Zerezghi v. U.S. Citizenship & Immigration Servs.

• Decision Date: 14 April 2020
• Docket Number: No. 18-35344,18-35344
• Citation: 955 F.3d 802
• Parties: Ghilamichael ZEREZGHI; Huruia Meskel, husband and wife, Plaintiffs-Appellants, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; Micah Lynn Brown, Acting Field Office Director; Board of Immigration Appeals; William P. Barr, United States Attorney General; United States of America, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

955 F.3d 802

Ghilamichael ZEREZGHI; Huruia Meskel, husband and wife, Plaintiffs-Appellants,

v.UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; Micah Lynn Brown, Acting Field Office Director; Board of Immigration Appeals; William P. Barr, United States Attorney General; United States of America, Defendants-Appellees.

No. 18-35344

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 11, 2019 Seattle, Washington

Filed April 14, 2020

Robert Pauw (argued), Gibbs Houston Pauw, Seattle, Washington, for Plaintiffs-Appellants.

James J. Walker (argued), Trial Attorneyl Aaron S. Goldsmith, Senior Litigation Counsel; William C. Peachey, Director; Joseph H. Hunt, Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellees.

Before: Danny J. Boggs,^* Marsha S. Berzon, and Paul J. Watford, Circuit Judges.

BOGGS, Circuit Judge:

Ghilamichael Zerezghi and Huruia Meskel used to be roommates. They lived in a shared house together but interacted little. After Zerezghi moved out, they became friends, and then started dating. Zerezghi proposed, but Meskel turned him down. A year later, Zerezghi tried again, and this time Meskel accepted. They married in 2013.

Zerezghi is a United States citizen and Meskel is a citizen of Eritrea. After the wedding, Zerezghi attempted to sponsor Meskel for permanent residency but the United States Citizenship and Immigration Services (USCIS) denied the application. This is Meskel’s second marriage, and USCIS found that her previous marriage had been a sham, entered into "for the purpose of evading the immigration laws." 8 U.S.C. § 1154(c). This finding would make her ineligible for any immigration benefit from her current marriage. Ibid. The Board of Immigration Appeals (BIA) affirmed the prior-marriage-fraud finding and, reviewing the BIA’s decision under the Administrative Procedure Act, so did the district court.

We reverse. We hold that the BIA violated due process by relying on undisclosed evidence that Zerezghi and Meskel did not have an opportunity to rebut. In making its initial determination of marriage fraud, the BIA also violated due process by applying too low a standard of proof. On remand, it must establish marriage fraud by at least a preponderance of the evidence before it can deny any subsequent immigration petition based on such a finding.

I. Legal Background

When an American citizen marries a noncitizen, the citizen may petition for lawful permanent residency for the spouse. See 8 U.S.C. §§ 1151, 1154. To say that the process is complicated would be an understatement. The process begins when the citizen spouse files a Form I-130 Petition for Alien Relative (I-130), which acts as a request for immigration authorities to formally recognize the validity of the marriage. 8 C.F.R. § 204.1(a)(1). USCIS then conducts "an investigation of the facts" and adjudicates the petition. 8 U.S.C. § 1154(b). Once the I-130 petition is approved, the noncitizen spouse may apply for permanent residency, which—if successful—she receives only "on a conditional basis," and which can be revoked if the marriage is later found to be a fraud. See id. §§ 1255(a), 1186a(a)(1). The conditional permanent residency automatically expires after two years, and if the noncitizen wishes the status to become truly permanent, she must file a Form I-751 Petition to Remove Conditions on Residence (I-751). Id. § 1186a(c)(1)(A). In addition to filing the I-751 petition, the couple must also appear together for an interview with USCIS. Id. § 1186a(c)(1)(B).

The noncitizen spouse’s permanent residency becomes unconditional (truly permanent) at the end of two years if the I-751 petition is approved. See id. § 1186a(c)(3)(B). At all times during this process, the couple must maintain that they "married out of a bona fide desire to establish a life together," and must not have entered the marriage "to evade immigration laws." Agyeman v. INS , 296 F.3d 871, 879 n.2 (9th Cir. 2002) ; see also 8 U.S.C. § 1361.

Separately, regardless of the strength of the current marriage, "no petition shall be approved" if USCIS determines that the noncitizen spouse previously entered into a marriage "for the purpose of evading the immigration laws." 8 U.S.C. § 1154(c). This is a severe penalty in several ways. First, it applies "[e]ven if [the] current marriage is unquestionably bona fide." Matter of Kahy , 19 I. & N. Dec. 803, 805 n.2 (BIA 1988). Second, it is mandatory, not discretionary: If the noncitizen committed marriage fraud at any time in the past, "no petition shall be approved" at any time in the future. 8 U.S.C. § 1154(c). The penalty applies regardless of whether the past sham marriage resulted in a successful immigration petition. 8 C.F.R. § 204.2(a)(1)(ii). All that is required is that the noncitizen previously "sought" immigration benefits through a fraudulent marriage, or "attempted or conspired to" do so. Ibid. "[I]t is not necessary that the [noncitizen] have been convicted of, or even prosecuted for, the attempt or conspiracy." Matter of Tawfik , 20 I. & N. Dec. 166, 167 (BIA 1990).

How does USCIS determine whether there was marriage fraud? A USCIS regulation provides: "The director will deny a petition for immigrant visa classification filed on behalf of any alien for whom there is substantial and probative evidence of" an attempt or conspiracy "to enter into a marriage for the purpose of evading the immigration laws." 8 C.F.R. § 204.2(a)(1)(ii) (emphasis added). The initial burden of proof is on the government. See Kahy , 19 I. & N. Dec. at 806–07. In making its initial determination, the government often uses documents in its possession, interviews with the couple, and observations made during site visits to the couple’s marital residence. See Matter of Singh , 27 I. & N. Dec. 598, 600–01 (BIA 2019). If the government finds that there is "substantial and probative evidence" of marriage fraud, it issues a Notice of Intent to Deny the immigration petition. The burden then shifts to the petitioner to rebut that finding. Kahy , 19 I. & N. Dec. at 806–07. If the petitioner cannot rebut the charge to the BIA’s satisfaction, the petition is denied.

II. Factual and Procedural History

There is no dispute over whether Meskel and Zerezghi’s current marriage is bona fide. Instead, the government insists that there is substantial and probative evidence that Meskel’s first marriage to an American citizen was a sham. The government used this determination of prior marriage fraud to deny Zerezghi’s I-130 petition that he filed on Meskel’s behalf.

Meskel was born and raised in Eritrea. In 2003, when she was 21, her parents arranged for her to marry Tesfai Ghidei. Arranged marriages were common in their community, and Meskel and Ghidei married in Cairo in 2006. Ghidei, an American citizen, returned to the United States after the wedding, and Meskel followed a year later, after she obtained conditional permanent residency through the I-130 process. From here, accounts diverge.

According to USCIS, Meskel and Ghidei’s marriage was a sham all along. It offered three reasons for this conclusion, which were accepted by the BIA in rejecting Meskel and Ghidei’s I-751 petition. These three reasons also form the basis for the BIA’s rejection of Meskel and Zerezghi’s current I-130 petition.

First, there was documentary evidence that indicated that Meskel and Ghidei did not live together. Meskel submitted records indicating that after she came to the United States, she lived in Edmonds, Washington with her sister and brother-in-law (the "marital residence"). However, Ghidei did not submit records that could verify that he also lived there. Instead, Ghidei submitted records that linked him with different addresses, such as a tax return that listed a P.O. box and a rental application that listed two other addresses in Edmonds.¹ Although Meskel submitted a joint lease that was signed by her and Ghidei, USCIS found it to be unreliable because it included dates that had been altered with white-out. Second, Meskel provided inconsistent information regarding when she had last lived with Ghidei. At a joint interview with USCIS in December 2009, Meskel and Ghidei told interviewers that they had lived together for the past two years and that they were still living together. Then, in a follow-up April 2010 interview, Meskel—appearing without Ghidei—stated that she and Ghidei had been living separately since January 2010.² Yet once USCIS sent a Notice of Intent to Deny the I-751 application, Meskel responded with a statement acknowledging that she had misled USCIS at her previous interviews; asserting that Ghidei had actually left the marital residence before the couple’s December 2009 interview and that she had not had any contact with him after April 2010. Both of these statements, though, were inconsistent with information contained in the couple’s judgment for divorce, which indicated that Meskel and Ghidei had first separated on May 1, 2010. Finally, the BIA determined that Meskel had also given misleading information about whether she had any relatives living in the United States. In her December 2009 and April 2010 interviews, Meskel told investigators that she had no relatives in the United States and that her brother-in-law was merely her landlord. But Meskel’s brother-in-law had appeared with her at the April 2010 interview to act as her translator, and her family later acknowledged that her brother-in-law had helped arrange her marriage to Ghidei and had even traveled to Egypt to witness it. Given the weight of these inconsistencies, USCIS concluded that none of the statements that Meskel and Ghidei made about their marriage could be fully credited. It therefore concluded that the two had not lived together as husband and wife in the United States and that the marriage was fraudulent.

The USCIS narrative contrasts starkly with Meskel’s version of events. According to Meskel, a bona...