United States District Court, E.D. Pennsylvania
BOUBACAR KEITA, et al.
WILLIAM BARR, et al.
Boubacar Keita and Madina Bocoum bring this action for
declaratory relief under the Administrative Procedure Act
(the “APA”), 5 U.S.C. §§ 701 et
seq., for review of a decision of the Board of
Immigration Appeals (the “BIA”). The BIA denied an
I-130 petition Keita filed with the United States Citizenship
and Immigration Service (the “USCIS”) to adjust
the immigration status of his alien spouse,
Bocoum. Plaintiffs seek to set aside the BIA's
decision, or, in the alternative, remand the matter back to
the BIA for proper consideration under its own standard of
review. Before the court are the cross motions of
the parties for judgment on the administrative record.
begin with the relevant facts in the administrative record
before us. Bocoum entered the United States in 2000 as a
nonimmigrant visitor for pleasure. It is not clear from the
administrative record when Bocoum met Keita. However, birth
records show that they had children together in 2001 and
a native from Mali, was naturalized as a citizen of the
United States on May 28, 2014. Keita was married to Chasidy
Shatrina Davis at the time. He divorced Davis on April 15,
2015. Keita married Bocoum on August 10, 2015, a few months
after his divorce from Davis. On October 16, 2015, Keita
filed an I-130 petition seeking to adjust Bocoum's
immigration status to that of the spouse of a United States
citizen under Section 201(b) of the Immigration and
Naturalization Act (the “INA”), 8 U.S.C. §
February 9, 2016, Keita and Bocoum appeared for an interview
at the Philadelphia Field Office of the USCIS. Philadelphia
Field Office Director Kathleen Bausman issued a notice of the
USCIS's intention to deny (“NOID”)
Keita's I-130 petition on May 24, 2017. Director Bausman
explained that approval of Keita's petition was
prohibited under Section 204(c) of the INA, 8 U.S.C. §
1154(c), because Bocoum previously had married Seyba Diaoune,
another United States citizen, for the purpose of evading
married Diaoune on October 14, 2009. Diaoune also filed an
I-130 on Bocoum's behalf. The USCIS, in connection with
this first petition, interviewed Bocoum and Diaoune. During
separate interviews, conducted under oath on July 7, 2010,
several inconsistencies came to light.
Form G-325A Diaoune submitted with his I-130 petition, he
provided certain background information to the USCIS. Diaoune
stated that since their marriage in October 2009, he lived
with Bocoum in an apartment in Upper Darby, Pennsylvania. He
also stated that he worked for Delta Global at the
Philadelphia Airport. Diaoune also provided a lease agreement
which listed Bocoum and him as co-lessees of the Upper Darby
apartment. However, during the July 7, 2010 interview,
Diaoune admitted under oath that he did not live in the Upper
Darby apartment. Rather, he had been living and working in
Utah since February 2010, two months before he submitted his
USCIS also questioned Diaoune as to why his name and initials
in the lease agreement appeared to be on top of erasures.
Diaoune explained that when Bocoum moved into the Upper Darby
apartment her name replaced that of his former co-lessee,
Soungoutoumba Macalou, on the lease. The USCIS contacted the
landlord at the Upper Darby apartment, Mohammed M. Khan. Khan
stated that Keita (not Diaoune) lived in the Upper Darby
apartment with Bocoum, signed the original lease agreement
and had lived there for several years. The administrative
record contains a single lease for the Upper Darby apartment.
It is from 2006. Keita is the only listed tenant.
and Diaoune were also inconsistent with certain details about
their relationship. For example, Bocoum was unfamiliar with
the dates and duration of Diaoune's extended travel
outside of the United States. When asked what they had given
one another for their most recent birthdays, Bocoum and
Dioune provided separate and contradictory answers.
USCIS issued a NOID informing Diauone of its intention to
deny his I-130 petition. In the NOID, Philadelphia Field
Office Director Evangelia Klapakis explained that Diaoune
failed to prove that his marriage to Bocoum was bona fide.
The NOID detailed the inconsistencies in Diauone's
petition and his July 7, 2010 interview. Diaoune responded to
the NOID explaining that his work in Utah was temporary and
he always intended to return to Pennsylvania. He also
submitted several affidavits from friends and relatives
attesting to the bona fide nature of his marriage to Bocoum.
addition, Diaoune also provided an affidavit from Khan. Khan
stated in the affidavit that he never told the USCIS officers
that Bocoum lived in the Upper Darby apartment with Keita.
Keita lived there alone and moved out in October 2008 just
before Diaoune moved in. Kahn explained that there were
erasures on the lease because he used a form lease he
received from his friend and whited out the names.
USCIS issued a second NOID informing Diaoune that it still
intended to deny Diaoune's petition. One of the
affidavits Diaoune submitted was purportedly signed by Hawa
Traore and notarized in the United States on July 5, 2011.
According to the USCIS's records, Traore was residing in
Africa on July 5, 2011. Other affidavits were from distant
relatives and related to interactions with Bocoum and Diaoune
on the same few days. Finally, the USCIS found that
Kahn's affidavit directly contradicted the statements he
previously made to USCIS officers.
these reasons, the USCIS did not credit the affidavits Dioune
submitted in support of his petition and denied it on July 2,
2014. Diaoune filed an appeal with the BIA, which the BIA
dismissed on February 24, 2015. Keita's divorce from
Davis was finalized less than two months later.
a second investigation into Bocoum's marriage to Diaoune
the USCIS conducted in connection with Keita's I-130
petition, the USCIS determined that Keita was living with
Bocoum during her marriage to Diaoune and was in a romantic
relationship with Bocoum throughout. Keita maintained the
Upper Darby apartment address on his Pennsylvania
driver's license and listed it on his tax returns.
Bocoum's car was also registered in Keita's name at
the Upper Darby address. The USCIS listed these reasons for
denying Keita's petition in the May 24, 2017 NOID.
responded to the May 24, 2017 NOID explaining that he lived
in Georgia during Bocoum's marriage to Diaoune and that
the two maintained only a platonic relationship for the
benefit of their children. Keita submitted several notices
and letters sent to him from the USCIS Atlanta Field Office
between June 2009 and March 2010. On this correspondence, the
USCIS listed an Athens, Georgia address for Keita. Keita also
provided a letter from Hawa Traore and the notary who
witnessed her July 5, 2011 affidavit, Alou Traore. They
explained that they misdated the affidavit.
USCIS ultimately denied Keita's I-130 petition on October
10, 2017. Keita appealed to the BIA for de novo review of the
determined that there was insufficient evidence in the
administrative record to support the USCIS's conclusion
that Keita maintained a romantic relationship with Bocoum
during her marriage to Diaoune. The BIA further accepted that
Keita continued to use the Upper Darby address for tax
purposes so that he could maintain his Pennsylvania
driver's license at a time when he lacked legal
immigration status. Finally, the BIA credited the letters
from Alou and Hawa Traore, accepting that Hawa Traore's
July 5, 2011 was inadvertently misdated.
the BIA found substantial and probative evidence that
Bocoum's marriage to Diaoune was for the purpose of
evading immigration laws. The BIA relied in part on a summary
of findings the USCIS prepared after conducting a site visit
at the Upper Darby apartment on August 2, 2012. Bocoum lied
to the USCIS officers who visited her home. She told them
Diaoune lived at the Upper Darby apartment with her but was
not home because he was at work at the Philadelphia
International Airport. The officers contacted Diaoune's
workplace. He was not on shift at the time of the visit.
During the visit, Bocoum also represented to the ...