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Jomaa v. United States

United States Court of Appeals, Sixth Circuit

October 9, 2019

Diana Jomaa; Georgina Rizk, Plaintiffs-Appellants,
United States of America, et al., Defendants-Appellees.

          Appeal from the United States District Court for the Eastern District of Michigan at Flint. No. 4:18-cv-12526-Linda V. Parker, District Judge.

         ON BRIEF:

          Nabih H. Ayad, AYAD LAW, PLLC, Detroit, Michigan, for Appellants.

          Gladys M. Steffens Guzmán, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.

          Before: MERRITT, DAUGHTREY, and GRIFFIN, Circuit Judges.



         In this immigration case, Georgina Rizk and her daughter appeal the revocation of Rizk's visa petition. The United States Citizenship and Immigration Services ("USCIS") initially granted the petition without taking into account a previous finding that Rizk had entered into a sham marriage, making her ineligible for a future visa pursuant to § 204(c) of the Immigration and Nationality Act ("INA"). See 8 U.S.C. § 1154(c). Once USCIS discovered the error, it revoked Rizk's visa petition and explained that it never should have granted the petition in the first place. After an unsuccessful appeal to the Board of Immigration Appeals ("BIA" or "the Board"), plaintiffs challenged the revocation in the district court, which dismissed their complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). We affirm.


         Plaintiff Georgina Rizk is from Lebanon. In 1996, she received deferred admission to the United States as the fiancée of a United States citizen, Mohamed Derbass. Rizk and Derbass married in 1998, and USCIS granted Rizk conditional permanent resident status. When the two divorced in 2001, Rizk "requested a waiver of the requirement to file a joint petition to remove the conditions on residence, Form I-751, based upon the claim that although she had entered the marriage in good faith, the marriage was terminated through divorce or annulment." An immigration officer interviewed Rizk under oath and gave her the opportunity to submit evidence in support of her request for a waiver. Several statements made by Rizk in that interview-concerning the fatherhood of her children and the whereabouts of her alleged first ex-husband, Mohamed Jomaa-conflicted with previous statements she had made in connection with her divorce proceedings. Additionally,

Ms. Rizk provided no evidence to establish a shared residence with the alleged husband, Mr. Derbass. There also was no evidence presented regarding the commitment of the couple to the marriage, no documentation relating to the degree to which the financial assets and liabilities were combined, and no documentation to establish the length of time of cohabitation.

         Based on this lack of evidence and the discrepancies discussed above, USCIS determined that the marriage between Rizk and Derbass "was a sham marriage entered into for the primary purpose of enabling [Rizk] to evade immigration laws and to obtain immigration benefits fraudulently." USCIS denied Rizk's petition with a finding of fraud. Around the same time, Rizk left the United States and returned to Lebanon.

         Several subsequent attempts to secure a visa for Rizk followed. First, Mohamed Jomaa filed an I-130 petition on her behalf. USCIS denied that petition "based on the fact that [Rizk] entered into her prior marriage to Mohamed Derbass for the sole purpose of obtaining an immigration benefit and she was permanently barred from being the beneficiary of an approved immigrant visa based on section 204(c) of the INA." See 8 U.S.C. § 1154(c). Mohamed Jomaa filed a second I-130 petition several years later. During its consideration of that petition, USCIS took additional evidence and conducted interviews with Rizk and Jomaa, who stated under oath that they had divorced in 1994 and Rizk "met another person by the name of Mohamed Derbass in a family setup deal so she could come to the United States because her brother lived here at the time." USCIS found inconsistencies in the evidence they submitted, however, and found that "Rizk was married to Mohamed Derbass on November 13, 1998 while still married to Mohamed Jomaa." Because the additional evidence indicated that Rizk had married Derbass "for the sole purpose of obtaining an immigration benefits [sic]" and that she had "provided false testimony to an immigration officer while under oath," USCIS denied the petition.

         In 2015, Plaintiff Diana Mohamed Jomaa-Rizk's daughter and a United States citizen- filed a new I-130 petition on Rizk's behalf, "seeking to classify Georgina Rizk as the parent of a United States citizen under 201(b) of [the] INA." See 8 U.S.C. § 1151(b). USCIS approved that petition without conducting interviews, and "the previous finding of fraud was not taken into consideration and not included in the decision." USCIS soon discovered its mistake, however, and revoked the visa petition. Plaintiffs appealed that decision to the BIA, arguing that 8 U.S.C. § 1154(c) did not apply to Rizk and should not have been used as a basis to revoke her visa. The Board disagreed, finding that USCIS had correctly determined that Rizk was ineligible for a visa under § 1154(c).

         Plaintiffs then filed a complaint in the district court, alleging that the Board's decision violated the Administrative Procedure Act ("APA"), the due process clause of the Fifth Amendment, and the INA. The government moved to dismiss the complaint for lack of subject-matter jurisdiction and failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(1) & (6). The district court determined that it had jurisdiction but then held that USCIS's application of § 1154(c) was not arbitrary and capricious and dismissed the complaint. Jomaa v. United States, No. 18-CV-12526, 2019 WL 316527, at *3 (E.D. Mich. ...

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