Sehgal v. Lynch, 15–2334.

• Decision Date: 22 February 2016
• Docket Number: No. 15–2334.,15–2334.
• Citation: 813 F.3d 1025
• Parties: Ankush SEHGAL and Mohit Sehgal, Plaintiffs–Appellants, v. Loretta E. LYNCH, Attorney General of the United States, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

813 F.3d 1025

Ankush SEHGAL and Mohit Sehgal, Plaintiffs–Appellants,

v.Loretta E. LYNCH, Attorney General of the United States, et al., Defendants–Appellees.

No. 15–2334.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 15, 2015.

Decided Feb. 22, 2016.

Shannon Marie Shepherd, Immigration Attorneys, LLP, Chicago, IL, for Plaintiffs–Appellants.

Craig A. Defoe, Lori Warlick, Department of Justice, Washington, DC, for Defendants–Appellees.

Before BAUER, POSNER, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

This appeal arises from an unusual immigration case that was filed properly in the district court. Plaintiffs Mohit and Ankush Sehgal filed an "I–130" petition seeking lawful permanent resident status for Mohit, who is a citizen of India, as the husband of Ankush, who is a citizen of the United States. Immigration authorities denied their petition on the ground that Mohit had tried years earlier to gain lawful residence in the United States by a fraudulent marriage to another woman. That made him ineligible for relief even though his marriage to Ankush is legitimate. See 8 U.S.C. § 1154(c).

The decision to grant or deny an I–130 petition is not a matter of agency discretion, and Mohit is not subject to a removal order. The proper means to challenge the denial is therefore a suit in the district court under the Administrative Procedure Act, 5 U.S.C. §§ 702 & 703. See Ogbolumani v. Napolitano, 557 F.3d 729, 733 (7th Cir.2009) ; Ruiz v. Mukasey, 552 F.3d 269, 274–76 (2nd Cir.2009). The Sehgals sued under the APA.

The district court found that substantial evidence supported the agency's finding of marriage fraud and thus granted summary judgment against the Sehgals. We affirm. Although the agency's handling of this case has involved procedural errors that are difficult to understand, the bottom-line decision was legally sound. Substantial evidence, including Mohit's own written admission, supports the agency's finding that Mohit's earlier marriage was fraudulent, so the denial of Ankush's I–130 petition on his behalf was correct.

We begin with the story of Mohit's earlier marriage to Renee Miller. Mohit Sehgal entered the United States lawfully on a visitor's visa in September 2000 but overstayed his visa. Three years later, in June 2003, he married Renee Miller, a United States citizen. She then submitted on Mohit's behalf a Form I–130, called a Petition for Alien Relative, to have him recognized as an immediate relative for immigration purposes. See 8 U.S.C. §§ 1151(b)(2)(A)(i), 1154(a)(1)(A)(i) ; 8 C.F.R. § 204.1(a)(1). At the same time, Mohit filed a Form I–485 application to adjust his status to lawful permanent resident based on his claimed family relationship to U.S. citizen Miller. See 8 U.S.C. § 1255(a).

Immigration authorities investigated the marriage between Mohit and Miller and concluded that it was not a good faith marriage. During a 2005 interview concerning Miller's I–130 petition, Mohit and Miller asserted that they lived together at the home of Mohit's mother. An immigration agent had telephoned Mohit's mother in March 2005 and was told that she had "no idea" where to find Miller and had no means of contacting her. Based on that conversation and the lack of evidence of a "joint marital union," Miller's petition was denied in November 2005 by United States Citizenship and Immigration Services ("USCIS").

Miller responded by submitting additional evidence to bolster the claim of a legitimate marriage. She included bank statements from a joint account, rent receipts purportedly from Mohit's mother, and two sworn statements in the mother's name saying that Miller and Mohit had lived with her since June 2003. Almost a year after receiving those documents, in December 2006, USCIS reopened the proceedings on Miller's I–130 petition.

By then, however, the marriage between Miller and Mohit had ended. Miller gave birth in 2007, and USCIS received a letter apparently signed by Mohit admitting that he was not the child's father. Miller later obtained a court order of protection against Mohit. In July 2008, an Illinois court entered a default judgment dissolving the marriage. The judgment noted that the parties had separated around October 2003, just four months after they married. Afterward, in December 2008, Miller and Mohit both failed to appear for a scheduled interview with USCIS. In March 2011 the agency denied the reopened I–130 petition on the ground that there no longer was a marital relationship.

In the meantime, in September 2009, agents working for Immigration and Customs Enforcement ("ICE") had arrested Mohit while investigating the woman who had prepared Miller's I–130 petition for brokering fraudulent marriages. Her name was Teresita Zarrabian, and she eventually pled guilty to conspiring to defraud the United States under 18 U.S.C. § 371. She was sentenced to three years in prison. United States v. Zarrabian, No. 13–cr–00106–1 (N.D.Ill. July 1, 2015).

Mohit gave the ICE agents a sworn confession admitting that he had paid Zarrabian and Miller for help in obtaining permanent residency by marrying Miller. Zarrabian had introduced him to Miller, he said, and arranged the marriage in exchange for $18,000 to be shared by the two women. Mohit's confession concluded by saying that his union with Miller "was not a real marriage" and was done so that he could obtain "permanent status" in the United States. Mohit initialed the three pages of text and swore that he had read each page of the confession and had given it "freely and voluntarily."

In March 2011, Miller gave ICE agents a written statement corroborating Mohit's earlier confession that their marriage had been a sham. That handwritten statement, which was not shared with Mohit until the district court proceedings, explained that Miller was promised $5,000 to marry him. The couple had intended to divorce, the statement continued, after Mohit received a "green card." Although the agent who faxed Miller's statement wrote on the transmittal page that it was sworn, no language in the statement itself shows that Miller had signed it under penalty of perjury.

Mohit's confession of the earlier marriage fraud and the corroborating 2011 statement by Miller suffice to support the finding of fraud. See Ogbolumani v. Napolitano, 557 F.3d 729, 733–34 (7th Cir.2009) (concluding that USCIS did not err in basing denial of petition on admission of marriage fraud); Aioub v. Mukasey, 540 F.3d 609, 612 (7th Cir.2008) (admissions that marriage was entered into in exchange for money and access to apartment and vehicle provided "substantial evidence" that marriage was fraudulent); Ghaly v. INS, 48 F.3d 1426, 1431 (7th Cir.1995) (upholding denial of petition based on sworn statement admitting marriage fraud); Matter of Isber, 20 I. & N. Dec. 676, 679 (BIA 1993) (explaining that spouse's admission that she married alien as favor to help him obtain permanent residency shows that they "did not intend to establish a life together as husband and wife when they married"). Moreover, Mohit's story contains numerous inconsistencies, including the dates he allegedly lived with and separated from Miller. See Reynoso v. Holder, 711 F.3d 199, 207 (1st Cir.2013) (explaining that record did not compel conclusion of bona fide marriage when oral and written statements were inconsistent).

On appeal, the Sehgals attempt to undermine this evidence of marriage fraud by attacking both Miller's handwritten statement and Mohit's September 2009 sworn confession to ICE agents.

Miller's Statement: First, the Sehgals contend, Miller's statement should be disregarded as unreliable hearsay. Hearsay is admissible in immigration proceedings as long as it is probative and its use is not fundamentally unfair. See Ogbolumani, 557 F.3d at 734 ; Olowo v. Ashcroft, 368 F.3d 692, 699 (7th Cir.2004).

Miller's handwritten statement details the scheme between Miller, Mohit Sehgal, and Zarrabian to commit marriage fraud. It is highly probative as to whether Mohit entered into a marriage to gain an immigration benefit. And the Sehgals give no reason to question the statement's reliability other than the fact that it is unsworn. Their speculation about Miller's motive for writing the statement and the "chain of custody" is insufficient to undermine the evidence. See Ogbolumani, 557 F.3d at 734 ; Doumbia v. Gonzales, 472 F.3d 957, 962–63 (7th Cir.2007).

But we also now know that USCIS and the Board did mischaracterize Miller's statement as "sworn." Twice in its brief to this court the government referred to Miller's statement as "sworn," despite the assertion in the Sehgals' brief that it was not. The government's brief would not be cause for concern if it were accurate, but elsewhere in the same brief (and when pressed at oral argument) the author of the brief conceded that Miller's statement was not sworn.

It is difficult to understand how the government could take both positions. It seems from the record that the government was content to continue mischaracterizing Miller's statement as sworn until after a copy finally was shown to the Sehgals during the proceedings in the district court. The time to have set the record straight was immediately after USCIS mischaracterized Miller's statement as sworn, not more than four years later after that same mistake was made in submissions to the BIA, the district court, and now this court. The label matters. As the Sehgals correctly argue, Miller's statement may have been weighed more heavily than it should have been if it had been known to be unsworn. See Yu Yun Zhang v. Holder, 702 F.3d 878, 881–82 (6th Cir.2012) (recognizing that affidavits often are given more weight than unsworn statements); Zuh v. Mukasey, 547 F.3d 504, 509 (4th Cir.2008) (same).

Still, although we are disappointed by the government's sloppiness, this error by USCIS and the Board was harmless. Miller's handwritten statement is corroborated in large part by Mohit's September 2009 confession. That...