Urvashi Patel v. Jefferson B. Sessions, IIIUrvashi Patel v. Jefferson B. Sessions, III
tection statute. The MMPA provides a private right of action to any person who sustains ascertainable loss in connection with the purchase or lease of merchandise as a result of certain practices declared unlawful.
Kuhns asserts that Scottrade engaged in “fraudulent and deceptive acts and omissions” from its “failure to properly implement adequate, commercially reasonable security measures ... in the face of Scottrade‘s repeated representations and assurances to the contrary,” its failure to warn plaintiffs their information was at risk, and its failure to discover and immediately notify affected customers of the data breach. Kuhns alleges that he suffered “lost money and property as a result of Scottrade‘s violations.” This claim must be dismissed for several reasons. First, the allegation that Scottrade engaged in “fraudulent and deceptive acts” is a claim that sounds in fraud that was not pleaded with the particularity required by Rule 9(b) of the Federal Rules of Civil Procedure. See OmegaGenesis, 851 F.3d at 804. Second, to be actionable under the MMPA, the alleged unlawful act must occur in relation to a sale of merchandise, and an ascertainable pecuniary loss must occur in relation to the plaintiff‘s purchase or lease of that merchandise. See Grawitch v. Charter Commc‘n, Inc., 750 F.3d 956, 960 (8th Cir. 2014); Amburgy, 671 F.Supp.2d at 1057. While intangible services may qualify as merchandise, Scottrade did not sell data security services; it put data security measures in place to induce customers to voluntarily transfer their PII to Scottrade to obtain its brokerage services. Cf. Amburgy, 671 F.Supp.2d at 1057-58. The Consolidated Complaint also fails to plausibly allege how failing to discover and notify customers of the data breach qualifies as an unfair or deceptive trade practice under the statute.
For the foregoing reasons, the judgment of the district court dismissing the Consolidated Class Action Complaint is affirmed. We deny Kuhns‘s untimely motion to dismiss the appeal and the cross appeal.
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.
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
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
On February 14, 2011, Patel filed an application for a hardship waiver pursuant to
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 twomonth 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
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.”
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
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
We conclude that the opportunity to examine Nilesh‘s affidavit and the USCIS report at the hearing was insufficient in this case, and the failure to produce Nilesh as a witness or issue the subpoena prejudiced Patel. See Pouhova, 726 F.3d at 1011 (“An alien who challenges a removal order by claiming a violation of [statutory] rights must show both that the proceeding did not meet these requirements and that she was prejudiced.“). Because the IJ made no express credibility finding with regard to Patel‘s testimony, we presume her testimony was credible. Ibrahimi, 566 F.3d at 761;
Nilesh‘s affidavit and the USCIS report were the only evidence directly contradicting Patel‘s testimony that the marriage was legitimate, and the IJ and the BIA both relied on these documents to support the conclusion that Patel failed to meet her burden of proving a good faith marriage. But Patel was provided no opportunity to probe the veracity of Nilesh‘s affidavit or the statements that formed the basis for the USCIS report. See Rodriguez-Quiroz v. Lynch, 835 F.3d 809, 818-19 (8th Cir. 2016) (admission of document without opportunity to cross-examine its creator was error where, though printed by a public official, no information was provided regarding the source of the substantive information contained in the document); Pouhova, 726 F.3d at 1012-15 (written statements—including those contained in a presumptively reliable government form—are subject to reliability analysis, and may be inadmissible absent an opportunity for the alien to cross-examine the declarant or the creator of the document); Olabanji, 973 F.2d at 1235 (the opportunity to cross-examine a witness who has no independent knowledge of the facts contained in a report is insufficient to meet fundamental fairness standard in the context of constitutional challenge). Absent these documents, or given the opportunity to test the reliability of the documents, Patel‘s presumptively credible testimony may have been sufficient to meet her burden to establish eligibility for a good faith waiver.
B. Motion to Remand
Patel also argues that the BIA abused its discretion in denying her motion to remand based on her now-husband‘s pending visa petition on her behalf, which would have given Patel the opportunity to adjust status independent of the conditional status she received by way of her marriage to Nilesh. We review the denial of motion to reopen or remand for abuse of discretion. Alva-Arellano v. Lynch, 811 F.3d 1064, 1066 (8th Cir. 2016). “The BIA abuses its discretion where it gives no rational explanation for its decision, departs from its established policies without explanation, relies on impermissible factors or legal error, or ignores or distorts the record evidence.” Guled v. Mukasey, 515 F.3d 872, 882 (8th Cir. 2008). The BIA may deny a motion to reopen where the alien “fail[ed] to establish a prima facie case for the relief sought, fail[ed] to introduce previously unavailable, material evidence,”6 or when “even if these requirements were satisfied, the movant would not be entitled to the discretionary grant of relief which” she seeks. INS v. Doherty, 502 U.S. 314, 323 (1992) (citing INS v. Abudu, 485 U.S. 94, 104-05 (1988)). In order to establish a prima facie case for adjustment of status, an alien must demonstrate that she is admissible. See
Here, the BIA declined to remand because it found that Patel did not establish that she would be eligible for adjustment of status. Namely, the BIA concluded that Patel would likely be ineligible for adjustment of status on remand because of her “failure to establish the bona fides of the prior marriage [to Nilesh],” which the BIA held was “relevant in evaluating whether she is inadmissible under section 212(a)(6)(C)(i) of the [Immigration and Nationality] Act,
III. Conclusion
We grant Patel‘s petition for review and remand for further proceedings consistent with this opinion.