Ching v. Mayorkas

Summarized by:

  • Court: 9th Circuit Court of Appeals Archives
  • Area(s) of Law: Immigration
  • Date Filed: 08-07-2013
  • Case #: 11-17041
  • Judge(s)/Court Below: Circuit Judge Thomas for the Court; Circuit Judges Schroeder and Silverman
  • Full Text Opinion

An individual has a protected property interest in an I-130 visa petition and therefore "is entitled to the protections of due process."

In January 2008, Brook Joseph, a U.S. Citizen, filed an I-130 petition on behalf of Teresita Ching after the couple was married. United States Citizenship and Immigration Services ("USCIS") denied the I-130 petition, in part, based off a USCIS interview with Elden Fong, Ching's former husband. Fong stated that he was paid to marry Ching and the purpose of their marriage was to avoid immigration laws. Despite a lengthy sworn declaration to the contrary from Ching, USCIS determined that the marriage to Fong "was not entered into [in] good faith, but was a sham, entered into for the sole purpose of evading immigration laws" and they denied Joseph's I-130 application as a result. On appeal to the district court, Joseph claimed that USCIS violated the APA by acting arbitrarily and capriciously and violated "the due Process Clause of the U.S. Constitution by denying Joseph's 1-130 petition without affording them the opportunity to cross-examine Fong regarding his statement." The district court dismissed, holding "no statutory right to an adjudicatory hearing," that Ching's written response "was sufficient for due process," and that Joseph had no "protected liberty or property interest" in the 1-130 petition, and regardless of whether they had established such an interest, had filed to show any prejudice. The Ninth Circuit however held that because an I-130 petition involves a non-discretionary decision, the petitioner has a "protected interest [and] is entitled to the protections of due process." Further the panel found that Joseph established prejudice based on USCIS disregarding Ching's sworn statement and accepting Fong's signed statement as true without cross-examination. Given Joseph's protected interest and established prejudice, the panel reviewed whether Joseph was entitled to additional process. The panel held that under the test established in Mathews v. Eldridge, "due process required a hearing with an opportunity for Ching to confront the witness against her." AFFIRMED IN PART; REVERSED IN PART; REMANDED WITH INSTRUCTIONS.

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