Opinion
NO. CIV. S-07-241 LKK/CMK.
November 15, 2007
ORDER
Plaintiff Gary Wolter is a U.S. citizen who filed an immigrant visa petition on behalf of his plaintiff wife, Kyong Hwa Wolter. Defendant, U.S. Citizenship and Immigration Services, denied the petition on the grounds that Mrs. Wolter previously entered into a fraudulent marriage for the purpose of evading immigration laws. Plaintiffs challenge that denial under the Administrative Procedures Act and argue that defendants lacked substantial evidence to support their decision. Pending before the court are cross-motions for summary judgment. The court resolves the matters on the parties' papers and after oral argument. For the reasons explained below, plaintiffs' motion is granted and defendants' motion is denied.
I. Facts
The facts are basically undisputed.
Plaintiff Kyong Hwa Wolter is a South Korean citizen who has brought suit against defendants U.S. Citizenship and Immigration Services (CIS), Acting Attorney General Peter Keisler, Secretary of Homeland Security Michael Chertoff, and Officer in Charge of the CIS at the American Embassy in Seoul, South Korea Jose Olivares. Mrs. Wolter initially entered the U.S. on November 17, 1983. Administrative Record (AR) 109-10; 121-23. She married a man named Johnny Ray Rowe in Texas on March 12, 1984, and later divorced him on February 11, 1985. AR 213; 15. The validity of that marriage is the central subject of dispute between the parties.
On February 21, 1986, Mrs. Wolter, then 21 years old, attempted to enter the U.S. at Las Cruces, New Mexico. AR 42. She was taken into custody and questioned by a Border Patrol agent. The agent then prepared a written sworn statement for Mrs. Wolter to sign. AR 34. The statement indicated that the interview was conducted in English and that no interpreter was used. AR 34-35. Although she was warned that her admissions could be used against her in future proceedings, the warning was also in English. AR 34. According to the statement, Mrs. Wolter admitted that she offered Mr. Rowe $4,000 to marry her and obtain a green card on her behalf. AR 35. She allegedly paid him either $1,500 or $2,000 and was planning on paying him the rest after he obtained the green card, but he never did so. Id.
Mrs. Wolter was detained and placed in deportation proceedings for having stayed in the U.S. without authority. AR 143. Through counsel, she requested release on bond, which was granted, and indicated that she would seek to adjust her status on the basis that she was engaged to marry a man named Jerry Hubble. AR 50-52. The government opposed Mrs. Wolter's attempt to adjust status, citing her sworn statement admitting marriage fraud. AR 142. Although Mrs. Wolter married Mr. Hubble in Nevada on April 18, 1986, AR 216, she failed to submit an application for relief from deportation or appear at the hearing. On September 2, 1986, the immigration judge issued an order of deportation in absentia. AR 195-96.
Mrs. Wolter divorced Mr. Hubble on May 2, 1988. AR 214. She then married plaintiff Gary John Wolter, a U.S. citizen, in South Korea on March 26, 1993. AR 11. Mr. Wolter has filed a series of three (ultimately unsuccessful) I-130 immediate relative alien petitions on behalf of Mrs. Wolter. The first filed on October 15, 1993 was granted but revoked when CIS discovered that the Wolters failed to disclose that Mrs. Wolter had previously been married and ordered deported.
A U.S. citizen may petition for an immigrant visa for an alien spouse by filing an I-130. 8 U.S.C. §§ 1151(b)(2)(A)(i), 1154(a)(1)(A)(i).
The second petition filed on February 4, 1998 properly disclosed the prior marriages and deportation. Nevertheless, CIS issued a notice of intent to deny the petition on the basis that Mrs. Wolter previously entered into a fraudulent marriage and conspired to do so for purposes of evading immigration laws. Plaintiffs responded that Mrs. Wolter's English skills were very poor at the time the sworn statement was taken and that she had been merely told to sign off on the statement. AR 23.
Section 204(c) of the Immigration and Nationality Act provides that "no petition shall be approved if (1) the alien [sought] an immediate relative or preference status as the spouse of a citizen of the United States . . . by reason of a marriage determined by the Attorney General to have been entered into for purpose of evading the immigrations 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 immigrations laws." 8 U.S.C. § 1154(c).
She also submitted two supporting letters. One was from a friend who had known Mrs. Wolter since 1980 and stated that Mrs. Wolter "didn't have any command or understanding of English . . . at the time of her signing the [sworn statement]." AR 27. The second was from a friend who also knew Mrs. Wolter from South Korea and maintains that when she met with Mrs. Wolter in the U.S., Mrs. Wolter still did not know English; indeed, the letter states that Mrs. Wolter did not take English language classes until after the incident in New Mexico when she was detained. AR 29. This second friend also maintains the Border Patrol agents told Mrs. Wolter that if she signed at the places they pointed to on the statement, she could leave. Id.
Of course, this statement is hearsay. In the opposition to defendants' motion for summary judgment, Mrs. Wolter submitted an affidavit indicating the same facts. Aff. of Kyong Hwa Wolter at 1 ("[The Border Patrol agent] said that if I would just initial where he pointed, I could go. I couldn't understand what he was saying, so he showed me what initials were by writing my initials and telling me to do the same. I was coerced into signing my name, and he never showed me what he was writing on paper."). Nevertheless, in adjudicating the pending motions, the court has not relied upon the affidavit, which was not part of the administrative record before the agency and therefore is not properly before the court now.
The second petition was denied on April 18, 2000. Finally, on August 17, 2004, plaintiffs filed their third petition. AR 183-84. On September 19, 2004, CIS issued a notice of intent to deny the I-130 for the same reasons as the second petition, which became final on November 5, 2004. AR 180-81. Mr. Wolter appealed the denial to the Board of Immigration Appeals, who denied the appeal on October 2, 2006. Plaintiffs subsequently filed this action, which seeks declaratory relief.
II. Standard
Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970); Secor Ltd. v. Cetus Corp., 51 F.3d 848, 853 (9th Cir. 1995).
Under summary judgment practice, the moving party
always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the `pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See id. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist.Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); see also First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); Secor Ltd., 51 F.3d at 853.
In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Fed.R.Civ.P. 56(e); Matsushita, 475 U.S. at 586 n. 11; see also First Nat'l Bank, 391 U.S. at 289; Rand v. Rowland, 154 F.3d 952, 954 (9th Cir. 1998). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Owens v. Local No. 169, Ass'n of Western Pulp and Paper Workers, 971 F.2d 347, 355 (9th Cir. 1992) (quoting T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987)), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party,Anderson, 477 U.S. 248-49; see also Cline v. Indus. Maint. Eng'g Contracting Co., 200 F.3d 1223, 1228 (9th Cir. 1999).
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial."First Nat'l Bank, 391 U.S. at 290; see also T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to `pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed.R.Civ.P. 56(e) advisory committee's note on 1963 amendments); see also Int'l Union of Bricklayers Allied Craftsman Local Union No. 20 v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir. 1985).
In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Rule 56(c); see also In re Citric Acid Litig., 191 F.3d 1090, 1093 (9th Cir. 1999). The evidence of the opposing party is to be believed, see Anderson, 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party, see Matsushita, 475 U.S. at 587 (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam)); see also Headwaters Forest Def. v. County of Humboldt, 211 F.3d 1121, 1132 (9th Cir. 2000). Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987).
Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'"Matsushita, 475 U.S. at 587 (citation omitted).
III. Analysis
Plaintiffs challenge the denial of the I-130 petition for alien relative pursuant to the Administrative Procedures Act (APA). The APA permits courts to set aside agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706. The underlying laws at issue here include the statute providing that spouses of U.S. citizens may be issued immigrant visas, 8 U.S.C. § 1151, and the statute directing that visa petitions be denied for fraudulent marriages, 8 U.S.C. § 1154(c).
Applying this standard to the facts of this case, defendants must have had substantial evidence that Mrs. Wolter previously entered into a fraudulent marriage. See Nakamoto v. Ashcroft, 363 F.3d 874, 881 (9th Cir. 2004) (holding that whether marriage fraud has been committed is "an intrinsically fact-specific question, which we review under the substantial evidence standard"); Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305, 1309 (9th Cir. 1984) (the "Service retains at least the burden of producing substantial evidence supporting its determination"); see also 8 C.F.R. § 204.2(a)(1)(ii) (directing denial of visa petitions upon "substantial and probative evidence" of marriage fraud). The agency ordinarily "should not give conclusive effect to determinations made in a prior proceeding" but may, if extant, rely upon "clear, unequivocal, and convincing evidence that [the] beneficiary [of the petition] became a party to a fraudulent marriage." Matter of Tawfik, 20 I. N. Dec. 166 (BIA 1990).
The court may not substitute its judgment for that of the agency, even if it might arrive at a different conclusion. Motor Vehicles Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Rather, when reviewing for sustantial evidence, the duty of the court is to determine whether there is "such relevant evidence that a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison v. NLRB, 305 U.S. 197, 229 (1938).
A.
Defendants raise essentially two arguments: one procedural and one substantive. Turning first to the procedural argument, defendants argue that plaintiffs' present action amounts to an impermissible collateral attack on the deportation proceedings.See Ramirez-Juarez v. I.N.S., 633 F.2d 174, 175-76 (1980) ("an alien cannot collaterally attack an earlier exclusion or deportation at a subsequent deportation hearing, in the absence of a gross miscarriage of justice at the prior proceedings");Tejeda-Mata v. I.N.S., 626 F.2d 721, 726 (9th Cir. 1980) ("There is nothing in the record . . . suggesting that petitioner, who has at all times been represented by counsel, raised the question . . . before either the Immigration Judge or the Board.").
The argument is without merit. Plaintiffs are not challenging — either directly or indirectly — the 1986 order of deportation. Based on the record in existence at the time, and Mrs. Wolter's failure to appear at the deportation hearing, the immigration judge had ample grounds to issue the deportation order, and plaintiffs do not argue otherwise. Instead, what plaintiffs challenge is the factual predicate that underlies both the deportation proceedings and her I-130 petition: the sworn statement purporting to admit marriage fraud. Although plaintiffs did not challenge the admissibility or reliability of that statement in the deportation proceedings, they did challenge the statement in the I-130 proceedings, as reflected in the record. AR 23-30 (plaintiffs' response to notice of intent to deny petition). Accordingly, any suggestion that plaintiffs failed to raise this argument earlier before the agency is incorrect.
Defendants' reliance on Eide-Kahayon v. I.N.S., 86 F.3d 147 (9th Cir. 1996), is also misplaced. There, the petitioner attempted to dispute the allegedly false testimony that she provided at an earlier proceeding. The Ninth Circuit held that she was "collaterally estopped from raising this issue." Id. at 149. Crucially, however, the court noted that it had previously ruled on this issue in a separate appeal, which found that "[t]he BIA's decision [involving her false testimony] [was] supported by substantial evidence." Eide-Kahayon v. I.N.S., 5 F.3d 535 (9th Cir. 1993). Here, as explained below, CIS' denial of the I-130 was not supported by substantial evidence. Moreover, the agency should generally make fresh determinations based on the evidence before it, rather than give conclusive effect to determinations made in prior proceedings. Matter of Tawfik, 20 I. N. Dec. at 168.
B.
Defendants' substantive argument fares no better. The only evidence to support the agency's denial of the petition is Mrs. Wolter's sworn statement. As Mrs. Wolter explained to the agency in a letter, however, her English was very poor at the time. AR 23. This was corroborated by two other letters from people who knew Mrs. Wolter in 1986. AR 27-30. Mrs. Wolter further claimed that the statement was inaccurate, and therefore disavowed its contents. AR 23 ("the `admissions' . . . were neither informed nor accurate"); AR 25 (requesting that the agency "remove the sworn statement").Even under the deferential standard of review this court is bound to apply in reviewing agency actions, this is not substantial evidence. The facts of Guzman-Guzman v. I.N.S., 559 F.2d 1149 (9th Cir. 1977), are instructive. There, the petitioner was a permanent-resident alien charged with being deportable for assisting aliens to enter the U.S. illegally. Id. at 1150. The petitioner had been detained by a California Highway Patrol officer while driving a car with four alien passengers. Id. In due course, all four aliens signed statements written in English indicating that they each paid petitioner $50 to help them enter the U.S. Id. None of the aliens spoke or read English. Id.
At trial, the aliens testified that the statements reflected a misunderstanding about payment and that any payment to the petitioner was intended to be voluntary on their part. Id. Nevertheless, after viewing the demeanor of the aliens, the immigration judge found that petitioner had knowingly assisted the aliens in illegally entering the U.S. Id.
The Ninth Circuit reversed. It held that the statements, "when contradicted by their authors who neither spoke nor read the language in which they were written," could not "clear the demanding barrier of `reasonable, substantial, and probative'" evidence. Id. Similarly, here, Mrs. Wolter could not speak or read English at the time she signed the sworn statement and she has disavowed its contents. AR 23-30. Indeed, her poor command over the English language was corroborated by Mrs. Wolter's acquaintances. Id. Moreover, whereas the immigration judge in Guzman-Guzman at least made a finding based on the demeanor of the witnesses, here, the defendants did not even have the benefit of judging Mrs. Wolter's credibility. Accordingly, like the sworn statements in Guzman-Guzman, Mrs. Wolter's sworn statement also fails to clear the substantial evidence standard.
Presumably, then, the presumption that "public officials perform their duties without motive or interest," Keith v. Volpe, 858 F.2d 467, 481 (9th Cir. 1988), was also inadequate to shield the evidence from attacks on its reliability. In any event, one need not impute improper motives to public officials when it is just as likely (if not more likely) that a public official simply misunderstood the non-English speaker.
Although not controlling here, it is also telling that translation for non-English speakers is key to fundamental fairness in the deportation context. See Tejeda-Mata v. I.N.S., 626 F.2d 721, 726 (9th Cir. 1990) ("this court and others have repeatedly recognized the importance of an interpreter to the fundamental fairness of a [deportation] hearing if the alien cannot speak English fluently"); Perez-Lastor v. I.N.S., 208 F.3d 773, 778 (9th Cir. 2000); Matter of Tomas, 19 I. N. Dec. 464, 465 (BIA 1987) ("The presence of a competent interpreter is important to the fundamental fairness of a hearing, if the alien cannot speak English fluently.").
In sum, the court concludes that reliance on the sworn statement — which was prepared by a third party and then signed by an alien who neither spoke nor read English and who subsequently retracted its contents — does not constitute the substantial and probative evidence needed to uphold the agency's finding of marriage fraud.
IV. Conclusion
For the reasons explained above, plaintiffs' motion for summary judgment (Doc. No. 18) is GRANTED and defendants' motion for summary judgment is DENIED (Doc. No. 17). The clerks' office is directed to enter judgment for plaintiffs and close the case.
IT IS SO ORDERED.