United States District Court, D. Delaware
natives married to United States citizens but denied alien
relative status are entitled to know why. Under federal law,
the United States must preview or notice its reasons for
denying citizenship before final denial so the person seeking
relative status can rebut the United States' concerns.
When the United States provides notice of some, but not all,
reasons for denying alien relative status, we must enforce
the fundamental principle of notice and remand to allow the
aspiring citizen to challenge the United States' grounds
for denying alien relative status.
divorcing her first husband David Madison, Ghana native
Ayishatu Abudu married United States citizen Robert Tetteh in
a bona fide marriage. Mr. Tetteh petitioned the United States
Citizenship and Immigration Services for alien relative
status for Ms. Abudu. Immigration Services denied Mr.
Tetteh's petition after finding Ms. Abudu's first
marriage to be a sham. The Board of Immigration Appeals
dismissed Mr. Tetteh's appeal finding substantial and
probative evidence Ms. Abudu and Mr. Madison married to
circumvent immigration laws. The Tettehs sued and now move
for summary judgment seeking an declaring Ms. Abudu's
first marriage is not fraudulent and the United States
violated Mr. Tetteh's due process rights, and directing
the United States to approve the Tettehs' petitions. The
United States responds we must deny the Tettehs' summary
judgment motion, and grant the United States summary
judgment. Most of Mr. Tetteh's objections do not
withstand scrutiny given our deference to the Board of
Immigration Affairs' findings. But because the United
States' final decision relies on derogatory information
not earlier disclosed to the Tettehs, we remand to
Immigration Services for the limited purpose of allowing the
Tettehs to rebut evidence on four issues, outlined below,
relied upon in Immigration Services' 2015 denial but not
identified in its 2013 notice of intent to
Immigration Services denies Ms. Abudu's first
attending college in her native Ghana, Ayishatu Abudu met
United States citizen David Madison in 2013 on a Washington,
D.C. area train. Ms. Abudu and Mr. Madison continued
communicating before Ms. Abudu returned to Ghana to complete
college. After returning to Ghana, Ms. Abudu and
Mr. Madison spoke by phone twice a week and discussed
marriage. Ms. Abudu returned to the United States in
November 2004 and married Mr. Madison on December 14,
their marriage, Ms. Abudu moved in with Mr. Madison who, at
the time, resided in the home of a friend in Woodbridge,
Virginia. Ms. Abudu and Mr. Madison lived there from
November 2004 to September 2005. Ms. Abudu and Mr. Madison
moved from the friend's home into an apartment under a
two-year lease beginning September 13, 2005 and ending
September 13, 2007.
weeks after marrying Ms. Abudu, Mr. Madison filed an I-130
Petition for Alien Relative on behalf of Ms. Abudu, while Ms.
Abudu filed an 1-485 Application for Permanent
Residence. The United States Citizenship and
Immigration Services ("Immigration Services")
interviewed Mr. Madison and Ms. Abudu in January and February
2006. Mr. Madison and Ms. Abudu submitted
documents supporting Mr. Madison's I-130
considering the interviews and documents, Immigration
Services issued a Notice of Intent to Deny Mr. Madison's
I-130 Petition in May 2006 ("May 2006 Notice")
finding the Abudu-Madison marriage fraudulent. The May 2006
Notice identified specific evidence: discrepancies between
Mr. Madison's and Ms. Abudu's interview responses
regarding their residence in Virginia beginning in September
2003 and identification cards issued by Virginia showing
residence in 2005 and 2006; discrepancies in Mr.
Madison's claim he lived in Virginia since September 2003
and information Mr. Madison provided in a biographical form
listing his address in Virginia beginning in November 2004
and a Maryland residence from 1972 to November
2004; discrepancies in Ms. Abudu's
response she works in a Home Depot located in Maryland and a
November 2005 pay stub showing payment of taxes to the State
of Maryland, but not to Virginia; Mr. Madison's
December 2005 bank statement showing all but one of Ms.
Abudu's bank transactions conducted in
Maryland; tax returns submitted by Mr. Madison for
2002 and 2003, while a letter from Mr. Madison's mother
stated she claimed Mr. Madison as a dependent on her 2004 and
2005 tax returns without evidence of the tax
filings; discrepancies in the dates of lease
agreements and addresses for Verizon and T-Mobile
bills; and, discrepancies between Mr.
Madison's and Ms. Abudu's responses to interview
questions regarding the hours worked by Mr. Madison, the
identity of the voice on the couple's answering machine,
when the couple began a sexual relationship, and when Mr.
Madison spoke to Ms. Abudu's mother.
2006 Notice offered Mr. Madison an opportunity to rebut the
derogatory information and submit additional information to
support his I-130 Petition. Immigration Services mailed
the May 2006 Notice to Mr. Madison at his apartment address
in May 2006. The postal service returned the 2006
Notice as undeliverable: "return to sender, attempted -
not known, unable to forward."
contend neither Mr. Madison nor Ms. Abudu ever received the
May 2006 Notice, and, consequently, never responded to it.
Mr. Tetteh contends he did not "review" the May
2006 Notice until approximately three months ago during this
heard nothing from Mr. Madison or Ms. Abudu, Immigration
Services ultimately denied Mr. Madison's I-130 Petition
on November 23, 2009 for the same reasons it articulated in
the May 2006 Notice. Mr. Madison, who by that time divorced
Ms. Abudu, did not appeal this denial.
Immigration Services learns additional information regarding
Ms. Abudu from investigating an Arlington, Virginia marriage
months after the May 2006 Notice, the United States charged
Eric Amoah with conspiracy to commit immigration fraud and
conspiracy to commit money laundering as part of a
large-scale marriage fraud ring. The United States contends
its investigation into a marriage fraud ring operating in the
area of Arlington, Virginia involving immigrants from Ghana
revealed Mr. Amoah's identification of the Abudu-Madison
marriage as one he arranged for the purpose of gaining
immigration benefits for Ms. Abudu. Mr. Tetteh and Ms. Abudu
concede "[t]here is some information in the record that
Mr. Amoah may have arranged the marriage of Ms. Abudu and Mr.
Madison, " but dispute Mr. Amoah assisted Mr. Madison in
preparing the I-130 petition.
Ms. Abudu marries Robert Tetteh.
Abudu and Mr. Madison divorced on September 20, 2007. Three
months later, on December 15, 2007,  Ms. Abudu married Robert
Tetteh. In November 2008, Ms. Abudu notified
Immigration Services she wanted to "cancel" the
I-130 Petition filed on her behalf by Mr. Madison because of
their divorce. Mr. Tetteh then filed an I-130 Petition
for Ms. Abudu in November 2008. Ms. Abudu filed an 1-485
Application for Permanent Residence.
Immigration Services' 2013 Notice of Intent to
Services interviewed Mr. Tetteh and Ms. Abudu in August 2009
and April 2012. On January 8, 2013, Immigration Services
issued a Notice of Intent to Deny Mr. Tetteh's 1-130
Petition ("2013 Notice"). The 2013 Notice explained
the reasons Immigration Services intended to deny the I-130
Petition: Mr. Amoah assisted in preparing Mr. Madison's
I-130 Petition and Ms. Abudu's 1-485 application; Mr.
Amoah's identification of the Abudu-Madison marriage as
one he arranged for purposes of evading immigration laws and
securing a permanent resident card for Ms. Abudu;
discrepancies in Mr. Madison's and Ms. Abudu's
interview responses regarding Ms. Abudu's work schedule,
the identity of the voice on the couple's answering
machine, when the couple began a sexual relationship; and
conflicting documentation submitted by Ms. Abudu regarding
her income taxes, residence history, and work
history. Based on information received from Mr.
Amoah, inconsistent and conflicting testimony of Ms. Abudu
and Mr. Madison, and "the other conflicting information
submitted by [Ms. Abudu], " Immigration Services found
the Abudu-Madison marriage fraudulent.
2013 Notice afforded Mr. Tetteh thirty days to submit
evidence to rebut the intended denial of his I-130 Petition.
Mr. Tetteh and Ms. Abudu responded with documents in February
2013 to rebut the findings including Ms. Abudu's
affidavit; an affidavit of Michael Adu, a coworker of Ms.
Abudu, who attested to the bona fides of her marriage to Mr.
Madison; copies of the leases where Ms. Abudu and Mr. Madison
contend they resided together while married; a letter from
MetLife Financial Services confirming Ms. Abudu had a life
insurance policy naming Mr. Madison as beneficiary; a copy of
a letter from a Maryland Home Depot confirming Ms.
Abudu's employment there; Ms. Abudu's W-2 forms from
Lowe's Home Centers, Inc. and Kmart Corporation in 2005
and 2006; copies of Ms. Abudu's 2005 and 2006 tax returns
filed jointly with Mr. Madison; Ms. Abudu's pay stubs
from Home Depot; and family photographs of Ms. Abudu and Mr.
Immigration Services' 2014 Statement of Findings linking
the Madison-Abudu marriage to the Arlington marriage fraud
Services continued investigating Ms. Abudu. On October 30,
2014, Immigration Services prepared a Statement of Findings
concluding the Abudu-Madison marriage
fraudulent. The investigation into the Arlington
marriage fraud ring yielded nineteen similar characteristics.
The Statement of Findings found the Abudu-Madison marriage
matched thirteen of nineteen identified characteristics of
the Arlington marriage fraud ring. The Statement of Findings
found Mr. Amoah personally identified the Abudu-Marriage as
one he arranged; discrepancies in Mr. Madison's and Ms.
Abudu's 2006 interviews in connection with the first I-
130 petition including the voice on the answering machine;
Mr. Madison's work schedule; whether Mr. Madison met or
spoke with Ms. Abudu's mother; and when the couple became
sexually intimate; discrepant documentary evidence in leases
of the purported marital residences and utility bills; and
pay stubs showing Ms. Abudu paid taxes in Maryland, not
Statement of Findings linked the lease to the first marital
address notarized by Samuel Owusu-Acheampong and co-owned by
James Sakodie, both actors in the Arlington marriage fraud
ring; found the lease for second marital address to be
fraudulent; found Mr. Madison most likely resided in Maryland
during his marriage to Ms. Abudu; and, found Mr. Madison to
have children outside of his marriage to Ms.
Abudu. The Statement of Findings additionally
referred to a November 2014 telephone interview with Mr.
Madison who contradicted many of his responses to his 2006
interviews with Immigration Services. All this
evidence led Immigration Services to conclude, in its
Statement of Findings, fraud in the Abudu- Madison marriage.
Immigration Services' 2015 decision to deny Mr.
Tetteh's 1-130 Petition and the Board of Immigration
January 13, 2015, Immigration Services notified Mr. Tetteh of
its decision to deny his 1-130 Petition under 8 U.S.C.
§1154(c) of the Immigration and Nationality Act (the
"Decision"). Immigration Services considered
documents and testimony of Ms. Abudu and Mr. Madison in 2006,
the admission of Mr. Amoah, evidence submitted with the
filing of Mr. Madison's 1-130 petition, and evidence
submitted by Mr. Tetteh in response to the 2013 Notice.
Immigration Services reviewed the evidence, explaining the
basis of its conclusion. From the evidence gathered in 2006,
Immigration Services cites discrepant documents and testimony
from Mr. Madison's and Ms. Abudu's 2006 interviews
including disagreement on Ms. Abudu's work schedule, the
voice on the answering machine, and, when the couple began a
sexual relationship; conflicting documentation submitted by
Ms. Abudu regarding her income taxes, residence history, and
work history; discrepancies in Mr. Madison's biographical
information form submitted with the I-130 Petition regarding
where and when he resided at identified addresses; bank
statements submitted by Ms. Abudu showing all but one
transaction made in Maryland; and, a letter from Mr.
Madison's mother stating she claimed him as a dependent
on her 2004 and 2005 tax returns even though Mr. Madison
married Ms. Abudu in December 2004.
evidence submitted in connection with Mr. Madison's I-130
Petition and evidence submitted by Mr. Tetteh to rebut the
2013 Notice, Immigration Services cites discrepancies in
where and when Ms. Abudu and Mr. Madison lived when married;
a lease to one purported marital residence notarized by Mr.
Owusu-Acheampong, an individual who provided documentary
evidence to Immigration Services in connection with the
Arlington marriage fraud ring, and co-owned by Mr. Sakodie,
an actor in the Arlington marriage fraud ring; bank
statements showing nearly all transactions in Maryland, not
Virginia, and indicating Ms. Abudu used the bank account
primarily for herself, not Mr. Madison, and not used to pay
household expenses or evidencing significant financial
comingling; discrepancies in Comcast and Verizon bills with
regard to the couple's residence; the Home Depot letter
confirming Ms. Abudu's employment in Maryland does not
support or refute the bona fides of her marriage to Mr.
Madison; the life insurance letter, while tending to support
the bona fides of the marriage to Mr. Madison, does not
require proof of marriage to obtain and is the type of
evidence easily created to create the appearance of a bona
fide marriage; the assertions in Ms. Abudu's affidavit
are at odds with the weight of the evidence in the record and
contradict Mr. Madison's November 2014 phone interview
denying the couple ever had sexual relations, not just the
timing of the couple's sexual relationship as represented
in the 2006 interviews; and Mr. Abudu's affidavit, while
tending to support the bona fides of the Abudu-Madison
marriage, is not sufficient to overcome the derogatory
evidence in the record.
making these findings, Immigration Services in the Decision
concluded "there is substantial and probative
evidence" of a fraudulent marriage between Ms. Abudu and
Mr. Madison "entered into for the primary purpose of
evading the immigration laws, " citing "(1) [t]he
significantly discrepant testimony and evidence submitted by
Mr. Madison and [Ms. Abudu] in connection with the first
1-130 petition; (2) [t]he insufficient evidence submitted to
support that marriage; and (3) [t]he admission by Eric Amoah
to USCIS officers and ICE agents that [Ms. Abudu's] prior
marriage to Mr. Madison was a fraudulent marriage arranged by
Mr. Amoah to circumvent the U.S. Immigration
laws." Immigration Services found the
"weight of the evidence submitted to support [Ms.
Abudu's] marriage to David Madison fails to overcome the
substantial and probative evidence indicating that this
marriage was a fraudulent 'sham' .
Tetteh appealed the Decision to the Board of Immigration
Appeals ("Board"). On appeal, Mr. Tetteh argued
Immigration Services violated 8 C.F.R. § lO3.2(b)(l6)
because he did not have the actual statements from Mr. Amoah
and from Mr. Madison's 2014 interview denying him the
opportunity to rebut the statements. Mr. Tetteh did not
challenge the sufficiency of the evidence. He also did not
raise five of the six challenges to Immigration Services'
reliance on evidence not included in the 2013 Notice but
which he now presents to us. The United States declines to
argue waiver after we asked it for supplemental briefing on
whether Mr. Tetteh waived challenges to the 2015 Decision
based on information not included in the 2013
considering the briefing, and applying a de novo
review to the record, the Board found Mr. Tetteh did not meet
his burden of proving the bona fides of the Abudu-Madison
marriage, and dismissed the appeal. Mr. Tetteh moved to
reconsider the Board's decision where he raised one of
the four grounds relied upon in the Decision but not included
in the 2013 Notice. The Board denied his motion for
reconsideration. The Tettehs then filed this case.
Tettehs seek summary judgment arguing Immigration Services:
(a) denied procedural due process by violating its own
regulations by relying on evidence supporting its 2015
Decision not included in the 2013 Notice; (b) denied Mr.
Tetteh's substantive due process right to right to marry
Ms. Abudu without being separated by "a government
decision"; (c) violated equal protection under the Fifth
and Fourteenth Amendments through 42 U.S.C. § 1985(3);
and (d) the Decision affirmed by the Board is arbitrary and
capricious and violates the Administrative Procedures Act
(the "Act"). In response, the United States argues
its final decision is not arbitrary, capricious, or an abuse
of discretion, and there is no merit to Mr. Tetteh's due
process claims. The United States asks we deny the
Tettehs' motion for summary judgment and enter judgment
in favor of the United States.
review an agency's decision under the Act, we "sit
as a an appellate tribunal and the usual summary judgment
standard does not apply." Under the Act, we "may
only hold unlawful and set aside agency action if it is
'arbitrary, capricious, an abuse of discretion, or
otherwise accordance with the law.'" "This is
a 'deferential standard' that 'presume[s] the
validity of agency action.'" Our scope of
review under the arbitrary and capricious standard is
"narrow" and we do not substitute our own judgment
for that of the agency. We do not "re- weigh the
evidence presented but must determine only if "a
reasonable mind might accept [the evidence] as adequate to
support a conclusion." Agency action is arbitrary and
capricious where "the agency has relied on factors which
Congress has not intended it to consider, entirely failed to
consider an important aspect of the problem, offered an
explanation for its decision that runs counter to the
evidence before the agency, or is so implausible that it
could not be ascribed to a difference in the view or the
product of agency expertise. The reviewing court should not
attempt itself to make up for such deficiencies; we may not
supply a reasoned basis for the agency's action that the
agency itself has not given."
find error in an agency's judgment, "reversal or
remand is warranted only when the error actually prejudices
the party." We must determine whether the
agency's error is harmless. "[A]n agency's
failure to follow its procedural rules may be grounds for
reversal when it results in prejudice or the denial of a
The Immigration and Nationality Act prohibits sham marriages
to obtain alien relative status.
Immigration and Nationality Act prohibits the approval of
I-130 petitions if "(1) the alien has previously been
accorded, or has sought to be accorded, an immediate relative
or preference status as the spouse of a citizen of the United
States or the spouse of an alien lawfully admitted for
permanent residence, by reason of a marriage determined by
the Attorney General to have been entered into for the
purpose of evading the immigration laws, or (2) the Attorney
General has determined that the alien has attempted or
conspired to enter into a marriage for the purpose of evading
the immigration laws."
Services will deny an 1-130 petition where there is
"substantial and probative evidence" of an
"attempt or conspiracy" to enter into a marriage
for the purpose of evading immigration laws. When the
record shows substantial and probative evidence, "the
burden shifts to the petitioner to establish that the
beneficiary did not ...