17-1052 Joseph F. Risoli, P.E., LLC v. Nielsen 

## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

# SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION A SUMMARY ORDER @ ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 22 nd day of May, two thousand eighteen. PRESENT: PETER W. HALL, SUSAN L. CARNEY, Circuit Judges, JOHN G. KOELTL, * District Judge.

________________________________________ Joseph F. Risoli, P.E., LLC, Jose Navarrete Villaluz, Plaintiffs-Appellants , v. 17-1052 Kirstjen M. Nielsen, Secretary of the Department of Homeland Security (“DHS”), Jefferson B. Sessions III, United States Attorney General, Lee Francis Cissna, Director, United States Citizenship and Immigration Services (“USCIS”), Gregory A. Richardson, Director, USCIS Texas Service Center, Defendants-Appellees. ** * Judge John G. Koeltl, of the United States Di strict Court for the Southern District of New York, sitting by designation. ** The Clerk of Court is directed to amend the caption as above.________________________________________ FOR PLAINTIFFS-APPELLANTS: J ON E. J ESSEN , Law Offices of Jon E. Jessen, LLC, Stamford, CT. FOR DEFENDANTS-APPELLEES: C AROLYN A. I KARI , Assistant United States Attorney (Sandra S. Glover, Assistant United States Attorney, on the brief ), for John H. Durham, United States Attorney for the District of Connect icut, New Haven, CT.

Appeal from a judgment of the United Stat es District Court for the District of Connecticut (Chatigny, J .).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Appellants Joseph F. Risoli, P.E., LLC (“Risoli ”), an engineering firm, and Jose Navarrete Villaluz (“Villaluz”), a citizen of the Philippines and an employee of Risoli, appeal the district court’s grant of summary judgment in favor of th e Government in their challenge of the U.S. Citizenship and Immigration Services’ (“USCIS”) denial of Risoli’s Petition for Alien Worker filed on Villaluz’s behalf. US CIS found Villaluz ineligible for a visa based on evidence that Villaluz had previously entered into a marriage w ith Maria Princesita Cortez Osmena (“Osmena”) for purposes of evading immigration laws. We assu me the parties’ familiarity with the underlying facts and procedural hi story of this case. “On appeal from a grant of summary j udgment involving a claim brought under the Administrative Procedure Act, we review the administrative record de novo without according deference to the decision of the district court.” Karpova v. Snow , 497 F.3d 262, 267 (2d Cir. 2007). A court must “hold unlawful and set aside agen cy action” that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “The scope3 of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to 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, 43 (1983). We must afford “[a] ppropriate deference” to the agency’s “decisions in light of the widespread fraud a ssociated with immediate-relative petitions.” Egan
v. Weiss , 119 F.3d 106, 107 (2d Cir. 1997) (per curi am) (internal quotation marks omitted). The agency may not approve any visa petiti on for a beneficiary who previously sought lawful status through “a marriage determined by the Attorney General to ha ve been entered into for the purpose of evading the immigration laws .” 8 U.S.C. § 1154(c). The finding of a fraudulent marriage must be supported by “substan tial and probative” evidence “documented in the alien’s file.” Matter of Tawfik , 20 I. & N. Dec. 166, 167 (B.I.A. 1990); see 8 C.F.R § 204.2(a)(1)(ii). “The central que stion is whether the [couple] in tended to establish a life together at the time they were married.” Matter of Soriano , 19 I. & N. Dec. 764, 765 (B.I.A. 1988). If the agency determines that substantial and pr obative evidence of fra ud exists, then “the burden shifts to the petitioner to establish that th e beneficiary did not seek . . . status based on a prior fraudulent marriage.” Matter of Kahy , 19 I. & N. Dec. 803, 806-07 (B.I.A. 1988). Substantial and probative evidence supports the agency’s conclusion that Villaluz’s marriage to Osmena was entered fraudul ently to obtain immigration benefits. The agency reasonably relied on the following. Osmena wrot e two letters withdrawing her marriage-based visa petitions and stating th at Villaluz had married her fo r immigration purposes. Although she later disavowed the first letter, she did not retrac t the second one. Villaluz provided three different dates for when he moved in with Osmena after their marriage (stating variously it was in June 2001, August 2001, and April 2002). Villaluz submitted letters from his aunt and Osmena’s4 friend stating, in contrast to the dates he provide d, that Villaluz had begun living with Osmena in May 2002. Villaluz said that he had never attended a court hearing in the annulment proceedings for his first marriage in the Philippines, contra ry to an undated and incomplete decision he submitted from that proceeding stating that he had testified in court. Osmena’s letters and Villauluz’s inconsistencies together provided substantial and probative evidence to support the agency’s conclusions. See Matter of Phillis , 15 I. & N. Dec. 385, 387 (B.I.A. 1975) (recognizing that inconsistent statements about a couple’s living arrangemen ts are particularly significant evidence of a fraudulent marriage); see also Matter of Tawfik , 20 I. & N. Dec. at 168 (providing that “the district director may rely on any relevant evidence” to determine if a prior marriage was fraudulent). Because the agency identified substantial a nd probative evidence of marriage fraud, the burden shifted to Villaluz to rebut that evidence with evidence that his marriage to Osmena was bona fide. See Matter of Kahy , 19 I. & N. Dec. at 806-07. “Evidence to establish that [a] marriage was not entered into for the purpose of evading the immigration laws may take many forms, including, but not limited to, ‘proof that the beneficiary [of th e visa petition] 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.’” In re Riero , 24 I. & N. Dec. 267, 269 (B.I.A. 2007) (quoting Matter of Laureano , 19 I. & N. Dec. 1, 3 (B.I.A. 1983)). The ag ency did not err in fi nding that Villaluz’s evidence was insufficient to rebut the evidence of fraud. He failed to submit any objective evidence to resolve his inconsistent statements regarding the dates that he lived with Osmena. See Matter of Ho , 19 I. & N. Dec. 582, 591-92 (B.I.A. 1988) (“Attempts to explain or reconcile . . .5 conflicting accounts, absent competen t objective evidence pointing to where the truth, in fact, lies, will not suffice.”). The travel and telephone record s submitted did not demonstrate regular visits or contact between Villaluz and Osmena. , and their joint bank account statements did not show payment of any joint bills and demonstrated th at they commingled a relatively small amount of money for a six-month period in accounts through which they conducted very few transactions. Given Osmena’s statement that Villaluz marri ed her for immigration purposes, Villaluz’s inability to state consistently when he lived wi th Osmena during their marriage, the inconsistent evidence he presented regarding the dissolution of his first marriage, and the weakness of his rebuttal evidence, we conclude that the agency’s finding that Villaluz entered into a fraudulent marriage is supported by substantial and probative evidence. See Matter of Phillis , 15 I. & N. Dec. at 386-87. The agency’s decision therefor e was not “arbitrary, ca pricious, an abuse of discretion, or otherwise not in accordance with law.” 1 5 U.S.C. § 706(2)(A). We have considered the Appellants’ remain ing arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

1 Having reached this conclusion, we, like the di strict court, need not address the agency’s alternative basis for denying the petition: that Vi llaluz did not have the re quisite work experience for the employment-related status change he sought.