IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

ALA NOFAN MAKHAMREH, et 

a I., 

Pia i ntiffs, 

V. 

ATTORNEY GENERAL 

DEPARTMENT OF JUSTICE, et 

a I., 

Defendants. 

Case No. 3: 18-cv-227 

JUDGE WALTER H. RICE 

(to be filed under seal) 

DECISION AND ENTRY OVERRULING PLAINTIFFS' MOTION FOR SUMMARY 

JUDGMENT (DOC. #28) AND SUSTAINING DEFENDANTS' MOTION FOR 

SUMMARY JUDGMENT (DOC. #30); JUDGMENT TO BE ENTERED IN FAVOR OF 

DEFENDANTS AND AGAINST PLAINTIFFS; TERMINATION ENTRY 

The issue before this Court is the denial of a Form 1-130 Petition for Alien 

Relative ("l-130 Petition" or "Petition") by the United States Citizenship and 

Immigration Services ("USCIS"). The 1-130 Petition was filed by Plaintiff, Melissa 

Riley ("Riley" or "Petitioner"), on behalf of her husband, Plaintiff, Ala Makhamreh 

("Makhamreh" or "Beneficiary") (collectively, "Plaintiffs"). Riley's 1-130 Petition 

was denied by the USCIS and the denial was affirmed by the Board of 

Immigration Appeals ("BIA"). Plaintiffs have filed a motion for summary 

judgment, Doc. #28 ("Plaintiffs' Motion"). They request that the Court, under the 

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Administrative Procedure Act(" APA"), 5 U.S.C. § 706(2)(A), "hold unlawful and set 

aside" the decision of the BIA. They contend that Makhamreh's alien file contains 

no "substantial and probative evidence" of an attempt or conspiracy to enter into 

a marriage for the purpose of evading the immigration law within the purview of 

§204 (c) of the Immigration and Nationality Act, ("INA") 8 U.S.C.§ 1154(c).1 

Accordingly, they assert that no genuine issue of material fact exists and that 

Plaintiffs are entitled to judgment as a matter of law. 

Defendants, William P. Barr, Attorney General of the United States of 

America, the United States Department of Justice ("DOJ"); Kevin K. McAleenan, 

Acting Secretary, U.S. Department of Homeland Security ("DHS"); Kenneth T. 

Cuccinelli, Director, USCIS; Mark Hansen, District Director, USCIS; and David L. 

Neal, Chairman Board of Immigration Appeals (collectively, "Defendants"), have 

filed a cross-motion for summary judgment and response to Plaintiffs' Motion, 

Doc. #30, ("Defendants' Motion"). They contend that the sole issue is whether the 

decisions of the USCIS and the BIA are supported by the administrative record, 

and are otherwise consistent with the APA's "deferential standard of review" in 

1 ln Matter of P. Singh, 27 I.& N. Dec. 598 (BIA 2019), the BIA analyzed the phrase 

"substantial and probative evidence" and explained the type and extent of evidence 

necessary to meet that standard in determining marriage fraud under§ 204(c) of the INA, 

8 U.S.C. § 1154(c) (2012). Although Singh is a 2019 decision issued after the agencies' 

decisions in this case, the Board stated that its decision is consistent with the 

standard it had been applying in adjudicating visa petitions involving marriage 

fraud. Id. at 607. Because the Sixth Circuit gives "substantial deference" to the 

"BIA's interpretation of the INA and accompanying regulations," Shewchun v. 

Holder, 658 F.3d 557, 561-62 (6th Cir.)(citation omitted), the Court will rely on 

these decisions' analyses of the type and extent of evidence necessary to satisfy 

the "substantial and probative" standard of proof. 

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immigration cases. Bangura v. Hansen, 434 F.3d 487, 502 (6th Cir. 2006). They 

assert that the administrative record supports the denial by the agencies2 of the 

Form 1-130, that Plaintiffs' Motion should be denied and that Defendants are 

entitled to judgment as a matter of law. After consideration of the issues and a full 

review of the all relevant authority, Defendants' Motion, Doc. #30, is sustained and 

Plaintiff's Motion is overruled. Doc. #28. 

I. Factual and Procedural History 

A. The Brandy Ferguson Marriage 

Makhamreh, a citizen of Jordan, came to the United States on March 29, 

2013, on a six-month visa. Doc. #27-15, PAGEID#527. He met Brandy Ferguson 

("Ferguson"), a United States citizen, in June or July of 2013. They were married 

on August 23, 2013. Doc. #27-9, PAGEID##389-90; Doc. #27-15, PAGEID#525. On 

September 23, 2013, Ferguson filed a Form 1-130 and Makhamreh filed his 1-485 

application for permanent residency with the USCIS. Doc.# 27-14, PAGEID#512.

3 

2

The BIA, located in the Executive Office for Immigration Review, is the highest 

administrative body interpreting and applying immigration laws. It authorized twentythree Appellate Immigration Judges, a Chief Appellate Judge and two Deputy Chief 

Appellate Judges. https://www.justice.gov/eoir. The Sixth Circuit "reviews the BIA's 

decision as the final agency determination." Kamar v. Sessions, 875 F.3d 811 , 817 (6th Cir. 

2017) (citation omitted). 

3

When a United States citizen marries a non-citizen, the United States citizen can file a 

Form 1-130 for an immediate relative visa. INA§ 204(a), 8 U.S.C. § 1154(a); 8 C.F.R. § 

204.2(a); see INA§ 201 (b)(2)(A)(i), 8 U.S.C. § 1151 (b)(2)(A)(i). The petitioner must establish 

that the marriage was bona fide at its inception by a preponderance of the evidence. If the 

Form 1-130 is approved, the beneficiary may seek lawful permanent residence by filing a 

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On October 1, 2013, one week after filing the Petition and approximately 

forty-one days after they were married, Ferguson submitted a signed letter to the 

USCIS. In the letter, she requested that the agency withdraw her Petition. Stating 

that Makhamreh had "possibly married me for reasons other than a relationship 

with me." Doc. #27-14, PAGEID#514. 

Id. 

I would like to withdrawal [sic] my application for petition for 

alien relative for my husband Ala Makhamreh. Soon after we 

got married I have begun to believe he possibly married me for 

reasons other than a relationship with me. We are not living 

together. He refuses to let me meet his relatives who he see's 

[sic] weekly. He has also refused me a key to where he is living. 

I don't see him often as he says he doesn't have the mood or is 

busy with his relatives. The problems have escalated and he 

has now physically assaulted me. I plan to file for divorce and 

he is aware of that. We are no longer in contact. His USCIS 

mail that has been coming to my parents [sic] home where I 

am living has been returned to your office. 

My contact information hasn't changed. I am not sure of his 

address at this time. His phone number is still valid-

[Redacted]. 

On October 29, 2013, the USCIS acknowledged the withdrawal and denied 

Makhamreh's 1-485 application. Doc. #27-6, PAGEID##321-322. Ferguson's divorce 

from Makhamreh was final on May 29, 2014. Doc. #27-13, PAGEID#495. 

On April 16, 2014, DHS issued Makhamreh a Notice to Appear for removal 

proceedings. He was arrested by the Immigration and Customs Enforcement 

agency ("ICE") and later released on bond. Doc. #27-11, PAGEID #428. 

Form 1-485, Application to Register Permanent Residence or Adjust Status. See INA§ 

245(a), 8 U.S.C. § 1255(a). 

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B. Riley Marriage and November 4, 2014, 1-130 Petition 

On August 14, 2014, Makhamreh married Riley in Butler County, Ohio, and 

on November 4, 2014, Riley filed a Form 1-130 for her husband. Doc. #27-7, 

PAGEID##342-343. Included with her Petition were a Certificate Abstract of 

Marriage, their birth certificates, affidavits by Plaintiffs, family members and 

friends, photographs of them at various events, a copy of Makhamreh's 1-94 and 

visa page, a memo from Attorney Jack Grayer supporting his observations of 

Riley's marriage and the divorce decrees from their prior marriages. Doc. #27-10, 

PAGEID##419-420; Doc. #27-12, PAGEID#459 through Doc. #27-14, PAGEID#503. 

Plaintiffs were interviewed on June 19, 2015. Doc. #27-7, PAGEID#343. As a result 

of certain discrepancies in the Riley-Makhamreh's interview, USCIS contacted 

Ferguson on August 14, 2015, by telephone for an interview. 

C. Ferguson Telephone Interview and USCIS October 17, 2016, NOID 

On August 14, 2015, USCIS interviewed Ferguson by telephone concerning 

her marriage to Makhamreh. Doc. 27-11, PAGEID##429-30. The interviewer's 

notes indicate that Ferguson repeated the allegations she had made in her 

October 1, 2013, withdrawal letter. She also expressed fear of him due to an 

alleged assault. During the interview, Ferguson agreed to review a sworn 

statement that would be sent to her, have her signature notarized and return the 

responses to USCIS. Doc. #27-11, PAGEID##440-444. Ferguson never returned the 

questionnaire. 

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On November 23, 2015, USCIS interviewed Makhamreh regarding his 

marriage to Ferguson. Doc. #27-11, PAGEID 430. He admitted that he never lived 

with Ferguson or introduced her to his family. He denied that he ever physically 

assaulted her or that he did not give her access to his residence. Id. 

On January 19, 2016, the Fraud Detection and National Directorate of the 

USCIS prepared a Fraud Referral Statement of Findings which was used to 

support the USCIS denial of Riley's 1-130 Petition. Doc. #27-11, PAGEID##423-433. 

On October 17, 2016, USCIS issued Petitioner a Notice of Intent to Deny 

("NOID"), citing Makhamreh's prior marriage to Ferguson, the allegations in her 

withdrawal letter and certain discrepancies between Plaintiffs' statements during 

their interview concerning their own marriage. Doc. #27-10, PAGEID##410-14. 

Plaintiffs' submitted a detailed response to the NOID including: (1) 

Makhamreh's affidavit providing a narrative of his marriage to Ferguson, Doc. 

#27-9, PAGEID##389-90; (2) a one-page statement that Makhamreh alleges he 

wrote with Ferguson on September 15, 2013, which describes their relationship, 

Doc. #27-7, PAGEID#323; (3) a copy of the cover letter for Ferguson's Petition, Doc. 

#27-5, PAGEID#275; (4) a copy of the co-sponsor Form 1-864 from Ferguson's stepfather, Jeffrey Proffitt, that was submitted along with the Ferguson Form 1-130, 

Doc. #27-4, PAGEID##260-70; (5) documentation of the couple's marriage and 

divorce, Doc. #27-5, PAGEID##277-82; (6) photos of prescription medications for 

Ferguson, Doc. #27-4, PAGEID##271-72; (7) a residence ledger for Makhamreh 

documenting his place of residence immediately following his marriage to 

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Ferguson, Doc. #27-5, PAGEID##283-84; (8) a criminal index search showing that 

Makhamreh had never been charged with assaulting Ferguson, Doc. #27-5, 

PAGEID#273; and (9) a picture of a shirt that Makhamreh alleges Ferguson tore 

during an altercation they had. Id, at PAGEID#285. 

D. USCIS May 1, 2017, Decision Denying Riley's 1-130 Petition 

On May 1, 2017, the USCIS issued its Decision denying Riley's 1-130 

Petition. Doc. #27-7, PAGEID##341-347 and Doc. #27-8, PAGEID#348. The denial 

by the agency referenced Ferguson's October 1, 2013, withdrawal letter and her 

later telephone interview, along with a number of discrepancies in the addresses 

Makhamreh had given for his residence during and after his marriage to 

Ferguson, and exhibits he submitted in response to the NOID, contradicting his 

earlier statement that he did not live with Ferguson due to a lack of finances. Id, 

PAGEID 345-47. The denial also referenced that the marriage to Riley occurred 

after his removal proceedings. Id. 

E. BIA Appeal and June 4, 2018, Decision 

Riley timely filed a Notice of Appeal to the BIA arguing that USCIS 

committed error in finding substantial and probative evidence that the Ferguson 

marriage was for the purpose of evading immigration law. She asserted that the 

BIA erroneously concluded that she did not sustain her burden of a good faith 

marriage to Makhamreh. 

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On June 4, 2018, the BIA dismissed Petitioner's appeal and affirmed the 

USCIS's Decision. Doc. #27, PAGEID#179. It specifically found that the Ferguson 

marriage was entered into for the purpose of evading the immigration laws and 

that "evidence regarding the beneficiary and [Ferguson]'s failure to live together 

and hold each other out as a married couple" is probative of this finding. Id. The 

BIA made no finding regarding the portion of USCIS's decision dealing with 

Plaintiffs' current marriage and its observation that Plaintiffs were married after 

Makhamreh's removal proceedings began. The BIA considered and cited all the 

allegations in Ferguson's October 1, 2013, withdrawal letter, although it agreed 

with Petitioner that any alleged assault on Ferguson did not constitute marriage 

fraud. Id., PAGEID#178. Additionally, the BIA agreed with USCIS's conclusion 

that Makhamreh had "been less than forthcoming in providing USCIS with an 

accurate record of his previous residences" and that the residence ledger he 

submitted contradicted any suggestion that he did not live with Ferguson due to a 

lack of finances. Id. at PAGEID#179. 

II. Standard of Review 

In reviewing Fed. R. Civ. P. 56 (a) motions for summary judgment filed in 

an appeal of an agency's decision under the APA, the Court applies a different 

standard of review. Specifically, the Sixth Circuit has cautioned against the 

"improper consideration of evidence outside the administrative record and 

reliance upon post hoc rationalizations for the agency's action." Alexander v. 

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Merit Sys. Protection Bd, 165 F.3d 474, 480-81 (6th Cir. 1999). Under the APA, an 

agency decision can only be set aside if it is "arbitrary, capricious, an abuse of 

discretion or otherwise not in accordance with law." Bangura v. Hansen, 434 F.3d 

487, 502 (6th Cir. 2006) (citing 5 U.S.C. § 706(2)(A)). An agency's decision is 

arbitrary and capricious "if the agency fails to examine relevant evidence or 

articulate a satisfactory explanation for the decision." Id The judgment of the 

court cannot be substituted for the judgment of the agency. Motor Vehicle Mfrs. 

Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, (1983). 

"Even when an agency explains its decision with less than ideal clarity," 

the decision will not be overturned "on that account if the agency's path may 

reasonably be discerned." Bangura, 434 F.3d at 502. (quoting Alaska Dep't of Env't 

Conservation v. EPA, 540 U.S. 461,497, 124 S.Ct. 983, 157 (2004)). Courts should 

make a "searching and careful" inquiry into the facts, but an agency's factual 

findings should be accepted if they are supported by substantial evidence on the 

record. Ky. Waterways Alliance v. Johnson, 540 F.3d 466, 474 (6th Cir. 2008); 

Arkansas v. Oklahoma, 503 U.S. 91, 113 (1992). Only the administrative record, 

which includes all the materials before the agency at the time it made its decision, 

will be considered. Alexander v. Merit Sys. Protection Bd, 165 F.3d at 480; Sierra 

Club v. Slater, 120 F.3d 623, 638 (6th Cir.1997). 

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To determine whether the agency's decision is "otherwise not in 

accordance with the law," 5 U.S.C. §706(2)(A), the Court in this case looks to the 

law and regulations governing the 1-130 Petitions. 

A United States citizen who marries a non-citizen can file a Petition to 

classify the citizen's spouse as an immediate relative so that the relative receives a 

preference status. INA§ 204(a), 8 U.S.C. § 1154(a); 8 C.F.R. § 204.2(a); see INA 

§ 201(b)(2)(A)(i), 8 U.S.C. § 1151(b)(2)(A)(i). When a 1-130 Petition is filed based on 

marriage, the petitioner must show by a preponderance of the evidence that the 

marriage was bona fide at its inception, i.e. that the couple intended to establish a 

life together at the time they got married. Matter of Soriano, 19 1. & N. Dec. 764, 

Interim Decision 3081 (B.I.A.1988) ("The central question is whether the bride and 

groom intended to establish a life together at the time they were married" ); 

Matter of Laureano, 19 I. & N. Dec. 1, Interim Decision 2951 (B.I.A.1983) (same). 

The USCIS investigates the claimed marital relations, underlying circumstances of 

the marriage and marital history of the petitioner and beneficiary before 

conferring immigration benefits. 8 U.S.C. § 1103(a). In visa Petition proceedings, 

it is the petitioner's burden to establish eligibility for the requested immigration 

benefit sought under the INA. See Matter of Brantigan, 11 I. & N. Dec. 493, 495 

(BIA 1966). Following the review, adjudication and approval of the 1-130 Petition, 

the non-citizen spouse then may apply for lawful permanent resident status. See 8 

U.S.C. 1255(a). 

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If during the USCIS's review, it identifies "substantial and probative 

evidence" that the beneficiary had a prior marriage to a United States citizen or 

lawful permanent resident that was for the purpose of evading the immigration 

laws, it will issue a NOID. 8 C.F.R. §§ 103.2(b)(16), 204.2(a)(1 )(ii). Upon receipt of 

this notice, the petitioner may respond and to be successful must establish that 

the suspected marriage was legitimate and not fraudulent. Matter of Kahy, 19 I. & 

N. Dec. 803, 806-07 (BIA 1988). 

Section 204(c) of the INA denies a visa to an alien's immediate relative on 

the basis of a fraudulent or sham marriage when it is found that 

(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 or the spouse of an 

alien lawfully admitted for permanent residence, 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). 

A decision finding marriage fraud pursuant to § 204(c) must be supported 

by substantial and probative evidence. Bangura, 434 F.3d at 502-503 (citations 

omitted). Substantial and probative evidence of marriage fraud is evidence that 

"must establish that it is more than probably true that the marriage is fraudulent." 

Singh. 27 I & N Dec. at 607. Such evidence can be direct and or circumstantial. Id 

The substantial and probative evidence standard is less than "clear and 

convincing evidence," which requires proof that something is "highly probably 

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true," but more than a "preponderance of the evidence," which only requires 

proof that something is "probably true." Id. at n. 7. Once it is determined that a 

beneficiary entered a prior marriage for the purpose of evading the immigration 

laws, all subsequent 1-130 Petitions filed on behalf of that beneficiary must be 

denied. 8 U.S.C. 1154(c); Matter of Kahy, 19 I. & N. Dec. at 805 n. 2. 

The Court w ill review the agencies' decisions to determine if it is supported 

by substantial and probative evidence. 

Ill. LEGAL ANALYSIS 

Because the Administrative Record Contains Substantial and Probative 

Evidence that Makhamreh's Marriage to Ferguson Was Entered into for the 

Purpose of Evading the Immigration Laws, and that Plaintiffs Failed to 

Provide Persuasive Proof of the Bona Fides of that Marriage, the Agencies' 

Decisions Are Not Arbitrary, Capricious, an Abuse of Discretion or 

Otherwise not in Accordance with Law 

In challenging the agencies' denial of the 1-130 Petition on the ground that 

the Ferguson marriage was a sham marriage under§ 204(c), Plaintiffs argue that 

the Ferguson marriage was a "failed marriage and not a fraudulent marriage." 

Doc. #28, PAGEID#548. They further assert that any questions concerning 

Makhamreh's non-disclosure of prior addresses are "clearly explained" in his 

affidavit. Doc. #28, PAGEID#548. Accordingly, they contend that there was no 

substantial and probative evidence of fraud and that the decisions of the agencies 

are arbitrary, capricious, not in accordance with law and " without observance or 

procedure required by law." Id. at PAGEID#549. The Court will examine the BIA's 

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de nova review of the facts as gathered and explained in the decision of the 

USCIS. 

In conducting its de nova review of the evidence, the BIA noted that for 

§ 204(c) to bar approval of the Petition, "an affirmative finding" that the Ferguson 

marriage was "actually fraudulent," based upon substantial and probative 

evidence, is required. Doc. #27, PAGEID#177. The BIA's decision stated that the 

October 17, 2016, NOID set out the basis for the conclusion that the Ferguson 

marriage was fraudulent. 

The Director noted that the beneficiary had entered the United States 

on March 29, 2013, as a nonimmigrant visitor with authorization to 

remain in the United States until September 28, 2013. On August 23, 

2013, Makhamreh married [Ferguson], a United States citizen, who 

submitted her Petition for Alien Relative (Form 1-130) for the 

beneficiary on September 23, 2013. However, approximately 1 week 

later, on October 1, 2013, [Ferguson] submitted a letter withdrawing 

the Form 1-130, stating that she realized that the marriage may have 

been for reasons other than a relationship with her, that she did not 

live with the beneficiary, that the beneficiary visited his relatives 

regularly, that he never visited her at her residence and did not 

provide [her] with access to his residence, that the beneficiary 

physically assaulted her[,] and that she planned to file for divorce. 

Doc. #27, PAGEID#178. 

The BIA also noted that when Plaintiffs appeared for a follow-up interview 

on November 23, 2015, Makhamreh did not explain "the circumstances of his 

separate living arrangements" during his marriage to Ferguson. Id at 

PAGEID#178. Moreover, in response to the NOID, Petitioner Riley produced a 

number of documents including affidavits and a resident ledger for Makhamreh 

and a Jonathan Adamson for a rental in Lawrenceburg, Kentucky. Id According 

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to the BIA decision, the May 1, 2017, denial by the USCIS listed various 

discrepancies in addresses provided by Makhamreh. Additionally, his statement 

in his affidavit that he was unable to live with Ferguson during the marriage due 

to their lack of income was refuted by a payment history in the resident ledger. 

This document established that the Beneficiary shared the rental with Jonathan 

Adamson from October 2, 2013, to October 31, 2014. Id; Doc. #27-5, 

PAGEID##283-284. The BIA noted that the rental ledger showed an application fee 

and security deposit paid on August 14, 2013, 10 days before Makhamreh's 

marriage to Ferguson. Id The BIA's decision found that the failure of Makhamreh 

and Ferguson to live together and "hold each other out as a married couple" was 

probative evidence that the marriage was entered into for the purpose of evading 

the immigration laws. Id PAGEID#178. 

Petitioner bears the burden to show that a prior marriage was bona fide. 

See Matter of Tawfik, 20 I. & N. Dec. 166,167 (BIA 1990); Matter of Kahy, 191. & N. 

Dec. 803, 806-07 (BIA 1988); 8 C.F.R. § 204.2(a)(1 )(ii). Such evidence generally 

includes "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." Laureano, 191. & N. at 3. In this case, because of the 

short-term nature of the marriage and alleged lack of funds, the Court accepts that 

some of this evidence may not have been available. There is no dispute, 

however, that at no time during their marriage did Ferguson and Makhamreh live 

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together and there is evidence, as noted above, that there were discrepancies in 

the Beneficiary's addresses on his submissions to the USCIS and that he appears 

to have entered into a new rental arrangement with a Jonathan Adamson ten 

days before his marriage to Ferguson. Doc. #27-5, PAGEID#283. Moreover, 

although Makhamreh visited his family weekly, he did not introduce Ferguson to 

his family. 

The Court finds that the decision of the BIA to deny Petitioner's 1-130 

Petition was not arbitrary, capricious, an abuse of discretion, and otherwise not in 

accordance with law, and that there is substantial and probative evidence in the 

administrative record to support the BIA's finding that the Ferguson and 

Makhamreh marriage was a sham. 

IV. Conclusion 

For the above stated reasons, Defendants' Motion for Summary Judgment, 

Doc. #30, is SUSTAINED and Plaintiffs' Motion for Summary Judgment, Doc. #28, 

is OVERRULED. 

Judgment shall be entered in favor of Defendants and against Plaintiffs. 

The captioned case is hereby terminated upon the docket records of the 

United States District Court for the Southern District of Ohio, Western Division at 

Dayton. 

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Date: October 20, 2020 

WALTER H. RICE 

UNITED STATES DISTRICT JUDGE 

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