She claimed no prior marriages on the I-130 or on the biographical information form G-325A. Id. at 217, 414-15. Zemeka, meanwhile, filed an I-485 Application to Register Permanent Residence or Adjust Status on June 13, which was contingent upon the outcome of his I-130 petition. See id. at 37-40. Allegedly unbeknownst to him, on May 3, three weeks before marrying Zemeka, Stephens had married another Cameroonian man, Aymard Audrey Fonkou Fotsing, in Cobb County, Georgia, and she filed an I-130 petition with USCIS on Fotsing's behalf on September 11 (two months after filing the I-130 petition on behalf of Zemeka). Id. at 106, 217, 292. On September 18, Stephens's sister called the DHS-2ICE Tip Line, reporting that Stephens "was paid $700 as the first installment to marry a man from somewhere in Africa in order for him to obtain papers." Id. at 618. The sister claimed that the marriage had been arranged by a third party and that the two "had never met until they showed up to marry each other and that they have never lived together." Id.

Both Zemeka and Fotsing were scheduled to appear with Stephens before a USCIS Officer for separate I-130 interviews in Atlanta on May 30, 2007. Id. at 106, 217. Following a disagreement between Zemeka and Stephens, she refused to attend, and he proceeded alone. Id . Neither Stephens nor Fotsing appeared for Fotsing's interview. Id . Zemeka was ultimately issued a Notice of Intent to Deny (NOID) the I-130 petition by USCIS on January 29, 2008, partialy because Stephens was already married to Fotsing. See id. at 217-18, 232-33, 412-13. Zemeka alleges that this was the first time he learned of his wife's bigamy. See id. at 220.

In response to the NOID, Stephens resubmitted her marriage certificate and included a sworn affidavit to USCIS claiming that she had never been married to Fotsing. Id. at 107, 218, 406-10. Yet, after visiting the Cobb County records office, Zemeka claims he discovered proof that Stephens had indeed married Fotsing the same month she had married him. Id. at 65. Not surprisingly, given the invalidity of their marriage, Zemeka's relationship with Stephens allegedly deteriorated and he moved out. See id. at 65.

Meanwhile, on February 5, 2009, USCIS denied Stephens's I-130 petition for abandonment (failure to appear for an interview) and lack of documentary evidence rebutting USCIS's finding of fraud. See id. at 218, 236-37. Zemeka's I-485 application was denied the same day for ineligibility to receive an immigrant visa. See id. at 36. After this denial, Zemeka sought - and received - a marriage annulment, which was granted by the Superior Court of Fulton County, Georgia, on May 6, 2009. Id. at 107. Zemeka was issued his first notice to appear for a removal hearing on September 24, 2009, to be held on April 26, 2010. See id. at 31-32, 34-35.

Zemeka then married his current wife, a United States citizen whose maiden name was Annie Valerie Sielinou, in Rockville, Maryland, on March 29, 2010. Id. at 250, 355. Annie filed an I-130 petition on his behalf on April 25, a day before his removal hearing. Id. at 240. While acknowledging that Zemeka's current marriage "appears... bona fide, " id. at 67, USCIS issued a NOID on September 13, 2011, citing INA § 204(c), 8 U.S.C. § 1154, which prohibits approval of any I-130 petition filed on behalf of an alien beneficiary who has previously been accorded, or has sought to be accorded, immediate-relative status on the basis of a fraudulent marriage. See AR 105-08, 216-19. In other words, Zemeka's previous entanglement with Stephens stood as an insurmountable obstacle to Annie's I-130 petition.

B. USCIS Decision of October 26, 2011

Following the September 13, 2011, NOID, the Zemekas were afforded the opportunity to produce evidence to rebut USCIS's finding of prior marriage fraud. See AR 108 (citing Matter of To , 14 I. & N. Dec. 679 (BIA 1974)). Plaintiffs submitted a GEICO insurance policy, see id. at 224-26, a letter from AT&T (declining to provide service without toll blocking), see id. at 227-29, and an affidavit signed by Eric Zemeka. See id. at 220-22. USCIS nevertheless denied the I-130 petition on October 26, 2011, finding,

[T]here is substantial and probative evidence to show that his prior marriage to Sabrina Ann Stephens was an attempt to evade the immigration laws of the United States by entering into a fraudulent marriage. As we find that the beneficiary previously engaged in a sham marriage, pursuant to Section 204(c) of the Act he is precluded from the approval of other visa petition[s].

Id. at 64. The District Director reached this finding based chiefly upon evidence of fraud perpetrated by Stephens - namely, that she had married two Cameroonian men in Georgia in May 2006; she had filed I-130 petitions for each of them; she had failed to appear for USCIS interviews for either petition; she had made material misrepresentations on her I-130 and G-325A forms submitted on Zemeka's behalf by concealing her prior marriage to Fotsing; she had failed to submit documentary evidence of a good-faith marriage with Zemeka; and her assertion in a sworn affidavit that she had never married Fotsing was proved false. See id. at 64.

USCIS also noted that it had "relied upon an independent analysis of Mr. Ze Meka's entire record" in "finding that Mr. Ze Meka's prior marriage to Ms. Stephens was entered into in order to evade U.S. immigration laws, " and that although Stephens's undisclosed prior marriage to Fotsing "is indeed indicative of fraud, it was not the sole basis for our finding." Id. at 66.[1] In particular, USCIS pointed to scant documentary evidence of her marriage to Zemeka produced in response to the September 13 NOID: only a GEICO insurance policy, a letter from AT&T, and an affidavit signed by Zemeka. See id. at 64-67. This evidence was found to "fall far short of convincing evidence of a bona fide material union." Id. at 66. USCIS also contrasted the slim evidence ...


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