Patel v. Sessions, No. 16-3619 (8th Cir. 2017)
Annotate this CaseThe Eighth Circuit granted the petition for review challenging the denial of petitioner's application for a waiver and order of removal. The court held that the BIA erred in affirming the IJ's admission of the ex-husband's affidavit and the USCIS report without granting petitioner's request for a subpoena or otherwise providing petitioner the opportunity to cross-examine the ex-husband. The court also held that this error was prejudicial and rendered petitioner's removal hearing fundamentally unfair. Furthermore, the BIA abused its discretion in denying petitioner's motion for remand under 8 U.S.C. 1182(a)(6)(C)(i), based on her now-husband's pending visa petition on her behalf, which would give petitioner the opportunity to adjust status independent of the conditional status she received by way of her marriage to her ex-husband. In this case, petitioner faced no accusations of fraud or willful misrepresentations, the IJ declined to make an adverse credibility finding, and the IJ explicitly acknowledged that petitioner had not been charged with entering into a marriage by fraud, or for paying for a marriage.
Court Description: Kelly, Author, with Murphy and Gruender, Circuit Judges] Petition for Review - Immigration. Where the issue was whether petitioner's marriage to her former husband, a U.S. citizen, was a good faith one, the IJ erred in admitting an affidavit from the former husband alleging it was not because it deprived petitioner of the right to cross-examine him; the opportunity to examine the affidavit and the USCIS report at the hearing was insufficient, and the failure to produce the former husband or issue the subpoena sought by petitioner prejudiced her; the affidavit and the USCIS report were the only evidence directly contradicting petitioner's evidence that the marriage was legitimate, and the IJ and BIA both relied on these documents to support their conclusion that petitioner failed to meet her burden of proving a good faith marriage; further, the BIA abused its discretion in denying petitioner's motion to remand based on her now-husband's pending visa application on her behalf, which would have given petitioner the opportunity to adjust status independent of the conditional status she received by virtue of her first marriage; the BIA's reliance on 8 U.S.C. Section 1182(a)(6)(C)(i)'s mandate of inadmissibility for fraud in a case devoid of even an accusation of fraud fails to provide a rational explanation for the decision to decline the request for remand.
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