Zerezghi v. United States Citizenship and Immigration Services, No. 18-35344 (9th Cir. 2020)
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The Ninth Circuit reversed the district court's decision affirming a prior-marriage-fraud finding, and held that the BIA violated due process by relying on undisclosed evidence that petitioners, husband and wife, did not have an opportunity to rebut. In this case, there is no dispute over whether petitioners' current marriage is bona fide. Rather, the government insists that there is substantial and probative evidence that wife's first marriage to an American citizen was a sham. Therefore, the government used this determination of prior marriage fraud to deny husband's I-130 petition that he filed on wife's behalf.
The panel held that, in making its initial determination of marriage fraud, the BIA violated due process by applying too low a standard of proof. On remand, the panel instructed the agency to establish marriage fraud by at least a preponderance of the evidence before it can deny any subsequent immigration petition based on such a finding.
Court Description: Immigration. In a case where the United States Citizenship and Immigration Service (“USCIS”) denied an I-130 immediate relative visa petition on the ground that the non-citizen’s prior marriage had been fraudulent, the panel reversed the district court’s grant of summary judgment in favor of the government, and remanded, holding that the Board of Immigration Appeals violated due process by relying on undisclosed evidence and by applying too low a standard of proof. Ghilamichael Zerezghi, a United States citizen, filed an I-130 petition on behalf of his non-citizen wife, Huruia Meskel. USCIS denied the I-130 petition under 8 U.S.C. § 1154(c), which provides that “no petition shall be approved” if USCIS determines that the noncitizen spouse previously entered into a marriage “for the purpose of evading the immigration laws.” USCIS and the BIA relied, in part, on an apartment-rental application Meskel’s former husband had previously submitted to USCIS. The application required him to list his past addresses, and neither of the two he listed were the marital residence that Meskel listed on her immigration paperwork. However, the ZEREZGHI V. USCIS 3 agency never told Meskel and Zerezghi that it had used the application in making its fraud determination in their case. The panel concluded that Zerezghi had a constitutionally protected interest in the grant of his I-130 petition, explaining that this court has previously held that a citizen petitioner has such a constitutionally protected interest because the approval of an I-130 petition is nondiscretionary. Next, the panel held that the government’s use of undisclosed records in making its marriage-fraud finding violated procedural due process. The panel concluded that the first factor set out by Mathews v. Eldridge, 424 U.S. 319 (1976)—the private interest affected by the government’s action—favored the couple, explaining that: 1) a finding of past marriage fraud often means that the noncitizen spouse faces removal; 2) the right to marry and enjoy marriage are unquestionably liberty interests; and 3) the right to live with one’s immediate family ranks high among individual interests. The panel also concluded that the third Mathews factor—the government’s interest—favored the couple, explaining that the question here was not the government’s interest in immigration enforcement, but its interest in not disclosing information on which it based its decision. Next, the panel concluded that the second Mathews factor—the risk of an erroneous deprivation of the constitutionally protected interest and the probable value, if any, of additional or substitute procedural safeguards—also favored the couple. The panel explained that the couple had maintained that, if they had been given the rental application, they would have been able to refute (or at least attempt to refute) the allegation that Meskel’s first husband lived at the addresses listed on the application instead of with her. Further, the panel concluded that the rental application was 4 ZEREZGHI V. USCIS the strongest piece of evidence against Meskel, and it was thus vital that Meskel and Zerezghi have been given an opportunity to rebut it. Finally, the panel held that the BIA applied too low a standard of proof when it affirmed USCIS’s marriage fraud determination. Under 8 C.F.R. § 204.2(a)(1)(ii), the agency can deny any immigration petition if there is “substantial and probative evidence” that the noncitizen has attempted or conspired to enter into a marriage to evade the immigration laws. The government argued this standard is equivalent to how courts deferentially review an agency’s factual findings for “substantial evidence,” and insisted that USCIS could deny any immigration application as long as there was evidence of marriage fraud, even if it was more likely than not that the marriage was bona fide. The panel disagreed, observing that the “substantial and probative evidence” language seems similar to the “substantial evidence” standard, but clarifying that the latter is a standard of review, while the other is a standard of proof. The panel also explained that the BIA had recently held that, to be “‘substantial and probative,’ the evidence must establish that it is more than probably true that the marriage is fraudulent.” Accordingly, the panel held that, given the seriousness of a marriage-fraud determination and the risk of a finding being made in error, the Constitution requires that the substantial-and-probative evidence standard be least as high as a preponderance of the evidence.
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