RADA RISTO TIMOV v. KEVIN RIDDLE TRACY RENAUD (2024)

Order

Plaintiff Rada Risto Timov (Timov), a United States citizen, filed a Form I-130 Petition for Alien Relative on behalf of her husband, Jovica Uzunov (Uzunov), a native and citizen of Macedonia, with the United States Citizenship and Immigration Services (USCIS) to pave the way for Uzunov to become a permanent resident of the United States. R. 1, Compl.¹ at 1. USCIS denied the Petition on grounds that Uzunov's prior marriage was a sham entered into in violation of § 204(c) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1154(c). Timov sought review of USCIS's decision with the Board of Immigration Appeals (BIA), who dismissed her appeal. R. 14-1, CAR at 2–4. Timov sued Defendants Kevin Riddle, in his official capacity as the Chicago Field Office Director of USCIS, and Tracy Renaud, in her official capacity as Acting Director of USCIS, under the Administrative Procedure Act (APA), 5 U.S.C § 701 et seq., asking the Court to set aside USCIS's decision. Compl. at 1, 12. The parties’ cross-motions for summary judgment are before the Court. R. 16, Pl.’s MSJ; R. 21, Defs.’ MSJ. For the reasons that follow, the Court grants USCIS's motion and denies Timov's motion.

Background

A. Uzunov's First Marriage to Vargas

Uzunov's first marriage in the United States was to Erin Vargas (Vargas), a United States citizen. CAR at 124, 157. Uzunov and Vargas were married on October 10, 2007. Id. at 124. Approximately two months later, Vargas filed a Form I-130 petition (Vargas Petition) on Uzunov's behalf. Id. at 157. USCIS interviewed Uzunov and Vargas on March 25, 2008. Id. at 155. There, the couple provided additional documents in support of the Vargas Petition, including a shared phone bill and copies of insurance cards for a Volkswagen Passat. Id.

On April 14, 2008, USCIS sent Vargas a Notice of Intent to Deny (NOID) her petition on the grounds that the couple was married for the “sole purpose” of obtaining immigration benefits. CAR at 6, 155–56. The NOID (2008 NOID) informed Vargas that additional documents the couple gave USCIS at their interview were not sufficient to show that their marriage was bona fide in light of other evidence indicating that Vargas and Uzunov were not living together. Id. at 155. In response to the NOID, Vargas and Uzunov submitted additional documents to support the Vargas Petition, including joint bank account statements, a joint phone bill, a letter denying a joint credit application, a letter from CNN Travel (CNN) showing that the couple made reservations for a future trip to Macedonia (CNN Reservations), and notarized affidavits from Vargas's parents and Uzunov's friend, Juan Verdin (Verdin). Id. at 167–214.

After the couple submitted this evidence, USCIS contacted Kristy Kisler (Kisler), Vargas's mother, to verify the affidavit bearing her and her husband's signatures (Kisler-Vargas Affidavit). CAR at 3, 149, 217. The USCIS officer's notes from the interview (Kisler's Interview) show that Kisler stated that she knew that Uzunov was a friend of her daughter's, but that Kisler did not know Uzunov personally and that neither she, nor her husband, wrote or signed the Kisler-Vargas Affidavit. Id. at 149, 217. The USCIS officer also reported that Kisler told her that Vargas and Vargas's daughter were living with Kisler and her husband at the time of Kisler's interview. Id. at 149.

In 2009, Uzunov and Vargas divorced while the Vargas Petition was pending. CAR at 122–23. On January 12, 2009, USCIS denied the Vargas Petition (2009 Denial), finding that the documents provided failed to sufficiently show that Vargas and Uzunov lived together, co-owned assets, or comingled their finances, and concluding that the couple failed to establish that their marriage was bona fide. Id. at 142. USCIS noted that CNN did not have record of the couple's reservations and concluded that the CNN Reservations were fictitious. Id. at 154. USCIS also concluded that the Kisler-Vargas Affidavit was fraudulent based on Kisler's statements. Id.

In 2014, an officer with the Fraud Detection and National Security Directorate (FDNS) conducted a telephone interview with Vargas (Vargas's Interview) regarding her former marriage. CAR at 148–49. The FDNS officer's notes indicated that, among other things, Vargas told the officer that she agreed to marry Uzunov in exchange for $1,000, that she and Uzunov never lived together or consummated their marriage, and that the Kisler-Vargas Affidavit and Verdin's affidavit (Verdin Affidavit) were fraudulent documents. Id.

B. Uzunov's Second Marriage to Timov

On June 10, 2015, Timov and Uzunov were married. CAR at 121. Shortly after their marriage, Timov filed a Form I-130 Petition for Alien Relative on behalf of her husband (the Timov Petition) with USCIS. Id. at 111–12. On the same day, Uzunov filed a Form I-485 application to adjust his status to become a permanent resident of the United States. Id. at 24, 30, 113. At Timov and Uzunov's interview with USCIS, Timov offered additional information to corroborate her petition. Id. at 6, 121–41.

On July 7, 2017, USCIS issued a NOID (2017 NOID) informing Timov that, although Timov had met her burden of establishing the legitimacy of her relationship with Uzunov, it appeared that Uzunov's prior marriage to Vargas was fraudulent and informed Timov of its intent to deny her petition on that basis. CAR at 11. Specifically, USCIS asserted that Vargas's statements were substantial and probative evidence that the marriage was not bona fide. Id. In support of its conclusion, USCIS cited the denial of the Vargas Petition and posited that several documents submitted in response to the 2008 NOID were fraudulent—the Vargas-Kisler Affidavit, the Verdin Affidavit, and the CNN Reservations—based on statements made in Vargas's Interview, Kisler's Interview, and a statement by a CNN employee, who represented that CNN had no record of Vargas and Uzunov's reservations. Id. at 12. The NOID gave Timov 30 days to respond. Id. at 13.

On August 3, 2017, the attorney who represented Uzunov in his application to adjust his status submitted a brief in response to the 2017 NOID (Attorney Brief). CAR at 6, 100–04. The Attorney Brief argued that the 2017 NOID failed to sufficiently provide the derogatory evidence that USCIS relied on regarding Vargas's Interview, the affidavits, and the CNN Reservations. Id. at 6, 100–03. The Attorney Brief also challenged the weight given to Vargas's Interview in relation to the other evidence produced to support the Vargas petition, including Vargas's prior sworn statements, and attributes any statements made by Vargas or her family after the divorce to their hostility towards Uzunov. Id. at 101–02. However, the attorney failed to properly submit a Form G-28 ² to represent Timov in the adjudication of Timov's petition. Id. at 7, 100–04. Therefore, in the eyes of USCIS, Timov failed to timely respond to the 2017 NOID. Id. at 6.

In its final decision denying Timov's petition, USCIS found that the Vargas-Uzunov marriage was not legitimate, setting forth the same explanation that it provided in the 2017 NOID. CAR at 5–8. USCIS's decision briefly mentioned the Attorney Brief but did not address the arguments that it raised, noting that Uzunov's attorney did not represent Timov in the matter and finding that his arguments in response to the 2017 NOID were not themselves evidence and carried no weight. Id. at 7.

Timov appealed USCIS's decision with the BIA, arguing that USCIS did not provide substantial and probative evidence that Uzunov's marriage to Vargas was fraudulent. CAR at 2, 17–18, 37. The BIA dismissed Timov's appeal, finding that USCIS correctly determined that Uzunov entered into his first marriage “for the sole purpose of obtaining an immigration benefit.” Id. at 4. Timov then sued USCIS seeking review of USCIS's decision under the APA. Compl. at 12. USCIS filed an answer to Timov's complaint. R. 9, Answer. Before the Court are Timov's motion for summary judgment and USCIS's cross-motion for summary judgment.

Legal Standard

I. Administrative Procedure Act

The Court's review of USCIS's decision on Timov's Form I-130 petition is governed by the APA, under which a plaintiff can challenge “a final agency action for which there is no other adequate remedy in a court.” 5 U.S.C §§ 702, 704, 706. A court's review of an agency decision is limited to the administrative record. 5 U.S.C. § 706; Little Co. of Mary Hosp. v. Sebelius, 587 F.3d 849, 856 (7th Cir. 2009). Under the APA, courts shall “hold unlawful and set aside agency action, findings and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (cleaned up).³ While the parties filed cross-motions for summary judgment under Rule 56, “[t]he motion for summary judgment is simply the procedural vehicle to ask the judge to decide the case on the basis of the administrative record.” Hunger v. Leininger, 15 F.3d 664, 669 (7th Cir. 1994); see Fed. R. Civ. P. 56; see also J.N. Moser Trucking, Inc. v. U.S. Dep't of Lab., 306 F. Supp. 2d 774, 781 (N.D. Ill. 2004) (noting that although the court's opinion was triggered by Rule 56 motions, judicial review of agency's final decision is governed by 5 U.S.C. § 706 instead of the customary summary judgment standard).

On motions for summary judgment in a case brought under the APA, the party seeking judicial review bears the burden of proving that USCIS's decision was arbitrary or capricious, a burden which the Seventh Circuit has characterized as “a high hurdle to jump.” Ogbolumani v. Napolitano, 557 F.3d 729, 733 (7th Cir. 2009); see also Wehbi v. Riddle, 2021 WL 1738517, at *1 (N.D. Ill. May 3, 2021) (citing Forest Serv. Emps. for Env't Ethics v. U.S. Forest Serv., 689 F. Supp. 2d 891 (W.D. Ky. 2010)) (“Regarding other agency findings, conclusions, and actions, the reviewing court shall hold them unlawful and set them aside if the party seeking judicial review shows that the agency's decision was arbitrary, capricious, an abuse of discretion, or otherwise unlawful.”).

To determine whether an agency decision was arbitrary or capricious, courts must consider, “whether the decision was based on a consideration of the relevant factors and whether there has been clear error of judgment.” Indiana Forest All., Inc. v. U.S. Forest Serv., 325 F.3d 851, 858–59 (7th Cir. 2003) (cleaned up). Under this deferential standard, an agency decision will be upheld where the agency “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Id. at 859 (cleaned up).

A court must not substitute its judgment for that of the agency. Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 30 (1983). “Even when an agency explains its decision with less than ideal clarity, a reviewing court will not upset the decision on that account if the agency's path may reasonably be discerned.” Alaska Dep't of Env't Conservation v. EPA, 540 U.S. 461, 497 (2004) (cleaned up). “[S]o long as a reasonable mind could find adequate support for the decision, it must stand.” Ogbolumani, 557 F.3d at 733.

II. Legal Framework for I-130 Visa Petitions

Generally, a noncitizen must obtain an immigrant visa in order to become a lawful permanent resident and legally remain in the United States. See 8 U.S.C. §§ 1151–54. When a United States citizen marries a non-citizen, the citizen may file a Form I-130 petition on behalf of his or her non-citizen spouse with the Attorney General to seek permanent resident status for the non-citizen. 8 U.S.C. § 1154(a)(1)(A)(i). USCIS evaluates Form I-130 Petitions on behalf of the Attorney General. See 6 U.S.C. § 271(b). Once USCIS approves a Form I-130 Petition, the petitioner's beneficiary can adjust their status to that of a lawful permanent resident. See 8 U.S.C. § 1255(a). Under § 204(c) of the INA:

[N]o petition shall be approved 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 ․ 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.

8 U.S.C. § 1154(c). In other words, “ ‘no petition shall be approved’ if an alien has received (or tried to receive) immigration benefits through a sham marriage.” Ogbolumani, 557 F.3d at 733 (quoting 8 U.S.C. § 1154(c)).

A petitioner bears the burden of proving by the preponderance of the evidence that he or she is eligible for the benefits he or she seeks. See, e.g., Matter of Soo Hoo, 11 I. & N. Dec. 151, 152 (BIA 1965); Matter of Brantigan, 11 I. & N. Dec. 493, 495 (BIA 1966). If USCIS is suspicious that a couple was fraudulently married to evade immigration laws, it bears the burden of showing that the marriage was fraudulent from its inception by “substantial and probative evidence.” 8 C.F.R. § 204.2(a)(1)(ii); see Surganova v. Holder, 612 F.3d 901, 904 (7th Cir. 2010). “Although it is not necessary that the alien have been convicted of, or even prosecuted for, the attempt or conspiracy, the evidence of the attempt or conspiracy must be contained in the [petitioner's] file” so USCIS can determine that the marriage is fraudulent. 8 C.F.R. § 204.2(a)(1)(ii). USCIS is ordinarily not to give conclusive effect to prior proceedings and should instead arrive at an independent conclusion from its own review of the record. Matter of Tawfik, 20 I. & N. Dec. 166, 168 (BIA 1990).

For USCIS to meet its burden of showing substantial and probative evidence of a fraudulent marriage, “[t]here must be affirmative evidence that creates more than a reasonable inference of fraud.” Kweicien v. Medina-Maltes, 2016 WL 6124448, at *4 (N.D. Ill. Oct. 20, 2016) (citing Matter of Tawfik, 20 I. & N. Dec. 166, 167–68 (BIA 1990)); 8 C.F.R. § 204.2(a)(1)(ii)). Reflecting the permanence of the INA's fraudulent marriage bar, the BIA has specified that USCIS's burden of proof “should be higher than a preponderance of the evidence and closer to clear and convincing evidence” and that “the evidence must establish that it is more than probably true that the marriage is fraudulent.” Anyaso v. Mayorkas, 2024 WL 532223, at *6 (N.D. Ill. Feb. 9, 2024) (quoting Matter of Singh, 27 I. & N. Dec. 598, 607 (BIA 2019)) (cleaned up).

Once USCIS meets its burden, the burden shifts to the petitioner to show that the marriage was not entered into to evade immigration laws. See Kapisoda v. Mayorkas, 2022 WL 4465594, at *1 (N.D. Ill. Sept. 26, 2022); Matter of Laureano, 19 I. & N. Dec. 1, 3 (BIA 1983). Central to whether a marriage is bona fide is whether the couple intended to establish a life together at the time of their marriage. See, e.g., Yong Hong Guan v. I.N.S., 1993 WL 265107, at *2 (7th Cir. Jul. 16, 1993); Matter of Soriano, 19 I. & N. Dec. 764, 765 (BIA 1988). Evidence that may indicate a couple's intent at the time they were married “include[es], but [is] not limited to, proof that the beneficiary has been listed as the petitioner's spouse on insurance policies, property leases, income tax forms, or bank accounts; and testimony or other evidence regarding courtship, wedding ceremony, shared residence, and experiences.” Matter of Laureano, 19 I. & N. Dec. 1, 2 (BIA 1983). Evidence of the parties’ conduct after their marriage is relevant, but only insofar as it provides insight into their intent at the time of their marriage. See, e.g., Yong Hong Guan, 1993 WL 265107, at *2 (citing Lutwak v. United States, 344 U.S. 604, 617 (1953)); Matter of Laureano, 19 I. & N. Dec. 1, 2 (BIA 1983). Divorce or separation is not itself evidence that a marriage was fraudulent at its inception. See Yong Hong Guan, 1993 WL 265107, at *2 (citing Matter of Mckee, 17 I. & N. Dec. 332, 333 (BIA 1980); Matter of Boromand, 17 I. & N. Dec. 450, 453 (BIA 1980)).

Before USCIS issues a final decision on a petition, it may issue a NOID, specifying “whether initial evidence or additional evidence is required, or the bases for the proposed denial sufficient to give the applicant or petitioner adequate notice and sufficient information to respond.” 8 C.F.R. §§ 103.2(b)(8)(iii)–(iv). When USCIS intends to deny a petition on the basis of derogatory information unknown to the petitioner, “he/she shall be advised of this fact and offered an opportunity to rebut the information and present information [on] his/her own behalf before the decision is rendered.” 8 C.F.R. § 103.2(b)(16)(i). The Seventh Circuit “does not require USCIS to provide, in painstaking detail, the evidence of fraud it finds” to comply with 8 C.F.R. § 103.2(b)(16)(i). Ogbolumani, 557 F.3d at 733; see Ghaly v. I.N.S., 48 F.3d 1426, 1431 (7th Cir. 1995) (finding that a single-sentence summary of the petitioner's fraudulent activity was sufficient to comply with the regulation). But see Fliger v. Nielsen, 743 F. App'x 684, 690 (7th Cir. 2018) (holding that USCIS's summary of the evidence it relied on was sufficient, but “strongly advis[ing] it to start providing the actual evidence on which it relies to make its decision”). If USCIS denies a Form I-130 petition, the petitioner may seek de novo review of USCIS's decision with the BIA. See 8 C.F.R. § 1003.1(d)(3)(iii).

Analysis

Timov argues that USCIS's denial of her petition was arbitrary and capricious for two reasons. First, USCIS ignored much of the evidence that she submitted to show that Vargas's marriage to Uzunov was bona fide and that the three main pieces of evidence USCIS relied upon do not amount to substantial and probative evidence of fraud: (1) Vargas's Interview; (2) Kisler's statements regarding the Kisler-Vargas Affidavit; and (3) the CNN Reservations. R. 17, Pl.’s Memo. Summ. J. at 2, 7–9. Second, USCIS violated federal regulations when it failed to allow her to inspect the record and to advise her of the derogatory evidence forming the basis for its position in the 2017 NOID. Id. at 2, 5.

In its cross-motion for summary judgment, USCIS contends that its denial of the Timov Petition was neither arbitrary nor capricious because it was based on substantial and probative evidence that Uzunov's first marriage was fraudulent. R. 22, Defs.’ Cx-Memo. Summ. J. at 1. As for Timov's second argument, USCIS insists that it complied with federal regulations by sufficiently describing the evidence underlying its decision to deny her petition and by giving Timov a meaningful opportunity to rebut the evidence it provided. Id. at 11. The Court addresses the parties’ arguments in turn.

I. Sufficiency of USCIS's Evidence of Fraud

The Court begins with Timov's argument that USCIS relied on insufficient evidence and ignored the evidence that she supplied. Pl.’s Memo. Summ. J. at 9. The Court focuses on the three pieces of evidence— Vargas's Interview, Kisler's Interview, and USCIS's conversation with a CNN employee—that Timov takes issue with before evaluating whether, in the context of the entire record, that evidence supports USCIS's decision.

A. Vargas's Interview

Asserting that Vargas's Interview was the primary basis for USCIS's decision, Timov protests that Vargas's statements are not substantial and probative evidence of marriage fraud. Pl.’s Memo. Summ. J. at 7–8 (citing Simko v. Bd. of Immigr. Appeals, 156 F. Supp. 3d 300, 312 (D. Conn. 2015)). Specifically, Timov claims that USCIS's reliance on Vargas's interview was unreasonable because: the statements she made were unsworn; the interview took place seven years after Vargas and Uzunov were divorced; and an error regarding the date of the interview in the 2017 NOID rendered Vargas's statements unreliable. Id.

USCIS responds that Vargas's statements showed that her marriage to Uzunov was fraudulent because she admitted that she had not lived with Uzunov, that the two never consummated their marriage, and that she married Uzunov in exchange for money. Defs.’ Cx-Memo. Summ. J. at 9. USCIS argues further that Vargas's statement shows that the Verdin Affidavit was fabricated. Id. USCIS maintains that in its evaluation of the evidence, Vargas's statements could not be outweighed by the evidence that Vargas and Uzunov presented to show that the marriage was bona fide. Id. at 9–10. USCIS also contends that Timov fails to show how the conflicting dates provided for Vargas's Interview call into question the reliability of Vargas's statements. R. 25, Defs.’ Reply at 3.

In her reply, Timov distinguishes this case from cases where courts have held that a citizen petitioner's admission that their marriage was fraudulent amounted to substantial and probative evidence by pointing out that in each of those cases, the petitioner made a sworn statement that the marriage was fraudulent, that they were paid to marry the beneficiary, or both. R. 24, Pl.’s Reply at 3 (citing Ghaly, 48 F.3d 1426, 1432–33; Matter of Laureano, 19 I. & N. Dec. 1, 2–3 (BIA 1983); Matter of Kahy, 19 I. & N. Dec. 803, 804, 806 (BIA 1988)). In its reply, USCIS concedes that sworn statements would lend stronger support to its decision, but asserts that unsworn statements can still amount to sufficient evidence. Defs.’ Reply at 2–3 (citing Ogbolumani, 557 F.3d at 734). The Court agrees with USCIS.

In Ogbolumani, the petitioner and beneficiary argued, like Timov, that it was unreasonable for USCIS to rely upon summaries of unsworn witness statements. 557 F.3d at 734. USCIS denied their petition based upon several pieces of evidence: a statement made by the beneficiary in his interview with USCIS where he all but admitted to marrying his first wife to obtain immigration benefits; unsworn statements from his first wife who said that she received money from the beneficiary as part of their marriage agreement; unsworn statements from his ex-wife's family that the marriage was a scam and that she only married the beneficiary for money; unsworn statements from more of his first wife's family members that they knew nothing about her marriage to him; and the fact that he claimed that he was single on his tax forms while they were married. Id. at 732. Rejecting the petitioner and beneficiary's argument, the Seventh Circuit made it clear that even though sworn statements are preferred, hearsay evidence is admissible in USCIS proceedings. Id. at 734. Additionally, the court found that the “most damaging” pieces of evidence were the beneficiary's statements and his ex-wife's unsworn statements. Id. at 732, 734.

Here, like the beneficiary's ex-wife in Ogbolumani, Vargas made unsworn statements to USCIS where she admitted to marriage fraud. CAR at 148–49, 216. Although, as USCIS concedes, sworn statements would have provided stronger support for its denial, Vargas's statements directly contradict Vargas's earlier statements and representations that her marriage to Uzunov was bona fide. Defs.’ Cx-Memo. Summ. J. at 9; CAR at 155, 157–58. The FDNS officer's notes indicate that Vargas stated, among other things, that Uzunov paid her a $1,000 lump sum in exchange for her help towards getting his green card, that the couple never consummated their marriage and did not live together, and that the Kisler-Vargas Affidavit and Verdin affidavit were fraudulent documents. Id. 148–49, 216. Though Timov argues that USCIS's reliance on Vargas's Interview was unreasonable by pointing out that the interview took place more than seven years after her divorce from Uzunov, she does not inform the Court why the lapse of time would weaken Vargas's statements. Nor does Timov raise the Attorney Brief's argument that Vargas made these statements out of hostility towards Uzunov. Nevertheless, an admission to marrying someone to help them obtain immigration benefits in exchange for $1,000 is a serious admission of fraud. Id. at 216. These are no casual admissions because they carry potentially serious personal ramifications for Vargas.

Vargas's statements undermine Timov's contention that the Vargas-Uzunov marriage was bona fide by calling into question the legitimacy of Vargas's and Uzunov's earlier representations that they lived together, the Kisler-Vargas Affidavit, and the Verdin Affidavit. Further, although the 2017 NOID provides two different dates for Vargas's Interview (June 17, 2014 and June 14, 2017), the Court agrees with USCIS that Vargas fails to explain how this typographical error renders the evidence itself unreliable. Accordingly, USCIS acted reasonably by considering Vargas's statements as evidence of marriage fraud. Furthermore, it is USCIS's job, not the Court's, to decide what weight to give Vargas's statements. See Cassell v. Napolitano, 2014 WL 1303497, at *8 (N.D. Ill. Mar. 31, 2014) (finding that it “is precisely the job of the agenc[y] to find certain pieces of evidence more compelling than others or weigh favorable evidence against unfavorable (or contradictory) evidence”) (cleaned up).

The Court finds that Vargas's statements give rise to more than a reasonable inference of fraud and constitute substantial and probative evidence that the marriage between Vargas and Uzunov was a sham. Kweicien, 2016 WL 6124448, at *4 (citing Matter of Tawfik, 20 I. & N. Dec. 166, 167–68 (BIA 1990)). A reasonable mind could find that Vargas's statements alone support USCIS's decision that the marriage between Vargas and Uzunov was fraudulent. Ogbolumani, 557 F.3d at 733.

The Court now turns to the next challenged piece of evidence, the Kisler interview.

B. Kisler's Interview

Timov also contends that USCIS's interview with Kisler about the Kisler-Vargas Affidavit did not comprise direct affirmative evidence that the marriage was a sham. Pl.’s Memo. Summ. J. at 8. Timov points to the contradictory Kisler-Vargas Affidavit—which is signed, notarized, and appears in the record—as a stronger piece of evidence than Kisler's statements. Id. Timov also references the arguments made in the Attorney Brief in response to the 2017 NOID, which raised issues of reliability and inaccuracy surrounding Kisler's statements. Pl.’s Reply at 4. USCIS counters that Kisler's statements showed that the Kisler-Vargas Affidavit was fabricated. Defs.’ Cx-Memo. Summ. J. at 9.

USCIS used Kisler's statements to determine that a single piece of evidence provided to show that Uzunov's first marriage was bona fide—the Kisler-Vargas Affidavit—was fraudulent. The record includes a 2018 memorandum listing the statements that the officer's notes show that Kisler made. CAR at 213, 149, 217. The record shows that Kisler told the officer that neither she nor her husband ever signed, saw, or wrote the Kisler-Vargas affidavit, that she did not know how the document came into USCIS's possession, and that she did not know Uzunov personally. Id. As the Court previously discussed, it was permissible for USCIS to consider hearsay evidence. Ogbolumani, 557 F.3d at 734. Thus, it was permissible for USCIS to consider the officer's notes describing Kisler's statements when it weighed the evidence. Because Kisler's insistence that the document was fabricated casts significant doubt on the validity of the Kisler-Vargas affidavit, it was reasonable for USCIS to use these statements to determine that the document was fabricated. CAR at 213.

Timov next takes aim at the CNN reservations evidence considered by USICS.

C. CNN Reservations

Timov argues that the evidence USCIS relied on to determine that the CNN Reservations were fraudulent—a conversation with a CNN employee—does not amount to affirmative evidence of fraud. Pl.’s Memo. Summ. J. at 9–10. USCIS counters that the CNN employee's statements to USCIS regarding the reservations that Vargas and Uzunov submitted to USCIS were substantial and probative evidence of fraud that could not be overcome by the evidence—shared phone bills and tax records—that Vargas and Uzunov provided. Id. In her reply, Timov references the Attorney Brief, echoing her contention that CNN's inquiry into the CNN Reservations was inaccurate and unreliable, and took place seven years after the reservations were made. Pl.’s Reply at 4, 6, 12.

It is the case that USCIS did not investigate the CNN Reservations until more than seven years after the reservations were made. However, the record shows that the inquiry took place before Timov married Uzunov and while the Vargas Petition was still pending. CAR 154. Regardless of when USCIS contacted CNN, the record shows that a CNN employee told USCIS that the trip never took place and that the company's system contains no record of the reservations ever being made. Admittedly, the mere absence of the reservations alone may not amount to substantial and probative evidence of marriage fraud. 8 C.F.R. § 204.2(a)(1)(ii)); Kweicien, 2016 WL 6124448, at *4 (citing Matter of Tawfik, 20 I. & N. Dec. 166, 167–68 (BIA 1990). But this was not the only basis for the denial of the Timov Petition.

D. Failure to Consider Other Evidence

Lastly, Timov argues that USCIS ignored much of the evidence provided to support the bona fide nature of her marriage to Uzunov and that she submitted the kinds of evidence required to meet her burden of proof.⁴ Pl.’s Memo. Summ. J. at 1–2, 10 (citing Matter of Laureano, 19 I. & N. Dec. 1, 2 (BIA 1983); Bark v. Immigr. & Naturalization Serv., 511 F.2d 1200, 1202 (9th Cir. 1975); Garcia-Jaramillo v. Immigr. & Naturalization Serv., 604 F.2d 1236, 1238 (9th Cir. 1979); Matter of Phillis, 15 I. & N. Dec. 385, 387 (BIA 1975)). Additionally, Timov contends that USCIS committed legal error by ignoring evidence when it failed to consider the Attorney Brief. Id. at 9–10 (citing Iglesias v. Mukasey, 540 F.3d 528, 530–31 (7th Cir. 2008)). USCIS retorts that it thoroughly considered all of the evidence on record while evaluating the Timov Petition and determined that it supports the conclusion that the Vargas-Uzunov marriage was a sham. Defs.’ Cx-Memo. Summ. J. at 9–11.

By arguing that USCIS ignored the evidence that she provided to establish her marriage (or Vargas's marriage) to Uzunov, Timov essentially challenges how USCIS weighed the evidence. However, it is not the Court's role to re-weigh the evidence, and to do so would substitute the Court's judgment for USCIS's. See Smith v. Garland, 103 F.4th 1244, 1253 (7th Cir. 2024) (“Moreover, the contention that the agencies failed to consider certain evidence is a quibble with how the agencies weighed the evidence. But we cannot reweigh the agencies’ own balancing of the evidence.”).

All in all, the Court is satisfied that USCIS based its decision on an examination of all the evidence on the record. See Indiana Forest All., 325 F.3d at 859. Timov furnished USCIS with, among other things, the marriage certificate documenting her marriage to Uzunov (CAR at 121), the marriage certificate documenting Uzunov's prior marriage to Vargas (id. at 124), a judgment for the dissolution of that marriage (Id. at 122–23), a joint bank account statement (id. at 125–28), a shared car insurance policy (id. at 129–32), photos from Timov and Uzunov's wedding (id. 133–36), the contract for the venue where the wedding was held (id. at 137), a letter from the Reverend Father who married them (id. at 138), and an apartment lease bearing both Timov and Uzunov's names (id. at 139–41). Id. at 6. For its decision to survive review under the APA, USCIS “need only consider the evidence; it need not mention every piece of evidence it considered.” Smith, 103 F.4th at 1253 (quoting Perez-Fuentes v. Lynch, 842 F.3d 506, 512 (7th Cir. 2016)) (cleaned up). The record shows that USCIS considered the evidence Timov provided. In the 2017 NOID, USCIS found that Timov and Uzunov established their relationship by a preponderance of the evidence. CAR at 11. In its 2017 Denial, USCIS explicitly stated that it conducted a “thorough review of [Timov's] petition and the record of evidence” and described the evidence underlying its decision. Id. at 5.

Additionally, USCIS did not ignore the evidence that Uzunov and Vargas produced regarding the Vargas Petition. As Timov identifies, the record reflects that Vargas and Uzunov furnished USCIS with an array of evidence, including joint bank account statements (CAR at 174–81), a joint tax return (id. at 197–202), a phone bill addressed to both their names (id. at 185–92), the CNN Reservations (id. at 2–3, 7, 12),⁵ the Kisler-Vargas Affidavit (id. at 213), and the Verdin Affidavit (id. at 214)). Pl.’s Memo. Summ. J. at 9, CAR at 153, 155, 167–206. In the 2017 NOID and 2017 Denial, USCIS explicitly mentioned several pieces of this evidence and described how Vargas's statements outweighed them, which is precisely USCIS's job in determining whether a petitioner is eligible for the benefits they seek. See Smith v. Garland, 103 F.4th 1244, 1254 (7th Cir. 2024) (citing Fox Television Stations, 556 U.S. at 513 (2009); Cassell, 2014 WL 1303497, at *8).

Though Timov and Uzunov (and, earlier, Vargas and Uzunov) submitted the types of evidence that the BIA and other courts have deemed relevant to USCIS's inquiry into the bona fides of a marriage, merely checking these boxes is not enough to ensure that a petition will be approved. See Matter of Laureano, 19 I. & N. Dec. 1, 2 (BIA 1983); Matter of Phillis, 15 I. & N. Dec. 385, 387 (BIA 1975). Timov does not cite—and the Court is not aware of any—cases that stand for the principle that submitting the kinds of evidence that have been considered important in establishing a couple's intent entitles a couple to the benefits they seek.

Next, the Court addresses Timov's argument that USCIS committed legal error by failing to consider the arguments raised in the Attorney Brief. The Seventh Circuit has found that the “wholesale failure to consider evidence” could amount to legal error. Iglesias, 540 F.3d at 531 (quoting Hanan v. Mukasey, 519 F.3d 760, 864 (8th Cir. 2008)); see also Bodo v. Mayorkas, 2023 WL 5334606, at *3 (N.D. Ill. Aug. 18, 2023). However, USCIS was not obligated to consider the Attorney Brief because the attorney who represented Uzunov in his application to adjust his status submitted the Attorney Brief without filing the G-28 form required to communicate with USCIS on behalf of Timov. CAR at 6. Even if the Court were to recognize that USCIS committed legal error by not recognizing the Attorney Brief as a response to the 2017 NOID, that error would be harmless because “[s]tatements by counsel are not evidence.” Matter of Laureano, 19 I. & N. Dec. 1, 3 n.2 (BIA 1983). When USCIS meets its burden of presenting substantial and probative evidence of marriage fraud, the petitioner must respond with evidence that the marriage was not entered into to evade immigration laws. See Kapisoda v. Mayorkas, 2022 WL 4465594, at *1 (N.D. Ill. Sept. 26, 2022); Matter of Laureano, 19 I. & N. Dec. 1, 3 (BIA 1983); Matter of Brantigan, 11 I. & N. Dec. at 493.

USCIS presented substantial and probative evidence to support its determination that the marriage between Uzunov and Vargas was fraudulent, which was not overcome by the evidence provided by Timov.

II. Provision of Derogatory Evidence Per 8 C.F.R. § 103.2(b)(16)

As for her second argument, Timov contends that USCIS's denial of the Timov Petition was arbitrary and capricious because it violated 8 C.F.R. § 103.2(b)(16) by failing to allow her to inspect the record or to advise her of the derogatory evidence forming the basis for its position in the 2017 NOID. Pl.’s Memo. Summ. J. at 5. Timov focuses on the same three pieces of evidence as she did in her first argument: Vargas's Interview, Kisler's Interview, and USCIS's inquiry into the CNN Reservations. Id. at 7–8. USCIS counters that it met its burden by providing sufficient descriptions of the evidence it relied on and by giving Timov a meaningful opportunity to rebut the evidence of fraud it described. Defs.’ Cx-Memo. Summ. J. at 10–11 (citing, inter alia, Ogbolumani, 557 F.3d at 735).

When USCIS intends to deny a petitioner's application on the basis of derogatory information unknown to the petitioner, 8 C.F.R. § 103.2(b)(16) requires USCIS to (1) advise the petitioner of its intent to deny their application on that basis and (2) offer the petitioner the opportunity to “rebut the information and present information [on] his/her own behalf before the decision is rendered.” USCIS complied with the second prong of the regulation by providing Vargas with 30 days to respond to the 2017 NOID. CAR at 13. As for the first prong, the Court evaluates the sufficiency of USCIS's descriptions of the three main pieces of evidence it referenced in its 2017 NOID in turn.

A. Vargas's Interview

Timov first takes issue with USCIS's failure to confirm the date that Vargas's Interview took place or to explain how USCIS verified Vargas's identity. Pl.’s Memo. Summ. J. at 7–8. Timov posits that if she had access to this information, she would have submitted a more thorough response and would have been able to evaluate whether she could offer any additional evidence to rebut the information on which USCIS relied. Id. at 11–12. Timov insists that USCIS was required to provide more than a summary of the derogatory evidence, relying on Ogbolumani in support of the proposition that the agency must disclose more information “[w]here there is evidence to show that the agency provided or relied upon information that was inaccurate or unreliable.” Pl.’s Reply at 5 (citing 557 F.3d at 734). USCIS responds by pointing out that even though it is true that Timov detected a typographical error in the NOID, Timov fails to show how USCIS's failure to provide the correct date inhibited her ability to respond to the NOID. Defs.’ Cx-Memo. Summ. J. at 10. USCIS maintains that it identified Vargas as its source and included a detailed account of her statements. Defs.’ Reply at 3.

The Court agrees with USCIS that the seemingly clerical error in the 2017 NOID where two different dates were provided for Vargas's Interview is immaterial to Timov's ability to respond. As USCIS points out, Timov does not inform the Court how USCIS's failure to provide these details substantially impacted her ability to rebut Vargas's statements.⁶ Defs.’ Reply at 3–4; CAR at 12.

Timov misreads Ogbolumani as requiring that USCIS provide additional information where the evidence relied upon is “inaccurate or unreliable.” 557 F.3d. at 734. Indeed, Timov takes the phrase out of context. In Ogbolumani, the Seventh Circuit used this language while describing the petitioner and beneficiary's arguments about the weight that USCIS gave to certain pieces of evidence, recounting that they argued that USCIS's summaries of witnesses’ statements were “inaccurate or unreliable” pieces of evidence. Id. This statement is related to a completely different issue than whether USCIS complied with 8 C.F.R. § 103.2(b)(16)(i) and does not advance any propositions relating to USCIS's duty to disclose the derogatory evidence it relies on. Id.

However, like Timov, the petitioner and beneficiary in Ogbolumani raised a separate argument that USCIS violated its obligations under 8 C.F.R. § 103.2(b)(16)(i) by failing to list all of the evidence USCIS uncovered—including by failing to name some of the extended family members whose statements it relied upon—and by failing to allow them to rebut that evidence. 57 F.3d. at 735. The Seventh Circuit held that USCIS complied with the regulation by summarizing the evidence it relied upon, by explaining that it intended to deny the petition, and by providing the petitioner an opportunity to rebut the evidence provided. Id. The court found that the regulation does not require USCIS “to provide, in painstaking detail, the evidence of fraud it finds.” Id. The Court agrees with USCIS's reading of Ogbolumani that USCIS meets its burden under 8 C.F.R. § 103.2(b)(16)(i) when it provides a summary of the derogatory evidence. See id.; Defs.’ Cx-Memo. Summ. J. at 11.

Here, as in Ogbolumani, USCIS provided a summary of the derogatory evidence and explained how that evidence informed its decision to deny the petitioner's application. 57 F.3d. at 735. The 2017 NOID summarized the officer's account of Vargas's statements. CAR at 12. USCIS explained how these statements cast doubt on the bona fide nature of Vargas and Uzunov's marriage, discussing how her statements cast doubt on Vargas's earlier representations that her marriage to Uzunov was legitimate and on both affidavits submitted in support of the marriage. Id. Therefore, USCIS's description of Vargas's statements was sufficient to comply with 8 C.F.R. § 103.2(b)(16)(i).

B. Kisler's Interview

Next, Timov asserts that USCIS violated 8 C.F.R. § 103.2(b)(16)(i) by referencing statements from Kisler without describing the circumstances under which those statements were made. Pl.’s Memo. Summ. J. at 12. Timov contends that without this information, she was unable to rebut Kisler's statements. Id. at 12. USCIS does not respond directly to Vargas's arguments regarding Kisler's Interview; however, the agency maintains that it presented sufficient information concerning the derogatory evidence it relied upon. Defs.’ Cx-Memo. Summ. J. at 11. Timov replies that the 2017 NOID included no information related to Vargas's father even though the record shows that Kisler made statements about his signature. Pl.’s Reply at 6. Consequently, Timov argues, there was no way for her to rebut those statements. Id.

USCIS provided Timov with not only Kisler's name, but also a description of what she said about the Kisler-Vargas Affidavit—beyond what USCIS disclosed to the petitioner in Ogbolumani. 57 F.3d. at 735; CAR at 12. Despite Timov's contention that the 2017 NOID offered “no information” about Vargas's father, USCIS explicitly described Kisler's statements that neither she nor her husband ever saw or signed the document. Id. Further, as USCIS stresses, Timov fails to explain how USCIS's omission of the date of Kisler's Interview or the lack of information concerning Vargas's father impacted her ability to rebut Kisler's statements. Defs.’ Reply at 5. Even though the 2017 NOID does not include much information about Kisler's Interview, the information that it does provide constitutes a sufficient summary of the evidence supporting USCIS's conclusion that the affidavit was a fraudulent document. The Court finds that USCIS's description of the derogatory evidence surrounding Kisler's Interview was sufficient to comply with 8 C.F.R. § 103.2(b)(16).

C. CNN Reservations

Lastly, Timov argues that USCIS failed to comply with 8 C.F.R. § 103.2(b)(16) by not providing her with the date that USCIS requested records from CNN or a description of how long CNN retains records of canceled reservations. Pl.’s Memo. Summ. J. at 11–12. Timov posits that this information would have allowed her to contact CNN to determine whether the company kept records of canceled reservations. Id. at 12. USCIS responds that Timov could have addressed her own concerns by reaching out to CNN herself, that Timov failed to provide any evidence of her own to rebut this information, and that Timov does not dispute that Uzunov and Vargas never went to Macedonia.⁷ Defs.’ Reply at 5.

The Court is unpersuaded by Timov's argument because nothing prohibited Timov from contacting CNN directly to answer her questions about CNN's retention of records of canceled reservations. In the 2017 NOID, USCIS described that “CNN [ ] confirmed that their records contained no evidence of [Vargas and Uzunov's] travel reservations.” CAR at 12. USCIS met its burden under 8 C.F.R. § 103.2(b)(16) by summarizing the evidence it relied on to support its conclusion that the reservations were fraudulent. See Ogbolumani, 557 F.3d at 735.

For all three pieces of derogatory information that Timov contests, the Court finds that USCIS complied with its duties to disclose the derogatory evidence underlying its proposed denial in the 2017 NOID and to extend Timov the opportunity to rebut the evidence provided. 8 C.F.R. § 103.2(b)(16).

The Court is satisfied that USCIS reviewed the relevant evidence and sufficiently explained its reasons for denying the Timov Petition. Indiana Forest All., 325 F.3d at 859 (quoting Motor Vehicle Mfrs., 463 U.S. at 43). It is clear from the record that a reasonable mind could find support for USCIS's decision, and, accordingly, that USCIS's decision must be upheld. Ogbolumani, 557 F.3d at 733. In sum, the Court finds that USCIS's denial of the Timov Petition was neither arbitrary nor capricious.

Conclusion

For the foregoing reasons, Plaintiff's motion for summary judgment is denied [16] and Defendants’ cross-motion for summary judgment is granted [21]. Civil case terminated.

FOOTNOTES

1.   Citations to the docket are indicated by “R.” followed by the docket number or filing name, and where necessary, a page or paragraph citation.

2.   To represent an individual applying for an immigration benefit and communicate with USCIS regarding their case, an attorney must file a G-28 Notice of Entry of Appearance as Attorney or Accredited Representative with the related petition. See G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, USCIS, https://www.uscis.gov/g-28. The Court may take judicial notice of the contents of a government website. See Denius v. Dunlap, 330 F.3d 919, 926 (7th Cir. 2003).

3.   This Opinion uses (cleaned up) to indicate that internal quotation marks, alterations, and citations have been omitted from quotations. See Jack Metzler, Cleaning Up Quotations, 18 Journal of Appellate Practice and Process 143 (2017).

4.   When she argues that USCIS did not consider all of the evidence provided, Timov interchangeably refers to evidence that she provided in support of the Timov Petition and evidence that Uzunov and Vargas provided in support of the Vargas petition. The Court assumes that Timov is referring to any evidence in the record provided to show that the Vargas-Uzunov marriage was bona fide. As stated above, the 2017 NOID stated that Timov had met her burden of establishing the legitimacy of her own relationship with Uzunov; however, USCIC intended to deny Timov's petition because it appeared that Uzunov's prior marriage to Vargas was fraudulent. CAR at 11.

5.   Although the parties do not dispute the fact that the CNN Reservations were submitted to USCIS, the reservations themselves cannot be found in the administrative record.

6.   In fact, as USCIS indicates, Timov did not submit any evidence to respond to Vargas's statements aside from the attorney brief, which the Court has already found does not qualify as evidence. Defs.’ Reply at 4.

7.   USCIS also clarifies that it contacted CNN before its 2009 Denial, not as a part of its investigation into the Timov Petition as Timov suggests in her briefs. Defs.’ Reply at 5.

United States District Judge Franklin U. Valderrama