Ex’s Claim of Marriage Sham Deserves Probing

     SAN FRANCISCO (CN) – A woman facing deportation must be allowed to cross-examine an ex who said their marriage was a fraud to keep her in the U.S., the 9th Circuit ruled Wednesday.
     Teresita Ching – a Chinese native and citizen of the Philippines – and her current husband, Brooke Joseph, sued the U.S. Citizenship & Immigration Services, Homeland Security Secretary Janet Napolitano and U.S. Attorney General Eric Holder in 2010 after immigration officials denied Joseph’s immediate relative visa petition to keep Ching in the country.
     The couple married a month after Ching divorced her husband of one year, Elden Fong.
     It was an interview with Fong that led the USCIS to deny Joseph’s petition.
     Fong gave a sworn statement to officers stating that “Teresita and I never had sex. Teresita and I never lived together. $32,000 was offered and $14,000 was paid in cash/installments. Teresita and I did not marry for love. I regret in full marrying Teresita.”
     Ching and Joseph responded by filing a detailed, 21-page account of Ching’s and Fong’s married life, accompanies by photographs, joint utility bills, an apartment lease and Fong’s letter to USCIS – from his own immediate relative visa petition for Ching – stating that the couple “truly loved each other.”
     The Board of Immigration Appeals had previously shot down Ching and Joseph, finding that record showed Ching married Fong for the purpose of evading deportation.
     U.S. District Judge Saundra Armstrong dismissed the couple’s federal action, finding no statutory right to a judicial hearing under the Administrative Procedures Act. She also held that Ching’s detailed response to Fong’s statement satisfied due process requirements and that the couple failed to show a protected liberty or property interest in having their visa petition adjudicated.
     While a panel of the 9th Circuit agreed that there is no statutory requirement in the APA to cross-examination, they said Ching and Joseph have a protected interest and are entitled to the protection of due process as a married couple.
     “Grant of an I-130 petition for immediate relative status is a nondiscretionary decision,” Judge Sidney Thomas wrote for the panel. “Immediate relative status for an alien spouse is a right to which citizen applicants are entitled as long as the petitioner and spouse beneficiary meet the statutory and regulatory requirements for eligibility. This protected interest is entitled to the protections of due process. The district court erred in holding that there was no protected interest.”
     While due process rights are flexible and must be determined case by case, “the right to marry and to enjoy marriage are unquestionably liberty interests protected by the due process clause,” Thomas added.
     The government’s reliance on Fong’s statement to deny the visa petition also increased its risk of violating due process, according to the ruling.
     “In this case, the risk of an erroneous finding that a prior marriage was fraudulent is high in cases where an ex-spouse is relied upon for evidence that the previous marriage was fraudulent,” Thomas wrote. “Here, for example, USCIS officers went to Fong’s home and solicited from him his six-sentence statement; the BIA concluded on the basis of this ‘detailed’ statement alone that the prior marriage was fraudulent. An unexpected visit from government officers can be quite intimidating, particularly if the officials point out that having filed a fraudulent I-130 petition could result in a $250,000 fine and imprisonment for up to five years. The BIA even noted that Fong made his statement ‘against his own interest,’ though that statement is unsupported by the record.”
     The panel continued: “The risk of erroneous deprivation is particularly high in a case such as this, where the visa petitioner has substantial evidence that the first marriage was bona fide. Ching presented extensive details of her marriage to Fong, including descriptions of intimate conversations, and evidence of her life with Fong, including bills and a lease. When there is such compelling evidence to rebut the prior spouse’s claim of marriage fraud, there is a high risk of erroneous deprivation when the agency relies exclusively on written evidence.”
     Thomas and the panel acknowledged the government’s interest in preventing marriage fraud, but also noted “there is a significant public interest in allowing those who are legitimately married to receive the benefits intended for them.”
     “There were two witnesses to the Fong-Ching marriage: Fong and Ching,” the panel continued. “In this case, it is not possible to determine that Fong’s statement is true and that Ching’s is false solely by reading them. In addition, Ching presented substantial and – at this stage – uncontested documentary evidence to corroborate her claim that the marriage was bona fide. Therefore, under the specific circumstances of this case, due process required a hearing with an opportunity for Ching to confront the witnesses against her.”
     The panel sent the case back to USCIS and ordered an evidentiary hearing on the legitimacy of the Fong-Ching marriage. Meanwhile, Ching’s removal proceedings are currently pending before the agency.

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