United States District Court, D. Hawaii
ORDER DENYING APPEAL
DERRICK R. WATSON, UNITED STATES DISTRICT JUDGE
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. Dkt. No. 16 at 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.
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,
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
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.
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.
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 
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
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.
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).
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.
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 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