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Wells v. Cuccinelli

United States District Court, D. South Carolina, Florence Division

June 24, 2019

JOHNNIE WELLS and ANNFYEON WELLS, Plaintiffs,
v.
KEN CUCCINELLI, Acting Director, U.S. Citizenship and Immigration Services, Defendant.

          MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS' MOTION FOR RELIEF PURSUANT TO 5 U.S.C. § 705 AND DENYING PLAINTIFFS' MOTIONS TO COMPLETE THE RECORD

          MARY GEIGER LEWIS, UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Plaintiffs 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.

         Having 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.

         II. FACTUAL AND PROCEDURAL HISTORY

         A. Factual History

         In 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.

         After 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.

         Officer 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.

         On 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.

         In the 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.

         Annfyeon 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.

         On 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.

         Plaintiffs' 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. ¶¶ 43-44.

         Plaintiffs' 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.

         On May 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.

         B. Procedural History

         This is 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.

         After 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.

         The 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.

         After 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.

         Although 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 ...


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