955 F.3d 802
9th Cir.2020Background:
- Zerezghi (U.S. citizen) married Meskel (Eritrean citizen) in 2013 and filed an I-130 petition to sponsor her for permanent residency.
- USCIS had previously denied Meskel’s I-751 (to remove conditional residency) based in part on a 2008 apartment rental application submitted by her first husband, Ghidei; USCIS concluded that her first marriage was fraudulent.
- USCIS relied on that prior fraud finding to deny the new I-130; the couple was not provided a copy of the rental application or the full record underlying the agency’s conclusion during the I-130 process.
- The BIA affirmed USCIS’s denial; the district court upheld the BIA under APA review; the Ninth Circuit reviewed de novo the procedural-due-process claim and for abuse of discretion under the APA.
- The Ninth Circuit reversed: it held the BIA violated due process by relying on undisclosed evidence the couple could not rebut, and held that a finding of marriage fraud must be established by at least a preponderance of the evidence.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether USCIS/BIA’s reliance on an undisclosed rental application to find prior marriage fraud violated due process | Meskel/Zerezghi: withholding the underlying rental application deprived them of a meaningful opportunity to rebut material evidence | USCIS: couple had constructive notice via prior denial and the Notice of Intent to Deny was sufficient; nondisclosure was harmless | Court: Due process violated—agency must disclose the complete administrative record and documents relied on so parties can rebut before decision is made; nondisclosure here was prejudicial |
| Proper standard of proof for finding prior marriage fraud under 8 C.F.R. § 204.2(a)(1)(ii) | Meskel/Zerezghi: "substantial and probative evidence" should require at least preponderance of the evidence | Government: "substantial and probative" is lower and akin to judicial "substantial evidence" review | Court: "substantial and probative" is a standard of proof and, given the severity of the penalty, requires at least a preponderance of the evidence; remand for application of that standard |
Key Cases Cited
- Ching v. Mayorkas, 725 F.3d 1149 (9th Cir. 2013) (I-130 approval is a nondiscretionary statutory entitlement triggering due process protections)
- Mathews v. Eldridge, 424 U.S. 319 (U.S. 1976) (three-factor balancing test for procedural due process)
- ASSE Int’l, Inc. v. Kerry, 803 F.3d 1059 (9th Cir. 2015) (withholding interview notes/preclusive evidence can violate due process by preventing meaningful rebuttal)
- Kaur v. Holder, 561 F.3d 957 (9th Cir. 2009) (use of secret evidence without adequate summary is fundamentally unfair)
- Biestek v. Berryhill, 139 S. Ct. 1148 (U.S. 2019) (explains the meaning of "substantial evidence" as a standard of judicial review)
- Goldberg v. Kelly, 397 U.S. 254 (U.S. 1970) (statutory entitlement to benefits requires procedural protections, including a chance to contest adverse findings)