[00:00:08] Speaker 00:
Good morning and may it please the court, Andra Lim on behalf of Appellants Dook and David Yokum.

[00:00:13] Speaker 00:
With the court's permission, I'd like to reserve two minutes for rebuttal.

[00:00:16] Speaker 00:
All right, keep an eye on the clock.

[00:00:18] Speaker 00:
Will do.

[00:00:19] Speaker 00:
This case presents two issues.

[00:00:22] Speaker 00:
First, the Yokums have adequately pleaded that the government violated their due process rights under this court's precedent in Ching v. Mayorkas.

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The government determined that Dook's prior marriage to T.L.

[00:00:32] Speaker 00:
was fraudulent without providing an opportunity to cross-examine critical witnesses.

[00:00:39] Speaker 04:
determination was the result of an immigration officer making a highly coercive threat to out-duct to his wife TL.

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that there was coercion.

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I also think the Amicus brief filed in this case provides really critical context.

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On pages 20 to 24, that brief explains why a threat to out someone is so coercive.

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It explains that someone's sexual orientation is a private matter.

[00:02:26] Speaker 04:
that the immigrant

[00:03:33] Speaker 04:
Is that the basis of your coercion statement?

[00:03:38] Speaker 00:
So the basis of our coercion statement does rely heavily on the immigration officer saying to Duck, I am going to out you to your wife Teal, whom you have never shared this highly shameful secret with.

[00:03:51] Speaker 00:
It also consists of after that, Duck becoming extremely embarrassed and humiliated and the immigration officer then continuing to

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The complaint alleges that he tried to tell the immigration officer, no I'm not going to take her out later and pay her for this marriage.

[00:04:11] Speaker 00:
That's not what's happening.

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And still the immigration officer kept insisting that their marriage was fraudulent.

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continue to be litigated because we're at the motion to dismiss stage, all that would happen upon reversal is that we would continue being able to litigate this claim in district court.

[00:04:43] Speaker 00:
So this court is not being asked to decide whether we are in fact entitled to cross-examination.

[00:04:48] Speaker 04:
The only question- But what you're really seeking is to cross-examine TL and the immigration officer, I take it?

[00:04:54] Speaker 04:
Yes, we are seeking to cross-examine both of them.

[00:04:56] Speaker 04:
All right.

[00:04:57] Speaker 04:
Is there anything in the record from TL that indicates that she

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reasonable inference from the complaint.

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Is that what happened from TLS?

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But I actually think that's consistent with their marriage being bona fide.

[00:05:31] Speaker 00:
If you look at things from her perspective, what happened is that she married Duck, intending to establish a life with him, intending to be married to him, and then found out in pretty bad circumstances that her husband was actually gay, and then ended up divorcing him.

[00:05:46] Speaker 00:
And in those circumstances, you might think that she might not be willing to help Duck.

[00:06:06] Speaker 04:
the immigration officer.

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in the record that shows whether or not we tried to get a declaration from TL.

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Again, I do think at the motion to dismiss stage, the court is required to draw all reasonable inferences in the plaintiff's favor.

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And I think the inferences you can draw here is that what happened from her perspective is that there was an immigration interview that was going just fine.

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She saw the officer make some sort of very serious threat towards her husband, saw her husband start to shake, break down, become humiliated, saw that the officer was determined to find that their marriage was fraudulent, and then ended up succumbing to that.

[00:06:53] Speaker 01:
What relief are you seeking here?

[00:06:58] Speaker 01:
I mean, if we send it back down and you can amend, what relief would you like to have?

[00:07:07] Speaker 00:
So at the end of the day, we would like on the due process claim, cross-examination of TL and the officer, if you send it back, what would

[00:07:43] Speaker 03:
As I would understand it, if you persuade our court to reverse the dismissal on the pleading stage and remand for further proceedings, the appellee would be free to move for summary judgment and require you to submit some

[00:08:19] Speaker 03:
pleadings.

[00:08:21] Speaker 03:
So what did the pleading itself allege on this issue, of course?

[00:08:29] Speaker 00:
So what the pleading itself alleged is that the immigration officer looked at Duke's phone, saw pictures that made her realize that he was gay, threatened to tell his wife TL that he was gay, something that he had never told her before, something he had not shared with anyone, something that was a tremendous source of shame for him, given the kind

[00:08:51] Speaker 00:
how his family had been really pressuring him to marry a woman.

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But after the officer made that threat to Duke, he started to become embarrassed, basically went into a state of shock.

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And it was sort of when he was in that state of shock that the officer kept insisting that they weren't a couple.

[00:09:06] Speaker 00:
The complaint alleges that she asked questions about whether they were a couple, but then answered them herself and insisted that they weren't, even as Duke tried to explain, no, he wasn't paying TL for marriage.

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And so what the complaint alleges is that you have this

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and incredibly for Duke a source of shame, and then followed by the officer continuing to apply pressure until both of them succumbed and signed statements saying that their marriage was fraudulent.

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And those circumstances that are pleaded in our complaint, the court must accept as true.

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And I think it shows an incredibly high risk of erroneous deprivation when the key evidence that the agency is relying upon

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was both taken under coercive conditions and where the complaint alleges that the evidence actually is false.

[00:09:55] Speaker 03:
Thanks, counsel.

[00:09:58] Speaker 03:
I think you answered my question.

[00:10:00] Speaker 03:
You just would like us to send this back to the

[00:10:08] Speaker 03:
proceedings can follow that it's not dismissed on the pleadings.

[00:10:14] Speaker 00:
Yes, that is correct.

[00:10:15] Speaker 00:
We're just asking this court to dismiss based on what's in the pleadings.

[00:10:18] Speaker 00:
If that happens, this will go back, an evidentiary record will be created, and then at that point, either side or both sides can move for summary judgment.

[00:10:26] Speaker 00:
And I'll just add that that's actually the posture in which Ching and other cases involving these sorts of issues have come before this court.

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This court hasn't had

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Are you seeking money damages in this case?

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And then, separately and independently on the APA claim, what we're ultimately seeking, I think, is for this case to be sent back to the agency.

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And what we see in our complaint is that we are entitled to a grant of the I-130 petition based on what is in the record.

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And so that's really the ultimate goal here is for David's I-130 petition to be granted so that Duck and Ben apply for adjustment to lawful permanent resident status and be able to remain lawfully, permanently in the country with this

[00:11:37] Speaker 04:
the worst.

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have to be accepted as true but reasonable inferences from them.

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And so the reasonable inference here is that what TL saw was that her husband received this very serious threat that caused him to go into a state of shock, that the officer kept insisting that they weren't a couple, and that she felt pressure to succumb to the narrative.

[00:12:21] Speaker 00:
I will also say that if the court grants us leave to amend, we can absolutely add more specific allegations.

[00:12:28] Speaker 04:
Did you ask for leave to amend below?

[00:12:31] Speaker 00:
I believe we did, and the district court denied – in either way, the district court did say that we are not allowed to amend the complaint, so it is something that the district court did consider.

[00:12:42] Speaker 00:
And because the district court did rule on it, I think it would be appropriate for this court to reverse on that basis, too.

[00:12:49] Speaker 03:
And the complaint that the district court dismissed on the pleadings

[00:13:06] Speaker 00:
never amended the complaint.

[00:13:08] Speaker 00:
And again, I'll note that the, I see that my time is up.

[00:13:13] Speaker 04:
We'll give you two minutes.

[00:13:14] Speaker 00:
Okay, thank you.

[00:13:17] Speaker 02:
Mr. Darrow.

[00:13:24] Speaker 02:
Good morning, Your Honor.

[00:13:25] Speaker 02:
This is Joseph Darrow on behalf of USCIS.

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This Court should affirm the District Court's order

[00:15:20] Speaker 02:
claiming marriage fraud, exposing herself to potential liability for perjury and marriage fraud if there was no reason to do so.

[00:15:32] Speaker 02:
The same although slightly different rationale goes for ducks

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marriage fraud that he signed in that statement.

[00:16:53] Speaker 02:
In at the time it's just for clarification.

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Are you talking about after the first marriage?

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and OID.

[00:18:53] Speaker 02:
And that's not what they've done here.

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Here they, in district court, they alleged that they were denied cross-examination by the agency.

[00:19:02] Speaker 02:
And they requested the right to cross-examine.

[00:19:32] Speaker 02:
I'm going to guess, yeah, they probably agree.

[00:19:35] Speaker 02:
But there would be no legal rationale, no basis why they'd be entitled to such cross-examination.

[00:19:42] Speaker 02:
I know, Your Honor, Ching is distinguishable for several reasons.

[00:20:01] Speaker 02:
the couple had divorced, and the individual who

[00:20:32] Speaker 02:
had engaged in marital intimacy and had substantial objective evidence that they had merged their lives.

[00:20:40] Speaker 03:
Counsel, can a couple live together with an intent to have a lifetime together without having sexual intimacy?

[00:21:09] Speaker 02:
one indication among a whole constellation of indications as to whether the couple intended to form a life together when they were married.

[00:21:16] Speaker 03:
What's the problem here with the complaint, from your perspective, is how you think it does not allege in the complaint that they plan to have a life together?

[00:21:32] Speaker 02:
Correct, Your Honor.

[00:21:34] Speaker 02:
They do not

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And even if the court accepts debts,

[00:22:31] Speaker 02:
or anything like that.

[00:23:03] Speaker 04:
It was a sworn statement, and so... Maybe a sworn who would... I'm sorry, I read the statement, I didn't see any statement that she said, I'd make the statement under penalty of perjury, or I swear to the truth of this statement.

[00:23:18] Speaker 04:
It's just a plain statement.

[00:23:21] Speaker 04:
It is a sworn statement, though.

[00:23:24] Speaker 02:
Who swore?

[00:23:28] Speaker 02:
My understanding is that...

[00:23:34] Speaker 02:
of that understanding.

[00:23:39] Speaker 04:
You think that every statement that's signed by a litigant is sworn

[00:24:02] Speaker 03:
Do you agree with your friend on the other side?

[00:24:53] Speaker 03:
together or whatever but in those cases aren't those issues normally don't they come up with that evidentiary record at the summary judgment stage and not on the motion to dismiss the pleadings well your honor in these types of cases

[00:25:39] Speaker 02:
produced the administrative record and that would be you know the entirety of everything that the decision-maker below have looked at and that's what would be the basis for summary judgment.

[00:25:50] Speaker 02:
Thank you counsel.

[00:25:52] Speaker 02:
Thank you.

[00:25:58] Speaker 02:
And so to go back to the original I think we were talking about Ching

[00:26:10] Speaker 02:
evidence of marriage fraud stacked against all his other evidence.

[00:26:13] Speaker 04:
The risk of arrears deprivation in that case was... Well, Jing, the statement of the ex-spouse, said that he'd been promised $32,000 but only received $14,000.

[00:26:25] Speaker 04:
So that is a basis for bias in his statement.

[00:26:31] Speaker 04:
But I don't see any basis

[00:26:49] Speaker 02:
Ching, one of the reasons why the court said we can assume that there might be bias is that the statement was given after the couple had divorced.

[00:26:57] Speaker 02:
Here in this case, the statement was still given while Teal and Duck were still married and prior to Teal's learning about Duck's sexual orientation based on the allegations.

[00:27:36] Speaker 02:
this court's precedent has made clear that that's not necessary if there's no possible way that the plaintiff can prevail on the claims as they have alleged.

[00:27:45] Speaker 02:
And the district court here reasonably concluded that there was no possible way that the outcomes could prevail.

[00:28:20] Speaker 01:
affidavit said this was done under coercion and is all wrong.

[00:28:28] Speaker 01:
Would this case continue on?

[00:28:31] Speaker 01:
But we don't have that.

[00:28:33] Speaker 01:
But what if he had done that or she had done that?

[00:28:39] Speaker 02:
That's a good question, Your Honor.

[00:28:40] Speaker 02:
I can't really speculate because I guess we'd have to look at the circumstances and what TL actually said about the reason for the coercion.

[00:28:49] Speaker 02:
But as you point

[00:29:41] Speaker 04:
he picked a woman in the United States, but why didn't he marry a woman in Vietnam?

[00:29:46] Speaker 04:
Is there any indication of that?

[00:29:49] Speaker 00:
I don't know the answer to that question.

[00:29:51] Speaker 00:
I do think what's important though is that the complaint alleges that his reasons for marrying TL are what makes a marriage bona fide, right, which is the intent to establish a life together, and that wanting to marry someone in order to establish a conventional life with them to hide one's sexual orientation does

[00:30:09] Speaker 00:
someone under the INA.

[00:30:11] Speaker 00:
And I would submit that that's what's really important here is his reasons for marrying Teal do count.

[00:30:17] Speaker 04:
They could have been done by marrying a woman in Vietnam just as well, right?

[00:30:22] Speaker 04:
But, of course, then you wouldn't have a I-130 petition.

[00:30:27] Speaker 00:
Well, before he had married Teal, he had been in the U.S.

[00:30:31] Speaker 00:
for a period of time studying in school and

[00:30:38] Speaker 00:
marriage yell at the plate as alleged that while he was in the u.s.

[00:30:42] Speaker 00:
he did talk to his parents who during that time pressure him to marry a woman and see how the situation where he's here in this country and his family is telling him you know we really want you to to marry a woman i've taken up all your time with my questions so why don't you give another two minutes so you can do her or rebuttal correctly thank you judge bae three points in rebuttal first this case really is

[00:31:08] Speaker 00:
that the immigration officers had gone to the ex-spouse's house, made some sort of threat or intimidation towards him, and that was a reason why there was a high risk of erroneous deprivation.

[00:31:18] Speaker 00:
Here, again, the complaint alleges, and those allegations must be taken as true, that there was a very serious threat made to Duck to out him to T.L.

[00:31:26] Speaker 00:
As for the pardon chain- What was the threat to T.L.?

[00:31:29] Speaker 00:
Sorry, the threat was made to Duck to out him to T.L.

[00:31:35] Speaker 00:
And then, as for the part in Ching about, you know, malice or jealousy, I think that that's relevant because the court thought that those were reasons why the ex-fouse might have succumbed to the threat.

[00:31:48] Speaker 00:
I think here you can infer that the reason why TL might have gone along with what the immigration officer was saying is that clearly the officer saw something on Duke's phone that

[00:31:58] Speaker 00:
you know, made their marriage seem maybe less valid than TL had thought it was, and that was a reason why TL might have gone along with this officer's narrative.

[00:32:07] Speaker 00:
And so I don't think that that part of cheating is a reason to distinguish this case from that.

[00:32:13] Speaker 00:
I'll also just point out that here, too, the agency's marriage fraud determination rested on the statements and that there was significant evidence of the marriage's bona fides in the record.

[00:32:22] Speaker 00:
There were joint tax filings, a bunch of evidence of joint commingled finances, evidence that they had met each other's parents, and then country conditions evidence supporting Duck's explanation that he married TL to hide his sexual orientation and appease his family.

[00:32:39] Speaker 00:
with my friend on the other side.

[00:32:40] Speaker 00:
The government hasn't pointed to any requirement that you have to have made a request to USCIS in order to be able to raise it to the BIA.

[00:32:47] Speaker 00:
The general rule is that you just have to raise something before the agency proceedings end.

[00:32:51] Speaker 00:
And as Judge Bea was alluding to, I think, USCIS proceedings are non-adversarial and it would be extremely unusual to have an adversarial proceeding injected into those.