           Case: 15-12204   Date Filed: 01/17/2017   Page: 1 of 11


                                                        [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 15-12204
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 8:13-cv-02474-MSS-TGW



LEYLA ROJAS,

                                              Plaintiff - Appellant,


versus

SECRETARY, DEPARTMENT OF HOMELAND SECURITY,
ALEJANDRO MAYORKAS,
Director, Citizenship and Immigration Services,
KAREN FITZGERALD, Director,
Vermont Service Center,

                                              Defendants - Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                            (January 17, 2017)

Before TJOFLAT, JORDAN, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Leyla Rojas seeks lawful permanent residence in the United States. To

obtain this status, she filed a Form I-360 “Petition for Amerasian, Widow, or

Special Immigrant” in which she asked the United States Citizenship and

Immigration Service to classify her as an abused or battered spouse of a United

States citizen. The USCIS denied her petition because she had tried to obtain

United States citizenship through a prior marriage that had been fraudulently

entered into for the purpose of evading immigration law.

      Ms. Rojas filed suit in the district court, claiming that the USCIS’ denial was

erroneous. Both sides moved for summary judgment and the district court granted

summary judgment in favor of the government. On appeal, Ms. Rojas contends

that the USCIS’ determination that she had previously entered into a sham or

fraudulent marriage and its denial of her I-360 petition on that ground were not

based on substantial evidence. After reviewing the record, we affirm.

                                          I

      Because we write for the parties, we assume their familiarity with the

underlying facts of the case and recite only what is necessary to resolve this appeal.

      Ms. Rojas was previously married to Henry Correa, a United States citizen.

The two began dating in August of 2006 and were married two months later.

Approximately one month after the marriage, Mr. Correa filed a Form I-130

“Petition for Alien Relative” on Ms. Rojas’ behalf, seeking to have her classified



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as an immediate relative of a United States citizen. At the same time, Ms. Rojas

filed an “Application to Register Permanent Residence or Adjust Status”

predicated on the I-130 petition.       In addition to submitting documentation

evidencing the marriage, Mr. Correa and Ms. Rojas were also interviewed by

immigration officers.

      During an interview in March of 2007, Mr. Correa executed a sworn

affidavit in which he made several statements admitting that his marriage with Ms.

Rojas was fraudulent. More specifically, Mr. Correa admitted that (1) he did not

live with Ms. Rojas but instead lived with his girlfriend, to whom he was engaged

and planning to marry in 2007; (2) Ms. Rojas asked him to marry her so she could

obtain a residence card; (3) he agreed to marry Ms. Rojas as a favor; (4) he did not

know Ms. Rojas’ current address; (5) he and Ms. Rojas never consummated the

marriage; and (6) he and Ms. Rojas submitted a residential lease agreement listing

them as residing together in order to “prove that [they were] married.” Following

execution of the sworn affidavit, Mr. Correa withdrew the I-130 application,

admitting that “[he] entered into the marriage with [Ms. Rojas] for the purpose of

circumventing the Immigration Laws of the United States.” As a result, the USCIS

denied Ms. Rojas’ application to adjust status.

      Mr. Correa filed for divorce from Ms. Rojas in June of 2007, and the divorce

was finalized on October 11, 2007. In January of 2008, after Mr. Correa withdrew



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his I-130 petition, the government commenced removal proceedings against Ms.

Rojas due to the sham marriage, but those proceedings were later terminated after

an immigration judge found that the government failed to meet its burden of

showing that Ms. Rojas engaged in marriage fraud.

      On December 1, 2009, Mr. Correa recanted his initial affidavit. He did so

with a second sworn affidavit. The second affidavit was short and nowhere as

detailed as his first. In it Mr. Correa alleged that immigration officers coerced him

into executing the initial affidavit by threatening him with incarceration and taking

his children away. According to Mr. Correa, “[he] felt [he] had no choice but to

sign a document pushed in front of [him] or have [Ms. Rojas] locked up

somewhere.”

      Ms. Rojas married Mohammad Waliagha on December 8, 2009, a few days

after Mr. Correa executed the second affidavit. Mr. Waliagha then filed an I-130

via petition on her behalf in January of 2010. But on September 27, 2011, Mr.

Waliagha withdrew the I-130 petition, indicating that he had filed for divorce from

Ms. Rojas.

      On October 28, 2011, Ms. Rojas filed the I-360 petition underlying this

action, in which she sought classification as a battered spouse of Mr. Waliagha.

On June 20, 2013, the USCIS notified Ms. Rojas of its intent to deny her petition

because she had previously entered into a sham marriage for the purpose of



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evading United States immigration laws, and invited her to submit additional

evidence in rebuttal.    In response, Ms. Rojas submitted the second affidavit

executed by Mr. Correa in December of 2009.              On August 21, 2013, after

reviewing her supporting documentary evidence, as well as the evidence

concerning her first I-130 petition, the USCIS denied Ms. Rojas’ I-360 petition.

      In the district court, Ms. Rojas argued that the USCIS’ determination was

not supported by substantial evidence, that the USCIS had incorrectly based its

decision on Mr. Correa’s first affidavit without considering all the relevant

information, and that the government had previously failed to establish that her

marriage to Mr. Correa was fraudulent. The district court, adopting the magistrate

judge’s report and recommendation, granted summary judgment in favor of the

government, concluding that Ms. Rojas failed to demonstrate that the USCIS’

determination was not based on substantial evidence.

                                         II

      We review the district court’s grant of summary judgment de novo. See

Shuford v. Fid. Nat. Prop. & Cas. Ins. Co., 508 F.3d 1337, 1341 (11th Cir. 2007).

Summary judgment is appropriate “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a).




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      Under the Administrative Procedure Act, the USCIS’ denial of Ms. Rojas’

visa petition may be set aside only if it is “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law,” or “unsupported by

substantial evidence.” 5 U.S.C. § 706(2)(A), (E). See also Sanchez Jimenez v.

U.S. Atty. Gen., 492 F.3d 1223, 1230 (11th Cir. 2007) (“[We] must affirm the

[agency’s] decision if it is supported by reasonable, substantial, and probative

evidence on the record considered as a whole.”). We may not “conduct [our] own

investigation and substitute [our] own judgment for the administrative agency’s

decision.” Preserve Endangered Areas of Cobb’s History, Inc. v. U.S. Army Corps

of Eng’rs., 87 F.3d 1242, 1246 (11th Cir. 1996). “[T]he mere fact that the record

may support a contrary conclusion is not enough to justify a reversal of the

administrative findings.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir.

2004) (en banc).

                                       III

      The alien spouse of an abusive United States citizen may self-petition for

classification as an immediate relative or a preference immigrant by filing a Form

I-360. See 8 C.F.R. § 204.1(a)(3). Regardless of the merits of such a petition,

however, federal law prohibits the USCIS from approving a visa petition if it

determines “that the alien has attempted or conspired to enter into a marriage for

the purpose of evading the immigration laws.” 8 U.S.C. § 1154(c). The petitioner



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bears the burden of proving her eligibility for relief by a preponderance of the

evidence. See 8 U.S.C. § 1361. See also Matter of Pazandeh, 19 I. & N. Dec. 884,

887 (BIA 1989). So, “where there is reason to doubt the validity of the marital

relationship, the petitioner must present evidence to show that the marriage was not

entered into for the purpose of evading the immigration laws.”           Matter of

Laureano, 19 I. & N. Dec. 1, 3 (BIA 1983).

      The USCIS must consider any credible evidence relevant to the petition. See

8 U.S.C. § 1154(a)(1)(J); INA § 204(a)(1)(J); 8 C.F.R. § 204.1(f)(1). But the

determination of which evidence is more credible, and the weight to be given to

that evidence, is committed to the sound discretion of the USCIS. See 8 U.S.C.

§ 1154(a)(1)(J).

      The USCIS denied Ms. Rojas’ I-360 petition because it determined, after

considering the totality of the evidence, that Ms. Rojas had previously married Mr.

Correa in order to evade United States immigration laws. On this record, we see

no basis for overturning the district court’s grant of summary judgment in favor of

the government.

      Ms. Rojas’ primary argument is that the USCIS erroneously overemphasized

Mr. Correa’s first affidavit.   She contends that Mr. Correa’s second affidavit

cancels out the first one, and that the rest of the evidence she submitted

demonstrates that their marriage was not fraudulent. According to Ms. Rojas, had



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the USCIS properly ignored Mr. Correa’s first affidavit, it would have had no

substantial evidence from which to conclude that their marriage was fraudulent.

Ms. Rojas also argues that the USCIS should have considered the outcome of the

failed removal proceeding, in which an immigration judge determined that the

government had failed to show that Ms. Rojas’ marriage to Mr. Correa was

fraudulent. As we explain, Ms. Rojas’ arguments fail.

      For starters, the outcome of the removal proceeding does not mandate a

decision in Ms. Rojas’ favor. First, the USCIS is required to make its own,

independent determination. See Matter of Tawfik, 20 I. & N. Dec. 166, 168 (BIA

1990) (explaining that the agency must make an “independent conclusion based on

the evidence [in the record]”). Second, the burden in a removal proceeding rests

with the government, whereas the burden for obtaining relief here rests with Ms.

Rojas. See Adefemi, 386 F.3d at 1027 & n.9.

      In addition, and contrary to Ms. Rojas’ contention, it is clear that the USCIS

considered other evidence besides Mr. Correa’s first affidavit. In its August 2013

letter, the USCIS explicitly cited to various documents submitted by Ms. Rojas and

explained why it found those documents unconvincing.           Ms. Rojas had an

opportunity, by way of the USCIS’ June 2013 letter, to submit additional evidence

to convince the USCIS that its initial conclusion that the marriage was fraudulent

was incorrect.



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      The USCIS could properly conclude that Mr. Correa’s recantation did “not

overcome the exceedingly detailed [initial] statement.” D.E. 1-2 at 10. Courts

have consistently recognized that a generalized recantation that fails to refute

earlier admissions does not undermine the initial confession. See, e.g., Ghaly v.

I.N.S., 48 F.3d 1426, 1433 (7th Cir. 1995) (discounting ex-wife’s subsequent

statement because it “never refuted any of the facts described in her earlier sworn

statement”). Though Mr. Correa’s second affidavit generally disavows his initial

admissions, it does not address several compromising facts disclosed in the initial

affidavit, such as his engagement to another woman, the couple’s failure to

consummate the marriage, the circumstances under which he and Ms. Rojas met,

and Ms. Rojas’ overture that they marry so she could obtain permanent residency.

These glaring omissions could certainly render the second affidavit suspect. See

id. at 1432 (explaining that a recantation may not directly refute a previous sworn

statement because “such a denial might be considered perjury or false swearing”).

      Ms. Rojas is also incorrect that Mr. Correa’s initial affidavit is completely

uncorroborated such that, but for that affidavit, the USCIS’ denial would not be

based on substantial evidence. Several other facts extrinsic to the initial affidavit

corroborate Mr. Correa’s admissions, including the short-lived nature of the

couple’s relationship and the fact that Mr. Correa did not know Ms. Rojas’

whereabouts after their divorce, forcing him to effectuate service of the divorce by



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publication. Cf. Rodriguez Del Carmen v. Gonzales, 441 F.3d 41, 43 (1st Cir.

2006) (holding sham-marriage finding supported by substantial evidence where

spouse could not “recall important details of her putative married life, such as the

address of her joint habitation with [her husband]”).

      Ms. Rojas, in effect, argues that the USCIS should have viewed the evidence

differently.     Though some documentary evidence submitted by Ms. Rojas,

including joint tax returns, bank accounts, and insurance documents, admittedly

suggests a bona fide marriage, the USCIS considered much of that evidence and

found it insufficient. Given the standard of review, we are statutorily precluded

from reweighing the evidence.         See 8 U.S.C. § 1154(a)(1)(J); 8 C.F.R.

§ 204.1(f)(1).

      Finally, Mr. Correa’s generalized claim of duress, by itself, is insufficient to

compel a different result. See Matter of Isber, 20 I. & N. Dec. 676, 679 (BIA

1993) (explaining that the spouse’s “general claim of duress is insufficient to

retract her detailed admissions as to the fraudulent nature of her marriage”). See

also Sehgal v. Lynch, 813 F.3d 1025, 1030–31 (7th Cir. 2016) (finding that

allegations of coercion, including being threatened “with all kinds of things” and

being forced to sign a statement without first reading it, were too vague to

undermine a prior confession that the marriage had been fraudulent). This is




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especially true where, as here, the statement in which the coercion allegation is

made does not specifically deny or explain away the initial facts admitted.

                                        IV

      Because the USCIS’ decision is supported by substantial evidence, we

conclude that the district court did not err in granting summary judgment in favor

of the government.

      AFFIRMED.




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