The opinion of the court was delivered by: Peter G. Sheridan, U.S.D.J.
The government moves for summary judgment, claiming that INS's final determination that Plaintiff, Mario Noriega, should not be granted permanent residency is supported by substantial evidence. Plaintiff cross-moves, arguing that the determination was capricious and arbitrary, that it violates the due process clause and that the agency has misconstrued the statute on which the determination was based. As will be shown, Plaintiff's motion should be granted because INS's determination was not supported by substantial evidence.
On January 12, 1997, Plaintiff, Mario Noriega, married Debra Torres (R. 21) and on February 20, 1997, Torres filed a Form I-130 with the Vermont Service Center of the INS (R. 10). This form is submitted by the "immediate relative" of an alien who is in the United States and who wishes to become a lawful permanent resident. (R. 2.) The form erroneously indicated that Mr. Noriega would be filing a Form I-485 (which the alien is required to file in support of his application) in Lima, Peru. (See R. 11.) One month later, on March 28, Torres re-filed another I-130 and Noriega filed an I-485 with the Newark District Office. (R. 3).
While this application was pending, Noriega and Torres had marital difficulties. (See R. 52.) Noriega claims that at one point the two separated, but that Torres returned to their household on November 29, 1997. (R. 52.) The government claims that on November 25, 1997, INS agents interviewed Torres in connection with the investigation of an "arranger" who was in the business of setting up fraudulent marriages to evade immigration laws. (R. 23.) During the interview, Torres maintained that she promised to marry Noriega, and to file the form I-130 in return for money. (R. 23.) This interview occurred a few days before Noriega and Torres were scheduled to appear (in December, 1999) for an adjustment of status interview with INS. (Pl.'s Br. 6.) Noriega claims that Torres became very ill the day before the interview, and that he went to the INS office to request that the appointment be rescheduled. ( R. 52, 196.) INS did not grant the rescheduling request and denied the entire application for permanent residency because of Noriega's failure to appear (R. 27) Noriega had no opportunity to submit any reply about his marriage to Torres at this hearing.
Noriega contends that his marriage with Torres fell apart in July of 1998, partly because Torres had developed drug and alcohol problems. (R. 52.) Although the two did not immediately divorce, Torres relocated to her parents' house, and she and Noriega led separate lives. (R. 52.) On August 25, 1998, Torres again met with INS officers and this time made a written statement that her marriage with Noriega was fraudulent. (R. 30.)
Noriega eventually divorced Torres on March 28, 2001, so that he could marry another woman, Juana Sanchez. (R. 4.) Noriega and Sanchez married on April 16, 2001 (R. 45) and applied to adjust his status to permanent residency on May 7, 2001, by filing an I-130 and I-485 with the Newark District Office of the INS (Compl. 3-4, R. 4). On August 20, 2001 the INS served Sanchez with a notice of an intent to deny her Form I-130, citing Section 204(c) of the Immigration and Nationality Act (8 U.S.C. §1154c) which states that no petition for permanent residence shall be approved if it is determined by the Attorney General that the alien applying had previously entered into a marriage for the purpose of evading immigration laws. (R. 259.) The letter went on to cite Torres' interview with INS on November 25, 1997 and the statement she made on August 25, 1998 as evidence of the fraudulence of her marriage to Noriega (R. 259), but did not provide any copies or records of these statements to Sanchez (Pl.'s Br. 8). This appears to be the first time that Noriega learned of Torres's statements about their marriage.
The notice indicated that Sanchez had 30 days in which to provide sufficient evidence to rebut the determination that Noriega's marriage to Torres was fraudulent. (R. 259.) In response, Sanchez submitted a variety of materials, such as tax returns, photographs, and bills encompassing hundreds of pages proving that Noriega's relationship with Torres had been legitimate. (R. 264-373.) Most significantly, Sanchez also submitted a notarized letter signed by Torres asserting that her marriage with Noriega was not fraudulent, and that she had never been interviewed by or signed any statements for INS (Torres Recanting Statement). (R. 263.) The letter did not address whether any money was exchanged in consideration of the marriage. (See R. 263.)
The Newark District Office decided that this evidence was insufficient to rebut its determination, and that the petition to change Noriega's status be denied. (R. 375-76.) The Department noted that because the Torres Recanting Letter did not include any way for the agency to contact Torres to verify her Recanting Statement, the letter was given "no weight." (R. 376.) The remaining evidence, showing proof of marriage was likewise summarily dismissed by the Department because the proof "can be fabricated to give the appearance of cohabitation;" and thus, was insufficient to rebut the statements Torres made to the INS in the late 1990s. (R. 376.) Sanchez appealed this decision to the Board of Immigration Appeals on April 4, 2002 (R. 378), arguing that the District Office had improperly disregarded the Torres Recanting Statement and the proof of marriage documents. (R. 379-80) She contended that the agency had the obligation to investigate the validity of the Torres Recanting Statement and should have given the proffered marriage documents some consideration. (R. 380.) This appeal was denied on April 25, 2003 in a single sentence without an opinion. (R. 382.) Soon after, Noriega was placed in removal proceedings.*fn1
As previously noted, Noriega filed a complaint with this Court on March 8, 2006, alleging that the Board of Immigration Appeals' determination of fraud in his marriage was arbitrary and capricious, was made in a manner contrary to the consent decree in Stokes v. INS, and violated the due process clause of the Fifth Amendment.*fn2
The government moved for summary judgment on the remaining counts on October 1, 2008. In its brief, the government argues that the BIA's decision was supported by substantial evidence. Noriega submitted a brief opposing the government's ...