by Emmanuel S. Tipon, Esq.
Ching, a native of China but a citizen of the Philippines, lawfully entered the United States as a nonimmigrant visitor. She intended to stay for one month, but then began dating Fong, a U.S. citizen, whom she met on a dating website. They were married in two months.
Fong filed a Form I-130 Petition for Alien Relative for Ching. Ching filed a Form I-485 application for adjustment of status to obtain permanent residence. Later Ching withdrew the adjustment application informing USCIS that she planned to divorce Fong. A year later, Fong and Ching divorced.
The following month Ching married Joseph, a U.S. citizen. Joseph filed a Form I-130 Petition for Alien Relative on Ching’s behalf. After their interview, USCIS issued a Notice of Intent to Deny, saying that USCIS officers had visited Fong who provided a sworn statement that he and Ching were married in California but that they “never had sex” and had “never lived together.”
Fong claimed that “$32,000 was offered and $14,000 was paid in cash installments.” Fong said that he and Ching “did not marry for love” and “I regret in full marrying” Ching.
Joseph and Ching responded with a sworn declaration from Ching describing her intimate relationship with Fong. She explained how their marriage deteriorated. She furnished photographs of the couple, joint utility bills, an apartment lease, and Fong’s letter that he and Ching “truly loved each other.”
USCIS denied Joseph’s I-130 petition, stating that Ching’s first marriage was not entered into in good faith, but was a sham, entered for the sole purpose of evading immigration laws. USCIS found the evidence submitted by Joseph to be “self-serving.”
The Board of Immigration Appeals affirmed.
Joseph and Ching filed a complaint in U.S. District Court, claiming that USCIS acted arbitrarily and capriciously in violation of the Administrative Procedure Act and the Due Process Clause by denying Joseph’s I-130 petition without affording them the opportunity to cross-examine Fong regarding his statement.
The District Court held that there is no statutory right to an adjudicatory hearing, that the opportunity to respond to Fong’s statement was sufficient for due process, that there was no protected liberty or property interest in the adjudication of Joseph’s I-130 petition, and that they failed to show prejudice.
The U.S. Court of Appeals upheld the District Court’s finding that there is no statutory right of cross-examination in I-130 visa adjudications. However, the Court agreed with Joseph’s and Ching’s claim that the denial of Joseph’s I-130 visa petition violated their Fifth Amendment Due Process rights because they were not afforded the opportunity to cross examine Fong or the USCIS officer who took Fong’s statement. See Ching v. Mayorkas, No. 11-17041, 07/07/2013 (9th Cir. 2013).
Where a petitioner of an immediate relative visa petition proves that his marriage meets the requirement for approval of an I-130, he is entitled, as of right, to the approval of his petition pursuant to INA Section 240(b). The denial of a visa implicates the constitutional rights of American citizens because they have “a protected liberty interest” in their marriage “that gives rise to a right to constitutionally adequate procedures in the adjudication” of the alien spouse’s visa application. The spouses demonstrated sufficient prejudice. Fong’s statement was accepted as true without the opportunity for cross-examination.
Recommendation: The alien’s lawyer should file a Freedom of Information Act request on behalf of the alien who has been accused of entering into a fake marriage. The lawyer should also write to USCIS requesting an opportunity to question the alien’s accuser. The lawyer should discuss the facts and the law. The letter should conclude with a statement that government officials should not allow themselves to become vehicles for venting the rage of people whose love has turned to hatred.
The information provided in this article is not legal advice. Publication of this information is not intended to create, and receipt by you does not constitute an attorney-client relationship.
ATTY. TIPON was a Fulbright and Smith-Mundt scholar to Yale Law School where he obtained a Master of Laws degree specializing in Constitutional Law. He has a Bachelor of Laws degree from the University of the Philippines. He is admitted to practice before the U.S. Supreme Court, the U.S. Court of Appeals for the Ninth Circuit, U.S. District Court in California (N.D.), the courts in New York and in the Philippines. He practices federal law, with emphasis on immigration law and appellate federal criminal defense. He was the Dean and a Professor of Law of the College of Law, Northwestern University, Philippines. He writes law books and legal articles for Thomson-Reuters and writes columns for newspapers. He wrote the best-seller “Winning by Knowing Your Election Laws.” Listen to The Tipon Report which he co-hosts with his son Attorney Emmanuel “Noel” Tipon. Noel specializes in criminal defense and court-martial defense. They talk about immigration law, criminal law, court-martial defense, and current events. It is considered the most witty, interesting, and useful radio show in Hawaii. KNDI 1270 AM band every Thursday at 8:00 a.m. Follow The Tipon Report on YouTube. Atty. Tipon was born in Laoag City, Philippines. Cell Phone (808) 225-2645. E-Mail: email@example.com. Website: https://www.tiponlaw.com.
by Emmanuel S. Tipon, Esq.