[00:00:07] Speaker 00:
Morning, Your Honors.

[00:00:07] Speaker 00:
Good morning.

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May it please the Court.

[00:00:09] Speaker 00:
My name is Christine Baumann, and I'm here on behalf of the petitioner, Mr. Esa Kamara.

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Mr. Kamara requests that this Court grant his petition for the following reasons.

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The burden of proof here was improperly applied.

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There was a confusion of which burden of proof was applied and to which party it was applied to.

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The evidence relied on by the immigration judge was not substantial and probative of fraud.

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to show that the couple's intent at the time that they were married was entered into for fraudulent means.

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The decision violated Mr. Camaro's due process rights and the credibility findings were not supported by substantial evidence.

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Here the immigration judge's errors were harmful.

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Our motion to suppress was denied, and that dealt with a key piece of evidence and testimony that has tainted this case from the beginning.

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Here the immigration judge

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started out by saying in her decision that she was placing the preponderance of evidence on the government to prove that they entered into their marriage in good faith.

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However, later on in her testimony and throughout her opinion, she then held Mr. Kamara to that burden by saying that he failed to provide corroborating, credible, substantial evidence of a good faith bona fide marriage.

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What's the standard?

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To be applied to the suppression motion in an immigration case like this because I think it's pretty high for I Understand that the motion to suppress was a high standard My argument would be is even with the motion to suppress being denied the immigration judge that first heard this case Indicated when we filed this back in

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2015, on the record, he did not mark the motion to suppress, but in the record, he said that he would allow, he has a tendency to allow all evidence into the record.

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However, that he, after hearing all the testimony and considering all the facts, that he would then afford it proper weight.

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The problem is, is the immigration judge that started this case was not the immigration judge that issued the final opinion.

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We filed a motion to suppress in 2018 because it was a new immigration judge, and I just wanted to make sure and clear on the record that we still had this outstanding objection in this motion to suppress this evidence.

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However, in the judge's opinion, she stated that she denied our motion simply because it was untimely.

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And that goes to showing that she didn't actually review the entire record, because it was clear that we had discussed this on numerous occasions back in 2015.

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I objected to hearsay when the officer was testifying, or when Officer Kim was allowed to testify, she was testifying to what other people told her.

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And that was hearsay, and that was objected to on the record.

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So it was, even if the motion to suppress was not granted, the weight afforded to the officer's testimony, the weight afforded to the document that we sought to suppress was not properly given.

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And also in this opinion,

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it says he'll give the proper weight but there's no when you look throughout the orders there's nothing in there that says proper you know what weight was given to this the officer or the immigration judge

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simply states that she found the officers to be credible because the district director found them to be credible because they were government agents and they had no reason to lie.

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Does your case rise or fall with the adverse credibility finding that the IJ made?

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Because we have a signed statement from her saying that the marriage is a sham, right?

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Unless we credit the later statement that you know, she didn't understand that or it was coerced like that would seem to resolve the case, right?

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Okay, I'm sorry.

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I didn't hear the first part.

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I write miss Understood your first part.

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Well, I mean it doesn't rise or fall on them.

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Well, I don't find on the credibility Yes, I do believe that credibility here is a big issue and the problem is is that

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The credibility finding here was not supported by substantial evidence.

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It was clearly flawed.

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The immigration judge that entered the opinion here did not hear the majority of the testimony.

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She did not hear the testimony of the immigration officers.

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She did not hear the majority of Mr. Kamara's testimony or Ms.

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Raychek's testimony.

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She simply came in on the last day.

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There was a few questions asked just to wrap things up.

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and then issued her opinion.

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When you say she didn't hear it, did she read a transcript of it?

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Is that how she knew?

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She said that she read the transcript and reviewed the record.

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However, the standard is whether or not a reasonable adjudicator could find otherwise, and if her decision was, you know, as to the credibility findings, were clearly erroneous.

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Here, no demeanor finding

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Deans were made and no actual specific findings of she said she had grave concerns over the credibility of my client's testimony However, she never said that she found them not to be credible But I mean the the ij did note some pretty serious inconsistencies, right?

[00:05:53] Speaker 02:
So like she said that they lived together for a number of months before they were married He said that for religious reasons they had not lived together before they were married

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There was inconsistent testimony as to whether they were apart for just a couple of months or for several years Why isn't that?

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Substantial evidence supporting me I would say I'm sorry the I don't think that the

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time period of their separation should be considered substantial and probative evidence of fraud.

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In and of itself, by itself, that evidence does not show what their intent was at the time they were married.

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That evidence- No, I guess it's not evidence of fraud, but it's evidence of not telling the truth.

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I mean, which is to say, not that the marriage was a fraud necessarily, but that she is not to be

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that they're not to be believed as a witness because they're telling inconsistent stories.

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I understand that.

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But the thing is that that inconsistency, the time that they lived together before was actually not really inconsistent.

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It was confusing, but it wasn't really inconsistent.

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She said that he moved his belongings in there.

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He kind of lived there.

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She was trying to explain that he stayed there, but he didn't.

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It was like he didn't officially move in until after the marriage.

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I understand that there is the separation, the time period of separation, and those inconsistencies are very problematic in this case.

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However, I put it to you that that separation occurred in 2012.

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They were married in 2007.

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That was five years after the fact that they were married.

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What do we do about his ID card when he entered the United States saying he was married and had two children?

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The ID card should not even be taken into consideration because the immigration judge found that Mr. Kamara was single, had only been married once to Ms.

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Raychek, and that the certificate of celibacy that we filed confirmed that statement.

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So that finding is actually the law of the case, because the government here did not file an appeal of the immigration judge's decision.

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I would like to reserve some time, but I would like to answer any further questions.

[00:08:23] Speaker 04:
OK, why don't you reserve your time.

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Thank you very much.

[00:08:54] Speaker 01:
Good morning, Your Honors.

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May it please the court, Taryn Arbiter on behalf of U.S.

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Attorney General Merrick Garland.

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In this case, numerous officials in the Department of Homeland Security, the immigration judge, and the Board of Immigration Appeals all determined that Mr. Cameron entered his marriage fraudulently.

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This court should not disturb those findings.

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The findings are supported by the fact that the agency's ultimate finding that the marriage was a sham is supported by substantial evidence in the record.

[00:09:19] Speaker 03:
I have a question about the order of the IJ.

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I'm on page five.

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the middle paragraph that begins as for the intent of the site visit.

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Can you find that paragraph?

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Mm-hmm.

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About a little more than halfway down in that paragraph, the IJ writes, when asked whether visiting someone home at seven in the morning constituted ambushing them, Officer Kim explained that seven o'clock or even earlier might be a choice to avoid bothering them.

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When the officers arrived, respondent had already left for work.

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But Officer Kim could not recall whether they had asked Petitioner to call him to see if he could return home.

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That's puzzling to me because this case seems to be proceeding on the ground that he didn't live there and wasn't there.

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So what's that sentence doing?

[00:10:17] Speaker 01:
Thank you, Your Honor.

[00:10:18] Speaker 01:
This sentence is one sentence summarizing sort of the testimony of Officer Rutter and Officer Kim, as well as the other witnesses in the case.

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However, the immigration judge clearly found that the respondent did not live with his so-called wife.

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How can the IJ find that, given this sentence?

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Or is this sentence in there by mistake?

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I mean, this one puzzles me.

[00:10:47] Speaker 01:
Your Honor, I would interpret this sentence as summarizing Officer Kim's testimony and the witness testimony.

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However, the finding of that immigration judge is very, very clear in the record.

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The immigration judge states on, let's see, page

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Within the credibility finding and within the substantial evidence finding about the sham marriage that that she found that they never cohabitated and so While this sentence may indicate that she was summarizing the witness testimony her ultimate finding after considering all the evidence was that they never lived together and that finding is well supported in the record in addition to the adverse credibility finding and

[00:11:31] Speaker 01:
substantial evidence shows that Mr. Kamra had a family and children in the Democratic Republic of Congo that he submitted with an identification document with his asylum application and with his initial petition for an immediate relative.

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He also never registered one of his vehicles to the common residence.

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He retained his registration at his separate residence and he also registered his second vehicle at his

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independent residents in 2010 when he claimed to have lived at the shared residence.

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In addition to that, Officer Kim and Officer Rudder talked to an apartment manager as well as an apartment owner at the separate residence and confirmed that Mr. Cameron had lived there for many years with his roommates.

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In addition to that, at a USCIS interview relating to the I-751 petition to remove conditions on permanent residents, Mr. Cameron couldn't answer what day trash day was at the shared residence, and Mrs. Rodjick could not answer what cars Mr. Cameron drove.

[00:12:34] Speaker 01:
On top of that, there's evidence that, yes, there has been a motion to suppress.

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However, Mrs. Rodjick signed a statement saying that the marriage was a sham and gave details, including that she was paid $200 a month to enter into the marriage with Mr. Kamra, that he had a wife and children in the Democratic Republic of Congo, or she said Africa.

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When did she sign that statement?

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Was it during the time that Officer Kim had entered, Officer Kim and Rudder had entered?

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Yes, your honor.

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So that's a good sentence or a good statement or a bad statement depending upon the legality of the entry?

[00:13:09] Speaker 01:
Yes, and I would be happy to talk about that.

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So the suppression motion is key to whether or not we can look at that?

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For that statement, that is the key statement that would be suppressed if the suppression motion is granted.

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However,

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as we argued in our brief, there's been no egregious Fourth Amendment violation here.

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As far as consent to enter the apartment, individuals who file petitions for immediate relatives expect and, in fact, are informed that USCIS will conduct unannounced visits at their home.

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And so by filing the petition, they're aware that USCIS is going to verify the information provided on the petition.

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In addition to that,

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No one here seriously disputes that the officers were invited into the home.

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When you look at the testimony of Mrs. Rajik and Dana, they both say that the officers were invited.

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And combined with the credibility finding, which we argue is supported by substantial evidence, the officers state that they were invited into the home.

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So between those aspects, there was consent in this case, legally sufficient consent for the officers to enter the home.

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Defined otherwise would

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really contravene Lopez Mendoza, where the U.S.

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Supreme Court explained that the Fourth Amendment doesn't apply to immigration proceedings in less than cases of egregious.

[00:14:29] Speaker 03:
So what do we do with what I take to be the argument of your friend on the other side, that we never really got a ruling on the suppression motion?

[00:14:38] Speaker 01:
There was a ruling, and

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It's contained in the immigration judge's opinion under Roman numeral three motion to suppress on page 190 of the record.

[00:14:48] Speaker 01:
Page, I'm sorry.

[00:14:50] Speaker 04:
Sorry?

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Page, are you referring?

[00:14:52] Speaker 01:
So I'm referring to page 16 of the immigration judge's decision and page 190 of the record.

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So I would like to address petitioners contention that the initial Suppression motion wasn't ruled on in 2015 and that's because under matter of bar sentence Which is a board decision.

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There's a process.

[00:15:12] Speaker 04:
Where does the the IJ rule actually rule?

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I mean he describes the motion as untimely But where does he actually rule because I'm looking at page 16.

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I don't see it there.

[00:15:23] Speaker 04:
I

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I might, by the way, my ER numbers are different than what you're referring to.

[00:15:28] Speaker 04:
So if you could refer to the IJ's page numbers.

[00:15:33] Speaker 01:
Okay, so page 18 of the immigration judge's decision under Roman numeral three, motion to suppress subsection B analysis, subsection one, fourth amendment.

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The court first analyzes whether respondent officer prima facie fourth amendment violation and cites Barsenas.

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And so Barsenas stands for

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the process by which motions to suppress are raised in immigration proceedings.

[00:15:59] Speaker 01:
There is a process wherein the respondent in the immigration proceeding files a motion to suppress, the court analyzes whether a prima facie case has been made based on the affidavit submitted with the motion to suppress, and then there's a suppression hearing if there was a prima facie case shown.

[00:16:19] Speaker 01:
And so here the immigration judge found that the prima facie, that Mr. Cameron had not

[00:16:24] Speaker 01:
Show in a brief prima facie case that officers entered his home without consent.

[00:16:29] Speaker 01:
I'm looking at paragraph Let's see one two three on page 19 of the immigration judge's decision And then in paragraph four do better to look at the second full paragraph on page 20 So there I see this is the race-based contention and

[00:16:49] Speaker 03:
No.

[00:16:50] Speaker 03:
Well, maybe we've got pagination problems.

[00:16:53] Speaker 03:
I'm reading the court.

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In some, the court finds respondent has not shown that the officers egregiously violated the Fourth Amendment.

[00:17:01] Speaker 03:
Rather, the court finds that Ms.

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Radjic and her daughter consented.

[00:17:05] Speaker 01:
Yes.

[00:17:05] Speaker 01:
So I'm trying to get on your same page, but that is, yes, a finding I would consider.

[00:17:11] Speaker 01:
And then in addition to that,

[00:17:15] Speaker 01:
I have on page 22 of the decision, which is 196 of the record in my numbering.

[00:17:21] Speaker 01:
It says in sum, the court denies Mr. Cameron's motion to suppress on the ground that there was no egregious constitutional violation.

[00:17:31] Speaker 01:
Oh, that's disappointing.

[00:17:32] Speaker 01:
I'm sorry.

[00:17:33] Speaker 03:
It's not your fault.

[00:17:36] Speaker 01:
So in that case, the immigration judge correctly denied the motion to suppress.

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And I found that Mr. Cameron neither presented a prima facie case for coercion or a lack of consent, but also that even if he had done so, that the government met its burden to show that it obtained the evidence in a legally sufficient manner.

[00:18:03] Speaker 01:
In addition to that, I would like to address the fact that the credibility findings are supported by substantial evidence.

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In this case, Mr. Cameron testified that the couple lived apart for several years.

[00:18:17] Speaker 01:
Dana, Mrs. Rodjick's daughter, testified that it was seven months.

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And Mrs. Rodjick testified that it was three to four months.

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And that is a piece of information, a very large inconsistency in the statements about whether they lived together that led the immigration judge to

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that they never live together, and that constitutes substantial evidence supporting the finding.

[00:18:38] Speaker 01:
In addition, as discussed previously,

[00:18:43] Speaker 01:
Mr. Kamra, Dana, and Mrs. Rogik all testified that Kamra lived at the shared residence in 2008 when the immigration officers visited the site.

[00:18:52] Speaker 01:
However, at the time, Mrs. Rogik signed a statement saying that he did not live there and that the marriage was fraudulent.

[00:18:59] Speaker 01:
So it's another piece of substantial evidence supporting the adverse credibility finding.

[00:19:03] Speaker 01:
In addition, the immigration judge properly found that USCIS officers

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Testified credibly because they did not have a history of contrary statements and had no incentive not to discharge their duties And I see I'm out of time.

[00:19:16] Speaker 04:
So thank you very much very much counsel this bellman

[00:19:29] Speaker 00:
Thank you.

[00:19:31] Speaker 00:
First, I would like to address, going back to the 2008 statement, I think that it's really important to understand that this statement was not written by Ms.

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Raychek herself.

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It was written by her 21-year-old daughter in English who testified on the record that her Bosnian was not very good at the time.

[00:19:52] Speaker 00:
Ms.

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Raychek testified

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that she did not know what the statement said when it was signed, she didn't understand what it said when it was signed, and it was not signed under penalty of perjury.

[00:20:04] Speaker 00:
Without that statement or with giving that statement diminished weight, that it should be afforded, very low weight, that statement

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was not the best evidence.

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to them.

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And Officer Kim's testimony, although found credible by the judge, isn't supported by the records.

[00:20:39] Speaker 00:
On cross-examined, she was very evasive.

[00:20:43] Speaker 00:
And in addition, I wanted to point out that the court relied on Officer Kim's summary of findings.

[00:20:49] Speaker 00:
However, that summary of findings

[00:20:51] Speaker 00:
was based on information that we never received, which is a severe violation of Mr. Kamara's due process rights.

[00:20:59] Speaker 00:
We never received the referral notice to Ms.

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Kim or her notes.

[00:21:04] Speaker 00:
We asked about them.

[00:21:06] Speaker 00:
On the record, there's numerous

[00:21:08] Speaker 00:
conversations between the judge and I asking her questions about why this case was referred to her, what notes did she review.

[00:21:17] Speaker 00:
This all plays into question because she denied knowing that that identity document was in the file.

[00:21:23] Speaker 00:
However, if she did know that the identity document was in the file, then her testimony is very questionable about the reason for the site visit.

[00:21:32] Speaker 00:
And also, during that site visit, Officer Kim and Officer Reuter

[00:21:37] Speaker 00:
both conceded that they never even looked around for his personal belongings, despite the fact that they were there to see if he had, you know, lived at that residence.

[00:21:47] Speaker 00:
And as to the 2005 lease that the government is responding to,

[00:21:54] Speaker 03:
If Officer Kim is testifying, Officer Rudder is testifying truthfully, they were told by the mom and the daughter that he didn't live there.

[00:22:07] Speaker 03:
So why would they look to see if they were lying and that he did live there?

[00:22:12] Speaker 00:
Your honor, I would say that that's a mistake they Officer Kim testified that Dana said that he didn't live there Dana is not a party to this case that's hearsay and first of and so they had no they should have still went around and looked around to see if he lived there if they're there to and then officer the other thing I would like to say is that officer Kim her investigation did find evidence of shared

[00:22:38] Speaker 00:
and common residents.

[00:22:41] Speaker 00:
The 2005 lease that the government is relying on and the hearsay about the apartment manager saying he lived there for a long time, they talked to the apartment manager in 2010.

[00:22:52] Speaker 00:
His name remained on that lease, but we were never able to cross-examine the apartment manager.

[00:22:59] Speaker 00:
And a lot of this documentation, including the statement and the summary of findings, were given to us on the day of Mr. Kamara's individual calendar hearing in 2015.

[00:23:10] Speaker 00:
They had this evidence since 2008, and we weren't provided with it, which is another reason why we believe it's a violation.

[00:23:19] Speaker 04:
All right.

[00:23:19] Speaker 04:
Thank you, counsel.

[00:23:20] Speaker 04:
Thank you.

[00:23:21] Speaker 04:
Camera versus Garland will be submitted and we'll take up US versus Smith.