United States District Court, E.D. New York
Edain Rose Butterfield, Gehi & Associates, Forest Hills, NY, for Plaintiff.
Elliot M. Schachner, United States Attorneys Office, Brooklyn, NY, for Defendants.
MEMORANDUM AND ORDER
GLASSER, Senior District Judge.
Plaintiff Jaswinder Sandhu (" plaintiff" ) brings this action to obtain judicial review of the denial of his application for adjustment of status bye the United States Citizenship and Immigration Services (" USCIS" ), and to obtain an order that his application be approved. Currently before the Court is the government's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) or, in the alternative, for summary judgment. For the reasons set forth below, the government's motion is hereby GRANTED.
Plaintiff came to the United States from India on September 28, 1996 on a visitor's visa that was valid through March 27, 1997. Administrative Record (" R." ) at 268 (Dkt. Nos. 9-3 to -5). Plaintiff overstayed
his visa and, on October 22, 1997, married Rowena Jones (" Jones" ), a United States citizen, in Queens County, New York. R. at 80-81. The very next day plaintiff filed a Form I-485 to adjust his immigration status to lawful permanent resident. R. at 223-26. On November 15, 1997, Jones filed a Form I-130 Petition for Alien Relative on behalf of plaintiff. R. at 227-29. On August 13, 2001, Jones obtained a Judgment of Annulment of her marriage to plaintiff from the New York Supreme Court, Queens County because " the consent ... to the marriage was obtained by fraud." R. at 82-83.
On March 8, 2002, the Immigration and Naturalization Service (" INS" )  sent plaintiff a notice requesting his appearance at its office in Garden City, New York on April 11, 2002. After plaintiff failed to appear, INS denied his Forms I-485 and I-130 without prejudice on April 15, 2002. R. at 40-41, 43.
On January 5, 2007, S.J.K. Restaurant Corporation filed a Form I-140 Immigration Petition for Alien Worker on behalf of plaintiff, which USCIS approved on June 8, 2007. R. at 162-65. On July 27, 2007, plaintiff filed a second Form I-485 based on the approved Form I-140. R. 112A-17. Although plaintiff both overstayed his visitor visa and remained in the country after his first I-485 application was denied, his second Form I-485 was viable if, and only if, his first I-485 was viable when filed. R. 88. Since plaintiff's first I-485 application was based on his marriage, his second I-485 was only viable if the marriage was bona fide. Accordingly, on December 30, 2010, USCIS sent plaintiff a notice requesting " joint documents showing you shared a bona fide marital relationship with your spouse." R. 131. In response, plaintiff submitted a copy of a joint lease agreement and notarized affidavits from his landlord, former spouse, and friends. R. 85, 123-30. USCIS denied plaintiff's second Form I-485 on March 14, 2011, concluding that:
The documentation submitted by the couple is insufficient to outweigh the fact that they failed to appear for an interview, and alone does not persuade the Service of the existence of a bona fide marriage. Specifically, the documentation is insufficient because there was no original lease agreement submitted and no way of verifying who executed the agreement or when it was executed. The affidavits submitted do not constitute evidence that the two of you intended to share a life together when you participated in the marriage ceremony.
Plaintiff moved to reopen and reconsider his Form I-485 application on April 8, 2011. R. 94-99. On November 23, 2011, USCIS reconsidered plaintiff's application and again denied it. In its second denial, USCIS listed the same ...