Teresita Ching v. Alejandro Mayorkas
2013 U.S. App. LEXIS 16316
| 9th Cir. | 2013Background
- Ching (a Philippines citizen) married U.S. citizen Elden Fong in 2005; she later divorced him and subsequently married U.S. citizen Brooke Joseph, who filed an I-130 on her behalf.
- USCIS obtained a six-sentence sworn statement from Fong during a site visit stating the marriage was a sham and that money changed hands; Ching was not told the circumstances of the visit or statement-taking.
- Ching and Joseph submitted a detailed sworn declaration and documentary evidence (photos, joint bills, lease, prior letters) rebutting Fong’s statement.
- USCIS denied the I-130 as a sham; the BIA affirmed, crediting Fong’s statement as dispositive despite the Plaintiffs’ evidence.
- Plaintiffs sued, alleging APA and Fifth Amendment due process violations for denial without an opportunity to cross-examine Fong or the interviewing officer; district court granted summary judgment for the government.
- The Ninth Circuit affirmed dismissal of the APA claim but held the denial violated procedural due process and remanded for an evidentiary hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether INA §240(b) (cross-examination right in removal proceedings) applies to I-130 adjudications | Ching/Joseph: once beneficiary is in removal proceedings, petitioner is entitled to same cross-examination protections | Gov: §240(b) applies only to removal proceedings; visa petitions are distinct; district court lacked jurisdiction on that claim | Rejected plaintiff; §240(b) does not apply to I-130 adjudications and that statutory claim failed |
| Whether approval of an I-130 immediate-relative petition creates a protected property/liberty interest | Ching/Joseph: I-130 approval is nondiscretionary when statutory requirements met, creating a protected interest entitled to due process | Gov: exceptions to eligibility negate any entitlement; approval is not a protected interest absent eligibility | Court held I-130 approval is nondiscretionary and creates a protected interest; district court erred denying this point |
| Whether plaintiffs must show prejudice and whether they did | Gov: prejudice required (citing deportation context cases) | Plaintiffs: prejudice shown because agency credited untested sworn statement over detailed rebuttal evidence | Court declined to resolve the general rule for visa context but found prejudice here — agency’s reliance on untested statement could affect outcome |
| What process due under Mathews v. Eldridge — was a hearing with cross-examination required? | Plaintiffs: Mathews factors favor a hearing and opportunity to confront witness given high stakes and contradictory evidence | Gov: administrative burden and fraud-prevention justify decision without live confrontation | Court applied Mathews and held that, given the strong private interests and high risk of erroneous deprivation (and modest government burden), due process required an evidentiary hearing with opportunity to confront witnesses; remand for hearing |
Key Cases Cited
- Mathews v. Eldridge, 424 U.S. 319 (Sup. Ct. 1976) (framework for assessing what process is due)
- Goldberg v. Kelly, 397 U.S. 254 (Sup. Ct. 1970) (due process may require confrontation and cross-examination where important decisions turn on witness testimony)
- Bd. of Regents of State Colls. v. Roth, 408 U.S. 564 (Sup. Ct. 1972) (property interest requires legitimate claim of entitlement)
- Bustamante v. Mukasey, 531 F.3d 1059 (9th Cir. 2008) (I-130 adjudication implicated citizen’s constitutional rights in marriage context)
- Elbez v. I.N.S., 767 F.2d 1313 (9th Cir. 1985) (visa petition adjudications distinct from removal proceedings)
- Zolotukhin v. Gonzales, 417 F.3d 1073 (9th Cir. 2005) (prejudice standard can be met where violation potentially affects outcome)
- Amponsah v. Holder, 709 F.3d 1318 (9th Cir. 2013) (recognizing when showing may suffice to establish prejudice)