IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-10152

Summary Calendar

ETHEL S. WHITE; SHAILESHKUMAR ARVINDBHAI SHAH, 

 Plaintiffs - Appellants

v.

UNITED STATES OF AMERICA, through the Attorney General Loretta 

Lynch.; LORETTA LYNCH, U. S. ATTORNEY GENERAL, for the United 

States Department of Justice; JEH JOHNSON, Secretary of the Department 

of Homeland Security; LORI SCIALABBA, Director of the United States 

Citizenship and Immigration Services, 

 Defendants - Appellees

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:12-CV-4403

Before REAVLEY, SMITH, and HAYNES, Circuit Judges.

PER CURIAM:*

Plaintiff–Appellant Shaileshkumar Arvindbhai Shah is a native and 

citizen of India who entered the United States with his wife and children on 

November 8, 2000. Though authorized to stay only six months, Shah has 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 19, 2015

Lyle W. Cayce

Clerk

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remained in the United States. On May 13, 2005, Shah divorced his wife 

Amiben Shah and, three months later, married Plaintiff–Appellant Ethel 

White, a United States citizen. 

A few months later, on November 27, 2005, White filed an I-130 visa 

petition seeking to have Shah granted permanent resident status as her 

spouse. Based on a finding that the marriage was “entered into for the purpose 

of evading the immigration laws,” United States Citizenship and Immigration 

Services (“USCIS”) denied that application. See 8 U.S.C. § 1154(c). Similar 

applications filed in 2008 and 2011 were also denied for the same reason. 

Seeking an order setting aside the denial of the visa petition, Shah and 

White sued under the Administrative Procedure Act (“APA”). After the district 

court granted summary judgment in favor of the government, Shah and White 

appealed.

We review the grant of summary judgment de novo and, “[i]n reviewing 

the underlying agency decision denying [Appellants’] request, the general 

standard under the APA is whether the agency’s final decision was ‘arbitrary, 

capricious, an abuse of discretion, or otherwise not in accordance with law.’” 

Shell Offshore Inc. v. Babbitt, 238 F.3d 622, 627 (5th Cir. 2001) (quoting 5 

U.S.C. § 706(2)(A); Avoyelles Sportsmen’s League, Inc., v. Marsh, 715 F.2d 897, 

904 (5th Cir. 1983)). This review is “very narrow.” Delta Foundation, Inc. v. 

United States, 303 F.3d 551, 563 (5th Cir. 2002) (quoting Louisiana v. Verity, 

853 F.2d 322, 327 (5th Cir. 1988)).

In this case, we are presented with competing narratives. Appellants 

point to, among other things, photographs, banks statements, evidence of 

cohabitation, and “testimony of their shared experiences” to paint a picture of 

a loving marriage that has lasted nearly a decade. The government points to 

the suspicious timing of Shah’s divorce and Appellants’ marriage, to glaring 

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and significant inconsistencies in the testimony White and Shaw provided 

USCIS interviewers, and to evidence of deceit. 

Under the APA standard of review, our “role is not to weigh the evidence 

pro and con,” but rather to determine whether the denial of the permits was 

arbitrary and capricious. See Delta Found., Inc., 303 F.3d at 563 (quoting 

Verity, 853 F.2d at 327). Accordingly, our focus is on the government’s 

evidence. “The agency’s factual findings are reviewed to determine only 

‘whether they are supported by substantial evidence.’” Buffalo Marine Servs. 

Inc. v. United States, 663 F.3d 750, 753 (5th Cir. 2011) (quoting Alwan v. 

Ashcroft, 388 F.3d 507, 510–11 (5th Cir. 2004)).

USCIS determined, as a matter of fact, that the marriage between Shah 

and White was “entered into for the purpose of evading the immigration laws.” 

application. See 8 U.S.C. § 1154(c). If sustained, this factual finding dooms 

Appellants’ visa petition as a matter of law. See id. As will be shown, that 

determination was supported by substantial evidence.

Shah married White less than 90 days after divorcing Amiben Shah, and 

White’s first I-130 visa petition quickly followed. According to the government, 

this timing, “without more, create[s] a strong inference of marriage fraud.” We 

need not remark on the probative weight of timing “without more,” however, 

because there was much more. 

In interviews conducted in connection with the three visa petitions, Shah 

and White repeatedly gave inconsistent testimony on subjects that should have 

provided them no difficulty. For example, with reference to the first visa 

petition, Shah and White gave irreconcilably conflicting accounts with regard 

to their first date, the circumstances of their engagement, and how they spent 

the Christmas holiday. With respect to the second visa petition, Shah and 

White give conflicting testimony with regard to the extent of hospitalization 

required by White, whether they had ever spent a night apart since marrying,

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and perhaps most remarkably, where (and with whom) they had lived during 

the first two weeks of their marriage. With respect to the third visa petition,

discrepancies related primarily to White’s then-recent extended hospital stay, 

including the duration and frequency of Shah’s visits during that period.

In addition to the foregoing non-exhaustive list of inconsistencies, the 

interviews also revealed conspicuous gaps in the couple’s knowledge. For 

example, White testified that she has a degenerative disc disease that resulted 

from a car accident in 2000, while Shah believed her symptoms began suddenly 

in 2005. Further, though White was evicted and sued for back-rent during a 

time in which Shah supposedly lived with her, Shah did not know White had 

been evicted or the reason the previous landlords sued. 

While these inconsistencies and gaps of knowledge are plainly probative, 

with respect to its third denial of the visa petition, USCIS relied on additional, 

evidence that the marriage was a fraud. Specifically, USCIS investigators 

visited the apartment complexes where Shah had lived and were told by staff 

at both facilities that he lived there with Amiben, his ex-wife, after 2005. As 

USCIS understatedly concluded, “[t]he information provided by [the 

apartment complexes] is contradictory to” the “claim to have resided together 

since marrying on August 4, 2005.” Further a 2008 lease agreement entered 

into by White identifies one “Jeremy Proffitt” (and not Shah) as a co-lessee, 

and White’s accompanying credit application lists Mr. Proffitt (and not Shah) 

as her spouse. Appellants failed to provide USCIS with any conclusive rebuttal 

of this evidence, a failure repeated before the district court and on appeal.1

 

1 Appellants argue unconvincingly that the statements of the apartment workers 

should not have been accepted as credible “[b]ecause none of these ‘witness’ employees are 

well-acquainted with the Appellants.” They do not address the White–Proffitt lease 

agreement and credit application.

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Finally, USCIS obtained evidence that White provided fraudulent 

supporting documentation. Specifically, White provided USCIS with a 

“support letter” supposedly drafted by Matthew and Courtney Moseman, 

Appellants’ one-time alleged landlords. When interviewed, White indicated 

that Shah sought and obtained the letter. But Shah indicated White sought 

and obtained the letter. Contacted directly, both of the Mosemans denied 

writing the letter and submitted written statements to that effect. USCIS 

therefore concluded the letter was fraudulent.2

To affirm, we require only “substantial evidence” supporting USCIS’s 

factual determination regarding the nature of Appellants’ marriage. See 

Buffalo Marine Servs., Inc., 663 F.3d at 753. This incomplete survey of the

evidence shows that standard was easily met in this case. See Spellman v. 

Shalala, 1 F.3d 357, 360 (5th Cir. 1993) (describing substantial evidence as 

“that which is relevant and sufficient for a reasonable mind to accept as 

adequate to support a conclusion”). Accordingly, the judgment is AFFIRMED.

 

2 Appellants argue the Mosemans were “clearly biased” against them, and the

government concedes Ms. Moseman “had good reason to be biased against White and Shah.” 

This is because the previously mentioned eviction and lawsuit that Shah knew nothing about 

were both initiated by the Mosemans. Appellants’ offered the Mosemans as alleged character 

witnesses and cannot very well complain when the USCIS credits their statements, especially 

statements that the proffered “support letter” was fraudulent. 

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