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Nyanjega v. Douglas

United States District Court, D. Minnesota

March 13, 2019

Gertrude Nyanjega and Duba Roba, Plaintiffs,
Douglas, et al., Defendants.

          Gertrude Nyanjega and Duba Roba, pro se.

          Friedrich A. P. Siekert, United States Attorney's Office, for Defendants.



         This matter comes before the Court on the objections (“Objections”) [Doc. No. 122] of Plaintiffs Gertrude Nyanjega and Duba Roba to Magistrate Judge Steven Rau's Report and Recommendation (“R&R”) [Doc. No. 120] recommending that this Court grant Defendants' Motion to Dismiss and for Summary Judgment [Doc. No. 103] and deny Plaintiffs' Motion to Compel Discovery [Doc. No. 97]. The Court overrules Plaintiffs' Objections, adopts the R&R in full, grants Defendants' Motion to Dismiss and for Summary Judgment, and denies Plaintiffs' Motion to Compel Discovery.

         I. Background

         A. Factual History

         On December 2010, Plaintiff Roba arrived in the United States on a B-2 tourist visa from Nairobi, Kenya, where he was born. ((Certified Admin. Record (“CAR”) [Doc. No. 79-3] at 325, 333, 546, 578.)[1] Roba stated that he intended to stay with a “friend, ” Nyanjega, [2] during his trip, visit the Grand Canyon, and then leave after one month. (Id. at 578.) Nyanjega paid for his trip to the United States. (Id.)

         Five months later, on May 18, 2011, Roba married Safia Sheikh Adan in St. Paul, Minnesota.[3] ([Doc. No. 79-2] at 67; [Doc. No. 79-3] at 303, 306, 325, 333.) On July 27, 2011, Adan filed a Form I-130 (Petition for an Alien Relative) on Roba's behalf and Roba filed a Form I-485 (Application to Register Permanent Resident or Adjust Status). ([Doc. No. 79-2] at 68; [Doc. No. 79-3] at 333-34, 485-90.) On December 1, 2011, Roba and Adan were interviewed in connection with Adan's I-130 petition. ([Doc. No. 79-2] at 68; [Doc. No. 79-3] at 326-31.)

         During the investigation into Roba and Adan's marriage, United States Citizenship and Immigration Services (“USCIS”) found a number of red flags. Specifically, Roba submitted different residence histories to his employers and on rental applications than he submitted, either verbally or in writing, to USCIS. ([Doc. No. 79-2] at 74.) Adan never added Roba to any of her leases and never listed him as an emergency contact or a designee to receive her belongings. (Id. at 69-71.) There were also a number of inconsistencies in the separate interviews of Roba and Adan including in regard to Adan's prior marriages, the location of her children, her divorces, the timing and circumstances of her entry into the United States, where Roba lived upon entry to the United States, during his time in Seattle, and during his first visit to St. Paul, Roba's siblings, and Roba's employment situation. (Id. at 68.) USCIS also found no evidence of co-ownership of property or commingling of financial resources. (Id. at 69.)

         On August 28, 2013, USCIS officers conducted a site visit at 2511 Portland Avenue South, Apartment 313, in Burnsville, Minnesota-Roba's last known residence. ([Doc. No. 79-2] at 71; [Doc. No. 79-3] at 570.) During that visit, Roba stated that he and Adan were still cohabiting, despite having initiated divorce proceedings.[4] ([Doc. No. 79-2] at 73; [Doc. No. 79-3] at 566.) However, in his application for that apartment, Roba listed Nyanjega as his spouse and Nyanjega registered her Minnesota driver's license and vehicle to that address. ([Doc. No. 79-2] at 72; [Doc. No. 79-3] at 565.) Additionally, Nyanjega answered the door to the apartment and USCIS officers saw mail addressed to Nyanjega on the table. (Id.)

         On October 8, 2013, USCIS issued a Statement of Findings (“SOF”) that Roba had committed fraud in his and Adan's I-130/I-485 applications. ([Doc. No. 79-2] at 74.) More specifically, USCIS found that Roba had been living with Nyanjega since his arrival in 2010. (Id. at 76.) As a result, on November 12, 2013, USCIS mailed Adan a Notice of Intent to Deny (“NOID”) her I-130 petition. (Id. at 3, 74, 294-302.) After Adan failed to respond, USCIS denied Adan's I-130 petition on December 20, 2013 and subsequently denied Roba's I-485 application on December 27, 2013. (Id. at 74.) Denial notices were mailed to both Roba and Adan, and their attorney of record, Daniel Brown. ([Doc. No. 79-2] at 3, 74, 282-93; [Doc. No. 79-3] at 493-94.) Neither party appealed the decision.

         On September 24, 2013, Roba and Nyanjega were married. ([Doc. No. 79-2] at 74, 204, 212.) On October 29, 2013, Nyanjega filed a Form I-130 on Roba's behalf and Roba filed a concurrent Form I-485.[5] ([Doc. No. 79-2] at 2-3, 74, 201-03; [Doc. No. 79-3] at 497-503.) In an interview with USCIS, Roba refused to admit that he had lived with Nyanjega prior to their shared residence in Burnsville and both Roba and Nyanjega gave conflicting testimony as to when they became romantically involved. ([Doc. No. 79-2] at 76.)

         On May 21, 2014, USCIS mailed Nyanjega a NOID concerning her I-130 petition, citing the fraudulent marriage between Roba and Adan. (Id. at 3-4, 77, 188-99.) Through counsel, Nyanjega submitted evidence in response to the NOID. (Id. at 3, 77.) Nonetheless, on February 9, 2016, USCIS denied the petition on the grounds that, based on their investigation, it was determined that Roba had entered into a prior sham marriage for the purpose of evading the immigration laws. (Id. at 78.) Under 8 U.S.C. § 1154(c), “[n]o petition shall be approved” if USCIS has determined the “alien has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws.” A marriage entered into for the purpose of evading immigration laws thus precludes a beneficiary from ever receiving “immediate relative” status from a subsequent I-130 petition. Id. In other words, the petition by Nyanjega was denied because it was determined that Roba had previously entered into a sham marriage with a different wife, Adan, to obtain immigration benefits. (CAR [Doc. No. 79-2] at 3-4, 78, 188-99.) Roba's I-485 was similarly denied. ([Doc. No. 79-3] at 475-83.)

         Nyanjega appealed the decision to the BIA. ([Doc. No. 79-2] at 35-60.) The BIA affirmed, and determined that the “facts of the present case reflect substantial and probative evidence that the prior marriage of the beneficiary to []Adan was entered into for the purpose of evading the immigration laws.” ([Doc. No. 79-2] at 2.)

         B. Procedural History

         Plaintiffs then filed this suit on May 22, 2017 under the Immigration and Nationality Act and the Administrative Procedures Act. In this suit, Plaintiffs allege that, prior to making a decision on Adan's I-130 petition, USCIS failed to provide Roba a copy of its investigative report so he could respond, thus depriving him of due process. (Compl. [Doc. No. 1] ¶¶ 10, 20-24, 48; Am. Compl. [Doc. No. 35] ¶ 48.) Roba contends that he never received the NOID for Adan's I-130 petition. (Am. Compl. ¶ 48.) Plaintiffs allege that failure to provide notice and an opportunity to rebut the evidence was arbitrary, capricious, and an abuse of discretion. (Id. ¶ 52.) Plaintiffs also argue that the investigation improperly focused on the later years of the marriage instead of its inception and that there was an unconstitutional warrantless entry by USCIS officers during the site visit. (Id. ¶¶ 55-59.)

         On December 4, 2018, in a thorough and well-reasoned R&R, Magistrate Judge Rau recommended that Defendants' Motion to Dismiss and for Summary Judgment be granted and Plaintiffs' Motion to Compel Discovery be denied. (R&R at 29.) On December 17, 2018, Plaintiffs filed timely Objections to the R&R. Plaintiffs contend that issues of material fact preclude summary judgment.

         II. Discussion

         A. Standard of Review

         Upon issuance of an R&R, a party may “serve and file specific written objections to the proposed findings and recommendations.” Fed.R.Civ.P. 72(b)(2). “The objections should specify the portion of the magistrate judge's [R&R] to which objections are made and provide a basis for those objections.” Mayer v. Walvatne, No. 07-cv-1958 (JRT/RLE), 2008 WL 4527774, at *2 (D. Minn. Sept. 28, 2008.) The district court reviews de novo those portions of a report and recommendation to which an objection is made and “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); accord D. Minn. LR 72.2(b). Furthermore, when presenting arguments to a magistrate judge, parties must put forth “not only their ‘best shot' but all of their shots.” Ridenour v. Boehringer Ingelheim Pharm., Inc., 679 F.3d 1062, 1067 (8th Cir. 2012) (quotations and citations omitted). Thus, a party cannot, in his objections to an R&R, raise arguments that were not clearly presented to the magistrate judge. Hammann v. 1-800, Inc., 455 F.Supp.2d 942, 947-48 (D. Minn. 2006).

         B. Defendants' Motion for Summary Judgment

         Defendants move for summary judgment arguing that: (1) substantial evidence supports the finding that Roba had previously attempted to acquire an immigration benefit through marriage fraud and (2) the denial of Nyanjega's I-130 petition was not arbitrary, capricious, or an abuse of discretion as a matter of law.

         1. Legal Standard

         a. Summary Judgment

         Summary judgment is proper if there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials, but must set forth specific facts in the record showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). On a motion for summary judgment, the court views the facts in the light most favorable to the nonmoving party. Davison v. City of Minneapolis, 490 F.3d 648, 651 (8th Cir. 2007).

         b. Review of Agency Action

         “[A] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. The court may “decide relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” 5 U.S.C. § 706. The court's review is limited to the record before the agency. See Sierra Club v. Davies, 955 F.2d 1188, 1192 (8th Cir. 1992). The court may “hold unlawful and set aside agency ...

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