DIANA JOMAA; GEORGINA RIZK, Plaintiffs-Appellants, v. UNITED STATES OF AMERICA, et al., Defendants-Appellees.
No. 19-1156
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
October 9, 2019
File Name: 19a0261p.06
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). Appeal from the United States District Court for the Eastern District of Michigan at Flint. No. 4:18-cv-12526—Linda V. Parker, District Judge. Before: MERRITT, DAUGHTREY, and GRIFFIN, Circuit Judges.
COUNSEL
ON BRIEF: Nabih H. Ayad, AYAD LAW, PLLC, Detroit, Michigan, for Appellants. Gladys M. Steffens Guzman, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.
GRIFFIN, Circuit Judge.
In this immigration case, Georgina Rizk and her daughter appeal the revocation of Rizk‘s visa petition. The United States Citizenship and Immigration Services (“USCIS“) initially granted the petition without taking into account a previous finding that Rizk had entered into a sham marriage, making her ineligible for a future visa pursuant to
I.
Plaintiff Georgina Rizk is from Lebanon. In 1996, she received deferred admission to the United States as the fiancee of a United States citizen, Mohamed Derbass. Rizk and Derbass married in 1998, and USCIS granted Rizk conditional permanent resident status. When the two divorced in 2001, Rizk “requested a waiver of the requirement to file a joint petition to remove the conditions on residence, Form I-751, based upon the claim that although she had entered the marriage in good faith, the marriage was terminated through divorce or annulment.” An immigration officer interviewed Rizk under oath and gave her the opportunity to submit evidence in support of her request for a waiver. Several statements made by Rizk in that interview—concerning the fatherhood of her children and the whereabouts of her alleged first ex-husband, Mohamed Jomaa—conflicted with previous statements she had made in connection with her divorce proceedings. Additionally,
Ms. Rizk provided no evidence to establish a shared residence with the alleged husband, Mr. Derbass. There also was no evidence presented regarding the commitment of the couple to the marriage, no documentation relating to the degree to which the financial assets and liabilities were combined, and no documentation to establish the length of time of cohabitation.
Based on this lack of evidence and the discrepancies discussed above, USCIS determined that the marriage between Rizk and Derbass “was a sham marriage entered into for the primary purpose of enabling [Rizk] to evade immigration laws and to obtain immigration benefits fraudulently.” USCIS denied Rizk‘s petition with a finding of fraud. Around the same time, Rizk left the United States and returned to Lebanon.
In 2015, Plaintiff Diana Mohamed Jomaa—Rizk‘s daughter and a United States citizen—filed a new I-130 petition on Rizk‘s behalf, “seeking to classify Georgina Rizk as the parent of a United States citizen under 201(b) of [the] INA.” See
Plaintiffs then filed a complaint in the district court, alleging that the Board‘s decision violated the Administrative Procedure Act (“APA“), the due process clause of the
II.
We begin with jurisdiction. “We review a district court‘s findings as to whether it had subject matter jurisdiction de novo.” Mehanna v. USCIS, 677 F.3d 312, 314 (6th Cir. 2012) (citation omitted).
The INA contains a jurisdiction-stripping provision stating that “no court shall have jurisdiction to review” any “decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title.”
The Supreme Court has “admonishe[d] the courts to read the [INA‘s] jurisdiction-stripping provisions narrowly—in ‘accord[ ] with [the] traditional understanding . . . that executive determinations generally are subject to judicial review.‘” Berhane v. Holder, 606 F.3d 819, 822 (6th Cir. 2010) (quoting Kucana v. Holder, 558 U.S. 233, 251 (2010)) (third and fourth alterations and omission in original). It takes clear and convincing evidence to dislodge the well-settled presumption in favor of judicial review. Kucana, 558 U.S. at 251–52. Moreover, the Supreme Court has made clear that
One such discretionary determination comes from
But
Notwithstanding the provisions of subsection (b), no petition shall be approved if (1) the alien has previously been accorded, or has sought to be accorded, an immediate relative or preference status as the spouse of a citizen of the United States or the spouse of an alien lawfully admitted for permanent residence, by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws, or (2) the Attorney General has determined that the alien has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws.
Several circuits “have found the courts retain jurisdiction to review denials of I-130 petitions.” Ginters v. Frazier, 614 F.3d 822, 827–28 (8th Cir. 2010) (citing Ogbolumani v. Napolitano, 557 F.3d 729, 733 (7th Cir. 2009); Ruiz v. Mukasey, 552 F.3d 269, 274–76 (2d Cir. 2009); Ayanbadejo v. Chertoff, 517 F.3d 273, 277–78 (5th Cir. 2008)). More specifically, the Fifth Circuit has
The critical question then is whether USCIS‘s decision to revoke the visa petition after discovering its mistake was a discretionary act. We think not. To be sure, denying a visa petition outright and revoking one that was previously granted are different actions. But our inquiry is not formalistic, as nondiscretionary decisions “are within our purview, even where they underlie determinations that are ultimately discretionary.” Privett v. Sec‘y, Dep‘t of Homeland Sec., 865 F.3d 375, 379 (6th Cir. 2017) (citation and internal quotation marks omitted). And here, USCIS has made it abundantly clear that its decision to revoke the visa petition was primarily “based on”
The government avers that our approach “would . . . encourage USCIS to omit any explanation of its § 1155 decision (including any reference to § 1154(c)), thereby ensuring that it is accorded the full measure of discretion granted to it by Congress in § 1252.” Perhaps. But rewarding its mistake by creating the perverse incentive discussed above would be an undeniably worse outcome. Moreover, federal courts have a “special obligation” to investigate and determine whether they have subject-matter jurisdiction, Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 95 (1998) (citation omitted), especially here, where a strong presumption in favor of judicial review looms over the inquiry, see Kucana, 558 U.S. at 251–52. Thus, we would view any attempt by the government to hide the ball in this manner with a gimlet eye.
Because USCIS‘s decision to revoke the visa petition constituted a nondiscretionary act of error correction, we affirm the district court‘s finding of subject-matter jurisdiction.
III.
Moving to the merits, our review is deferential. While we review the district court‘s dismissal on Rule 12(b)(6) grounds de novo, Pulte Homes, Inc. v. Laborers’ Int‘l Union of N. Am., 648 F.3d 295, 301 (6th Cir. 2011), we will not set aside or hold unlawful an agency action unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,”
Plaintiffs contend that
The BIA acknowledged Concepcion and Christos but held that “where an actual marriage was performed, even though the marriage was bigamous, it is a marriage entered into for the purpose of evading the immigration laws, and section 204(c) applies.” That is, although Rizk was still married to Mohamed Jomaa when she married Mohamed Derbass—and that marriage “was not legally valid under Michigan law,” as the Board found—it still constituted a “marriage” under
Counsel‘s reliance on Matter of Concepcion is misplaced. There we held, for purposes of section 204(c), that no marriage is entered into when the preference status as a spouse of a lawful permanent resident is accorded on the basis of falsified documents rather than actual marriage. Although the beneficiary had profited from the determination that a marriage existed in the same way as if she had entered into a sham marriage, the marriage did not exist and we held that section 204(c) did not apply. Matter of Concepcion is clearly distinguishable from the present case. Here, according to the sworn statements of the beneficiary and his second wife, an actual marriage was performed. Therefore, we conclude that a marriage was indeed entered into and that section 204(c) does apply.
Calilao, 16 I. & N. Dec. at 106.
Plaintiffs contend that this case is more akin to Concepcion and Christos
What‘s more, the district court pointed out that the Board has held its position articulated in this case for quite some time. See Jomaa, 2019 WL 316527, at *3 n.2. In Ferrante v. INS, 399 F.2d 98 (6th Cir. 1968), we quoted the following language from a decision of the BIA:
We are unable to follow counsel‘s reasoning that a marriage which is void because of a prior existing marriage but which was entered into for the same purpose of evading the immigration laws and where no bona fide husband and wife relationship ever existed, or was ever intended, stands in any better position. We conclude that Section 204(c) of the Immigration Act (Section 1154(c), Title 8, U.S.C.) is applicable and that [the] petition for immediate relative status must be revoked by reason of a marriage determined to have been entered into for the purpose of evading the immigration laws.
399 F.2d at 104 (quoting Matter of Ferrante, 12 I. & N. Dec. 166, 169 (BIA 1967)) (internal quotation marks omitted). The Board‘s decision in Calilao, discussed above, tracks as well. 16 I. & N. Dec. at 106.
IV.
Plaintiffs also raise two constitutional claims for the first time on appeal. They argue that USCIS violated the
Plaintiffs did not include these purported constitutional claims in their complaint and never moved the district court for leave to amend. On appeal, it is neither the time nor the place for them to do so. These claims are forfeited and we will not consider them. United States v. Archibald, 589 F.3d 289, 295–96 (6th Cir. 2009); see Swanigan v. FCA US LLC, — F.3d —, 2019 WL 4309672, at *5–8 (6th Cir. 2019).
We are not persuaded by plaintiffs’ attempt to excuse their forfeiture, either. According to plaintiffs, their constitutional claims did not become ripe until the government raised a new argument in its reply brief in support of the motion to dismiss, the district court adopted that argument, and the district court also denied plaintiffs’ motion to supplement the record, thereby depriving them of an opportunity to address it. But that argument—regarding the applicability of Concepcion to subsection 2 of
We also reject plaintiffs’ challenge to the denial of their motion to file supplemental briefing, which we review for abuse of discretion. AES-Apex Emp‘r Servs., Inc. v. Rotondo, 924 F.3d 857, 867 (6th Cir. 2019). Plaintiffs claim that they needed supplemental briefing to address the government‘s newly-raised, reply-brief argument, but the district court noted that it had already “examined and resolved Concepcion‘s application to Plaintiffs’ claims,” so supplemental briefing was unnecessary. Jomaa, 2019 WL 316527, at *4. We find this to be an appropriate exercise of the district court‘s “broad discretion to manage its docket,” Am. Civil Liberties Union of Ky. v. McCreary Cty., 607 F.3d 439, 451 (6th Cir. 2010), as the court made clear that it had carefully considered the issue and, in its judgment, needed no additional briefing from plaintiffs.
V.
For these reasons, we affirm the judgment of the district court.