INA 204(c) bars the approval of a subsequent immigrant petition for an alien who had tried to obtain benefits under a first petition which was based on a fraudulent marriage. If during the processing of the subsequent petition, the first husband told USCIS that his marriage to the alien was fraudulent may USCIS deny the subsequent petition based on the first husband’s sworn statement without giving the alien an opportunity to cross-examine the first husband?
This was the issue in the case of Ching v. Mayorkas, No. 11-17041, slip op. (9th Cir. August 7, 2013). The petitioner in that case filed an adjustment of status application based on her first husband’s I-130 petition but she later withdrew her application after she decided to divorce her first husband. In 2008, petitioner married her second husband, who filed a new I-130 petition. After the interview, USCIS notified petitioner that it intended to deny the second I-130 because the first husband alleged in a sworn statement that the first marriage was fraudulent. It turned out that USCIS visited the first husband at his home and interviewed him about his relationship with petitioner. The first husband told USCIS that he was paid to marry petitioner and they never lived together nor consummated their marriage.
In response, petitioner submitted a statement which revealed intimate details of petitioner’s life with her first husband. She also explained why their marriage failed. However, USCIS was not persuaded by these explanations. It found that the first marriage was fraudulent and denied the second I-130. Petitioner argued before the Ninth Circuit Court of Appeals that she should have been given an opportunity to cross-examine her first husband during the adjudication of her second I-130.
The Ninth Circuit agreed. It held that petitioner was entitled to procedural due process, which means an opportunity to confront and cross-examine adverse witnesses. Due process requires that there be a liberty or property interest that must be protected. A benefit such as an I-130 may qualify as a property interest if there is a legitimate claim of entitlement to it. The Court found that an I-130 that meets all applicable requirements is entitled to be approved as a matter of right. Thus, the grant of an I-130 petition is a property interest entitled to due process protection.
The next question then is what type of process does due process require? It would depend on the demands of a particular situation. USCIS procedures are administrative in nature and are different from judicial procedures. What procedure is due in an administrative proceeding such as the adjudication of an I-130 depends on the specific circumstances.
In Ching v. Mayorkas, the Court concluded that USCIS’s procedure in adjudicating the I-130 was inadequate. Petitioner and her first husband were the only witnesses on the bona fide nature of the first marriage. They each submitted their respective statements with their conflicting accounts of the relevant facts. The Court observed that it was not possible to determine that the first husband’s statement was true and petitioner’s statement was false solely by reading them. Thus, the specific circumstances of this case required a hearing with an opportunity for petitioner to confront the witness against her.
The Court found that a hearing is necessary because there is a high risk of error when USCIS relies on an ex-spouse for evidence of fraud in a marriage. The Court, citing the Supreme Court, reasoned that an opportunity to confront adverse witnesses is more important when evidence consists of the testimony of individuals whose memory might be faulty or who are motivated by malice or vindictiveness. The Court observed that many ex-spouses could be motivated by vindictiveness or jealousy especially in cases where the marriage is bona fide. The Court also recognized the possibility that an unexpected visit from government officers could intimidate an ex-spouse to provide inaccurate or false statements.
If a hearing were conducted in petitioner’s I-130, petitioner’s first husband could have been asked to elaborate on his statement and explain under what conditions he made the statement. Petitioner could have also found out if any incentives or benefits were offered to the first husband in return for making the statement. The reasons why USCIS does not conduct hearings under current procedures might have something to do with efficiency and costs. However, the Court found that conducting a hearing would entail minimal costs to the government.
This ruling is significant because it requires USCIS to do more than what it has been doing in processing marriage-based I-130 petitions. It would be interesting to see how USCIS would implement this decision. Hopefully, this could pave the way for more procedural safeguards in other situations where the concerns identified in Ching v. Mayorkas are also present.