from the United States District Court for the Eastern
District of Michigan at Flint. No. 4:18-cv-12526-Linda V.
Parker, District Judge.
H. Ayad, AYAD LAW, PLLC, Detroit, Michigan, for Appellants.
M. Steffens Guzmán, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellees.
Before: MERRITT, DAUGHTREY, and GRIFFIN, Circuit Judges.
GRIFFIN, CIRCUIT JUDGE.
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
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
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
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.
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 §
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. ...