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Concha v. Duke

United States District Court, E.D. Pennsylvania

May 15, 2018

ELAINE C. DUKE, et al.


          BARTLE, J.

         Plaintiff Jorge Medina Concha, a citizen of Peru, brings this action for review of a decision by the United States Citizenship and Immigration Services (“USCIS”) which denied Concha's Form I-360 immigration petition under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq. Before the court is the motion of defendants for judgment on the administrative record.[1]


         We begin with the relevant facts of the administrative record before us. Concha, as stated above, is a citizen of Peru. He entered the United States in 2004 on a tourist visa. On July 24, 2010, Concha married Iris Janette Baez, a United States citizen. Shortly after their marriage, Baez filed a Form I-130 petition on behalf of Concha to adjust his immigration status.

         According to Concha, during the first two years of his marriage “things were going well” and “he felt they were happy.” Unfortunately, that happiness ended in August 2012 when Concha discovered his wife in their bed with a woman. Thereafter, Concha also discovered that Baez had lied to him about her finances and her ability to have children. As a result of this betrayal, Concha became depressed and suffered from insomnia and nightmares. Concha moved out of his home with Baez in October 2012.

         Thereafter, USCIS officials visited the home Baez and Concha had shared. They discovered that Concha had left, and that the woman had moved into the home with Baez. At USCIS's request, Baez withdrew the Form I-130 she had filed on Concha's behalf.

         In April 2013, Concha filed a Form I-360 self-petition seeking classification as an abused spouse of a U.S. citizen under the Violence Against Women Act (“VAWA”). In support of his self-petition, Concha submitted a psychological evaluation by Damaris Torres, a licensed marriage and family therapist. Torres stated that Concha had discovered Baez engaged in an extramarital affair and that Concha had developed depression as a result. Concha also included a second psychological evaluation by Dr. Mary Ellen McMonigle, a licensed psychologist. McMonigle diagnosed Concha with major depressive disorder and symptoms consistent with post-traumatic stress disorder brought on by his wife's infidelity.

         USCIS denied Concha's Form I-360 in a letter from its Vermont Service Center Director dated February 21, 2014. The agency explained that “[m]arital tensions and incompatibilities such as apathy toward the relationship by one party, infidelity or substance abuse of a spouse, which place strains sometimes severe enough to result in a marriage's disintegration, do not by themselves, constitute extreme cruelty” under VAWA. It further explained to Concha “[t]he fact that your spouse was engaged in an affair is an unkind act. However, not every unkind act constitutes extreme cruelty, as that term is defined in U.S. immigration law.”

         Concha filed a second Form I-360 on March 30, 2015. In support, he submitted a supplemental evaluation by Torres, who opined that “[i]nfidelity is a form of extreme cruelty because it can be as devastating as a physical attack.” Torres further stated:

Infidelity is abuse because the characteristics of the unfaithful are like those of a batterer and the symptoms of the victims are like those of the battered. Infidelity is a complex traumatic form of emotional abuse that causes its victims, isolation, humiliation, danger of sexually transmitted diseases and can cause Post-traumatic stress disorder and depression on its victims.

         Torres also reported that Baez had emotionally abused and manipulated Concha by lying to him about finances and her willingness to have children.

         USCIS denied the second Form I-360 on November 30, 2015. The agency explained: “while USCIS does not discredit your therapist's finding, the determination of what actions or behaviors constitute extreme cruelty for immigration purposes generally differs from the subjective application of the definition of extreme cruelty for psychological or medical purposes.” It further found that “the fact that [Baez] lost interest in the marriage and engaged in an affair is not extreme cruelty for immigration purposes. The actions described by [Concha] represent a disintegration [of] marriage and congressional intent did not encompass the mental anguish generally associated with marital difficulties such as infidelity.”

         Concha then appealed the denial of his second Form I-360 to the USCIS Administrative Appeals Office (“AAO”). See 8 C.F.R. § 103.3. After conducting a de novo review, the AAO dismissed Concha's appeal because the evidence in the record “does not demonstrate that [Concha] was subjected to battery or extreme cruelty.” The AAO further stated that his wife's extramarital affair affected Baez emotionally but did “not demonstrate that [Concha] was the victim of violent acts or an overall pattern of violence, such as sexual abuse, forced prostitution, forceful detention, or other acts or threats of violence amounting to battery or extreme cruelty as defined in 8 C.F.R. § 204.2(c)(1)(vi).”

         Concha thereafter filed a motion with the AAO to reconsider its decision and/or to reopen. In support, he submitted a letter from Torres asserting that Baez inflicted “psychological abuse” on Concha by: (1) lying to Concha about her desire to have children and her ability to conceive; (2) lying to Concha about her finances and thereby manipulating Concha to pay for half of her expenses and to buy her a new car; and (3) humiliating Concha by having an affair with a woman. The AAO denied the motion on April 12, 2017. It concluded that the evidence submitted by Concha did “not establish that the lies by [Baez] amount to psychological or sexual abuse or exploitation, or are similar to specific acts of qualifying abuse cited in the regulation, such as acts or threated acts ...

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