Mensah v. Riordan et al (USCIS) I-130 204(c) denial complaint

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Mensah v. Riordan et al (USCIS) I-130 204(c) denial complaint

  1. 1. Case 1:12-cv-11999-PBS Document 1 Filed 10/26/12 Page 1 of 16 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS BOSTON, MASSACHUSETTS_______________________________ )Sharon Jean Mensah, )Eric Derkyi Mensah, A 300 318 222 ) Plaintiffs ) ) ) v. ) Case No. 12-11999 )DENIS RIORDAN, Director, ) Boston Service Center; )ALEJANDRO MAYORKAS, ) Director, U.S.C.IS; )JANET NAPOLITANO, Secretary, ) Department of Homeland Security; )ERIC HOLDER, Jr., ) Attorney General; )CARMEN ORTIZ, U.S. ) Attorney, District of Massachusetts ) Defendants )______________________________ ) PLAINTIFFS’ COMPLAINT FOR DECLARATORY RELIEF NOW COME the Plaintiffs, Sharon Jean Mensah and Eric Derkyi Mensah,in the above-mentioned and numbered cause of action and would show unto theCourt the following: 1. This action is brought against the Defendants as the decision of the Defendants is contrary to case law, regulation, and statute, is arbitrary and capricious, and represents an unwarranted departure from existing policies
  2. 2. Case 1:12-cv-11999-PBS Document 1 Filed 10/26/12 Page 2 of 16 and precedent. PARTIES2. Plaintiff, Sharon Mensah (“Petitioner” or “Ms. Mensah”), filed an I-130 petition on behalf of her husband, Eric Mensah (“Beneficiary” or “Mr. Mensah”). The Beneficiary is a native and citizen of Ghana and seeks adjustment of status in the U.S. based on the immigrant petition filed by Ms. Mensah.3. Defendant, Denis Riordan, is the Director of the United States Citizenship and Immigration Services (“USCIS” or “Service”) Boston Service Center, and this action is brought against him in his official capacity. He is generally responsible for the administration of immigration benefits and services. Accordingly, Director Riordan has decision-making authority over all matters alleged in this complaint.4. Defendant, Alejandro Mayorkas, is the Director of the USCIS and is responsible for administration of immigration benefits and services including the processing of applications for legal permanent residence. The USCIS oversees the activities of the Service Centers including the Boston Service Center and Lawrence Field Office.5. Defendant, Janet Napolitano, is the Secretary of the United States 2
  3. 3. Case 1:12-cv-11999-PBS Document 1 Filed 10/26/12 Page 3 of 16 Department of Homeland Security (“DHS” or “Department”). She is charged with, among other things, administering the USCIS and the implementation and enforcement of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq. As a result of this position, Secretary Napolitano has the ultimate decision-making authority over all matters alleged in this petition. 8 U.S.C. § 1103 (a)(1)-(6).6. Defendant, Eric Holder, Jr., is Attorney General of the United States, and this action is brought against him in his official capacity. He is generally charged with enforcement of the Immigration and Nationality Act, and is further authorized to delegate such powers and authority to subordinate employees of the Department of Justice. 8 U.S.C. §1103(g). More specifically, the Attorney General is responsible for the adjudication of applications for adjustment of status filed pursuant to the INA, 8 U.S.C. §1255(a). USCIS is an agency within the Department of Justice to whom the Attorney General’s authority has in part been delegated, and is subject to the Attorney General’s supervision.7. Defendant, Carmen Ortiz, is the U.S. Attorney for the District of Massachusetts and is being sued in an official capacity. U.S. Attorney Ortiz supervises the litigation of civil matters in which the federal government has an interest, and is therefore a necessary party to this suit. 3
  4. 4. Case 1:12-cv-11999-PBS Document 1 Filed 10/26/12 Page 4 of 16 JURISDICTION8. Jurisdiction in this case is proper under 5 U.S.C. §§ 551 and 701 et seq. (Administrative Procedures Act). This Court has original jurisdiction under 28 U.S.C. § 1331 (federal subject matter jurisdiction) and 28 U.S.C. § 1346(a)(2). The Court has supplemental jurisdiction over all other claims asserted in the action under 28 U.S.C. § 1367(a) because they are so related to the claim asserted against the Defendants that they form part of the same case or controversy under Article III of the U.S. Constitution.9. The aid of this court is invoked under 28 U.S.C. §§ 2201 and 2202 authorizing a declaratory judgment.10. Defendants’ actions are governed by Section 201(b)(2)(A)(i) of the INA, granting an U.S. citizen the right to petition for an immediate relative.11. Costs and attorney’s fees will be sought pursuant to the Equal Access to Justice Act, 5 U.S.C. § 504 and 28 U.S.C. § 2412. VENUE12. Venue is proper in this court, pursuant to 28 U.S.C. § 1391(e), in that this is an action against officers and agencies of the United States in their official capacities, brought in the District of Massachusetts, where a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred, where 4
  5. 5. Case 1:12-cv-11999-PBS Document 1 Filed 10/26/12 Page 5 of 16 Plaintiffs reside, and where Defendants have agents. EXHAUSTION OF REMEDIES13. Plaintiffs have exhausted their administrative remedies. The Service denied Plaintiffs’ application on January 11, 2011. See Notice of Denial of Alien Relative Petition. Plaintiffs, through counsel, filed an appeal with the Board of Immigration Appeals (“BIA” or “Board”) on or about March 3, 2011. See Appeal Brief. The Board denied Plaintiff’s appeal on January 12, 2012. See BIA Decision, dated January 12, 2012. Plaintiffs filed a Motion to Reopen and Reconsider with the Board on or about February 17, 2012; however, the Board denied Plaintiffs’ motion on August 30, 2012. See BIA Decision, dated August 30, 2012. FACTS14. The Plaintiffs were married on March 22, 2010 in Worcester, Massachusetts. Mr. Mensah was previously married to Diana McCabe. During his marriage to Ms. Diane McCabe, Ms. McCabe filed Form I-130, Petition for Alien Relative on behalf of her husband, seeking to classify him as the spouse of a U.S. citizen within the meaning of section 201(b) of the Immigration and Nationality Act. The parties attended an interview in relation to her petition 5
  6. 6. Case 1:12-cv-11999-PBS Document 1 Filed 10/26/12 Page 6 of 16 on or about May 15, 2009, providing joint documents in support of their good faith marriage. According to the Service, Ms. McCabe allegedly made statements regarding her marriage, which led the Service to believe that she had not entered her marriage in good faith. However, Ms. McCabe made these statements under duress due to the intimidation techniques used by the Immigration officers present in the room. She was also forced to sign an affidavit in support of her alleged statements. Ms. McCabe was under the influence of several medications at the time. In addition, Ms. McCabe suffers from a severe anxiety disorder and other mental health issues, which made her an easy target of the officers’ coercive techniques. Ms. McCabe subsequently withdrew the I-130 petition filed on behalf of her husband. The parties were later divorced.15. Mr. Mensah married Sharon Humphrey on March 22, 2010. After marriage, Ms. Humphrey adopted her husband’s last name. On May 31, 2010, Ms. Mensah, a U.S. citizen, filed Form I-130 on behalf of her husband. The parties attended an interview in conjunction with this petition on September 21, 2010, providing joint documents in support of their good faith marriage. The Service issued a Notice of Intent to Deny on November 30, 2010. In response to the Service’s Notice, the Plaintiffs submitted life insurance documents, bank statements, a lease agreement, mail addressed to the 6
  7. 7. Case 1:12-cv-11999-PBS Document 1 Filed 10/26/12 Page 7 of 16 couple, and affidavits in support of their good faith marriage. Even with this substantial evidence, the Service denied Ms. Mensah’s petition on January 11, 2011. The Service stated that that Ms. Mensah had not shown that she and Mr. Mensah shared a residence during the entire period of their marriage even though the Plaintiffs provided numerous joint documents and testified to their good faith marriage. CAUSE OF ACTION16. The Defendants’ actions are reviewable because these actions are contrary to the Immigration and Nationality Act and its implementing regulations are arbitrary and capricious and represent an unwarranted departure from existing policies and precedents that have violated the Plaintiffs’ due process rights.17. No visa petition may be approved under INA §204 if the “alien has previously been accorded, or has sought to be accorded, an immediate relative or preference status as the spouse of a citizen of the United States or the spouse of an alien lawfully admitted for permanent residence, by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws…” INA §204(c)(1). The petition filed on behalf of Mr. Mensah was denied in part due to the Service’s erroneous and unfounded belief that his previous marriage was not 7
  8. 8. Case 1:12-cv-11999-PBS Document 1 Filed 10/26/12 Page 8 of 16 entered into in good faith. See Notice of Denial of Alien Relative Petition.18. The Service also states that Ms. Mensah’s petition was subject to INA § 204(g), which states, in part: “…except as provided in section 245(e)(3), a petition may not be approved to grant an alien immediate relative status or preference status by reason of a marriage which was entered into during the period described in section 245(e)(2), until the alien has resided outside the United States for a 2-year period beginning after the date of the marriage.” However, if an alien can show, by clear and convincing evidence that the marriage was entered into in “good faith” and not for the purpose of obtaining immigration benefits, this section shall not apply to the alien. INA § 245(e)(3).19. The Service is required to make a finding of fraud with substantial and probative evidence. Matter of Tawfik, 20 I&N Dec. 166, 167 (BIA 1990). With regard to denials based on a prior finding of marriage fraud pursuant to INA § 204(c), the “the district director should not give conclusive effect to determinations made in a prior proceeding, but, rather, should reach his own independent conclusion based on the evidence before him.” Id. at 168; see also Matter of Samsen, 15 I&N Dec. 28, 29 (BIA 1974). The central question in spousal visa petition proceedings is the intent of the parties at the time the marriage is entered into. Bu Roe v. INS, 771 F.2d 1328 (9th Cir. 1985); Matter of McKee, 17 I&N Dec. 332 (BIA 1980); Bark v. INS, 511 8
  9. 9. Case 1:12-cv-11999-PBS Document 1 Filed 10/26/12 Page 9 of 16 F.2d 1200, 1201 (9th Cir. 1975). The actions of the parties after they are married also may be relevant in determining their intent when they entered into the marriage. Bark, 511 F. 2d at 1202; Matter of Laureano, 19 I&N Dec. 1, 2-3 (BIA 1983).20. In this case, there was no substantial or probative evidence which would result in the conclusion that Mr. Mensah’s marriage to Ms. McCabe was fraudulent. The evidence shows that the Beneficiary entered into the marriage with the intent of sharing a marital life with Ms. McCabe. The parties submitted several documents in support of their good faith marriage. The Service claims Ms. McCabe voluntarily signed an affidavit stating her marriage was not a good faith marriage. The Service erred in solely relying on the affidavit as evidence that Beneficiary entered into that marriage for the purpose of evading immigration laws without considering why Ms. McCabe may have made these statements or signed the affidavit.21. Ms. McCabe made these statements under duress; several Immigration officers were present in the room, threatening her with jail time if she did not agree with them that her marriage to Mr. Mensah was not a good faith marriage. The officers were also standing during their interrogation, while Ms. McCabe remained seated, which furthered her feelings of powerlessness. At the time of the interview, Ms. McCabe was under the 9
  10. 10. Case 1:12-cv-11999-PBS Document 1 Filed 10/26/12 Page 10 of 16 influence of several medications. She also suffers from severe anxiety disorder and other mental health issues, which made her vulnerable to the officer’s threats and susceptible to being coerced into signing a document that she did not understand.22. In order to make a finding of fraud, there must be substantial and probative evidence of the attempt or conspiracy in the alien’s file. 8 C.F. R. § 204.2 (a)(1)(h); Matter of Tawfik, 20 I&N Dec. 166, 167 (BIA 1990). In the present case, the sworn statement signed by Ms. McCabe incriminating her husband was signed under duress and cannot be used against Mr. Mensah as evidence of fraud. Without this document, the Service has no evidence to support a finding of fraud. The Board erred in according this affidavit “significant weight” as it failed to consider the probative evidence submitted by Plaintiffs of Ms. McCabe’s medical condition and reliance on prescription medicine. See BIA Decision, dated January 12, 2012 at 2. The Board also failed to consider Ms. McCabe’s statement that she did not read the affidavit she signed and did not have her glasses with her at the time. See Motion to Reopen and Reconsider and Exhibits. Ms. McCabe was clearly intimidated by the officer’s threats of jail time and under duress, otherwise, a reasonable person in her situation would have read this document carefully to understand its contents. 10
  11. 11. Case 1:12-cv-11999-PBS Document 1 Filed 10/26/12 Page 11 of 1623. While one of the factors Mr. Mensah may have considered in marrying Ms. McCabe was the immigration benefits he would receive, this was not the sole purpose of his marriage. A marriage is legitimate so long as the couple intended to start a life together, even if securing an immigration benefit was one of the factors that led the couple to marry. Cho v. Gonzales, 404 F.3d 96 (1st Cir. 2005); Matter of Boromand, 17 I. & N. Dec. 450, 454 (BIA 1980); United States v. Orellana-Blanco, 294 F.3d 1143 (9th Cir. 2002); United States v. Tagalicud, 84 F.3d 1180, 1185 (9th Cir. 1996) (“The ulterior motive of financial benefit or immigration benefit does not make the marriage a fraud, though it may be evidence that the marriage is fraudulent.”)24. The Board erred in failing to examine Mr. Mensah’s intent at the time he married Ms. McCabe. Bark v. INS, 511, F.2d 1200 (9th Cir. 1975) (“Petitioners marriage was a sham if the bride and groom did not intend to establish a life together at the time they were married.”) The parties provided evidence of their married life and share residence, including bank statements, life insurance policy and evidence of property insurance. The Board abused its discretion because the factual findings underlying the decision were not supported by “substantial evidence.” See 5 U.S.C. §706(2)(A); Ghaly v. INS, 48 F.3d 1426 (7th Cir. 1995). Substantial 11
  12. 12. Case 1:12-cv-11999-PBS Document 1 Filed 10/26/12 Page 12 of 16 evidence is evidence a reasonable person would find adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971).25. The Board of Immigration Appeals and federal courts have held that a statement by the petitioner or the beneficiary affirmatively stating that a marriage was entered into for the purpose of evading immigration law may be sufficient evidence to satisfy the standards set forth in case law and in statutes. See Ghaly, 48 F.3d at 1433; Oddo v. Reno, 17 F. Supp. 2d 529, 532 (E.D. Va. 1998); Matter of Kahy, 19 I&N Dec. 803, 805 (BIA 1988). In the present case, Mr. Mensah never made statements that he entered into his marriage for the purposes of evading immigration law; rather, he married Ms. McCabe for the purpose of establishing a life together. Ms. McCabe’s statements must be discounted because they were made while she was under the influence of several medications and not made of her own free will; rather, these statements were garnered through coercive techniques.26. The Board applied the wrong standard of proof in analyzing and adjudicating Plaintiffs’ case. There was no substantial and probative evidence which would result in the conclusion that the marriage was fraudulent. It is clear that Mr. Mensah and Ms. McCabe had difficulties in their marriage; however, Ms. McCabe provided a reasonable explanation for signing the affidavit during the interview. While the Service alleges Ms. 12
  13. 13. Case 1:12-cv-11999-PBS Document 1 Filed 10/26/12 Page 13 of 16 McCabe stated her marriage to Beneficiary was not real, on appeal, the Board failed to take into account the new evidence submitted in support of Ms. McCabe’s mental health condition, which led her to make certain false statements against her husband. Ms. McCabe wrote a separate affidavit attesting to her good faith marriage to Mr. Mensah. She also discussed the numerous drugs she has been prescribed for her mental health issues, including Paroxetine, Triazolam, Lorazapam, Risperdal and Oxcarbazepine, which may have impacted her ability to think clearly and act rationally during the interview. See Motion to Reopen and Reconsider and Exhibits.27. Ms. McCabe stated in her affidavit that during the interview, two officers “intimidated” her and told her she would face jail time if she did not admit that she was not in a good faith marriage. She states, “I felt nervous and scared at the time because these threats were unfounded but the officers were unrelenting…I would have done anything to leave the room because I was afraid and intimidated. I do not know the contents of the document I signed during the interview.” Many of Ms. McCabe’s answers were taken out of context. Ms. McCabe’s fragile state of mind was compounded by the intimidation techniques used by the officers during the interview.28. The Service erred in finding that Plaintiffs failed to demonstrate by clear and convincing evidence that they shared a residence and life together. Matter of 13
  14. 14. Case 1:12-cv-11999-PBS Document 1 Filed 10/26/12 Page 14 of 16 Carrubba, 11 I&N 914, 917 (BIA 1996). The Service states in its reply brief the parties had “scant” evidence of their good faith marriage. See Reply Brief, dated May 26, 2011 at 5. However, the Service erred in making this finding as affidavits, bank statements and mail addressed to the couple are not “scant” evidence. Due to the Plaintiffs’ financial situation, they may not have been able to readily purchase real or personal property or health insurance, documents which the Service believes would have further substantiated their good faith marriage. Their financial situation should no serve as grounds for the Service’s decision. See Damon v. Ashcroft, 360 F.3d 1084 (9th Cir. 2004) (It is improper for an adjudicator to deny a marriage-based petition with any set notion of what a “real” marriage is.)29. The Service, in its denial decision, erred in finding that the Plaintiffs had not met their burden of proof by providing enough joint documents of their marriage. The Service merely discounts the numerous documents submitted by the couple in support of their shared life. For example, the Plaintiffs submitted affidavits from individuals that knows the couple, attesting to their good faith marriage. Rather than analyzing the content of these affidavits, the Service discounts them and states they “are not supported by other evidence in the file.” See Notice of Denial of Alien Relative Petition at 3. This statement does not give the Plaintiffs a meaningful opportunity to rebut 14
  15. 15. Case 1:12-cv-11999-PBS Document 1 Filed 10/26/12 Page 15 of 16 the Service’s faulty analysis and merely allows the Service to couch its denial in general terms.30. The Plaintiffs have demonstrated through clear and convincing evidence that they not only shared a residence, but that they shared martial obligations and a life together, thereby showing they entered their marriage in good faith. See INA § 204 (g). Moreover, Beneficiary has shown that the Service and Board committed numerous errors of law and fact in relying on Ms. McCabe’s statements to make a finding of fraud under INA § 204(c). PRAYER WHEREFORE, in view of the arguments and authority noted herein, Plaintiffs respectfully pray that the Defendants be cited to appear herein and that, upon due consideration, the Court enters the following orders: (a) Adjudge and declare that the actions by the Defendants in denying the I-130 Petitioner were unlawful; (b) Further deem that the I-130 Petition be granted; (c) Awarding Plaintiff reasonable attorney’s fees; and (d) Granting such other relief at law and in equity as justice may require. 15
  16. 16. Case 1:12-cv-11999-PBS Document 1 Filed 10/26/12 Page 16 of 16Date: October 26, 2012 Respectfully submitted,Location: Framingham, MA Counsel for the Plaintiffs, /s/ Saher J. Macarius The Law Offices Saher J. Macarius, LLC 21 Walsh Street Framingham, MA 01701 (508) 879-4443 16

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