United States District Court, E.D. Pennsylvania
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.
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.
Elfeky's Marriages and Immigration Filings
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 ¶
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.
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.
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.
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.
Revocation of I-360 Petition Approval and Dismissal of I-290B
Motion for Reconsideration
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.
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.
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.
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.
Denials of I-485 and I-602 Applications
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 ...