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Hussein Mirjan v. Eric Holder

December 22, 2010

HUSSEIN MIRJAN
v.
ERIC HOLDER, ET AL.



The opinion of the court was delivered by: Ditter, J.

MEMORANDUM AND ORDER

Plaintiff, Hussein Mirjan, seeks judicial review under the Administrative Procedures Act ("APA") of the United States Citizenship and Immigration Services' ("CIS") denial of his applications to adjust his immigration status based on a finding that his marriage to an American citizen was not bona fide. The defendants have filed a motion to dismiss or, alternatively for summary judgment and Mirjan has filed a response. For the reasons that follow, I shall grant the defendants' motion to dismiss.

1. Procedural history

On June 26, 2005, Mirjan, a citizen of Iraq, married Bridget Marie Bossler, a citizen of the United States. Mirjan was in the United States under a valid H1B Visa. In December, 2005, the couple filed petitions to adjust Mirjan's status to that of a lawful permanent resident.*fn1 They were interviewed by a CIS representative on June 29, 2006.

The petitions remained pending through July 2008, prompting the Mirjans to file a mandamus action in this court. Unfortunately, Ms. Bossler-Mirjan died on August 31, 2009. As a result, Mirjan's I-130 (petition for alien relative) was automatically converted to an I-360 (petition for amerasian, widow(er), or special immigrant). After a second interview of Mirjan was conducted on October 22, 2009, CIS issued a notice of intent to deny his petition. Mirjan's reply did not persuade CIS to change its determination and his petition was denied on December 16, 2009. As a result, the mandamus action before me was denied as moot. Mirjan's appeal to the Board of Immigration Appeals was denied on August 13, 2010, and this action followed.

2. Standard of review

A complaint that fails to assert a plausible claim for relief will not survive a motion to dismiss under Rule 12(b)(6). Ashcroft v. Iqbal, 129 S. Ct. 1937, 1940 (2009). The plaintiff must make sufficient factual allegations to raise the right to relief beyond speculation. Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007).

The APA sets forth the standard for judicial review of agency decisions. "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action . . . is entitled to judicial review" of "the record as a whole or those parts of it cited by a party." 5 U.S.C. § 702. The scope of review is limited: an agency decision shall be set aside if its actions are found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).*fn2

A review under the arbitrary and capricious standard is narrow, and a court should not substitute its own judgment. An agency's ruling is arbitrary and capricious if it is contrary to factors Congress intended to be considered, it failed to consider an aspect before it, the decision runs counter to the evidence, or the decision is implausible. Additionally, a reviewing court must look at the reasons articulated by the agency itself at the time of the decision rather than post-hoc rationalizations.

Iredia v. Fitzgerald, 2010 U.S. Dist. LEXIS 76215, *11 (E.D. Pa. 2010) (citing Motor Vehicle Mfrs. Ass'n of U.S. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983)).

In immigration proceedings based on marriage, it is the burden of the applicant to establish eligibility and that the marriage was not "entered into for the purpose of evading the immigration laws." 8 U.S.C. § 1154(c); Iredia, 2010 U.S. Dist. LEXIS 76215, *11. Agency determinations are entitled to deference, and courts do not re-weigh the evidence merely because plaintiff disputes the agency findings. Id. at *12. An agency decision is arbitrary and capricious if the evidence compels a different decision. Id. (citing Ghaly v. INS, 48 f.3d 1426, 1430 (7th Cir. 1995)).

Thus, if the plaintiff fails to establish that the agency decision was arbitrary and capricious, he has failed to state a claim upon which relief can be granted and his complaint must be dismissed.

3. Discussion

To support his claim of a bona fide marriage, Mirjan produced a number of documents including: his marriage certificate; Ms. Bossler's birth and death certificates; copies of bank statements; a copy of a lease from May 1, 2005, through April 30, 2006; joint life, heath and automobile insurance policies; joint tax returns from 2005 through 2008; joint credit card account statements; affidavits of individuals attesting to his marriage; and other bills and photographs. Mirjan and Bossler were interviewed in connection ...


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