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Mendoza v. Secretary, Department of Homeland Security

United States Court of Appeals, Eleventh Circuit

April 3, 2017

LOUBNA ELKAOUSI MENDOZA, Plaintiff-Appellant,
v.
SECRETARY, DEPARTMENT OF HOMELAND SECURITY, DIRECTOR, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, DISTRICT DIRECTOR, CITIZENSHIP AND IMMIGRATION SERVICES, TAMPA, FLORIDA, FIELD OFFICE DIRECTOR, CITIZENSHIP AND IMMIGRATION SERVICES, ORLANDO, FLORIDA, Defendants-Appellees. HASSAN ELKAOUSSI, et al., Plaintiffs,

         Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 6:14-cv-00516-GKS-GJK

          Before TJOFLAT, HULL, and O'MALLEY, [*] Circuit Judges.

          PER CURIAM.

         Plaintiff Loubna Elkaoussi Mendoza appeals the district court's order granting summary judgment to the defendants. Mendoza filed a Form I-130, Petition for Alien Relative, seeking an immigrant visa for her alien father, Hassan Elkaoussi. The United States Citizenship and Immigration Services ("CIS") denied Mendoza's petition, and Mendoza filed this federal action seeking review of CIS's decision. On appeal, Mendoza contends that CIS's decision is unsupported by substantial evidence, is arbitrary and capricious, and is otherwise not in accordance with law. After review of the record and the parties' briefs, and with the benefit of oral argument, we affirm.

         I. BACKGROUND

         Mendoza was born in Morocco in 1986 and became a naturalized United States citizen in 2009. At the time of her birth, Mendoza's father, Elkaoussi, was married to Mendoza's biological mother, Hafida Serrar. Elkaoussi and Serrar divorced in 2002.

         A. Smith's 2004 Petition on Behalf of Elkaoussi

         On January 12, 2004, Elkaoussi married Joyce Smith, a United States citizen.[1] Smith was previously married to Said Aldi Hussein, but that marriage ended in 2003.

         About one month after marrying Elkaoussi, Smith filed an I-130 petition seeking an immigrant visa for Elkaoussi based on his status as her spouse. Smith and Elkaoussi submitted evidence supporting the bona fides of their marriage, including a letter from Smith's father stating that Smith and Elkaoussi lived together in his home, pictures of Smith and Elkaoussi together, joint bank statements, joint car insurance documents, other bills, and affidavits from acquaintances who could attest to the nature of Smith and Elkaoussi's relationship.

         On June 28, 2006, Smith and Elkaoussi appeared for an interview with CIS regarding the 2004 petition. In October 2007, while the 2004 petition was still pending, Smith and Elkaoussi divorced. On May 6, 2010, because of that 2007 divorce, CIS denied Smith's 2004 petition.

         B. Mendoza's 2009 and 2012 Petitions on Behalf of Elkaoussi

         On December 20, 2009, after Smith and Elkaoussi's divorce but before CIS denied Smith's 2004 petition, Mendoza filed an I-130 petition on behalf of Elkaoussi based on his status as her father. CIS denied that petition because Mendoza and Elkaoussi failed to appear for an interview.

         On March 19, 2012, Mendoza filed another I-130 petition on behalf of Elkaoussi. On February 19, 2013, CIS requested evidence regarding Mendoza's paternal relationship with Elkaoussi. Mendoza responded by submitting her birth certificate and a marriage certificate documenting the marriage between Elkaoussi and Mendoza's mother.

         On April 8, 2014, Mendoza and Elkaoussi appeared for an interview with CIS, during which a CIS officer separately asked each of them about Elkaoussi's marriage to Smith. The CIS officer asked Mendoza if she knew Elkaoussi's whereabouts in 2006, whether Mendoza ever met Smith, and who lived with Elkaoussi from 2006 to 2012. On the advice of counsel, Mendoza chose not to answer these questions.

         The CIS officer also asked Elkaoussi why he divorced Smith. On the advice of counsel, Elkaoussi chose not to answer this question.

         On June 2, 2014, CIS sent Mendoza a notice of intent to deny the 2012 petition (the "NOID"). The NOID explained that federal immigration law prohibits granting an immigrant visa to anyone who previously sought a visa on the basis of a fraudulent marriage and that CIS doubted the validity of Elkaoussi's previous marriage to Smith. In the NOID, CIS identified several issues with the evidence that Smith submitted in conjunction with her 2004 petition: (1) the letter from Smith's father, which stated that Smith and Elkaoussi lived together in his residence, was unsigned; (2) the bank statements listed Smith and Elkaoussi's address as a P.O. Box rather than a residential address; and (3) the affidavits from Smith and Elkaoussi's acquaintances included no details about when and where the affiants ...


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