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Keita v. Barr

United States District Court, E.D. Pennsylvania

October 25, 2019



          Bartle, J.

         Plaintiffs 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”).[1] 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.[2] 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.[3] Before the court are the cross motions of the parties for judgment on the administrative record.


         We 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 2002.

         Keita, 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. § 1151(b).

         On 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 immigration laws.

         Bocoum 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.

         On the 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 I-130 petition.

         The 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.

         Bocoum 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.

         The 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.

         In 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.

         The 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.

         For 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.

         During 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.

         Keita 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.

         The USCIS ultimately denied Keita's I-130 petition on October 10, 2017. Keita appealed to the BIA for de novo review of the USCIS's decision.

         The BIA 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.

         Nonetheless, 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 ...

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