The Ninth Circuit has determined that USCIS violated an I-130 petitioner’s due process rights by relying on an undisclosed document to find that the I-130 beneficiary had previously been in a sham marriage. The petitioner only learned of the nature of the document (a rental application submitted by the I-130 beneficiary’s ex-spouse) when the Board of Immigration Appeals affirmed USCIS’ decision. They did not gain access to the document until even later. Since Meskel and Zerezghi did not have access to the rental application until after the administrative record had been filed in the district court, they ‘did not have a meaningful opportunity to rebut’ the BIA’s allegations, and thus the agency ‘did not afford [them] adequate procedural protections.’”
The court also found that the agency applied too low of a standard of proof as to whether Meskel’s prior marriage was a sham. The government argued that “substantial and probative evidence” was a highly deferential standard, permitting the agency to deny a petition as long as there was evidence of marriage fraud, even if it was more likely than not that the marriage was bona fide. The court disagreed. Instead, the court held that the substantial and probative evidence standard of proof is at least as high as a preponderance of the evidence.