United States District Court, D. South Carolina, Florence Division
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS'
MOTION FOR RELIEF PURSUANT TO 5 U.S.C. § 705 AND DENYING
PLAINTIFFS' MOTIONS TO COMPLETE THE RECORD
GEIGER LEWIS, UNITED STATES DISTRICT JUDGE.
Johnnie Wells (Johnnie) and Annfyeon Wells (Annfyeon)
(collectively Plaintiffs) filed this action seeking judicial
review of a decision denying Plaintiffs' Form I-130,
Petition for Alien Relative, and Form 1-485, Application to
Register Permanent Residence or Adjust Status, (collectively
Plaintiffs' petitions) by Defendant Ken Cuccinelli,
Acting Director of United States Citizenship and Immigration
Services (the agency), pursuant to 5 U.S.C. § 704.
Pending before the Court is Plaintiffs' second motion for
relief pursuant to 5 U.S.C. § 705 (§ 705), in which
the Plaintiffs ask this Court to delay the legal effect of
the agency's denials of Plaintiffs' petitions pending
judicial review. Also pending before the Court are
Plaintiffs' motion to compel completion of the certified
administrative record (CAR) and second motion to compel the
agency to complete the record or in the alternative to allow
limited discovery. The Court has jurisdiction over this
matter under 28 U.S.C. § 1331.
carefully reviewed Plaintiffs' motions, the agency's
responses, Plaintiffs' replies, the applicable law, the
certified administrative record (CAR or the record), the
supplement filed by the agency, and the parties'
arguments at the hearing on May 15, 2019, the Court is of the
opinion Plaintiffs' motions should be denied.
FACTUAL AND PROCEDURAL HISTORY
March 2006, Plaintiff Annfyeon Wells (Annfyeon), a resident
of Jamaica, lawfully entered the United States. Amended
Complaint ¶ 11. She later met and married her first
husband, S.T., in 2009. Id. ¶ 12-13. S.T. is a
citizen of the United States. Id. ¶ 14. On
October 10, 2010, S.T. filed a Form I-130, Petition for Alien
Relative, on behalf of Annfyeon seeking to classify her as a
spouse of a United States citizen. Id.
beginning their investigation, the agency began to suspect
S.T. and Annfyeon's marriage was a “sham”
entered into for the purpose of obtaining a green card. CAR,
ECF No. 25-3, at 44. On March 13, 2019, Officer M.B.
conducted separate interviews with Annfyeon and S.T.
Id. at 45-55. He noted in a memorandum to the Fraud
and Detection and National Security Office (FDNS) Officer
L.Z. “there are a few discrepancies, some major and
some minor.” Id. at 44.
L.Z. stated in a memorandum to the agency's file
“the interviewing officer [M.B.] identified multiple
marriage fraud indicators at the initial interview [of S.T.
and Annfyeon] …” Id. The memorandum
also stated Officer L.Z. had contacted Special Agent D.G.
with Immigrations and Customs Enforcement (ICE)/ Homeland
Security Investigations (HSI) after Officer M.B. conducted
separate follow-up interviews with Annfyeon and S.T.
Id. Officer L.Z. formally requested ICE/HSI conduct
an interview with S.T. to “substantiate a finding of
fraud on [S.T.'s] pending adjustment of status
case.” Id. at 10-11. Special Agent D.G.
accepted the case. Id.
August 15, 2013, ICE/HSI Special Agents D.G. and J.W. visited
S.T. at his home and interviewed him regarding his marriage
to Annfyeon. CAR, ECF No. 25-2 at 121. According to the
Special Agents, S.T. confessed to entering into a
“sham” marriage with Annfyeon for the sole
purpose of helping Annfyeon obtain her green card.
Id. This is substantiated by the Withdrawal of
Petition/Application he signed the same day, requesting to
withdraw his Petition for Alien Relative he filed on behalf
of Annfyeon. Id. at 23.
withdrawal, S.T. wrote, “I only married Ann [Annfyeon]
to help her stay in the United States. We never lived
together as man and wife. When we went to immigration we
lie[d] about livin[g] together[.] I'm so sorry for
l[y]ing this marr[i]age is not real.” Id.
Annfyeon and S.T. officially divorced on January 27, 2017.
Amended Complaint ¶ 25.
and Johnnie started dating in 2014 and began living together
in September 2014. CAR, ECF No. 25-7 at 1. They were married
on August 22, 2017. Amended Complaint ¶ 26. Johnnie
later filed a new Petition for Alien Relative, on behalf of
Annfyeon in February 2018, seeking to classify Annfyeon as
her spouse. Id. ¶ 27. As part of this
application, S.T. wrote a letter in support under oath,
stating his marriage to Annfyeon was legitimate and bona
fide. Id. ¶ 28. On February 20, 2018, Annfyeon
also filed a new Application to Register Permanent Residence
or Adjust Status. CAR, ECF No. 25-4 at 27.
March 26, 2019, Officer M.B. issued Plaintiffs' a Notice
of Intent to Deny (NOID) letter on the Petition for Alien
Relative. Amended Complaint ¶ 32. The NOID stated the
denial was based on Annfyeon and S.T.'s prior marriage
being a “sham, ” entered into solely for the
purpose of evading immigration laws. Id. ¶ 33.
response to the NOID was due on April 29, 2019. Id.
¶ 37. On April 11, 2019, Plaintiffs requested an
opportunity to inspect the agency's record of proceedings
pursuant to 8 C.F.R. § 103.2(b)(16) (setting forth the
procedure for when a petitioner may inspect the record of
proceeding which constitutes the basis for the decision).
Id. ¶ 40. The agency denied Plaintiffs'
request to inspect the record prior to submitting their
response to the NOID. Id. ¶ 42. On April 25,
2019, Plaintiffs responded to the NOID and the agency
received it on April 26, 2019. Id. ¶¶
response to the NOID included two declarations intended to
rebut the agency's allegations of marriage fraud.
Id. ¶ 45. The first declaration was a statement
from S.T. explaining “he was intoxicated during the
August 2013 interrogation” and “the immigration
officers knew he was intoxicated but interrogated him
anyway.” Id. ¶ 46. S.T.'s declaration
also stated any statement he wrote on the day of the
interview was dictated to him by the officers. Id.
The second declaration was a statement from Annfyeon
“recounting her experience with S.T. the day after
officers interrogated S.T.” Id. ¶ 47.
3, 2019, the agency denied Plaintiffs' Petition for Alien
Relative and Application to Register Permanent Residence or
Adjust Status. Id. ¶ 48. The agency stated it
denied Plaintiffs' Petition for Alien Relative for
abandonment, however, the denial also said the agency
received the two declarations submitted in response to the
NOID on April 26, 2019. Id. ¶ 49. The denial
concluded “no competent objective evidence has been
provided to overcome the NOID.” ECF No. 17-2 at 2.
the second motion for relief under §705 Plaintiffs have
filed in this lawsuit. This Court denied Plaintiffs'
first motion because at that time, the agency had not
rendered a final decision on Plaintiffs' applications and
this Court did not have jurisdiction to provide the relief
Plaintiffs sought. See ECF No. 15.
the agency denied Plaintiffs' petitions, Plaintiffs filed
their second motion (Plaintiffs' Motion) for relief
pursuant to § 705, seeking an order from this Court
delaying “the legal effect of the denials pending
judicial review to maintain the status quo.”
Plaintiffs' Motion at 2. The agency filed a response
(Defendant's Response), and Plaintiffs filed a reply
(Plaintiffs' Reply). This Court held a hearing on
Plaintiff's motion and, with the consent of both parties,
subsequently entered a TRO set to expire on June 7, 2019.
agency lodged the certified administrative record on May 31,
2019. On June 4, 2019, Plaintiffs filed their first motion to
compel completion of the certified administrative record
(first motion to compel). On June 5, 2019, the Court extended
the TRO with the consent of both parties, after the agency
volunteered to provide additional documentation requested by
Plaintiffs in their first motion to compel.
the agency filed additional documents it labeled as a
“supplement, ” Plaintiffs filed a second motion
to compel the agency to complete the record or in the
alternative to allow limited discovery (second motion to
compel). This Court ordered the agency to respond to
Plaintiffs' second motion to compel and with the consent
of both parties extended the TRO to June 24, 2019. After the
agency filed its response, Plaintiffs replied.
Plaintiffs' Motion is styled as a motion for a TRO,
Plaintiffs ask this Court to “delay the legal effect of
the denials pending judicial review to maintain the
status quo [, ]” and their motion cites to
§ 705 and Fed.R.Civ.P. 65. Plaintiffs' Motion at 2.
Therefore, this ...