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Elfeky v. Johnson

United States District Court, E.D. Pennsylvania

February 7, 2017

OSAMA “SAM” ELFEKY, Plaintiff,
v.
JEH JOHNSON, Secretary, United States Department of Homeland Security, LORETTA E. LYNCH, Attorney General of the United States, LEON RODRIGUEZ, Director, United States Citizenship and Immigration Services, EVANGELIA KLAPAKIS, Director, Philadelphia Field Office, United States Citizenship and Immigration Services, LAURA B. ZUCHOWSKI, Director, Vermont Service Center, United States Citizenship and Immigration Services, and UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Defendants.

          MEMORANDUM

          DuBois, J.

         I. INTRODUCTION

         This is an immigration case arising out of a series of adverse decisions by the United States Citizenship and Immigration Services (“USCIS” or “Agency”). Plaintiff, Osama Elfeky, challenges four decisions by USCIS related to Elfeky's alleged fraudulent marriage as arbitrary and capricious under the Administrative Procedure Act. Those challenged decisions are (1) the August 26, 2010 revocation of the Agency's approval of the I-360 application, (2) the April 10, 2015 dismissal of the I-290B motion for reconsideration of the Agency's decision to revoke the I-360 approval, (3) the February 17, 2016 denial of the I-485 application seeking to adjust status from asylee to lawful permanent resident, and (4) the February 17, 2016 denial of the I-602 application seeking waiver of inadmissibility. Presently before the Court are the Government's Motion for Summary Judgment and Partial Dismissal and Elfeky's Cross Motion for Summary Judgment. For the reasons that follow, the Court grants in part and denies in part the Government's Motion. The Court denies Elfeky's Cross Motion in its entirety.

         II.BACKGROUND

         The facts of this case as set forth in the parties' briefs and accompanying exhibits are summarized as follows. The facts are not contested except as otherwise noted.

         A. Factual Background

         1. Elfeky's Marriages and Immigration Filings

         Plaintiff Osama Elfeky, an Egyptian citizen, entered the United States using a nonimmigrant visa on September 5, 2000. Defs.' Statement of Facts (“SUMF”) ¶ 1. On August 3, 2001, a month and a half before his visa expired, Elfeky married Kimberly D., a United States citizen. SUMF ¶ 3. Kimberly D. subsequently filed a Form I-130, Petition for Alien Relative, with USCIS seeking to classify Elfeky as the spouse of a United States citizen. SUMF ¶ 4. In connection with that submission, Kimberly D. and Elfeky listed different residential addresses. SUMF ¶ 7. During the same period, Elfeky filed his first Form I-485 application, seeking to register permanent residence or adjust status. SUMF ¶ 8. USCIS scheduled an interview with Elfeky and Kimberly D. to review the I-130 petition and the I-485 application, but both failed to attend. SUMF ¶ 10.

         The manager of Elfeky's apartment building later disclosed that Elfeky lived alone to agents from the United States Department of Homeland Security during an investigation of fraudulent Social Security cards. SUMF ¶¶ 13-14. The manager informed the agents that Elfeky wanted to have his wife added to the lease but the lease was never altered to include her name. SUMF ¶ 15. Agents subsequently visited Elfeky at his apartment and noted that the apartment contained no women's belongings or items. SUMF ¶ 16.

         During his discussion with the agents, Elfeky stated that he and Kimberly D. separated in June 2002. SUMF ¶ 17. According to his admission, Kimberly D. only stayed at the apartment two nights a week for about two or three months prior to their separation. SUMF ¶ 17. In response to the agents' questions, Elfeky was unable to recall his wife's telephone number or her exact address. SUMF ¶ 20. Both the Form I-130 petition and the I-485 application, previously submitted by Elfeky, identified Onsi Malaty as the attorney and preparer of the documents. SUMF ¶ 9. However, Elfeky told agents that he never used Malaty as his attorney. SUMF ¶¶ 18-19. Malaty was subsequently convicted of crimes related to a larger marriage fraud scheme. SUMF ¶¶ 34, 38. Elfeky filed a petition in state court to dissolve his marriage to Kimberly D., and the state court entered judgment dissolving the marriage on September 10, 2003. SUMF ¶¶ 21-22.

         On October 21, 2005, two federal agents interviewed Kimberly D. about her marriage to Elfeky. SUMF ¶ 23. Kimberly D. informed the agents that a woman named Sharon “set up the whole thing” and arranged her marriage to Elfeky so he could remain in the United States. SUMF ¶ 24. According to Kimberly D., she first met Elfeky on the day of their marriage at a notary's office in California. SUMF ¶ 27. Elfeky had his attorney prepare and submit the necessary papers, including the I-130 petition and I-485 application, to USCIS. SUMF ¶ 28. She claimed that Sharon, the marriage arranger, agreed to pay her $1, 000 in exchange for marrying Elfeky. SUMF ¶ 30. Kimberly D. stated that she never lived with Elfeky but sometimes went to dinner and a movie with him to appear as if they were a legitimate married couple. SUMF ¶ 31. Following the interview with the agents, Kimberly D. withdrew her I-130 petition for Elfeky on the basis of marriage fraud. SUMF ¶ 32. In that withdrawal, she wrote, “My marriage to Osama Elfeky was not valid. Sharon paid [me] $1, 000 to marry him. I am withdrawing my petition for to [sic] being married to Osama. I never did live with him.” SUMF ¶ 32. Like Malaty, Sharon was subsequently convicted of crimes related to a larger marriage fraud scheme. SUMF ¶¶ 34, 38.

         On July 12, 2005, Elfeky married Jennifer P., a United States citizen. SUMF ¶ 39. Approximately two years later, on April 11, 2007, Elfeky filed Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, with USCIS seeking to classify himself as the abused spouse of a United States citizen. SUMF ¶ 40. The I-360 petition allows victims of domestic violence to gain immigration status for themselves so their status no longer depends upon their batterer. SUMF ¶ 41. Elfeky subsequently filed a petition in state court to dissolve his marriage to Jennifer P. SUMF ¶ 43. On August 19, 2009, USCIS approved Elfeky's I-360 petition. SUMF ¶ 44.

         1. Revocation of I-360 Petition Approval and Dismissal of I-290B Motion for Reconsideration

         On August 26, 2010, after allowing Elfeky to present evidence and weighing the evidence before it, USCIS revoked its approval of the I-360 petition. SUMF ¶ 50. On September 14, 2010, Elfeky filed Form I-290B, Notice of Appeal or Motion, requesting that USCIS reconsider its revocation of the I-360 approval. SUMF ¶ 51. USCIS concluded that Elfeky failed to provide new facts or reasons to warrant reconsideration and dismissed the I-290B motion pursuant to 8 C.F.R. § 103.5(a)(4) on April 10, 2015. SUMF ¶ 52.

         USCIS also denied Kimberly D.'s I-130 petition and Elfeky's corresponding I-485 application on the basis of marriage fraud. SUMF ¶ 53. Elfeky does not challenge those two denials. SUMF ¶ 53.

         Elfeky then filed an application with USCIS seeking asylum. SUMF ¶ 54. While Elfeky's asylum application was pending, Elfeky sued Kimberly D. in the Superior Court of California, alleging that her statements about marriage fraud were false. SUMF ¶ 60. Kimberly D. and her father failed to respond to the state court complaint, and the state court entered judgment by default against Kimberly D. and in favor of Elfeky in the amount of $152, 500. SUMF ¶¶ 62-63.

         On August 21, 2012, the immigration judge granted Elfeky asylum in the United States. SUMF ¶ 64. On January 26, 2014, Elfeky filed a second I-485 application. SUMF ¶ 65. At the same time, Elfeky also filed Form I-602, Application by Refugee for Waiver of Grounds of Inadmissibility, seeking to have USCIS waive the “perceived” marriage fraud with Kimberly D. as a ground for rendering him inadmissible. SUMF ¶ 66. In support of his I-602 application, Elfeky asserted that the Superior Court of California made a judicial finding that Kimberly D.'s description of the marriage to agents was false and that investigatory agents coerced her into providing false details about the marriage. SUMF ¶¶ 67, 70.

         2. Denials of I-485 and I-602 Applications

         On October 19, 2015, USCIS issued Notices of Intent to deny Elfeky's second I-485 and I-602 applications and summarized the evidence before the Agency. SUMF ¶¶ 71-72. USCIS concluded that Elfeky's assertion that his marriage was legitimate was not credible for a number of reasons. SUMF ¶ 74. First, Kimberly D.'s statements about engaging in marriage fraud were against her self-interest and subjected her to criminal penalties. SUMF ¶ 74. Second, Kimberly D.'s description of the events surrounding her marriage was consistent with details from a larger marriage fraud investigation in the same city. SUMF ¶ 74. Third, the Agency discounted Elfeky's allegations of coercion by federal agents, reasoning that Kimberly D. described her marriage in front of a co-worker and two federal agents, and the Agency received no complaints to suggest that the agents had acted ...


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