Singh v. Board of Immigration Appeals et al

MOTION for Summary Judgment . Document

S.D.N.Y.August 5, 2016

Michael E. Piston Piston & Carpenter P.C. Attorneys for the Plaintiff 225 Broadway Ste 307 New York, NY 10007 Phone 646-845-9895 Fax 206-770-6350 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK SUKHWINDER SINGH Plaintiff, vs. BOARD OF IMMIGRATION APPEALS and UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES Defendants. Case No. 15-cv-5541 (PKC) PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDMENT AND CROSS MOTION FOR SUMMARY JUDGMENT Case 1:15-cv-05541-PKC Document 28 Filed 08/05/16 Page 1 of 29 ii TABLE OF CONTENTS INTRODUCTION AND SUMMARY ……………………………………..1 STANDARD FOR SUMMARY JUDGMENT …………………………….2 STATEMENT OF FACTS ………………………………………………….4 ARGUMENT ……………………………………………………………...10 I. BOARD FAILED TO ACT IN ACCORDANCE WITH LAW BY RELYING UPON INFERENCES TO FIND SUBSTANTIAL AND PROBATIVE EVIDENCE OF MARITAL FRAUD ………...10 A. SUBSTANTIAL AND PROBATIVE EVIDENCE OF MARITAL FRAUD CANNOT BE FOUND ON THE BASIS OF INFERENCE ………………………………………..11 B. THE BIA CORRECTLY ADMITTED THAT THE RECORD ONLY SUPPORTS AN “INFERENCE” OF FRAUD ………….11 II. THE USCIS AND BIA COMMITTED LEGAL ERROR BY HOLDING THAT AFFIDAVITS OF INDIVIDUALS REGARDING THE BONA FIDES OF MARRIAGE ARE ONLY CONSIDERED EVIDENCE WHEN THEY ARE SUPPORTED BY “PRIMARY EVIDENCE” ……………………..12 III. THE BOARD COMMITTED LEGAL ERROR BY FINDING THAT THE WITNESSES PROVIDED BY THE PETITIONER WERE INCREDIBLE WITHOUT PROVIDING SPECIFIC, COGENT REASONS FOR THAT FINDING …………………….15 A. THIS COURT IS BARRED FROM CONSIDERING ATTACKS ON THE CREDIBILITY OF THE WITNESSES DECLARATIONS WHEN NONESUCH WERE RAISED BY THE USCIS OR THE BOARD …………………………………16 Case 1:15-cv-05541-PKC Document 28 Filed 08/05/16 Page 2 of 29 iii IV. THE BIA’S DECISION WAS ARBITRARY AND CAPRICIOUS …………………………………………………….18 V. THE BOARD ABUSED ITS DISCRETION BY IGNORING THE PETITIONER’S APPELLATE ARGUMENTS …………………..20 CONCLUSION ……………………………………………………………22 CERTIFICATE OF SERVICE …………………………………………….23 TABLE OF AUTHORITIES CASES Adams v. Kinder-Morgan, Inc., 340 F.3d 1083, 1105 (10th Cir. 2003) ……………………………..12 Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C.Cir.2001) ………………………………..3 American Textile Mfrs. v. Donovan Institute, Inc., 452 U.S. 490, 539 (1981) …………………………………………..17 Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962) ……………………………………...…4,17 Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ………...2 Citizens Against Casino Gambling v. Hogen, No. 07–CV–0451 S, 2008 …………………...………………………2 Connecticut v. United States Dep't of Comm., No. 3:04cv1271 (SRU), 2007 ……………………………………….3 Case 1:15-cv-05541-PKC Document 28 Filed 08/05/16 Page 3 of 29 iv Davis v Frapolly, 756 F Supp 1065 (ND Ill 1991) ……………………………………13 Dugger v. Johnson, 485 U.S. 945, 946 (1988) …………………………………………..20 Gaur v. Gonazalez, 124 Fed. Appx. 738 (3rd Cir 2015) …….………………………….14 Gjondrekaj v. Gonzales, 192 Fed. Appx. 55, 56 (2d Cir. 2006) ……………………………..20 Holcomb v. Iona Coll., 521 F.3d 130, 132 (2d Cir.2008) ……………………………………2 Kanacevic v. INS, 448 F.3d 129, 136 (2d Cir. 2006) ………………………………….16 Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 93 (2d Cir.2001) ………………………………...…3,20 Kyle v. Comm'r of Soc. Sec., 609 F.3d 847, 854 (6th Cir.2010) ………………………………….22 Lara v. Lynch, 2015 U.S. App. LEXIS 10269, *11 (7th Cir. June 18, 2015) ….…..14 McCauley v. First Unum Life Ins. Co., 551 F.3d 126, 131 (2d Cir. 2008) ………………………………….18 Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ………………………………………………..4,17 Riverkeeper, Inc. v. EPA, 358 F.3d 174, 184 (2d Cir. 2004) …………………………………...17 SEC v. Chenery Corp., 332 U.S. 194,196 (1947)…………………………..………………..17 Case 1:15-cv-05541-PKC Document 28 Filed 08/05/16 Page 4 of 29 v Simko v. Bd. of Immigration Appeals, 2015 U.S. Dist. LEXIS 172857, *25 (D. Conn. Dec. 30, 2015) ……11 Sinistovic v. Holder, 429 Fed. Appx. 37, 39 (2d Cir.2011) ………………………………..3 Univ. Med. Ctr. v. Shalala, 173 F.3d 438, 440 n. 3 (D.C.Cir.1999) ……………………………...3 Valdez v. Lynch, 813 F.3d 407, 412 (1st Cir. 2016)………………………..19 Vera-Villegas v. INS, 330 F.3d 1222, 1234 (9th Cir. 2003) ………………………………13 FEDERAL LAW Immigration and Nationality Act Section 204(c) ………………………10,11 FEDERAL REGULATIONS 8 C.F.R. § 103.2(a)(1) ……………………………………………………..15 5 U.S.C. § 701 ………………………………………………………………1 5 U.S.C. § 704 ………………………………………………………………3 5 U.S.C. § 706(2) …………………………………………………………...2 5 U.S.C. § 706(2)(A) ………………………………………………………..3 8 U.S.C. § 1101 …………………………………………………..…………1 8 U.S.C. § 1154(c) ……………………………………...…………9,10,11,21 28 U.S.C. § 1331 ……………………………………………………………1 28 U.S.C. § 1746 ...………………………………………………………...13 FEDERAL RULES Case 1:15-cv-05541-PKC Document 28 Filed 08/05/16 Page 5 of 29 vi Fed.R.Civ.P. 56(a) ………………………………………………….……….2 Fed.R.Civ.P. 56(c)(1) ……………………………………………………….2 ADMINISTRATIVE DECISIONS In re: Abdulla Hassim, A72-657-963, 2006 WL 3922236 (BIA Dec. 28, 2006) …………...11 In re: Fatmata Sankoh, Beneficiary Of A Visa Petition Filed By Alhaji Osman Saccoh, 2006 WL 2427907 (BIA 2006)…………………………...12 Matter of Anselmo, 16 I & N Dec. 152 (BIA 1977) …………………………………….21 Matter of Concepcion, 16 I&N Dec. 10 (BIA 1976) ……………………………………….21 Matter of E-M-, 20 I. & N. Dec. 77 (Comm'r 1989) ………………………………...14 Matter of Patel, 19 I. & N. Dec. 774, 786 (B.I.A. 1988) ……………………………14 Matter of Tawfik, 20 I. & N. Dec. 166, 168 (BIA 1990) ……………………………...11 PUBLICATIONS “Adultery Is Killing the American Family", Canadian Free Press (September 23, 2005) http ://www.canadafreepress.com/2005/tabor092305.htm ……..19 https://www.uscis.gov/sites/default/files/files/form/i-751instr.pdf ..............15 Webster's Third New International Dictionary 1158 (1986) ……………...12 Case 1:15-cv-05541-PKC Document 28 Filed 08/05/16 Page 6 of 29 1 INTRODUCTION AND SUMMARY This is an action brought pursuant to the Administrative Procedure Act, 5 U.S.C. § 701 et. seq., by plaintiff, Sukhwinder Kaur Singh, against the defendants, the Board of Immigration Appeals (BIA or Board), and the United States Citizenship and Immigration Services (USCIS), seeking judicial review of the Board’s decision in File A027 068 449, dismissing Mrs. Singh’s appeal from the decision of the USCIS denying her Form I-130, Petition for Alien Relative, upon behalf of her husband, Balbir Singh. This being a civil action against the United States arising under the Immigration and Nationality Act, 8 U.S.C. § 1101 et. seq., and the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq., both laws of the United States, original jurisdiction over this matter is vested in this Court by 28 U.S.C. § 1331. Sukhwinder Singh hereby cross-motions for summary judgment in her favor. This brief is filed in support of that motion and in opposition to the government’s motion for summary judgment. Inasmuch as the Board 1) failed to act in accordance with law by relying upon inferences to find substantial and probative evidence of marital fraud, by holding that affidavits of individuals regarding the bona fides of a marriage are only considered evidence when they are supported by “primary evidence” and by finding that the witnesses provided by Case 1:15-cv-05541-PKC Document 28 Filed 08/05/16 Page 7 of 29 2 Sukhwinder Singh were incredible without providing specific, cogent reasons for that finding; 2) decided this case in an arbitrary and capricious manner by making numerous findings of fact that were unsupported by substantial evidence and 3) abused its discretion by ignoring numerous of Sukhwinder Singh’s appellate arguments to the Board, the Court should deny the government’s motion for summary judgment and grant summary judgment to Mrs. Singh, hold the Board’s decision denying her petition unlawful and set it aside under 5 U.S.C. § 706(2). STANDARD FOR SUMMARY JUDGMENT To prevail on a motion for summary judgment, the movant must “show[ ] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the burden of demonstrating the absence of a question of material fact. In making this determination, the Court must view all facts “in the light most favorable” to the non-moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Holcomb v. Iona Coll., 521 F.3d 130, 132 (2d Cir.2008). To survive a summary judgment motion, the opposing party must establish a genuine issue of fact by “citing to particular parts of materials in the record.” Fed.R.Civ.P. 56(c)(1). Case 1:15-cv-05541-PKC Document 28 Filed 08/05/16 Page 8 of 29 3 Where, as here, a party seeks review of agency action under the APA and “the entire case on review is a question of law,” summary judgment is generally appropriate. See Citizens Against Casino Gambling v. Hogen, No. 07–CV–0451 S, 2008 WL 2746566, at *25 (W.D.N.Y. July 8, 2008) (quoting Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C.Cir.2001)). More specifically, “[t]he question whether an agency's decision is arbitrary and capricious ... is a legal issue” amenable to summary disposition. Id. (quoting Connecticut v. United States Dep't of Comm., No. 3:04cv1271 (SRU), 2007 WL 2349894 at *1 (D.Conn. Aug. 15, 2007)); see also Univ. Med. Ctr. v. Shalala, 173 F.3d 438, 440 n. 3 (D.C.Cir.1999) (“[T]he question whether [an agency] acted in an arbitrary and capricious manner is a legal one which the district court can resolve on the agency record—regardless of whether it is presented in the context of a motion for judgment on the pleadings or in a motion for summary judgment (or in any other Rule 12 motion under the Federal Rules of Civil Procedure).”). Federal courts have jurisdiction to review “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. However, courts review agency actions under a deferential standard, under which such actions may only be disturbed if they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” § 706(2)(A). An agency abuses its discretion when it fails to present a rational explanation for its decision or if the decision is devoid of any reasoning. See Sinistovic v. Holder, 429 Fed. Appx. 37, Case 1:15-cv-05541-PKC Document 28 Filed 08/05/16 Page 9 of 29 4 39 (2d Cir.2011) (summary order) (citing Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 93 (2d Cir.2001)). For its decision not to be arbitrary and capricious “the agency must examine the relevant data and articulate a satisfactory explanation for its action including a 'rational connection between the facts found and the choice made.'" Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co. 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)). STATEMENT OF FACTS Plaintiff Sukhwinder Kaur Singh is a citizen of the United States, Administrative Record (AR) 246, and a resident of the state of Michigan. AR 236. She married Balbir Singh over 24 years ago on February 6, 1992, AR 317, and they have two adult sons, AR 315 & 316. Balbir Singh is a citizen and native of India, AR 534, who on February 17, 1984 came to the United States as a “seaman”. AR 421. On July 31, 1984 he married a U.S. citizen with the maiden name of Doris McWilliams, AR 543, 584, who is referred to throughout the record as Doris Singh. E.g. AR 327. Balbir and Doris Singh lived together at 521 West 151 St. New York, NY from their marriage until November, 1985 with Anthony Robinson, Doris Singh’s friend and roommate, and thereafter at 1151 Brighton Beach Ave, Apt 2G, Brooklyn, New York. AR 349. Case 1:15-cv-05541-PKC Document 28 Filed 08/05/16 Page 10 of 29 5 On July 24, 1986, Doris Singh filed a petition for alien relative, Form I-130, with the Immigration and Naturalization Service, to classify Balbir Singh as the immediate relative of a U.S. citizen. AR 481. In the course of the consideration of her petition, Doris Singh and Balbir Singh were separately interviewed by an officer of the Immigration and Naturalization Service (INS), at which time they were questioned pertaining to their lives together. AR 376-463. Doris Singh and Balbir Singh provided substantially the same answer to the great majority of those questions. In fact, most of the parties’ statements at the interview were consistent with each other, and contained numerous details that strongly suggested that they were in fact living together. For example: 1. Balbir Singh correctly stated the rent Doris Singh was paying in her first apartment. AR 396, 439. 2. Both agreed that Balbir only moved his clothes to Doris’s apartment immediately following the marriage using the subway (sometimes called the train) the day following their wedding. AR 394-395, 439. 3. Both agreed that they both only moved clothing to their new apartment in Brooklyn using the subway (sometimes called the train). AR 396, 439-440. 4. Both agreed that they subsequently lived in a studio apartment in Brooklyn. AR 396, 440. 5. Both agreed on the amount of the rent Balbir paid in Brooklyn. AR 396, 440. 6. Both agreed that Balbir bought their table & chairs alone. AR 397-398, 444. Case 1:15-cv-05541-PKC Document 28 Filed 08/05/16 Page 11 of 29 6 7. Both agreed that Balbir bought the table& chairs at a used furniture store (Balbir refers to it as selling “almost new” furniture). AR 398, 443. 8. Both agreed that they bought a color TV together. AR 397-398, 444. 9. Both agreed that Anthony Robinson gave them both their rings. AR 400, 445-446. 10. Both agreed that other than the rings they received no wedding presents. AR 400, 446. 11. Both agreed that neither practiced any religion. AR 406, 450-451. 12. Both agreed that Doris smokes Newports and Balbir doesn’t smoke. AR 406, 451. 13. Both agreed that Balbir eats everything. AR 406, 451. 14. Both agreed they had chicken and spaghetti for dinner the day before the interview. AR 407, 451-452. 15. Both agreed that Balbir has tea for breakfast and Doris has cereal. AR 407, 452. 16. Both agreed that Doris prepares Balbir’s tea for him. AR 415, 452. 17. Both agreed that they were not receiving public assistance. AR 404, 450. 18. Both agreed that Doris worked for a few months in 1985. AR 403, 446. 19. Both agreed that Doris lost her job in 1985 because of a conflict with her supervisor. AR 408-409, 452. 20. Both agreed that Balbir was the youngest child in his family. AR 391, 432. Case 1:15-cv-05541-PKC Document 28 Filed 08/05/16 Page 12 of 29 7 21. Both agreed that Doris’s mother had died. AR 418, 430 22. Both agreed that Doris refers to her (great) aunt1 as her mother. AR 418, 430. 23. Both agreed that neither was currently receiving public assistance. AR 404, 450 Further, at least 20 additional questions were asked of Doris Singh at AR 409-418 which were inexplicably not asked of Balbir Singh. 23. What she does during the day. 24. Where she shops for groceries. 25. Where they do laundry 26. Whether they took vacations together or separately. 27. Whether they had ever been separated. 28. What they did the preceding Sunday 29. How many floors in their building in Brooklyn 30. How many elevators in the building. 31. How many of those elevators were working. 32. The location of the fire escape in regards to their apartment. 33. The location of the windows in their apartment. 34. The number of closets in their apartment. 35. The location of those apartments 36. How they came to the USCIS office this morning. 1 Balbir called Doris’s great aunt her “auntie”. AR 430. Case 1:15-cv-05541-PKC Document 28 Filed 08/05/16 Page 13 of 29 8 37. How often Balbir corresponds with his family 38. Whether his family knows if he is married 39. What presents she has given him. 40. What presents he has given her. 41. What they did last Christmas. 42. Whether they put up Christmas decorations. A cursory “investigation” was also conducted by an INS agent at 521 West 151 St. New York, NY on August 11, 1987. The agent claimed to have interviewed a person who believed that Doris Singh lived with Anthony Robinson at that address because she was “in and out” of his apartment. The agent also spoke with someone who claimed to be Anthony Robinson’s father who asserted that Doris Singh lived with Anthony Robinson in “what he (the witness) considers to be a common law marital relationship”. (parenthetical material added). No explanation was provided of what the witness considers a “common law marital relationship” to be, nor were either of the witnesses apparently asked for identification. Not only did the officer make no attempt to speak with Anthony Robinson to confirm or rebut the claims made by the witnesses, but he made no effort whatsoever to investigate Doris and Balbir’s Singh’s testimony that they had been living together since November 1985 at 1151 Brighton Beach Ave, Apt 2G, Brooklyn, New York. AR 357-362. Case 1:15-cv-05541-PKC Document 28 Filed 08/05/16 Page 14 of 29 9 On September 16, 1987 the INS issued a Notice of Intent to Deny Doris Singh’s I-130. AR 350-353. Doris Singh responded to the Notice with an affidavit, AR 348-349, and then the petition was denied by the Director of the New York Immigration and Naturalization Service on December 30, 1987, on the grounds that Doris Singh failed to establish that her marriage to Balbir Singh was entered into in good faith. AR 326-329. On May 14, 1991, Balbir Singh divorced Doris Singh. AR 327-328. Thereafter, on February 6, 1992, Balbir Singh married Sukhwinder Kaur Singh, who then filed a petition for alien relative, Form I-130, with the Immigration and Naturalization Service, to classify him as the immediate relative of a U.S. citizen. Sukhwinder Kaur Singh’s petition upon Balbir Singh’s behalf was approved on May 13, 19922, but subsequently revoked on October 29, 1998 on the grounds that Balbir Singh had previously sought to be accorded an immediate relative status as the spouse of a citizen of the United States (Doris Singh) by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws. AR 302-303. See 8 U.S.C. § 1154(c). Sukhwinder Kaur Singh filed a second petition for alien relative upon Balbir Singh’s behalf with USCIS on August 27, 2004. AR 236-237. This petition was supported by, among other things, detailed declarations from individuals who had known Balbir Singh and Doris Singh during their marriage, which attested 2The record does not appear to contain a copy of her 1992 petition nor the approval notice. However, they are both referred to in the revocation decision. Case 1:15-cv-05541-PKC Document 28 Filed 08/05/16 Page 15 of 29 10 under penalty of perjury to their genuine marital relationship. AR 282-291. These witnesses appeared in person at the petitioner’s interview and were examined by a USCIS officer, who took notes of his conversations with them. AR 292-295. This petition was nevertheless denied by the Director of the USCIS’s Detroit District Office under 8 U.S.C. § 1154(c) on October 20, 2006. AR 209-210. However, on May 12, 2008, the Board of Immigration Appeals remanded the denial back to the Director, instructing her “to consider this petition again and make an independent determination in her decision, supporting her reasons for finding that the beneficiary's prior marriage was fraudulent and that approval of the current visa petition is barred by operation of section 204(c) of the Act”. AR 179. Following this remand, the Director of the USCIS’s Detroit Field Office issued another decision denying Sukhwinder Singh’s petition, this time dated November 6, 2012, again citing 8 U.S.C. § 1154(c). AR 52-65. Sukhwinder Singh appealed this decision again to the Board of Immigration Appeals, and filed an extensive brief attacking numerous aspects of the USCIS’s decision. AR 25-45. Nevertheless, the Board issued a decision affirming the Director’s decision. AR 2-5. This action ensued. ARGUMENT I. BOARD FAILED TO ACT IN ACCORDANCE WITH LAW BY RELYING UPON INFERENCES TO FIND SUBSTANTIAL AND PROBATIVE EVIDENCE OF MARITAL FRAUD Case 1:15-cv-05541-PKC Document 28 Filed 08/05/16 Page 16 of 29 11 A. SUBSTANTIAL AND PROBATIVE EVIDENCE OF MARITAL FRAUD CANNOT BE FOUND ON THE BASIS OF AN INFERENCE In order for a petition to be denied under 8 U.S.C. § 1154(c) the record must show that there is substantial and probative evidence that the beneficiary entered into the marriage for the purpose of evading the immigration laws. However, “a reasonable inference does not rise to the level of substantial and probative evidence requisite to the preclusion of approval of a visa petition in accordance with section 204(c) of the Act.” Matter of Tawfik, 20 I. & N. Dec. 166, 168 (BIA 1990). “In the decades since Matter of Tawfik was decided, the BIA has maintained this policy of requiring direct evidence of fraud in a non-citizen's file to warrant application of the marriage fraud bar. See, e.g., In re: Abdulla Hassim, A72-657-963, 2006 WL 3922236 (BIA Dec. 28, 2006) (unpublished decision) (noting that "[i]nadequate evidence and negative inferences do not meet" the substantial and probative evidence standard). Simko v. Bd. of Immigration Appeals, 2015 U.S. Dist. LEXIS 172857, *25 (D. Conn. Dec. 30, 2015). B. THE BIA CORRECTLY ADMITTED THAT THE RECORD ONLY SUPPORTS AN “INFERENCE” OF FRAUD While often a petitioner’s attorney must analyze the Board’s decision in depth to demonstrate that it was based upon an inference of fraud, here the Board with admirable candor has laid it out quite unequivocally. After summarizing the evidence supposedly supporting a finding that Balbir Singh’s prior marriage was Case 1:15-cv-05541-PKC Document 28 Filed 08/05/16 Page 17 of 29 12 fraudulent, it states “(i)n view of the totality of the circumstances, this inference is sufficient to support a finding under section 204(c) of the Act.” (emphasis added). What is more, the Board is quite correct in concluding that the evidence here supports, at most, an inference of fraud. None of the purported facts upon which the Board relies for its conclusion that Balbir Singh’s prior marriage was for the purpose of evading the immigration laws establishes this conclusion itself, rather, at best, the conclusion that Mr. Singh’s prior marriage was fraudulent is an inference which might be drawn from the inconsistencies between his statement and Doris Singh’s in their interview3 and the vague claims of the residents of 521 West 151 St. that Doris Singh was “in and out” of Anthony Robinson’s apartment or that she had what the purported father of Anthony Robinson “considered to be a common-law relationship” with his son. “An inference is a logical conclusion drawn from the facts. See, e.g., Webster's Third New International Dictionary 1158 (1986) (defining "inference" as "the act of passing from one or more propositions . . . considered as true to another the truth of which is believed to follow from that of the former").” Adams v. Kinder-Morgan, Inc., 340 F.3d 1083, 1105 (10th Cir. 2003). Therefore the Board committed legal error by drawing inferences from the purported “facts” 3 The Board has held that “inconsistencies in responses given at a marriage interview will very rarely meet the substantive and probative evidence standard.” In re: Fatmata Sankoh, Beneficiary Of A Visa Petition Filed By Alhaji Osman Saccoh, 2006 WL 2427907 (BIA 2006). Case 1:15-cv-05541-PKC Document 28 Filed 08/05/16 Page 18 of 29 13 to find substantial and probative evidence of marital fraud. II. THE USCIS AND BIA COMMITTED LEGAL ERROR BY HOLDING THAT AFFIDAVITS OF INDIVIDUALS REGARDING THE BONA FIDES OF A MARRIAGE ARE ONLY CONSIDERED EVIDENCE WHEN THEY ARE SUPPORTED BY “PRIMARY EVIDENCE” The USCIS Director likewise committed legal error by holding that "the affidavits4 of the four individuals regarding their knowledge of the marriage are only considered sufficient evidence of the existence of a valid marriage where they are supported by primary evidence.” AR 64. The BIA repeated this error in its holding that "(a)lthough the petitioner submitted affidavits in support of her petition, the Director reasonably noted that the petitioner needed to submit primary evidence of a shared life together (Dir. dec. at 135)." AR 4. Not only is there no law, statutory, regulatory, judicial or otherwise, providing that affidavits, declarations under penalty of perjury or other testimony cannot be considered in the absence of “primary” evidence that the parties shared a life together, but in fact it is well-established that affidavits, declarations and testimony are evidence and can be sufficient to carry the alien's burden of proof 4 Although the government apparently regrets the USCIS’s characterization of these documents as affidavits, ECF Doc. #23 at 11, nevertheless, regardless of whether they are notarized, the fact that they contain an unsworn declaration under 28 U.S.C. § 1746 which is dated and signed by declarant under penalty of perjury gives them the same force and effect as a sworn affidavit. Davis v Frapolly 756 F Supp 1065 (ND Ill 1991). 5 AR 64. Case 1:15-cv-05541-PKC Document 28 Filed 08/05/16 Page 19 of 29 14 even in the absence of non-testimonial evidence. See Vera-Villegas v. INS, 330 F.3d 1222, 1234 (9th Cir. 2003). ("the decision of the IJ to reject Vera's testimonial evidence because it lacked supporting contemporaneous documentation is unreasonable and contrary to the established method by which we litigate matters in our justice system, including in administrative hearings.), Gaur v. Gonazalez, 124 Fed. Appx. 738 (3rd Cir 2015) (testimony of alien and his grandmother sufficient to carry his burden of proof that that he entered into his marriage in good faith in the absence of admissible evidence to the contrary), Lara v. Lynch, 2015 U.S. App. LEXIS 10269, *11 (7th Cir. June 18, 2015) (If, as the Board assumed, Hernandez testified truthfully, then this testimony alone is enough to prove that his marriage to Winger was more likely than not bona fide); Matter of E-M-, 20 I. & N. Dec. 77 (Comm'r 1989) ("testimony is evidence to be considered in determining eligibility."), Matter of Patel, 19 I. & N. Dec. 774, 786 (B.I.A. 1988) (The evidence submitted by the petitioner to the district director includes affidavits from relatives and business acquaintances. We find the affidavits to be credible and worthy of considerable weight because they are detailed, internally consistent, and plausible; they include explanations of how the affiants acquired knowledge of the facts set forth; and they are corroborated by historical evidence. These sworn statements by people who attended the elaborate wedding ceremony of the petitioner and his first wife and observed them sharing a residence, visiting relatives together, and entertaining guests in their home, provide objective Case 1:15-cv-05541-PKC Document 28 Filed 08/05/16 Page 20 of 29 15 evidence of the conduct of the petitioner and his first wife which is supportive of their subjective bona fide intent at the time of their marriage.). In fact, page 6 of the instructions to Form I-751, Petition to Remove Conditions on Residence, suggests that a petitioner submit as evidence of his good faith marital relationship with his spouse “(a)ffidavits sworn to or affirmed by at least two people who have known both of you since your conditional residence was granted and have personal knowledge of your marriage and relationship.” Instructions for Petition to Remove Conditions on Residence, https://www.uscis.gov/sites/default/files/files/form/i-751instr.pdf. “Instructions on forms are incorporated into the regulations requiring its submission.” 8 C.F.R. § 103.2(a)(1). The USCIS and the Board therefore committed legal error in disregarding the declarations of Sukhwinder Singh’s witnesses to Doris and Balbir Singh’s good faith marital relationship and cohabitation. Since these declarations, if believed, establish that such a relationship exists, and neither the Director nor the BIA have offered any lawful reason not to believe them, this is in itself sufficient to show that Sukhwinder Singh’s husband’s prior marital relationship was bona fide, even if the record contained direct substantial and probative evidence of marital fraud, which of course it does not. III. THE BOARD COMMITTED LEGAL ERROR BY FINDING THAT THE WITNESSES PROVIDED BY THE PETITIONER WERE INCREDIBLE Case 1:15-cv-05541-PKC Document 28 Filed 08/05/16 Page 21 of 29 16 WITHOUT PROVIDING SPECIFIC, COGENT REASONS FOR THAT FINDING Despite the fact that the Board expressly upheld the USCIS Director’s erroneous decision not to even consider the declarations of Sukhwinder Singh’s witnesses, AR 4, it nevertheless once more committed legal error by apparently making a factual finding that petitioner's witnesses were incredible, AR 4 ("The record contains … no credible statements from friends, family members, coworkers, or neighbors regarding their courtship or marital relationship") (emphasis supplied) without providing specific, cogent or in fact any reasons for that finding.6 See Kanacevic v. INS, 448 F.3d 129, 136 (2d Cir. 2006) (for testimony to be found not credible, the tribunal must provide "'specific, cogent reasons for that finding."). Neither the decision of the USCIS nor the Board offers a single reason why the declarations of the witnesses should be disregarded other than the fact that they are not accompanied by “primary” evidence7. Whether this somehow reflects adversely upon the witnesses statements in a manner unexplained by the Board, or the Board has other reasons for not considering the witnesses credible which it simply chooses not to disclose, either way it offers no specific cogent – nor rational 6 Admittedly it is not clear from the BIA’s decision that it made the statement above because it was not considering the witnesses’ declarations without primary evidence or because it found them incredible, or both. Irregardless, all three explanations of the Board’s comments involve legal error and all lead to the conclusion it erroneously disregarded the witnesses’ declarations. 7 Neither the USCIS nor the Board define “primary” evidence. Case 1:15-cv-05541-PKC Document 28 Filed 08/05/16 Page 22 of 29 17 – explanation for finding the witnesses not credible Further, as we will now show, the fact that government counsel now believes that he has discovered discrepancies in those affidavits is entirely immaterial. ECF Doc. # 23 at 22. A. THIS COURT IS BARRED FROM CONSIDERING ATTACKS ON THE CREDIBILITY OF THE WITNESSES DECLARATIONS WHEN NONESUCH WERE RAISED BY THE USCIS OR THE BOARD To quote the Supreme Court "(t)he short -- and sufficient -- answer to (the government's) submission is that the courts may not accept appellate counsel's post hoc rationalizations for agency action. Burlington Truck Lines, Inc. v. United States, 371 U.S., at 168. It is well established that an agency's action must be upheld, if at all, on the basis articulated by the agency itself. Ibid.; SEC v. Chenery Corp., 332 U.S., at 196; American Textile Mfrs. v. Donovan Institute, Inc., 452 U.S. 490, 539 (1981).” Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (U.S. 1983). This is not merely a rule of judicial efficiency but of fundamental fairness. In actions brought under the Administrative Procedure Act, review is limited to the administrative record. Riverkeeper, Inc. v. EPA, 358 F.3d 174, 184 (2d Cir. 2004). Therefore Sukhwinder Singh cannot now submit to this Court additional declarations from her witnesses clarifying whatever purported discrepancies the government's counsel now believes to have discovered in the papers which Sukhwinder Singh provided the government over a decade ago, but which it only Case 1:15-cv-05541-PKC Document 28 Filed 08/05/16 Page 23 of 29 18 now finds fault with. Therefore not only the Chenery doctrine but procedural due process requires that the government be barred from raising in this Court issues which were not raised by the agency in proceeding below when the Sukhwinder Singh could still submit evidence pertaining to them. IV. THE BIA’S DECISION WAS ARBITRARY AND CAPRICIOUS Further, the following findings by the Board were arbitrary and capricious, in that they were unsupported by substantial evidence. McCauley v. First Unum Life Ins. Co., 551 F.3d 126, 131 (2d Cir. 2008).: a) “the evidence show(ed) that the petitioner and the beneficiary did not cohabitate during their marriage” AR3. In fact there is no evidence of such in the record. To the contrary, not only did Balbir and Doris Singh testify that they lived together from the time of their marriage until at least their interview, but their statements were corroborated by the declarations of three witnesses and the fact that they provided consistent answers to 22 questions asked separately of them by an INS officer to determine if they were living together; b) “beneficiary's former spouse, Doris Ann McWilliams, held herself Case 1:15-cv-05541-PKC Document 28 Filed 08/05/16 Page 24 of 29 19 out as married to Mr. Anthony Robinson at the time she purportedly was married to the beneficiary.” Id.. Again the record contains no evidence of the same. The vague and conclusory paraphrasing of the statement of a man who claimed to be Anthony Robinson’s father that Doris Singh “has resided with his son in what he considers to be a common law relationship for approximately the last three years” is not substantial evidence that Doris Singh “held herself out as married to Mr. Anthony Robinson at the time she purportedly was married to the beneficiary” where the witness’s statement is completely lacking in all meaningful detail and in any event it is unspecified what exactly the purported witness “considers to be a common law relationship.”8 The mere fact that another occupant saw Doris Singh “in and out” of Anthony Robinson’s apartment doesn’t even show she was living there much less that she held herself as married to Mr. Robinson. Quite the contrary, her frequenting of his apartment is entirely consistent with her claim that he was such a close friend that she considered him 8To appreciate how meaningless this statement is, one need only imagine how much weight the courts would give an affidavit submitted by Balbir Singh’s father, the complete text of which was “ Balbir Singh and Doris McWilliams had what I considered a marital relationship” without further detail. The answer is none. See, e.g. Valdez v. Lynch, 813 F.3d 407, 412 (1st Cir. 2016) (petitioner’s “bald assertion that his marriage was ‘valid’ does him no good.”). Case 1:15-cv-05541-PKC Document 28 Filed 08/05/16 Page 25 of 29 20 her “brother”. AR 349.9 c) The statements of the INS agent who supposedly questioned a person claiming to be Anthony Robinson’s father and a purported neighbor of Doris Singh were not probative because they were unsupported by foundation, in that the agent did not so much as check the identification of the people he was speaking with. Nor were the agent’s summary of the statements of said witnesses substantial evidence that a reasonable mind might accept as adequate to support a conclusion, due to their vague and conclusory nature, their lack of detail and the failure of the agent to even confirm the witnesses’ identities. V. THE BOARD ABUSED ITS DISCRETION BY IGNORING THE PETITIONER’S APPELLATE ARGUMENTS 9 Nor is evidence that Doris Singh was involved with a man other than Balbir Singh probative evidence that the marriage was a sham. "(S)ex therapist Peggy Vaughan, author of The Monogamy Myth,' conservatively estimates that about 60 percent of married men and 40 percent of married women will have an affair at some time during their marriage. Maggie Scarf, author of 'Intimate Partners,' basically agrees." Tabor, Nathan "Adultery Is Killing the American Family", Canadian Free Press (September 23, 2005) http ://www.canadafre epress.com/2005/tabor092305.htm. Obviously committing adultery cannot be considered evidence of marriage fraud if in fact it is committed by 40% of all (presumably legitimately) married women. Case 1:15-cv-05541-PKC Document 28 Filed 08/05/16 Page 26 of 29 21 It is an abuse of discretion for a tribunal to ignore a party’s argument. Dugger v. Johnson, 485 U.S. 945, 946 (1988), Ke Zhen Zhao v. United States DOJ, 265 F.3d 83, 97 (2d Cir. 2000), Gjondrekaj v. Gonzales, 192 Fed. Appx. 55, 56 (2d Cir. 2006). The Board abused its discretion by failing to even acknowledge, much less respond to, the arguments raised by Mrs. Singh in her appellate brief to the Board, in which she maintained that because the fact that: a. Balbir Singh and Doris Singh answered the vast majority of questions about their lives together correctly was convincing evidence that they did in fact share a life together. AR 31-33 b. The conclusion that Doris and Balbir Singh were not living together during their marriage, to the extent that it relied upon their failure to answer some questions regarding their shared lives in a similar manner, was discredited by the failure of the INS officer who interviewed them to ask Balbir Singh all of the questions she asked of Doris regarding their shared life, thereby depriving the couple of further opportunities to demonstrate the bona fides of their relationship. AR 33-35 c. The failure of the parties to similarly recall the events of their wedding day is not, as matter of law, material to the § 1154(c) bar, since it demonstrating such discrepancies can at worst establish that the parties were never actually married, which means that the § 1154(c) bar would not apply. See Matter of Anselmo, 16 I & N Dec. 152 (BIA 1977) and Case 1:15-cv-05541-PKC Document 28 Filed 08/05/16 Page 27 of 29 22 Matter of Concepcion, 16 I&N Dec. 10 (BIA 1976). AR 36-38. d. The parties’ confusion regarding dates and timeline is not substantial and probative evidence of marital fraud. AR 38. e. The agent’s summary of the statement of someone claiming to be Anthony Robinson’s father is not substantial evidence that Balbir Singh engaged in marital fraud in that it is not evidence “a reasonable mind might accept as adequate to support a conclusion.” Kyle v. Comm'r of Soc. Sec., 609 F.3d 847, 854 (6th Cir.2010) due to the statement’s vague and conclusory nature and lack of detail, as well as the agent’s failure to check his identification. AR 42. CONCLUSION WHEREFORE the plaintiff Sukwinder Singh respectfully requests that this Court hold that the defendants’ denial of her immigrant visa petition upon behalf of Balbir Singh was unlawful and set it aside. Respectfully submitted this 5th day of August, 2016. s/Michael E. Piston Attorney for Plaintiff Piston & Carpenter P.C. 225 Broadway Ste 307 New York, NY10007 Ph: (646)845-9895 Fax: (206)770-6350 Email: michael@piston.net Case 1:15-cv-05541-PKC Document 28 Filed 08/05/16 Page 28 of 29 23 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this date I electronically filed the foregoing with the Clerk of the United States Court of Appeals for the Sixth Circuit using the CM/ECF system, which will send notification of such filing to the following CM/ECF participants: Bryan Lonegan, Assistant United States Attorney Preet Bharara, United States Attorney Dated this 5th day of August, 2016, /s/ Michael E. Piston Michael E. Piston Attorney for Plaintiff Piston & Carpenter P.C. 314 Town Center Drive Troy, MI 48084 (248) 680-0600 Fax (248) 680-0627 michael@piston.net Case 1:15-cv-05541-PKC Document 28 Filed 08/05/16 Page 29 of 29