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Gatithi v. Board of Immigration Appeals

United States District Court, E.D. Missouri, Eastern Division

August 14, 2019

BOARD OF IMMIGRATION APPEALS and WILLIAM BARR, United States Attorney General, Defendants.



         This matter comes before the Court on Defendants' motion for summary judgment (ECF No. 13) in this case on judicial review of a decision of the Board of Immigration Appeals (BIA). For the reasons set forth below, the Court will grant Defendants' motion.


         In October 2013, Plaintiff Malieka Gatithi filed with the United States Citizenship and Immigration Services (USCIS) an I-130 Petition for Alien Relative seeking to classify her husband, Hilary Gatithi, as an “immediate relative.” USCIS denied the petition on the basis that Mr. Gatithi's previous marriage was a sham, so Plaintiff's I-130 petition was precluded under U.S.C. § 1154(c).[1] Plaintiff appealed to the BIA, which dismissed the appeal. Plaintiff then filed the present petition for judicial review.

         The facts relevant to Mr. Gatithi's previous marriage are as follows. Gatithi married Ms. Robin Jackson in April 2008. In August of that year, Ms. Jackson filed an I-130 petition to classify Gatithi as her “immediate relative.” In support of their application, at their USCIS interview in February 2009, they submitted six wedding photographs, an insurance policy issued to Gatithi, utility bills in both their names, and a one-year residential lease in both names.

         In August 2010, during a USCIS inquiry, officers of the Fraud Detection and National Security Directorate (FDNS) attempted to visit the couple at their last known address but were unsuccessful. They located Jackson at a different address and discovered that Gatithi was not living there, but an unknown male and child were inside the home. Jackson identified the child as hers and the man as the father. She explained that she was living at that address with her own father, as he was ill. Although Jackson said she intended to return to live with Gatithi, she was unable to provide his current address and could not identify his country of origin. Jackson also indicated that her family did not know about her marriage to Gatithi.

         Following the FDNS visit with Jackson, Gatithi contacted an officer and explained that Jackson had been living with her father for a couple of months and that he (Gatithi) visited often, but he was unable to provide the address. He indicated that Jackson's parents had been unable to attend their wedding because Jackson's mother was in the hospital, but they visited afterward to share the news of their marriage. Gatithi could not provide the first names of Jackson's parents.

         FDNS officers also contacted the leasing agent at Gatithi's apartment, who indicated that Gatithi had resided alone there for over a year. His lease application from April 2009 (two months after the couple's UCSCI interview) was co-signed by a different woman, Ms. Eunice Ngure, whose name was subsequently crossed out, and his signed lease agreement dated November 20, 2009, named only himself as lessee.

         About a month after FDNS's investigation, in September 2010, Ms. Jackson withdrew her I-130 application. The couple divorced in June 2012.

         Mr. Gatithi and Plaintiff married on August 26, 2013, after which Plaintiff filed an I-130 petition on Gatithi's behalf. After reviewing the application, USCIS issued a Notice of Intent to Deny (NOID) requiring Plaintiff provide further evidence of the legitimacy of Gatithi's previous marriage to Jackson. In response, Plaintiff provided various documents relating to Gatithi's apartment lease and the first couple's divorce, and affidavits by Plaintiff, Gatithi, and Jackson explaining that Jackson could not answer the FDNS officers' questions correctly because she was intimidated and flustered. Noting several inconsistencies in the affidavits and finding them not credible, USCIS determined that Plaintiff's response was insufficient to rebut its finding of a fraudulent first marriage.

         Plaintiff appealed to the BIA, which found the evidence sufficient to support USCIS's findings and therefore dismissed her appeal. In reaching that result, the BIA relied on Gatithi's lease documents and the lack of credibility in his and Jackson's responses during the FDNS inquiry. The BIA expressly rejected the notion that Jackson was too shaken to accurately answer simple questions.

         In her complaint on judicial review before this Court, Plaintiff contends that the evidence on which the agency relied is not substantial or probative of a fraudulent marriage, and therefore the denial of the petition and subsequent appeal was arbitrary and capricious. Specifically, Plaintiff argues that Gatithi's lease application is not probative because Ms. Ngure might have signed it only to obtain a referral fee and, further, that the lease agreement was not provided to Plaintiff or authenticated by USCIS, violating Plaintiff's due process rights. Plaintiff also argues that the BIA's decision was based on an application that was not an actual lease. Additionally, Plaintiff asserts that Jackson's exchange with FDNS officers should be given little weight because she was intimidated and flustered and under emotional distress at the time. She argues that Jackson's residing with her father and having a child with another man might reflect a bad marriage but does not prove a fraudulent marriage. Finally, Plaintiff asserts that the evidence submitted by Gatithi and Jackson at their initial USCIS interview is sufficient to establish their bona fide marriage, and that the mere shortage of photos or bills does not prove fraud.

         In response to Plaintiff's complaint, Defendants filed the present motion for summary judgment, arguing that the record contains sufficient evidence of marriage fraud, and therefore the agency did not act arbitrarily or capriciously in denying Plaintiff's appeal. Specifically, Defendants note that: Jackson and Gatithi provided unsatisfactory and contradictory answers; the two were not co-habiting; there was no evidence of a life together beyond six wedding photos and three months of utility bills; Jackson had a child with another man; and Jackson withdrew her I-130 petition for Gatithi. Defendants further argue that Plaintiff did not provide sufficient evidence in response to the NOID to rebut the USCIS's finding of fraud. Though Plaintiff claimed that more photos and utility bills existed, she failed to produce them, and Plaintiff's assertion that Jackson's ...

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