NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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10-1802
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ALLA BARENBOY,
Appellant
v.
SECRETARY, U.S. DEPARTMENT OF HOMELAND SECURITY;
DIRECTOR, U.S. CITIZENSHIP & IMMIGRATION SERVICES;
KAREN FITZGERALD, Director, USCIS Philadelphia District Office;
EVANGELIA KLAPAKIS, Director, USCIS Philadelphia Field Office, in their official
capacities
(Pursuant to Fed. R. App. P. 43(c)(1))
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 2-09-cv-03082)
District Judge: Hon. Louis H. Pollak
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Submitted Pursuant to Third Circuit LAR 34.1(a)
November 9, 2010
BEFORE: MCKEE, Chief Judge, SLOVITER and COWEN , Circuit Judges
(Filed December 29, 2010)
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OPINION
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COWEN, Circuit Judge.
In this immigration-related matter, Plaintiff Alla Barenboy appeals from the order
of the United States District Court for the Eastern District of Pennsylvania dismissing her
complaint on jurisdictional grounds. We will affirm.
I.
This matter arises out of the denials by United States Citizenship and Immigration
Services (―USCIS‖) of two separate Form I-130 Petitions for Alien Relative filed by
Barenboy (an American citizen) on behalf of her spouse, Armen Danielyan (a native and
citizen of Armenia who is currently the subject of a removal proceeding).
In 1999, Danielyan, a musician, traveled to the United States on a P-1 visa in order
to perform at Carnegie Hall in New York City. In connection with this visit, an
administrator from the Armenian Philharmonic Orchestra (Danielyan‘s employer)
allegedly completed the requisite United States Department of State Form OF-156
Nonimmigrant Visa Application on his behalf. The Form OF-156 Application stated that
Danielyan was married to Gayane Asatryan, an Armenian citizen. In 2001, Danielyan
personally filed another Form OF-156 Application at the American Embassy in Armenia.
―[A]n [embassy] employee helped him fill out the application by using the information
stored in the system from his prior P-1 visa application,‖ which he had ―forgotten‖ stated
that he was married to Asatryan. (Appellant‘s Brief at 5 (citing A35).) Danielyan then
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purportedly signed the document ―without noticing that it stated he was married.‖ (Id.
(citing same).)
Danielyan, in a sworn statement, acknowledged that he lived with Asatryan in
Armenia from 1993 until they broke up in 1995. They had two daughters, born in 1994
and 1995. However, he insisted that they were never married.
Admitted in April 2001 as a non-immigrant visitor for business, Danielyan did not
leave the country when his B-1/B-2 visa expired in May 2001. He also began a
relationship with Barenboy. The two individuals eventually moved in together in January
2004. Barenboy was still legally married to another man, but she and Danielyan
purportedly intended to get married once her divorce was finalized.
Danielyan was eventually apprehended by United States Immigration and Customs
Enforcement (―ICE‖) agents on May 11, 2004. With the telephonic assistance of a
Russian-language interpreter (a language that Danielyan could apparently speak ―fairly
well‖ although ―his first and better language is Armenian‖), Danielyan was questioned by
the agents. (Id. at 7 (citing A21, A37).) He claimed in his written statement that:
. . . . The translator asked me at one point why I was not married to Alla. I
tried to explain to the translator that I was waiting for the divorce to go
through. What I actually said was ―Zhdu Razvod,‖ which translates into ―I
wait divorce.‖ It was a very rough way of saying that I was waiting for
Alla‘s divorce to come through. I was so nervous from being handcuffed
and taken into custody that that was all the Russian I could muster to
explain things.
. . . . It has become clear to me, from later events, that the translator and the
agents misinterpreted my statement. When I said ―Zhdu Razvod‖ – ―I wait
for divorce‖, I was referring to Alla‘s pending divorce proceedings, and the
fact that our ability to marry hinged on her divorce coming through. But the
agents thought I meant that I was still married, and that I needed a divorce
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in order to marry Alla. The agents did not even consider the fact that Alla
was the one who had an actual divorce case pending, a fact they could have
easily looked up. There was no need for me to get a divorce – I had never
been married!
(A37.) According to a declaration submitted by the USCIS Field Office Director,
―Danielyan [thereby] informed ICE that he was married to Gayane Asatryan – who
remained in Armenia – but that he intended to marry Alla Barenboy once divorced from
Gayane Asatryan.‖ (A30.) The Field Office Director also stated that Barenboy was
present during the questioning and assisted with the translations.
Danielyan was then served with a Notice to Appear, charging that he was
removable because he remained in the United States beyond the authorized period.
Barenboy‘s divorce was finalized on August 23, 2004, and Barenboy and Danielyan were
then married in Maryland on August 26, 2004.
Barenboy filed a Form I-130 Petition, requesting a bona fide marriage exemption
pursuant to 8 U.S.C. § 1255(e)(3). When he was interviewed under oath at the
Philadelphia District Office, Danielyan attempted to explain that he had never been
married to Asatryan. USCIS issued a Notice of Intent to Deny for failure to show the
termination of Danielyan‘s previous marriage to Asatryan. In addition to a statement
from Danielyan explaining that he had never been married to Asatryan and denying that
he ever told the ICE agents that he was, Barenboy submitted the following documentation
(including both the purported originals as well as English translations): (1) a statement
purportedly from Asatryan herself, asserting that she had two children with Danielyan but
that she had never been married to him; (2) a certificate allegedly from the Armenian
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Territorial Department of Civil Status Registry Office of Ajapnyak and Davtashen,
indicating that there was no record of any registered marriage for Danielyan in the time
period between October 12, 1990 and February 23, 2005; and (3) a statement purportedly
from the Araratyan Patriarchal Diocese of the Armenian Apostolic Church, likewise
asserting that Danielyan had never been married according to the rites of the Church.
On October 28, 2006, the USCIS District Director denied the first Form I-130
Petition, finding that Barenboy failed to prove ―the dissolution of all previous marriages
of both you and your current spouse‖ pursuant to 8 C.F.R. § 204.2(a)(2). (A261.)
Barenboy responded by filing an administrative appeal as well as a second Form I-130
Petition.
After further interviews and an overseas investigation, the Field Office Director
denied the second Form I-130 Petition on July 11, 2008. She determined, inter alia, that
Barenboy‘s marriage ―is a bigamist marriage and is not bona fide for the purpose of
conveying an immigration benefit to Mr. Danielyan.‖ (A115.) Explaining that Danielyan
did not enter into a good faith marriage in accordance with the laws of the place where
the marriage took place because he knew he was not free to marry, the Field Office
Director concluded her rather lengthy decision as follows:
. . . . The instant case taken in its entirety shows that your marriage took
place after the beneficiary had been placed in proceedings, the beneficiary
claimed he was never married prior to your marriage and therefore did not
need a divorce, and that when USCIS required a divorce document, the
beneficiary knowingly and willfully provided documents and sworn
testimony to further his claim that his marriage to you was indeed bona fide,
shows clearly and unmistakably that the beneficiary‘s marriage to you was
not in good faith.
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(Id.) Barenboy appealed from this rejection of her second Form I-130 Petition.
On March 23, 2009, the Board of Immigration Appeals (―BIA‖) dismissed both
administrative appeals. The BIA agreed with the previous determinations of USCIS,
―based on the beneficiary‘s sworn testimony to ICE officers, his two applications for a
nonimmigrant visa (Form OF-156) indicating that the beneficiary was married to Gayane
Asatryan, and the petitioner‘s failure to submit any evidence that the beneficiary‘s prior
marriage has been terminated.‖ (A42-A43.) According to the BIA, Barenboy failed to
establish that the beneficiary was free to marry her, and their marriage therefore was not
bona fide for the purpose of conferring an immigration benefit.
Barenboy filed a complaint with the District Court on July 10, 2009. Naming
several government officials as Defendants, she sought judicial review of the various
administrative determinations made regarding her Form I-130 Petitions pursuant to the
Administrative Procedure Act. On March 1, 2010, the District Court granted Defendants‘
motion to dismiss, explaining, inter alia, that it lacked subject matter jurisdiction pursuant
to 8 U.S.C. § 1252(a)(2)(B)(i).
II.
An alien who marries a United States citizen while in removal proceedings is
subject to a statutory presumption that the marriage itself is fraudulent. See, e.g., 8
U.S.C. § 1154(g); 8 U.S.C. § 1255(e). Unless this presumption is rebutted, a Form I-130
Petition filed on the alien‘s behalf may not be approved until the alien has resided outside
the United States for a two-year period from the date of the marriage. See, e.g., 8 U.S.C.
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§ 1154(g); 8 U.S.C. § 1255(e). The presumption of fraud is successfully rebutted
pursuant to the bona fide marriage exemption ―if the alien establishes by clear and
convincing evidence to the satisfaction of the Attorney General that the marriage was
entered into in good faith and in accordance with the laws of the place where the marriage
took place and the marriage was not entered into for the purpose of procuring the alien‘s
admission as an immigrant and no fee or other consideration was given (other than a fee
or other consideration to an attorney for assistance in preparation of a lawful petition).‖ 8
U.S.C. § 1255(e)(3). In this matter, both USCIS and the BIA held that Barenboy failed to
rebut this otherwise applicable fraud presumption.
For its part, the District Court determined that ―Section 1255(e)(3) falls squarely
within the jurisdictional bar provided in [8 U.S.C. § 1252(a)(2)(B)(i)].‖ (A8.) This
subsection provides that ―no court shall have jurisdiction to review—(i) any judgment
regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of
this title.‖ Defendants, however, acknowledge that subsection (i) actually governs
adjustment of status applications, and they turn instead to 8 U.S.C. § 1252(a)(2)(B)(ii).1
See, e.g., Shook v. Avaya Inc., 625 F.3d 69, 72 (3d Cir. 2010) (stating that order of
1
Noting that ―Barenboy characterizes the question [at issue in this case] as one of law—
i.e., whether the USCIS decision involved a mis-application of 8 U.S.C. § 1255(e)(3),‖
the District Court indicated that such a legal question should be considered by this Court
pursuant to 8 U.S.C. § 1252(a)(2)(D). (A8 n.3.) Nevertheless, we need not (and
therefore do not) consider the possible effects of this statutory subsection because this
appeal may be resolved on other grounds. Defendants observe that they have never
argued that § 1252(a)(2)(D) is applicable in the current circumstances, and they also
properly note that the amicus curiae brief filed by the American Immigration Council
addresses only the limited question of this particular subsection‘s applicability.
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district court may be affirmed on any grounds supported by record). Subsection (ii) states
that no court shall have jurisdiction to review ―any other decision or action of the
Attorney General or the Secretary of Homeland Security the authority for which is
specified under this subchapter to be in the discretion of the Attorney General or the
Secretary of Homeland Security, other than the granting of relief under section 1158(a) of
this title.‖
Barenboy raises a number of arguments for why the District Court still retained
subject matter jurisdiction over her complaint despite the language of § 1252(a)(2)(B)(ii).
For instance, she contends that her current judicial action raises purely legal questions,
such as whether Danielyan possessed the legal capacity to marry her. More broadly,
Barenboy contends that the determination to grant or deny a bona fide marriage
exemption constitutes a non-discretionary decision for purposes of the jurisdictional bar.
Having fully considered her various assertions, we nevertheless conclude that the District
Court lacked subject matter jurisdiction over this action. Here, both USCIS and the BIA
determined that Barenboy failed to prove ―by clear and convincing evidence to the
satisfaction of the Attorney General‖ that her marriage to Danielyan ―was entered into in
good faith and in accordance with the laws of the place where the marriage took place
and the marriage was not entered into for the purpose of procuring the alien‘s admission
as an immigrant.‖ 8 U.S.C. § 1255(e)(3) (emphasis added). Pursuant to §
1252(a)(2)(B)(ii), the District Court lacked jurisdiction to review such discretionary
determinations. Cf., e.g., Sukwanputra v. Gonzales, 434 F.3d 627, 635 (3d Cir. 2006)
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(―This language [in 8 U.S.C. § 1158(a)(2)(D)] requiring an asylum applicant to make a
demonstration to the Attorney General‘s ‗satisfaction‘ implies that the Attorney General‘s
determination entails an exercise of discretion.‖ (citation omitted)).
Even if we were inclined to conclude that the District Court had jurisdiction, it is
clear that Barenboy‘s complaint must still be dismissed for failure to state a claim upon
which relief can be granted. She asserts that the administrative denials of her Form I-130
Petitions were ―arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law,‖ 5 U.S.C. § 706(2)(A), were made ―without observance of
procedure required by law,‖ 5 U.S.C. § 706(2)(D), and were otherwise ―unsupported by
substantial evidence,‖ 5 U.S.C. § 706(2)(E). Nevertheless, USCIS and the BIA complied
with their legal obligations and their respective determinations regarding the Form I-130
Petitions were supported by substantial evidence. In particular, we note that the record
contains two Form OF-156 Applications filed on behalf of Danielyan and that both of
these documents clearly stated that he was married to Asatryan. USCIS, in turn, has
consistently (and reasonably) maintained that Danielyan told the ICE agents after his
apprehension that he was still married to Asatryan and that he intended to marry
Barenboy after he divorced her.
III.
For the foregoing reasons, we will affirm the order of the District Court.
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