NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0881n.06 No. 11-3251 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

AMER NU MAN A DI; F IDAA K . MUSLEH, P laintif fs-App ellants,

v. UNITED STATE S OF AMERICA; JANE T NAP OLIT ANO; ERIC H. HOLDER, JR., Attor ney Ge neral; ALEJANDRO MAYORK AS; MARK HANSEN; KIM ADAM S, Defendan ts-Appellees. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON AP P EAL F ROM THE UNITED STATE S DIST RICT COURT F OR THE NORT HERN DISTRICT O F OHIO

Before: CLAY and GIBBONS, Circuit Judges, and KORM AN, Distr ict Judge. * P ER CURIAM . This is an appea l from the district court’s order g ranting the defe ndants’ motion for summary judgme nt in an action commence d under the A d mi nistrative Procedur e Act (“A PA”), 5 U.S.C. § 702. The action challeng ed the denial of an I -130 rela tive visa petition filed by Fidaa K. Musleh, a United States citizen, on behalf of her husband, Amer Numan Adi. The petition was denied on the g round that Mr. Adi had enter ed into a sham marria g e with L inda Woods Adi, his first wife, for the purpose

The Honora

ble Edwar d R. Korman, United States District J udg e for the Easter n District of * New Y ork, sitting by

desig nation. 1of evading the immigration laws. This case has a complicated proce dural history which we pass over

except to the extent necessar y to place the appea l in context

. BACK GR OUND The first spouse to file an I -130 petition on Mr. Adi’s behalf was Ms. Woods Adi, whom he marrie d on May 14, 1980. Mr. Adi and Ms. Woods Adi separ ated on Aug ust 11, 198 1 , only six months afte r the visa petition had been g rante d and he beca me a lawful perma

nent resident (“L PR”). Mr. Adi subsequently abandone d his L PR status by moving to Br azil with h i s cu rr en t wi fe Ms. Musleh in 1988 and rema ining outside the United States until they returne d in 1992. Two y ear s afte r their re turn, Ms. Musleh filed the first of thr ee unsuc cessf ul I -130 petitions on Mr. Adi’s beha lf. This appea l arises from the denial of the third I -130 petit i o n . The problem Mr. Adi encounte red in the protrac ted eff ort to reg ain his L PR status was an aff idavit executed by Ms. Woods Adi in 1990 (“ 1 9 9 0 Affidavit”), which stated that their marria g e was a sham, enter ed into for the purpose of obtaining lawful perma nent resid ence status for Mr. Adi. I n denying the third I -130 petitio n , t he district direc tor of the Citi zenship and I mmigration Service s (“CI S”) found that this aff idavit was “strong ly

support[ed] ” by

the timeline of Mr. Adi’s marria g e to Ms. W oods Adi and their subsequent separ ation and divorce

. The district direc tor summarized the timeline, as follows: The rec ord indicates that [Mr. Adi] and [Ms

. Woods] Adi wer e marrie d on May 14, 1980. [Mr. Adi] had his medical e x amination completed on August 11, 1980. The form I -1 3 0 an d form I -485 wer e filed on Dec ember 12, 1980. [Mr. Adi]’s applications wer e approve d on Marc h 3 , 1 9 8 1

. According to their divorce decr ee, filed Nove mber 10, 1981, the c ouple had be en sepa rate d since August 11, 1981. The district direc tor also deter mined that the timeline conflicte d with a second aff idavit Ms. Woods Adi signe d in 2007 (“2007 Affidavit”) rec anting her statements in the 1990 Affidavit. The district direc tor explained that the 2007 Aff idavit “states that they

had been m arr ied a littl e over a

2y ear befor e any immigration paper work was filed

. . . . [and] that [Ms

. Woods Adi] lived with [Mr. Adi] unt il April 1982, but a g ain the rec ord proves other wise.” Spec ifically , the re cord e stablishes that the two had been marrie d only seven months befor e Ms

. W oods Adi filed the immigra tion paper work a nd that the two sepa

rate d on Aug ust 11, 1981. The BIA aff

irmed the decision of the district direc tor afte r finding that “the rec ord contains substantial and probative evidenc e that [Mr. Adi]’s marria g e to L inda Woods Adi was fra udulent.” I n this a ppeal, a ppellants claim that (1) the 2007 Aff idavit was sufficie nt to overc ome Ms. Woods Adi’s 1990 Affida

vit, and (2) befor e making such a deter mination, the district direc tor should have conducte d an in-pe rson interviewof Ms. Woods Adi in adjudicating Ms. Musleh’s I -130 petition. DISCUSSIO N A. Jurisdi ction We a ddress first the issue of whether an appea l f rom the BIA’s decision was proper ly filed in the district court. J urisdiction to revie w a denial of an I -130 petition is confer red on the district court pursuant to Section 702 of the APA, which provides that “[a] person suffe ring leg al wr o n g beca use of ag ency

action, or a dverse ly

aff ecte d or aggrieve d by ag ency action withi n the m eaning of a rele vant statute, is entitled t o j u d i ci al revie w there of,” 5 U.S.C. § 702, unless revie w is fore closed by statute or the complained of decision is “committed to ag ency discretion by law,” id. § 701(a) . Neither

of these e x ceptions apply here

. The statute confe rring exclusive jurisdiction over immigration ap p ea l s on the courts of appea ls is 8 U.S.C. § 1252(a) , which is limit ed sol ely to appea ls from a “fina l order of removal.” The denial of an I -130 application is not such an order

. Indeed, it has long been rec og nized that “the district courts have jurisdiction to revie w a decision on the merits of an I -130 petition to classify an

3alien as a relative of a United States citizen.” Ginters v. Frazier , 614 F.3d 822, 827 (8th Cir. 2010);

Ruiz v. Mukase

y , 552 F.3d 269, 274 n.3 (2d Cir. 2009). We expli citly so held in Bangura v. Hansen , 434 F.3d 487, 497, 501- 02 (6th Cir. 2006). Moreove r, the complained of decision here is not committed to ag ency di s cr et i o n , and there fore , is not barr ed from revie w by the I mmigration and Nationality Act’s “jurisdiction-stri p p ing provision.” Under that p ro v i s i on, judicial revie w is not g ener ally available for any “dec ision or action of the Attorney Gene ral or the Secre tary of Ho m eland Security” which is desig nated to be within “the discretion of the Attorney Gene ral or the Secre tary of Homeland Security .” 8 U.S.C. § 1252(a) (2)( B) (ii). I -130 petitions are filed pursuant to 8 U.S.C. § 1154, which provides that “[a]fter an investig ation of the fa cts in eac h case . . . , the Attorney Gene ral shall, if he deter mines that the fac ts stated in the p et i t i o n ar e true and that the alien in behalf of whom the petition is made is an immediate relative

. . . , approve the petition.” 8 U.S.C. § 1154(b). This section does not on its fac e desig nate to the Attorney Gene ral’s discr etion the dec ision whether to g rant a n I -130 petition. On the contra ry , “[t] he use of the word ‘shall’ in [S ection 1154] indicates the Attorney Gene ral does not have discretion with reg ard to either g ranting an I -130 petition or denying one in the case of marria g e fra ud.” Ginters , 614 F.3d at 829. T h i s l an gu age stands in stark contra st to other statutes, which have been found to confe r discretion to the Attorney Gene ral. So for example, 8 U.S.C. § 1155 provides that “[t] he Secre tary of Homeland Security may , at any time, for what he deems to be g ood and sufficie nt c ause, revoke the approval of any petition approve d by him under section 1154 of t his title.” We construed this section to confe r discretion beca use the words “may” and “any time” sug g est discretion, and beca use it “allows revoc ation for what [t he Secre tary ] deems to be g ood and sufficie nt cause .” Mehanna v.

4U.S. Citi

zenship & Immigration Servs. , 677 F.3d 312, 315 (6th Cir. 2012) (interna l quotation marks omitted). “Thus, the statute leave s it to the Secre tary ’s opinion, judgme nt, or thought, whether there exis ts ‘g ood and sufficie nt cause ’ to revoke a petition,” and ref lects the fa ct t hat “Cong ress committed the decision of whether to revoke a visa petition to the discretion of the Secre tary .” Id.

Be cause the lang uag e of § 1154 plainly does not leave the decision whether to g rant an I -130 p eti tion to the Attorney Gene ral’s “opinion, judgme nt, or thought,” id. , we ag ree with our s i s t er circ uits that “[d] eter

minations reg arding the validity of marria g e for I -130 petition purposes are not discretionar

y wi t h i n the meaning of § 1252(a) (2)( B) , and thus are subject to revie w by courts.” Ayanbade jo v. Chertoff

, 517 F.3d 273, 278 (5th Cir. 2008); see also Ginters , 614 F.3d at 829; Ruiz , 552 F.3d at 275-76; Ogbolumani v. Napolitano , 557 F.3d 729, 733 ( 7th Cir. 2009). B. Mer its of the AP A Claim The I mmigration and Nationality Act mandates the denial of a visa petition made on behalf of any alien whom the Attorne y Gene ral de termines “ha s previously been acc orded, or has soug ht to be accor ded, an immediate relative or prefe re n ce s tatus as t he spouse of a citizen of t he United States

. . . by rea son of a marria g e deter mined by the Attorney Gene ral to have been enter ed into for the purpose of evading the immigration laws.” 8 U.S.C. § 1154(c)

. A“f actua l deter

mination by the [BI A] that an alien’s marria g e was enter ed for the purpose of g aining entry into the United States is conclusive if it is supported by rea sonable, substantial, and probative evidenc e” when the rec ord is “conside red as a whole.” Fang Huang v. Mukasey , 523 F.3d 640, 649 (6th Cir. 2008) (quoting Ache ampong v. Keisler , 250 Fe d. Appx. 158, 160 (6th C ir. 2007)).

5Contrary to the appellants’ arguments, our revie w of the rec ord, which we need not belabor

here , satisfies us that (1) the district direc tor did not g ive conclusive eff ect to the deter

minations in prior proce eding s, (2) she adequa tely explained her decision, and (3) her decision was supported by substantial and probative evidenc e. I ndeed, as we have alr eady observe d, Ms. Woods Adi’s 1990 Affida vit and the timeline of her marria g e to Mr. Adi and subsequent divorce and separ ation provide

a basis for inferr ing that their marria g e was a sham. Mo re o v er , n o n e of the indicia that the regulations rec og nize as providing a basis for finding that a marria g e was formed in g ood faith and both parties commitment to the relationship are satisfied here

. Ache ampong , 250 Fe d. Appx. at 161 (citing 8 C.F.R

. § 2 1 6 .5(e) (2))

. These indicia include (1) documents demonstrating the commingling of assets and liabiliti es, (2) the leng th of time the parties cohabited, (3) birth cer tificates for children born to the marr iag e, (4) proof that the pe titioner’s spouse is listed on insurance policies, proper ty lease s, income tax forms, or bank acc ounts, and (5) testimony or other evidenc e reg arding courtship, wedding cer emony , share d residenc e, and experience s. Id .; see also King v. Holder , 570 F.3d 785, 788 (6th Cir. 2009) (citing Ache ampong wi t h ap p roval); In re Soriano , 19 I

. & N. Dec

. 764, 766 (B I A 1988). N e v e r th e le s s , in r e v ie w in g th e e v id ence befor e her, the district direc tor thoroug hly c o n s id e r e d the 1990 and 2007 Affida vits and comp ar ed their contents to the other evidenc e available in the

rec ord. Rather than relying on any prior proce eding s, she provided a compre hensive (and more than “satisfa ctory ”) explanation for her decision that Ms. Woods Adi’s 1990 Affidavit was more cre dible than her 2007 Affidavit. See In re Tawfik , 20 I . & N . Dec . 166, 168 (B I A 1990). The rea sons she provides, which are revie wed in detail below, are sufficie nt not only to uphold the denial of the I -130

6petition on the g round that there was substantial and probative evidenc e o f a prior fra udulent marria g e, but also to uphold the dec ision to notinterview Ms. Woods Adi. I n her 2007 Affida

vit, Ms. Woods Adi states that she and Mr. Adi had a re ception a month afte r their marria g e to cele brate with family and friends, who g ave them g ifts. The district direc tor notes, howeve r, that not only i s t here no documentar y evidenc e of a rec eption, none of the eig ht aff idavits submitted by friends and family mention a rec eption. Next, Ms. W oods Adi claims that she and Mr. Adi cohabited as husband and wife until April 1982. Ag ain the district direc tor found this claim to conflict with their divorce decr ee, which was filed Nove mber 10, 1981 a nd indicates that the couple had been separ ated since August 11, 1981. I ndeed, the only rec ord evidenc e of the couple’ s cohabitation or commingling of financ es is the eig ht aff idavit s o f fr i en ds that wer e orig inally submitt ed in 1994, in support of the first I -130 petition Ms. Musleh filed on Mr. Adi’s behalf

. The 2007 Affida

vit also states that Ms. Woods Adi petitioned for perma nent residenc e status for Mr. Adi afte r a y ear of marria g e, but as the district direc tor undersc ored, this statement conflicts with the actua l dates of these events. Mr. Adi and Ms. Woods Adi wer e marrie d on May 14, 1980, and she f iled an I -130 petition on his behalf seve n months later, on Dec ember 12, 1980. Finally , the district direc tor rais e d o th e r tr oubling fac ts and omissions g ather ed from the 2007 Affida vit. First, Ms. Woods Adi never disclosed that the person she met soon afte r, and had children with, was J amal Deineh -- the person Mr. Adi claimed, in his April 2002 aff idavit, roomed with them afte r their marria g e. The district direc tor also noted that Mr. Deineh, who submitt ed an aff idavit in 1995 attesting to the validity of Mr. Adi’s marria g e to Ms. Woods Adi, also failed to disclose either having an aff

air with Ms. Woods Adi or living with the couple af t er t h ei r m arr iag e. Second, the district direc tor deduce d, from Ms. Woods Adi’s statement that she had to leave her “8 y ear old twin

7boy s unattended while” she spoke with the ag ents, that her sons would have been born either in 1981

or ear ly 1982, while she was presumably still marrie d to Mr. Adi. I n her 1990 Affidavit, howe ver, Ms. Woods Adi had stated tha t her mar riag e to Mr. Adi “w as neve r consummated.” I n addition to finding that Ms. Woods Adi’s s tatements about her ma rr i age and divorce t o Mr. Adi wer e unsupported by the fac tual evidenc e available in the rec ord, the district dir ector also found n o evidenc e to support her 2007 alleg ation that her 1990 Affidavit had been coer ced. The district direc tor held that if Ms. Woods Adi had rea lly been frustrated or ang ry with the immigra tion ag ents, she would have been less likely to cooper ate by signing a false affi d av i t

. C o nsidering the

rec ord as a

whole, we are not c onvinced that the district direc tor err ed in g iving Ms. Woods Adi’s 1990 Affidavit, which is “strong ly ” supported by the evidence, g reater weig ht than her 2007 Affida vit, which conflicts with that evidenc e and is not supported by documentar y evidenc e of the couple’ s share d life tog ether

. Un d er al l these circ umstances, the decision to not interview Ms. Woods Adi was neither arbitra ry nor capr icious. The cre dibilit y of Ms. Woods Adi’s 2007 Affidavit is appar ent on its fac e, and it does not raise any questions or doubts that would require the ag ency to interview Ms. Woods Adi in person. I ndeed, appellants have not pointed to any statutory obliga tion requiring the ag ency to interview a

third-par ty in adjudicating I -130 petitions. Appellants’ argument that the ag ency ’s ref usal to interview M s . W o o d s Adi made Ms. Musleh’s burden to rebut the presumption of a prior fra udulent marria g e insurmountable is basele ss. Ms. Musleh was fre e to submit other evidenc e of the validity of Mr. Adi’s marria g e to Ms. Woods Adi, including proof of the couple’ s wedding rec eption, joint tax returns, proof of commingle d assets

or liabiliti es, joint bank acc ounts, and other proof of a share d life, but failed to do so. Had there been

8probative evidenc e in the rec ord consistent with Ms. Wood’s 2007 Affidavit, appellants’ argument

that the ag ency ’s failure to inter view Ms. Woods Adi was arbitra ry and capr icious would be better

rec eived. I n sum, the ag ency ’s decision to deny the I -130 petition on behalf of Mr. Adi under § 204© is supported by substantial and probative evidenc e in t he rec ord that Mr. Adi’s marria g e to Ms. Woods Adi was a sham. Acc ording ly , we aff irm the district judge ’s g rant of summary judgme nt on the appe llants’ APA claim.

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