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Burton v. United States

United States District Court, D. Hawaii

July 10, 2019

STEVE ALLAN BURTON and YASUKO HIRATA BURTON, Plaintiffs,
v.
UNITED STATES OF AMERICA; U.S. CITIZENSHIP AND IMMIGRATION SERVICES; and CHRISTOPHER ROBINSON, HONOLULU FIELD OFFICE DIRECTOR OF USCIS, Defendants.

          ORDER DENYING APPEAL

          DERRICK R. WATSON, UNITED STATES DISTRICT JUDGE

         The Burtons appeal the Board of Immigration Appeals' (“BIA”) March 21, 2018 decision to deny their challenge of the U.S. Citizenship and Immigration Service's (“USCIS's”) denial of an I-130 Visa Petition that Steve filed on behalf of his wife, Yasuko.[1] Dkt. No. 16 at 2.[2] For the reasons set forth below, the Court finds that the BIA did not abuse its discretion in denying the Burtons' challenge. Accordingly, Plaintiffs' appeal is DENIED.

         RELEVANT BACKGROUND

         The Burtons met in Waikiki in April 2003 and developed a personal relationship that has been ongoing for more than 15 years. Dkt. No. 12 at 3. Steve is a United States citizen, while Yasuko is a national of Japan who entered the United States on October 21, 2011 under an M-1 non-immigrant student visa that authorized her stay for a year. Dkt. No. 16 at 8. Yasuko exceeded her authorized stay and “remained in the United States without legal status” by failing to continue to attend school. She was arrested by Immigration and Customs Enforcement (“ICE”) on March 21, 2014. Dkt. No. 12 at 72. A month later, on April 21, 2014, ICE placed Yasuko in removal proceedings. Id. at 122. On the same day, the Burtons married, registering their marriage in Honolulu two days later. Id. at 150, 173.

         On July 25, 2014, Steve filed an I-130, Petition for Alien Relative (the Petition), on Yasuko's behalf under Section 201(b)(2) of the Immigration and Nationality Act (INA), 8 U.S.C. §1151(b)(2). Section 201(b), among other things, accords “immediate relative status to aliens who are the spouse of United States citizens, thus exempting those persons from the restrictions for visa quotas.” Dkt. No. 12 at 71. In filing the Petition then, Steve sought a visa exemption for Yasuko by having her classified as the wife of a U.S. citizen. In support of the Petition, Steve submitted evidence designed to prove the existence of a bona fide marriage.

         On September 11, 2015, the Field Office Director of the USCIS denied the Petition, finding that “the beneficiary [Yasuko] is not clearly eligible for classification under . . . [the provision for petitions for relatives] and [Plaintiffs] failed to establish eligibility for an exemption from the general prohibition against approval of a visa petition filed while in [removal] proceedings.” Dkt. No. 12 at 73. In reaching this decision, the Field Office Director considered the timing of the evidence submitted and found that all the evidence purporting to show the existence of a bona fide marriage was “dated after [the] marriage” and “there was really no commitment [to marry] between [Plaintiffs] until 2014 when [Yasuko] was placed in removal proceedings.” Id. The Field Office Director also found, based on sworn statements taken from Plaintiffs in their separate March 3, 2015 interviews, that Plaintiffs “married because of [Yasuko's] immigration issues.” Id. Those statements along with “all the affidavits and letters submitted were determined as not being convincing to establish eligibility [for the exemption].” Id.

         On October 6, 2015, Plaintiffs appealed the Field Office Director's decision to the BIA. Dkt. No. 17 at 3. The BIA reviewed the decision de novo. Id.; see 8 C.F.R. §1003.1(d)(3)(iii). On May 21, 2018, the BIA dismissed the appeal. In doing so, the BIA determined that Plaintiffs “ha[d] not established by clear and convincing evidence that [their] marriage [was] bona fide.” Dkt. No. 12 at 43.

         The BIA examined the 16 photographs and eight affidavits submitted by the Burtons. The BIA determined, without explanation, that the “16 photos submitted by the [Plaintiffs] have limited probative value.” Dkt. No. 12 at 43. The BIA also determined that “the eight affidavits of the family members and friends of the [Plaintiffs] have probative value; however, such value is limited because the affidavits include few details about the relationship of the [Plaintiffs].” Id. Importantly, the BIA concluded that there was a “dearth of documentation demonstrating that the [Burtons] ha[d] a joint life.” Id. at 44. The BIA found this especially significant given that Plaintiffs had “testified at their [2015] interviews that they have been together since 2003.” Id. Further, notwithstanding Steve's inability to marry Yasuko until the 2009 divorce from his then-spouse was finalized, the evidence failed to “explain why [Plaintiffs] did not marry for the subsequent 5 years and does not explain the lack of evidence of a shared life, such as evidence of commingled finances.” Id. Accordingly, the BIA found that “Plaintiffs submitted insufficient evidence to establish that [their] marriage was entered into in good faith and not for the purpose of procuring the beneficiary's admission as an immigrant.” Id.

         Plaintiffs now appeal the BIA's decision upholding the Field Office Director's denial of Steve's I-130 petition. Dkt. No. 16 at 2. The government filed an opposition (Dkt. No. 17), to which Plaintiffs did not reply. On June 17, 2019, the Court heard oral argument. Dkt. No. 19. This disposition follows.

         LEGAL STANDARDS

         A district court may only set aside a decision by the BIA that the court finds to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. §706(2)(A); Konstantinova v. INS, 195 F.3d 528, 529 (9th Cir. 1999). Abuse of discretion may occur, for instance, when the agency fails to make an individualized determination, fails to consider all relevant factors, or considers irrelevant factors. Virks v. INS, 295 F.3d 1055, 1060 (9th Cir. 2002); Gonzales-Batoon v. INS, 791 F.2d 681, 685 (9th Cir. 1986). The district court must consider the complete administrative record on which the BIA based the challenged decision to determine if an abuse of discretion has occurred. See Fence Creek Cattle Co. v. U.S. Forest Serv., 602 F.3d 1125, 1131 (9th Cir. 2010).

         DISCUSSION

         Plaintiffs seek to overturn the BIA's denial of an appeal from the Field Office Director's decision denying Plaintiffs' Petition. Dkt. No. 16 at 2. The government argues that USCIS and the BIA did not abuse their discretion in denying Plaintiffs' I-130 Petition because Plaintiffs “failed to present clear and convincing evidence that they entered into a bona fide marriage.” Dkt. No. 17 at 10. Because the BIA did not abuse its discretion in denying Plaintiffs' appeal, and the administrative record is insufficient to show by clear and convincing evidence that Plaintiffs entered into a bona fide marriage, Plaintiffs' appeal is DENIED.

         When an alien marries after being placed in removal proceedings, the immigration regulations prohibit granting a spousal visa exemption, except in limited circumstances. 8 C.F.R. §204.2(a)(1)(iii). One such circumstance is where a petitioner shows[3] that the marriage is bona fide. Id. A marriage is bona fide only where the petitioner shows by clear and convincing evidence - generally including the submission of specific documentary evidence - that the marriage was entered into in good faith and not for ...


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