Ninth Circuit Finds that USCIS Violated I-130 Petitioner's Due Process Rights

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.

The full text of Zerezghi v. USCIS can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/04/14/18-35344.pdf

Board of Immigration Appeals Requires U.S. Citizenship and Immigration Services to Consider DNA Results when Adjudicating Sibling Petitions

U.S. Citizenship and Immigration Services (USCIS) issued a memorandum in 2014 stating that it would not consider DNA analyses as evidence of a sibling relationship when adjudicating a petition filed by one sibling on behalf of another.  In a published decision, the Board of Immigration Appeals (BIA) ordered USCIS to consider DNA evidence when adjudicating sibling petitions.  Specifically, the BIA stated that "sibling-to-sibling DNA test results reflecting a degree of certainty of 99.5 percent or higher should be afforded some evidentiary value," but clarified that finding that "sibling-to-sibling DNA test results reflecting any particular percentage probability will alone be sufficient to establish a claimed full sibling relationship."  Rather, the results should be considered in conjunction with other evidence of the sibling relationship.

The full text of Matter of Ruzku can be found here: https://www.justice.gov/sites/default/files/pages/attachments/2016/03/29/3860.pdf

Seventh Circuit Denies Request for Continuance to File a Second I-130

It's been a rough month for immigrants married to U.S. citizens.  

Last week, the Seventh Circuit affirmed the removal of a man who married a U.S. citizen, but later divorced her over disagreements about having children.  Judge Posner wrote an impassioned dissent defending the good faith nature of the marriage, and accusing his fellow justices of seeing fraud where none exists.  See my post on Bouras v. Holde: 

http://www.sabrinadamast.com/journal/2015/3/8/seventh-circuit-denies-i-751-judge-posner-dissents-showing-sympathy-to-immigrant-but-contempt-for-immigration-attorneys

Earlier this week, the Eighth Circuit denied an immigrant's request for a continuance (admittedly, his 13th such request), to allow his daughter to file a petition on his behalf, on account of a prior finding by the Department of Homeland Security that the immigrant had engaged in marriage fraud.  See my post on Mogeni v. Holder:   

http://www.sabrinadamast.com/journal/2015/3/9/eighth-circuit-affirms-denial-of-request-for-13th-continuance

Today, we return to the Seventh Circuit, who in a decision issued on Wednesday, still showed little sympathy for the uphill battle our clients often face in proving that they married U.S. citizens for bona fide reasons, and not just to obtain permanent residence.  Mr. Souley also married a U.S. citizen, who filed a petition on his behalf.  The Government deemed the documents she supplied insufficient to demonstrate the bona fide nature of their relationship. complaining, in part, that there was no evidence of Mr. Souley on the lease for the couple's residence, and that he was not named in the eviction proceedings brought by the landlord.  Mr. Souley, a less than punctual person, put together a packet for a second petition, this time showing his name of the lease (though not his wife's) and showing a lawsuit pending against him for unpaid rent.  He did not file it, instead seeking a continuance from the Judge to do so, before investing the resources in the filing fees without knowing if the Judge would permit the adjudication process.  This was excellent foresight on his part, as the Judge denied his request for a continuance, finding that Mr. Souley had not demonstrated sufficient likelihood that this second would be approved, and thus, concluding that there was no good cause for a continuance.  He ordered Mr. Souley removed from the United States at a master calendar hearing.  The Seventh Circuit affirmed, finding that the possibility that the second petition (still not filed by Mr. Souley) to be too speculative to warrant a continuance.

You can read the full text of Souley v. Holder here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D03-11/C:14-2536:J:PerCuriam:aut:T:fnOp:N:1515069:S:0