156 F. Supp. 3d 300
D. Conn.2015Background
- Nazar Simko, a Ukrainian national, overstayed his 2001 visitor permission and married U.S. citizen Sherrie Terry in 2006; USCIS earlier denied Terry’s I-130 and Simko’s I-485 for abandonment.
- A USCIS/FDNS fraud investigation (the Salyer Report) identified Terry as linked to an Ohio/Kentucky marriage-fraud ring; the report suggested but did not directly prove Simko’s participation.
- Simko later filed an I-360 (self-petition as an abused spouse) which was denied; he then married Karolina Simko (a U.S. citizen) in 2011 and Karolina filed an I-130 on his behalf.
- USCIS issued a Notice of Intent to Deny Karolina’s I-130, citing the prior fraud referral, circumstantial indicia (e.g., lack of joint documents, vague answers, matching fraud-ring profile), and denied the petition; the BIA summarily affirmed.
- Plaintiffs sued under the APA. The district court reviewed the administrative record under the arbitrary-and-capricious standard and found the agency lacked substantial and probative affirmative evidence of fraud and improperly discounted the rebuttal affidavits; court reversed and directed USCIS to grant the I-130.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the arbitrary-and-capricious or substantial-evidence standard applies | Plaintiffs acknowledged arbitrary-and-capricious likely controls but disputed significance | Defendants urged substantial-evidence or that standard choice is immaterial | Court applied arbitrary-and-capricious (APA §706(2)(A)) because §1154 contains no formal hearing right |
| Whether Simko’s file contained “substantial and probative evidence” of a sham marriage under 8 U.S.C. §1154(c) | The Salyer Report and circumstantial facts do not constitute affirmative evidence in Simko’s file | Agency relied on Salyer Report and circumstantial indicia to infer fraud | Court held agency acted arbitrarily and capriciously: record lacked direct/affirmative evidence required by BIA precedent (reasonable inferences alone insufficient) |
| Whether Karolina’s rebuttal evidence overcame agency’s fraud finding | Karolina submitted multiple sworn affidavits (including from Terry and family), photos, phone bills, and other documentation explaining lack of joint documents | Agency found affidavits lacked discussion of alleged fraud-ring involvement and deemed them insufficient | Court held agency abused its discretion by penalizing petitioner for failing to produce nonexistent evidence and that rebuttal evidence was sufficient to preponderate |
| Appropriate remedy after unlawful agency action | Plaintiffs sought approval or remand for reconsideration | Defendants urged remand for further investigation | Court ordered remand with directions to grant the I-130, finding further investigation futile and no discretion to deny a meritorious I-130 under §1154(b) |
Key Cases Cited
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (scope of arbitrary-and-capricious review)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (summary judgment standards)
- Karpova v. Snow, 497 F.3d 262 (2d Cir. 2007) (arbitrary-and-capricious review of immigration adjudications)
- Ardestani v. I.N.S., 502 U.S. 129 (1991) (relation of APA formal adjudication requirements to immigration statutes)
- Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) (limits on substantial-evidence review and formal hearing contexts)
- United States v. MacPherson, 424 F.3d 183 (2d Cir. 2005) (circumstantial evidence weight)
- Alvarado-Carillo v. I.N.S., 251 F.3d 44 (2d Cir. 2001) (definition of substantial evidence in immigration context)