Patel v. Sessions

• Decision Date: 22 August 2017
• Docket Number: No. 16-3619,16-3619
• Citation: 868 F.3d 719
• Parties: Urvashi Nilesh PATEL, Petitioner v. Jefferson B. SESSIONS, Attorney General of United States, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

868 F.3d 719

Urvashi Nilesh PATEL, Petitioner

v.Jefferson B. SESSIONS,¹ Attorney General of United States, Respondent.

No. 16-3619

United States Court of Appeals, Eighth Circuit.

Submitted: April 7, 2017

Filed: August 22, 2017

Scott Eric Bratton, Attorney, Margaret Wong, MARGARET W. WONG & ASSOCIATES CO., LPA, Cleveland, OH, for Petitioner.

Karen Yolanda Drummond, Carl H. McIntyre, Carmel Aileen Morgan, Tim Ramnitz, Civil Division, Office of Immigration Litigation, Oil Oil, OIL, U.S. DEPARTMENT OF JUSTICE, Washington, DC, for Respondent.

Before GRUENDER, MURPHY, and KELLY, Circuit Judges.

KELLY, Circuit Judge.

In January of 2002, Urvashi Nilesh Patel (Patel) married a United States citizen, and in February of 2003, she was lawfully admitted into the United States as a conditional resident pursuant to a visa filed on her behalf by her citizen husband. The two divorced approximately one year later. In 2011, the United States Citizenship and Immigration Services (USCIS) denied Patel's I-751 petition to remove the conditions of her residency and her request for a waiver of the joint filing requirement, and the Department of Homeland Security (DHS) issued a notice to appear. Patel conceded removability, but requested review by an Immigration Judge (IJ). The IJ denied Patel's application for a waiver and ordered Patel removed from the United States. The BIA affirmed. For the reasons below, we grant Patel's petition for review, see 8 U.S.C. § 1252(5) (jurisdiction), and remand for further proceedings.

I. Background

Patel is a native of India. She met Nilesh Patel (Nilesh)—a United States citizen—through relatives, who connected Patel and Nilesh in an effort to organize an arranged marriage. After meeting Nilesh, Patel did not decline the arrangement, and the two were married in India on January 18, 2002. After the wedding, Patel and Nilesh spent a month together in India, during which time they consummated the marriage. Nilesh then returned to the United States, but kept in touch with Patel via telephone.

In February 2003, Patel lawfully arrived in the United States by means of a visa filed on her behalf by Nilesh. Her lawful residency was conditioned on her marriage to Nilesh. See 8 U.S.C. § 1186a(a) (U.S. citizen's alien spouse "shall be considered, at the time of obtaining the status of an alien lawfully admitted for permanent residence, to have obtained such status on a conditional basis"). Patel lived with Nilesh and his parents in Sacramento, California. However, the relationship between Patel and Nilesh was strained, as was the relationship between Patel and Nilesh's parents. Patel lived with Nilesh and his parents for approximately two to four months² before, according to Patel, Nilesh asked her to leave. Nilesh filed for divorce in January 2004, and Nilesh and Patel legally divorced that same month, at which point Patel no longer met the requirements of her conditional residency. 8 U.S.C. § 1227(a)(1)(D)(i). Patel remarried in 2008. Patel and her second husband—a naturalized United States citizen—have one child together.

On February 14, 2011, Patel filed an application for a hardship waiver pursuant to 8 U.S.C. § 1186a(c)(4), seeking removal of the conditions of her residency and, because she was now divorced from Nilesh, a waiver of the requirement that she and Nilesh jointly file the petition (good faith marriage waiver).³ Section 1186a(c)(4) grants the Secretary of Homeland Security the discretion to remove conditions on an alien's permanent resident status if the alien demonstrates that "the qualifying marriage was entered into in good faith by the alien spouse, but the qualifying marriage has been terminated ... and the alien was not at fault in failing to meet" the joint filing requirements. USCIS denied Patel's application for a waiver, concluding that Patel failed to demonstrate that her marriage to Nilesh was a bona fide marriage entered into in good faith. Patel's conditional residency was therefore terminated, and DHS issued a notice to appear. See 8 U.S.C. § 1227(a)(1)(D)(i) (conditional resident who loses conditions of residency is deportable). Patel requested that the IJ review the USCIS's denial of her good faith marriage waiver application.

The IJ conducted a hearing on Patel's waiver application on June 25, 2014. At the hearing, Patel and her mother both testified about Patel and Nilesh's wedding. The wedding took place in India after a two-month long engagement, and was attended by approximately 50 guests from each family. Patel explained the circumstances of her moving in with Nilesh in the United States and her rocky relationship with Nilesh's parents. She explained that Nilesh and his parents were not kind to her, and refused to put her name on any of the utilities or a joint bank account because they did not want to "keep" her. Patel's mother similarly testified that the marriage was legitimate, but that it soured quickly. Patel also offered affidavits from people who attended the wedding. In response, the government offered an affidavit from Nilesh alleging that Patel paid him "25,000 cash knowing the marriage was not real," and a USCIS report based on an interview with Nilesh. According to the report, Nilesh said that his marriage to Patel was fraudulent and that he had entered into two additional marriages for which he was paid. Patel objected to Nilesh's affidavit and the USCIS report, arguing that the documents were hearsay and that admission of the documents without providing Patel an opportunity to cross-examine Nilesh was fundamentally unfair. The IJ overruled Patel's objections. The IJ indicated that it was finished hearing testimony, but left the record open for additional documentary evidence.

Following the hearing, Patel filed an affidavit from another of Nilesh's former wives, Kapilabahen Patel, claiming Nilesh's statement (contained in the USCIS report) that he was paid to marry Kapilabahen was false, and that Nilesh was verbally and physically abusive. On November 12, 2014, the IJ denied Patel's application for a good faith marriage waiver, and Patel appealed. On January 21, 2015, while Patel's appeal was pending, her second husband filed a visa petition on her behalf. In addition to her then-pending appeal before the BIA, Patel asked the BIA to remand based on her second husband's recently filed visa petition. The BIA dismissed Patel's appeal and denied her motion for remand on August 16, 2016.

In the instant appeal, Patel argues that the BIA erred in affirming the IJ's admission of Nilesh's affidavit and related documents without allowing Patel the opportunity for cross examination, affirming the IJ's denial of her good faith marriage waiver application, and denying her motion to remand. We review "an agency's legal determinations de novo, according substantial deference to the agency's interpretation of the statutes and regulations it administers." Ibrahimi v. Holder , 566 F.3d 758, 762–63 (8th Cir. 2009) (quoting Llapa-Sinchi v. Mukasey , 520 F.3d 897, 899 (8th Cir. 2008) ); Pouhova v. Holder , 726 F.3d 1007, 1011–12 (7th Cir. 2013) (whether the admission of documents violates alien's procedural rights in a removal proceeding is a legal question reviewed de novo). "When the BIA adopts and affirms the IJ's decision, but also adds reasoning of its own, we review both decisions together." Quinonez-Perez v. Holder , 635 F.3d 342, 344 (8th Cir. 2011) (internal quotation omitted).

II. Discussion

A. Nilesh's affidavit and the USCIS report

Patel first argues that the IJ violated her statutory right⁴ to cross-examine an adverse witness when the IJ admitted Nilesh's affidavit and the USCIS report without subpoenaing Nilesh. In removal proceedings, "[t]he sole test for admission of evidence is whether the evidence is probative and its admission is fundamentally fair." Nyama v. Ashcroft , 357 F.3d 812, 816 (8th Cir. 2004) (per curiam) (quoting Espinoza v. INS , 45 F.3d 308, 310 (9th Cir. 1995) ). While Nilesh's affidavit and the USCIS report were clearly probative on the legitimacy of Patel's marriage to Nilesh, Patel argues that admission of these documents was fundamentally unfair because it violated her statutory right to a "reasonable opportunity to ... cross-examine witnesses presented by the Government." 8 U.S.C. § 1229a(b)(4)(B).

The BIA found that the IJ did not err by admitting Nilesh's affidavit because Nilesh was not a "witness," and Patel therefore had no right to cross-examine him. However, "the statutory purposes behind [an alien's right to cross-examination] would be frustrated, ‘if the government's choice whether to produce a witness or to use a hearsay statement [were] wholly unfettered.’ " Cunanan v. INS , 856 F.2d 1373, 1375 (9th Cir. 1988) (second alteration in original) (quoting Baliza v. INS , 709 F.2d 1231, 1234 (9th Cir. 1983) ). The government "can't nullify [an alien's right to cross-examine witnesses] by presenting written declarations rather than live testimony. A declarant is a ‘witness' when testimony comes in on paper, no less than when it is offered in person." Malave v. Holder , 610 F.3d 483, 487 (7th Cir. 2010). That Nilesh's statement was in writing does not exempt him from being a witness under § 1229a(b)(4)(B). Because Nilesh was a government witness, Patel had the right to a reasonable opportunity for cross examination.

Patel argues that she was not provided a reasonable opportunity for cross examination because the government failed to produce Nilesh at the hearing and the IJ denied her request to subpoena Nilesh. As an initial matter, the government argues that had Patel wanted to question Nilesh, she could have produced Nilesh as a witness at the hearing or, alternatively, contacted Nilesh following the hearing. But Patel was not aware of the affidavit or report prior to the hearing, which frustrated her ability to anticipate the need to cross-examine Nilesh. See Cunanan , 856 F.2d at 1375 (alien "could not have known that cross-examining" adverse...