United States District Court, E.D. California
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Doc. 39) ORDER DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT (Doc. 40)
SHEILA K. OBERTO, Magistrate Judge.
Plaintiffs Amjad Ali Alabed ("Alabed") and Samah Hussein ("Hussein") (collectively, "Plaintiffs") challenge the United States Citizenship and Immigration Service ("USCIS") denial of Hussein's I-130 Petition for Alien Relative on behalf of Alabed. On February 4, 2015, the parties filed cross motions for summary judgment; on February 27, 2015, the parties each filed opposition briefs, and on March 20, 2015, the parties filed reply briefs. (Docs. 39-44.) For the reasons set forth below, Defendants' motion for summary judgment is GRANTED and Plaintiffs' Motion for summary judgment is DENIED.
A. Alabed's 1998 Marriage to Lourdes Murillo and the I-130 Petition for Alien Relative
In May 1998, Alabed entered the United States as a visitor. Before his visitor visa expired in December 1998, Alabed married Lourdes Murillo ("Murillo"). On December 16, 1998, 11 days after Alabed's visitor visa expired (AR 72, 582), Murillo filed an I-130 Petition for Alien Relative ("I-130 Petition") on Alabed's behalf for purposes of immigration and obtaining a relative visa. Between December 1998 and July 2000, Murillo and Alabed offered the following evidence to support the I-130 Petition: (1) an interim driver's license for Murillo; (2) evidence of a joint checking account for Murillo and Alabed; and (3) a copy of a 1999 joint income tax return filed with the IRS on July 13, 2000. (AR 73.)
1. Alabed's Relationship with Guillermina Botello Between 1998 and 2000
In considering Murillo's I-130 Petition on Alabed's behalf, USCIS obtained a law enforcement report from the Fresno Police Department dated January 20, 2000. (AR 583.) In the report, Alabed was identified as the victim of grand theft, and Alabed indicated to the police that his address at the time of the theft was 3313 N. Maple in Fresno, California (the "North Maple apartment"). (AR 583.) Alabed reported the following to the police during the investigation of the theft:
[Alabed] said he left his house on 1/20/00 at 1230 hrs. He returned at 2030 hrs and discovered that property was missing from his house. [Alabed] explained that when he left the apartment, his girlfriend, Gina Bottello [sic], who had just come by to visit, remained at his apartment... [Alabed] speculated that his girlfriend may have taken his property because picture [sic] of him and his girlfriend were ripped up and left on the dresser.
On February 14, 2000, USCIS issued a subpoena to the U.S. Postal Inspectors Office seeking address information related to Murillo and Alabed's past and current residences. (AR 796.) In light of Alabed's statement to the police regarding his relationship with Guillermina Botello ("Botello"), on February 29, 2000, a USCIS special agent went to Botello's place of employment to interview her regarding her relationship with Alabed. (AR 775.) Botello stated that she had been Alabed's girlfriend from May 1998 to December 1999, and that Alabed had asked her to marry him on several occasions, but she had told him she would only marry someone for love. (AR 775-76.) Botello stated she later discovered Alabed had married someone for immigration purposes and had paid her $5, 000. (AR 776.) Botello also stated that she found negatives and pictures of what appeared to be Alabed marrying a Palestinian woman. (AR 776.) When she confronted Alabed about the pictures, he had grabbed her and started to choke her. (AR 776.) The police were called to the scene, but no report was taken. Botello claimed she was later treated at Fresno Community Hospital. (AR 776.) She also claimed that Alabed had been stalking her and threatening her life requiring her to seek a restraining order against him which was issued on February 23, 2000. (AR 776.) Botello showed the investigator the pictures and negatives of Alabed's vacation in Palestine, and stated the investigator could keep them because Botello had no need for them. (AR 777.)
On March 9, 2000, Botello informed the special agent that Botello had a statement from PG&E in Botello and Alabed's names jointly (AR 772), and that she and Alabed were jointly-registered renters at Hollywood Video when they lived together at the North Maple apartment. (AR 773.) The USCIS agent personally served Hollywood Video with a subpoena requesting the existence of "renter information" for Botello and Alabed. (AR 790). The assistant manager checked the record and stated that Alabed and his fiancee Botello had been registered renters since October 31, 1999, and had listed the North Maple apartment as their residence address. (AR 773, 793.) On March 10, 2000, the special agent served PG&E with a subpoena via facsimile requesting subscriber information from November 1999 through present for the North Maple apartment. (AR 770-71.) PG&E faxed information to USCIS showing the dates of service for the North Maple apartment that listed both Botello and Alabed's names and a forwarding address to East Iowa Avenue in Fresno. (AR 778-82.)
On June 28, 2000, USCIS obtained a sworn statement from Botello regarding her involvement with Alabed. (AR 755-60.) Botello claimed that she had started living with Alabed at the North Maple apartment in Fresno in January 2000 (AR 757, ¶¶ 11-12), and that their relationship began in June 1998 (AR 756, ¶¶ 8-9). Botello claimed they were living together in January 2000 because they were planning to marry, and she was "going to" move all her personal belongings into the North Maple apartment. (AR 756, ¶ 10.) Botello also claimed the apartment was rented in the name of Alabed's cousin because Alabed had left his prior residence in poor condition. (AR 756, ¶ 10.) She claimed that the PG&E bill for the North Maple apartment was in both their names. (AR 756, ¶ 10.)
Botello claimed Alabed asked her to marry him in June 1998, she agreed, and they had planned to get married in February 1999. (AR 757, ¶ 13.) Alabed told Botello that he wanted to marry her "as long as the immigration did not know about it." (AR 757, ¶ 13.) She made arrangements at a wedding chapel near Ventura Street in Fresno, but they separated the day after Thanksgiving,  apparently because Alabed would not agree to meet Botello's family. (AR 757, ¶ 13.) The couple ostensibly later reconciled, and Botello claimed they started living together at the North Maple apartment because they planned to marry. (AR 757, ¶ 10.)
Regarding the January 20, 2000, incident in which Alabed was identified as a victim of grand theft, Botello claimed she was cleaning the North Maple apartment, Alabed had a briefcase in a closet, and Botello noticed that there was a paper sticking out. (AR 757, ¶ 15.) Botello pulled on the edge of the paper and out "with it came some negatives." (AR 757, ¶ 15.) She took the negatives into the kitchen, and could tell that Alabed "was in these pictures." (AR 757, ¶ 15.) She took the negatives to be developed, but she was told "they would not have the pictures developed until the next day." (AR 757-58, ¶ 15.) Botello had called Alabed's family to find out when he was going to be home, and upon his arrival at the North Maple apartment, he "let [Botello] into the apartment, " and he noticed that she "was not looking well." (AR 758, ¶ 15.) Alabed then "took [Botello] into the bedroom and covered [her], " and then left to get food. (AR 758, ¶ 15.) After he left, Botello put some of the pictures she found around the apartment. (AR 758, ¶ 15.) Botello put all her belongings in the car and left the apartment. She called her sister and asked her sister to go back to the apartment to "see if the door was open." (AR 758, ¶ 15.) Botello's sister went to the apartment, met Alabed, and was told that "he could not believe that [Botello] would steal from him. He told her he was going to call the police." (AR 758, ¶ 15.) Botello claimed she called the police the next morning to explain what had really happened and that she was not interested in taking anything that belonged to Alabed. (AR 758, ¶ 15.) Three days later, Botello claimed she and Alabed met at a restaurant where he asked for forgiveness and explained that he had married another woman from his country in 1999 because he had pledged to do so in 1993. (AR 758, ¶ 15.)
Botello stated Alabed had asked her four or five times to marry him for $5, 000 in order to "fix his immigration papers, " but she refused to "marry anyone just to fix their immigration papers." (AR 758-59, ¶¶ 18-19.) Botello claimed that "the woman [Alabed] married in October of 1998" had helped Alabed with his immigration status. (AR 759, ¶ 19.) She also claimed that Alabed took a trip to Jerusalem in 1999, which Alabed later told her was for the purpose of marrying the woman to whom he had been pledged since 1993. Botello claimed she did not know that Alabed had gone to Jerusalem to get married until after she found the negatives and the pictures in their apartment. (AR 759-60, ¶ 21.)
2. USCIS' Consideration of Murillo and Alabed's I-130 Petition
On June 29, 2000, USCIS sent a notice by mail to Murillo and Alabed requiring them to appear for an interview before an Immigration Examiner regarding the I-130 Petition. (AR 72.) They appeared on July 14, 2000, and were interviewed separately. During these interviews, Alabed and Murillo gave inconsistent answers to questions regarding their marriage such as where they had lived since their marriage, and gave different answers regarding the details of an international trip Alabed had taken in 1999. Murillo stated the following with regard to their joint addresses:
(AR 583.) Alabed gave the following joint addresses for himself and Murillo:
(AR 583.) When asked questions about Alabed's trip overseas between June and August 1999, Alabed stated that when he returned to the United States, Murillo picked him up at the Los Angeles airport and they both returned to Fresno together. (AR 563.) Murillo stated that three hours before Alabed arrived at their apartment, he had called her to tell her he had arrived and was on his way home. (AR 583.) She stated she did not pick him up at the airport. (AR 583.) When confronted with these inconsistencies, Murillo admitted in a sworn statement that Alabed had paid her $3, 000 to marry him and that they married for the sole purpose of obtaining permanent residence for Alabed. (AR 480-81, 584-85, 807-10.)
On July 20, 2000, USCIS issued a decision denying Murillo's I-130 Petition on behalf of Alabed. (AR 72-75.) The denial was based on the discrepancies in Murillo's and Alabed's responses about their joint residential history and details about Alabed's trip to Palestine in 1999 (AR 72-73); Botello's signed sworn statement indicating she and Alabed had been in a relationship since May 1998, and that he had offered her money to marry him so that he could "fix his immigration papers" (AR 480); and documentation obtained by the agency corroborating Botello's statements consisting of a joint PG&E account for Botello and Alabed from November 1999 through March 2000, and Hollywood Video account information that Alabed and Botello had a joint account from October 31, 1999, to March 10, 2000, listing the North Maple apartment as their address (AR 480).
The USCIS' decision also noted that Murillo had admitted in a sworn statement that her marriage to Alabed was not bona fide, that she had never cared for Alabed, never lived with him, they had never consummated the marriage (AR 73, 808-10), and Murillo agreed to marry Alabed so that he could obtain his permanent residency for which he would pay her $3, 000 (AR 73, 808-10). After receiving the letter from USCIS requiring Murillo and Alabed to appear for an immigration interview, Murillo indicated in her sworn statement that Alabed began trying to locate her and, after threatening Murillo's brother, Alabed found her and they made arrangements to come together to the immigration interview. (AR 73, 810.)
Upon consideration of the evidence, USCIS determined the marriage between Murillo and Alabed was fraudulent. (AR 74-75.) There is no evidence this decision was appealed by Murillo.
B. Alabed's 2004 Marriage and the 2008 I-130 Petition for Alien Relative
In July 2004, Alabed married Samah Hussein ("Hussein"), a citizen of the United States. On June 5, 2008, Hussein filed an I-130 Petition on Alabed's behalf. On February 13, 2009, the USCIS mailed a Notice of Decision denying Hussein's petition to Alabed and Hussein. The denial was based on a determination that Alabed's previous marriage to Murillo was fraudulent. Hussein and Alabed appealed the decision to the Board of Immigration Appeals (the "Board"), and the matter was remanded to USCIS on March 31, 2009, because USCIS had not issued a Notice of Intent to Deny ("NOID") prior to issuing the February 2009 decision.
On September 14, 2010, USCIS again denied the I-130 application, finding that Alabed's previous marriage to Murillo was fraudulent. (AR 207-12.) The decision indicated a NOID had been issued on July 27, 2010, but USCIS had received no response. Plaintiffs again appealed the USCIS decision to the Board. (AR 476-77.) The Board noted that, prior to USCIS' September 2010, decision, a NOID was sent on July 27, 2010, to Plaintiffs at an address in Calabasas, California. (AR 476.) This Calabasas address was the address reflected on several forms submitted by Plaintiffs between March 2009 and October 2010.
On July 27, 2011, Plaintiffs submitted new evidence on appeal, which included a new form with letterhead reflecting an address for Plaintiffs' counsel in Bronx, New York. (AR 476.) The Board determined that "out of an abundance of caution... the record will again be remanded" so that a NOID could be issued to Plaintiffs at the newest address for their counsel, and the parties were given an opportunity to submit additional information and supplement the record with any additional evidence related to Alabed's marriage to Murillo. (AR 477.)
On February 23, 2012, USCIS issued a NOID stating it intended to deny Hussein's I-130 Petition. (AR 478-82.) USCIS again found Alabed's prior marriage to Murillo to be fraudulent and for the purpose of evading immigration laws. (AR 481.) USCIS cited the inconsistencies between Murillo's and Alabed's answers to questions during their separate interviews in July 2000, a police report from January 2000 where Alabed stated Botello was his girlfriend, Botello's sworn statement, PG&E and Hollywood Video evidence corroborating Botello's sworn statement, and Murillo's statement that Alabed had offered her money to marry him and help him obtain permanent residence in the United States. (AR 478-81.) The NOID concluded by offering Hussein the opportunity to submit further evidence to support the I-130 Petition and to address the evidence of marriage fraud USCIS identified. (AR 482.)
On March 22, 2012, Plaintiffs submitted evidence to rebut the evidence of fraud cited by USCIS. ( See AR 494, 537-80.) Plaintiffs submitted a declaration from Murillo, dated February 10, 2012, stating the following in relevant part:
2. I provide this declaration in support of Amjad Alabed.
3. I married Amjad a long time ago. When we were married, I was very young and he was one of my first relationships.
4. I knew that Amjad was cheating on me and it really upset me. I couldn't take it any longer. I made up statements to immigration, so Amjad wouldn't get his papers.
5. In retrospect, I feel really bad about what I did, but I was upset. I felt completely disrespected that Amjad was cheating on me and I wanted to get back at him.
Plaintiffs submitted a February 24, 2012, declaration from Botello that provides in relevant part:
3. [Amjad] never talked about getting married and he never asked me to marry him for money, I knew he was married to Lourdes.
4. When Amjad lived at the Maple street apartments, I used to go visit him there. I did not live there with him. He lived with his wife, although they were having problems and she was never there, that's when we started dating. It was off and on. When him [sic] and his wife were having problems, I would go there.
5. Sometime in January 2000, we had a huge argument about his wife. I got mad and left his apartment. I was so angry that I turned him over to the Immigration.
6. It was not right because we did not talk about marriage, but I guess I was really emotional.
7. Immigration asked me to go to them on June 28, 2000. When I went there, they asked me if I was related to Amjad. I told them that we dated but I was not related to him.
8. They asked me if I knew that he was married and I said no, but that was not the case. I did know that he was married. That was it. I did not say anything else to them.
Plaintiffs submitted an affidavit signed by Gloria Castillo stating the following in relevant part:
That [Alabed] was married to [Murillo]. [Murillo] was my very good friend. I knew her before she met her husband [Alabed]. I met [Alabed] a little bit after they got together. When [Alabed], was married to [Murillo] they would come to my house to visit several times and I went to their house. I remember [Murillo] was very mean to [Alabed]. Sometimes she would talk mean to him and was always speaking Spanish behind his back in front of him, saying he was stupid. I used to feel sorry for him, because he would never say anything to her, even when she would just yell and yell.
Nasser R.A. Rabah signed an affidavit stating the following in relevant part:
[Alabed], was married, at one time to [Murillo]. I know [Alabed] since he was a kid. When [Alabed] was [m]arried to [Murillo] we would frequently go out to dinner and also to the Casino. I also specifically remember going ...