Date: 09-15-2023

Case Style:

Maria Elvia Smith v. Merrick Garland, et al.

Case Number: 2:22-CV-0490

Judge: Brett H. Ludwig

Court: United States District Court for the Easter District of Wisconsin (Milwaukee County)

Plaintiff's Attorney: Godfrey Muwonge

Defendant's Attorney: Olga V. Kuchins

Description: Milwaukee, Wisconsin immigration law lawyer represented the Plaintiff who sued the Defendant under 5 U.S.C. 702 which provide a person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.


Federal immigration law allows for the issuance of a visa to “an alien who was the spouse of a citizen of the United States and was not legally separated from the citizen at the time of the citizen's death.” 8 U.S.C. § 1151(b)(2)(A)(i). But a visa will only issue if the alien spouse establishes the bona fides of the marriage. In this case, both the United States Citizenship and Immigration Services (USCIS) and Board of Immigration Appeals (BIA) concluded that Plaintiff Maria Elvia Smith failed to demonstrate a bona fide marriage to her late husband, Arlo Henry Smith, Sr., and therefore denied her I-360 Petition. She has appealed to this Court under the Administrative Procedure Act (APA), 5 U.S.C. § 702.

* * *


Mrs. Smith believes the “BIA's decision is wrought with error” because it adopts USCIS's charge that she “continued to cohabit with [Hernandez-Rico] even during her marriage to Mr. Smith.” (Id. ¶40.) This assertion misstates the agencies' rulings. Neither USCIS nor the BIA found that Mrs. Smith resided with Hernandez-Rico “during her marriage to Mr. Smith.” The NOID stated: “[Mrs. Smith] continued to have a close relationship with [Hernandez-Rico] during [her] marriage to [Mr. Smith] and long after [her] nominal divorce.” (ECF No. 14-1 at 4.) USCIS stated in its decision that evidence showed Mrs. Smith and Hernandez-Rico had a “history of residing together with [their] child in common in Wisconsin over the years after [their] divorce from each other and during” Hernandez-Rico's subsequent marriage. (ECF No. 1 at 66.) And the BIA's affirmance merely noted Mrs. Smith's “continued cohabitation with [Hernandez-Rico].” (Id. at 86.) In short, neither agency ever necessarily found that Mrs. Smith and Hernandez-Rico cohabited during the former's marriage to Mr. Smith. Rather, the BIA and USCIS observed that Mrs. Smith and Hernandez-Rico lived together at various times after their 2001 divorce, a factual proposition that Mrs. Smith admits is true. (Id. at 34.) The agencies' reference to established facts in the record is not arbitrary or capricious.

* * *


The initial burden to establish a bona fide marriage falls on the petitioner seeking benefits, not the agency. See Brantigan, 11 I. & N. Dec. 493 (BIA 1966). “If the petitioner's application does not demonstrate by a preponderance of the evidence that the petitioner and beneficiary intended to establish a life
together, the . . . petition will be denied.” Wong v. Mayorkas, No. 19-CV-8427, 2023 WL 2751118, at *3 (N.D. Ill. Mar. 31, 2023). USCIS can also deny a petition under 8 U.S.C. § 1154(c) if it finds “substantial and probative evidence” of marriage fraud. 8 C.F.R. § 204.2(a)(1)(ii). “That determination is separate and distinct from the agencies' determination regarding whether the petitioner has sustained [her] burden [of] establishing a bona fide marriage.” Cassell v. Napolitano, No. 12-CV-9786, 2014 WL 1303497, at *10 (N.D. Ill. Mar. 31, 2014).

Outcome: Defendants, a collection of government officials, now move to dismiss on the grounds that Mrs. Smith has failed to state a claim. For the following reasons, Defendants' motion will be granted.

Plaintiff's Experts:

Defendant's Experts:

Comments: