[00:00:09] Speaker 01:
Good morning, Your Honors.

[00:00:10] Speaker 01:
May it please the Court.

[00:00:11] Speaker 01:
My name is Sabrina DeMass, and I represent the appellants in this matter, Drago Skavlescu and Melita Plum.

[00:00:17] Speaker 01:
Your Honors, I respectfully request to reserve two minutes for rebuttal.

[00:00:20] Speaker 01:
All right.

[00:00:21] Speaker 02:
I'll try to help you out, but keep your eye on the clock as well.

[00:00:23] Speaker 02:
Thank you, Your Honor.

[00:00:25] Speaker 01:
Your Honors, this Court should grant the appeal for two reasons.

[00:00:28] Speaker 01:
First, the district court erred in finding that the agency did not violate Ms.

[00:00:33] Speaker 01:
Plume's due process rights by relying on Ms.

[00:00:36] Speaker 01:
Ruiz's accusatory statement simply because Ms.

[00:00:39] Speaker 01:
Plume did not make a request to cross-examine Ms.

[00:00:42] Speaker 01:
Ruiz before the agency.

[00:00:44] Speaker 01:
And secondly, Your Honors, the question of whether Ms.

[00:00:47] Speaker 01:
Plume and Mr. Gavriilescu's 11-year marriage was bona fide was never properly before the district court, and this court should therefore not affirm summary judgment on that alternate ground.

[00:01:01] Speaker 01:
Your Honors, with respect to the accusatory statement that is in the record from Ms.

[00:01:05] Speaker 01:
Ruiz, the appellant's ex-spouse,

[00:01:09] Speaker 01:
In Ching vs. Mayorkas, this court laid out the reasons why under the Matthews vs. Eldridge test, it would be important to give an I-130 petitioner, in this case Ms.

[00:01:19] Speaker 01:
Plume, the opportunity to cross-examine an ex-spouse about accusatory statements.

[00:01:26] Speaker 02:
Do you read Ching as establishing a right across the board that any time there's contested statements in the record that there has to be not only a right of cross-examination instead of a case-by-case determination, but also that it has to be affirmatively offered rather than requested?

[00:01:48] Speaker 02:
I don't know that Ching really goes that far.

[00:01:51] Speaker 01:
Your honor, I agree.

[00:01:52] Speaker 01:
The court does not need to draw a bright line rule.

[00:01:54] Speaker 01:
And I'd like to address both pieces of your question, your honor, about whether in all circumstances there needs to be an opportunity to cross-examine and whether that needs to be offered affirmatively by the agency rather than requested by the petitioners.

[00:02:08] Speaker 01:
With respect to the question of do all factual circumstances require this, the court does not need to draw a bright line rule.

[00:02:14] Speaker 01:
And I agree that they did not in Ching.

[00:02:16] Speaker 01:
In Ching, the court looked to balance the questions of,

[00:02:19] Speaker 01:
Why might we be concerned about the veracity or reliability of the accusatory statement against what other evidence exists in the record that there may in fact have been a bona fide marriage to the ex-spouse?

[00:02:30] Speaker 01:
I think the facts here are actually even stronger on that point, Your Honor.

[00:02:34] Speaker 01:
In Qing, you had a site visit, the ex-spouse was interviewed, made a statement that he had been paid to marry the non-citizen beneficiary, essentially an admission to a conspiracy.

[00:02:47] Speaker 01:
There are no such facts like that here.

[00:02:50] Speaker 01:
In fact, Ms.

[00:02:50] Speaker 01:
Ruiz's statement claims, more or less, that she married for love and she was hoodwinked.

[00:02:54] Speaker 00:
Yeah, and I think that's the difference here, because in Ching, there was evidence that directly contradicted the ex-husband's claim.

[00:03:01] Speaker 00:
Because he said, I married for money.

[00:03:03] Speaker 00:
We never consummated the marriage.

[00:03:05] Speaker 00:
We never lived together.

[00:03:06] Speaker 00:
And she produces documents that their names on the lease together, utility bills.

[00:03:11] Speaker 00:
She goes into, I think, the court, put excruciating details about their intimacy.

[00:03:17] Speaker 00:
So there's at least direct conflict here.

[00:03:19] Speaker 00:
I say, I don't see any direct conflict.

[00:03:22] Speaker 00:
In fact, they may be consistent, because

[00:03:24] Speaker 00:
his ex-wife's story is that she was fooled by him, that he pretended that he loved her and married her for real, and in fact it was a ruse.

[00:03:32] Speaker 00:
So all this evidence about, well, we had a big fancy wedding, our friends saw us, that would be consistent with this ruse that he's allegedly perpetrating, that he's pretending to love her and he married her for love, but in fact it was just for the visa.

[00:03:47] Speaker 00:
So here, I'm reaching more narrowly where there's direct conflict here.

[00:03:51] Speaker 00:
Maybe there's some tension,

[00:03:53] Speaker 00:
You know, arguably it's even consistent with the ex-wife's story.

[00:03:57] Speaker 01:
Your Honor, I do think there is evidence of the bona fide nature of the marriage to Mr. Ruiz.

[00:04:01] Speaker 01:
You've cited some of it, Your Honor.

[00:04:03] Speaker 01:
There are photos of them in a church and a certificate showing they had a church wedding.

[00:04:07] Speaker 01:
There's a detailed statement from Mr. Gravulescu's parents about it.

[00:04:10] Speaker 00:
But if he wants to fool her into thinking that he loves her, you would, you know, arguably go along with the big fancy wedding.

[00:04:16] Speaker 01:
Your Honor, I understand the court's point.

[00:04:18] Speaker 01:
I also think, though, that this is exactly the type of concern that the Chin Court had about potentially upset, angry ex-spouses who feel that their marriages did not go the way that they thought they would.

[00:04:30] Speaker 02:
I'll tell you what I think is the worst fact for your case and then give you an opportunity to address it.

[00:04:37] Speaker 02:
There was a court proceeding in Orange County.

[00:04:40] Speaker 02:
Both parties were present, the ex-wife and

[00:04:44] Speaker 02:
the petitioner, your client here, and there was essentially a judicial declaration that the marriage was based on fraud.

[00:04:54] Speaker 02:
So unless CHING really stands for the proposition that the government has got to offer the opportunity to cross-examine where there's contested facts in an I-130 petition, I think that you're really climbing uphill here given the prior court judgment.

[00:05:12] Speaker 01:
Your honor, I would submit that this court's decision in Nakamoto versus Ashcroft is actually quite on point with your question about the annulment order.

[00:05:21] Speaker 01:
In Nakamoto, much like here, there was a finding by the state court of a fraud in the marriage, not an immigration-related fraud, just as we have here.

[00:05:29] Speaker 01:
The fraud that was cited by the state court in granting the annulment had to do with

[00:05:33] Speaker 01:
the intent to form a family to have children.

[00:05:36] Speaker 01:
And in fact, the petition for annulment mentions nothing whatsoever about immigration benefits, nor does the court's order grant you the annulment.

[00:05:44] Speaker 01:
In Nakamoto, the court said that the annulment order itself would not be sufficient to meet the government's burden of proving marriage fraud under INA 204C.

[00:05:55] Speaker 01:
What put the Nakamoto case over the line against the petitioner was that Nakamoto went into immigration court and confessed, testified, that she had married simply because her parents wanted her to immigrate to the United States and not because there was any sort of bona fide marital relationship with the petitioner.

[00:06:11] Speaker 01:
There is no such confession by either party of a conspiracy or certainly by Mr. Gavrilescu that he only married for... Let me make sure I understand your position on this fraud question.

[00:06:21] Speaker 04:
You're saying that a fraudulent marriage

[00:06:24] Speaker 04:
If it's not immigration fraud, it's not conclusive in this case.

[00:06:29] Speaker 04:
We need to find not merely fraud, but immigration fraud.

[00:06:33] Speaker 01:
Yes, Your Honor.

[00:06:34] Speaker 01:
I would say that the agency has the burden of proof, as they do on a 204C finding, of pointing to some sort of immigration-related fraud in order to make a finding of marriage fraud under 204C.

[00:06:46] Speaker 01:
And I think that's the court's holding in Nakamoto.

[00:06:49] Speaker 01:
With respect to Your Honor's question about affirmatively requesting by the petitioner or being offered by the agency this opportunity,

[00:06:57] Speaker 01:
The Ching case, I think, answers this question for us as well.

[00:07:01] Speaker 01:
There's nothing in the court's decision in Ching that would indicate a request made by the I-130 petitioner, Ms.

[00:07:07] Speaker 01:
Ching, or her, excuse me, she's the beneficiary by her husband, Mr. Joseph, to cross-examine her ex-husband, Mr. Fong.

[00:07:13] Speaker 01:
And in fact, the reason that's not mentioned is because as the administrative record in Ching makes clear, no such request was ever made by the I-130 petitioner or the I-130 beneficiary.

[00:07:22] Speaker 04:
Was there ever an objection to the failure to make a request in Ching?

[00:07:26] Speaker 01:
Your Honor, it's not I don't know, but it was not addressed by this court and it wasn't as a matter of factual history.

[00:07:33] Speaker 04:
I'm having trouble based on the essential silence in Chang.

[00:07:37] Speaker 04:
concluding that Ching tells us that a request does not need to be made.

[00:07:42] Speaker 04:
Even if a request wasn't made, I'm having trouble reading Ching as holding, now that Ching is on the books.

[00:07:49] Speaker 04:
So anybody reading the law, knowing the law, knows that I'm entitled to a hearing.

[00:07:54] Speaker 04:
I'm having trouble reading Ching as saying, you know you're entitled to a hearing, but you don't have to ask for it, and you can complain afterwards when you didn't get it.

[00:08:03] Speaker 01:
Your honor, I see that I'm just about at my two minute warning if I may respond.

[00:08:07] Speaker 01:
Please.

[00:08:08] Speaker 01:
Thank you, your honor.

[00:08:10] Speaker 01:
Your honor, I think first of all, I think the fact that Ching had long been on the books goes both ways, meaning that the agency was as much on notice that they had an obligation if they were going to rely on the accusatory statement to provide the opportunity for cross-examination.

[00:08:24] Speaker 01:
But secondly, your honor.

[00:08:25] Speaker 04:
Well, maybe they would have replied given the opportunity.

[00:08:28] Speaker 04:
They didn't say you can't have it.

[00:08:30] Speaker 01:
This goes to my next point, actually.

[00:08:32] Speaker 01:
I think there's a futility issue here with asking the agency for these hearings, if you will, these Qing hearings.

[00:08:38] Speaker 01:
This was brought up at the district court during the oral arguments on summary judgment.

[00:08:43] Speaker 01:
Qing has been out now for almost 11 years.

[00:08:46] Speaker 01:
To the best of my knowledge, as a practicing immigration attorney, they have never provided a Qing-style hearing to anyone.

[00:08:51] Speaker 01:
Even upon request?

[00:08:54] Speaker 01:
At all, Your Honor.

[00:08:55] Speaker 01:
And this was not a statement that was disputed or challenged by the government during oral arguments.

[00:09:02] Speaker 01:
They certainly didn't indicate that they have contrary knowledge that something like this has ever taken place.

[00:09:07] Speaker 01:
And in general, this court has held that if the relief you seek is not available at the agency, we do not require you to make the futile request in order to exhaust an agency remedy that doesn't exist.

[00:09:21] Speaker 02:
All right, I see you're running low on time, but I'll give you the two minutes back.

[00:09:25] Speaker 01:
Thank you, Your Honors.

[00:09:41] Speaker 03:
Good morning, Your Honors, and I may please the Court and Esamah for the United States.

[00:09:45] Speaker 03:
Your Honors, on the course of creating immigration benefits for non-citizens, Congress determined that immediate relatives such as spouses are eligible for lawful permanent residency if they can show a bona fide relationship to a U.S.

[00:09:57] Speaker 03:
citizen.

[00:09:58] Speaker 02:
Can you speak up just a little bit or pull the microphone a little bit closer?

[00:10:01] Speaker 03:
Thank you.

[00:10:02] Speaker 03:
Is that better?

[00:10:03] Speaker 03:
Yes.

[00:10:04] Speaker 03:
Okay, perfect.

[00:10:05] Speaker 03:
However, Congress also determined that if the non-U.S.

[00:10:08] Speaker 03:
citizen spouse ever committed marriage fraud, that non-U.S.

[00:10:11] Speaker 03:
citizen is permanently barred from ever adjusting their status.

[00:10:16] Speaker 02:
Over the course of six years- Marriage fraud or marriage fraud for purposes of obtaining immigration benefits, as your opposing counsel argued?

[00:10:26] Speaker 03:
Sure.

[00:10:27] Speaker 03:
Finding a marriage fraud for the purpose to obtain immigration benefits, the government would say that that creates too high a bar.

[00:10:37] Speaker 03:
And the reason why is that it forces other judicial bodies from, it would force them to engage in a magic words test, right?

[00:10:46] Speaker 03:
So in this case, for instance, the test for whether or not a marriage is bona fide is whether or not the ex-spouses at the time they married had an intent to establish a life together.

[00:10:57] Speaker 03:
and that there is a finding of fraud by the Superior Court in California stating that Mr. Gavrilescu entered into his marriage with Ms.

[00:11:05] Speaker 03:
Mangrich with the intent to deceive her, that she was hoodwinked into marrying him, is enough to show that he did not intend to establish a life with Ms.

[00:11:15] Speaker 03:
Mangrich at the time of their marriage.

[00:11:17] Speaker 03:
So the fact that there's no magic word saying that Mr. Gavrilescu married Ms.

[00:11:22] Speaker 03:
Mangrich for a green card or to otherwise obtain an immigration benefit

[00:11:26] Speaker 04:
I'm not sure I fully go along with you, given if the fraud is limited to the question as to whether or not he intended to have children.

[00:11:39] Speaker 04:
It sounds as though, consistent with what we get out of the Superior Court, is that he was perfectly content to have a marriage for the lifetime of the marriage, but without children.

[00:11:50] Speaker 04:
So it wasn't as though he induced her to marriage that he didn't want a marriage.

[00:11:54] Speaker 04:
The misunderstanding was whether or not to have children and the fraud was she thought he was going to allow her to have children and he didn't.

[00:12:04] Speaker 04:
Not that the marriage itself was fraudulent had she been willing to go along with him with respect to children.

[00:12:10] Speaker 03:
Well, to that effect, that finding is not incongruent with the agency's finding that Mr. Gavrilescu entered into his marriage with Ms.

[00:12:18] Speaker 03:
Mangrich for the purpose of circumventing immigration laws.

[00:12:21] Speaker 04:
He could have misrepresented... Oh, it's not inconsistent with, but now we're back to the question of, do you have to have the fraud that says fraud for the purpose of immigration?

[00:12:30] Speaker 04:
I don't find the Superior Court judgment as telling us

[00:12:34] Speaker 04:
that the fraud was entered in for the purpose of deceiving the immigration authorities.

[00:12:38] Speaker 04:
It was a different kind of fraud.

[00:12:39] Speaker 04:
Now, it may also have been for the purpose of deceiving the immigration authorities, but you can't tell that from the Superior Court judgment.

[00:12:47] Speaker 03:
Certainly, and that there is, you know, that fraud can have multiple intents, right?

[00:12:52] Speaker 03:
It could also be he could have induced her and he could have misrepresented his intent to have children.

[00:12:58] Speaker 03:
And then also for the knowledge that he would obtain an immigration benefit had he married Miss Mangridge.

[00:13:04] Speaker 03:
In addition to that, though, there is no finding for immigration purposes on the petition.

[00:13:09] Speaker 03:
And that's in the exercise of the record pages 112 and 113.

[00:13:13] Speaker 03:
The only reason, there are a finite amount of reasons that Ms.

[00:13:15] Speaker 03:
Vangridge could have petitioned for an annulment of her marriage, and one of them is just the basis of fraud.

[00:13:21] Speaker 03:
Additionally, this court has already found that such an annulment is substantial evidence of a finding of marriage fraud.

[00:13:26] Speaker 03:
In Nakamoto, the Hawaii Family Court also found that an annulment on the basis of fraud and that language in the Hawaii Family Court and in the Superior Court of California here match almost exactly.

[00:13:40] Speaker 04:
And we come back to the question is not whether there's preclusive effect of the fraud judgment, but rather the question of let's assume that there's no preclusive effect, and then we get back to the well, should there have been given some cross-examination.

[00:13:54] Speaker 04:
Has the agency ever given cross-examination on this question?

[00:13:58] Speaker 03:
To my information, no, outside of Chang.

[00:14:01] Speaker 04:
And do we know whether the agency has ever been requested?

[00:14:05] Speaker 03:
that information is not available.

[00:14:06] Speaker 04:
We don't know.

[00:14:07] Speaker 04:
So can we assume?

[00:14:10] Speaker 04:
Can we guess?

[00:14:11] Speaker 04:
Can we speculate?

[00:14:12] Speaker 04:
What do we know what might have happened had he asked for cross examination?

[00:14:17] Speaker 03:
If then there would have been a notation in the record and the officer either at the either at the interview that the appellants sat through or at the or in response the no ID could have notated in the record that there was a request for cross examination but here we don't even need to reach whether or not cross examination is necessary because.

[00:14:36] Speaker 03:
The issue in Ching was that USCIS focused solely on a terse six-sentence statement made by the, an adverse statement made by the ex-spouse.

[00:14:46] Speaker 03:
And here there was other extrinsic evidence of marriage fraud in the record.

[00:14:51] Speaker 03:
First, there's the dearth of evidence, the lack of information or evidence showing the bona fides of the Maynardz-Gavrilescu wedding, or marriage rather, and also the- I don't understand what you just said.

[00:15:01] Speaker 03:
Oh, sorry, the lack of evidence.

[00:15:03] Speaker 04:
Yeah, I know.

[00:15:03] Speaker 04:
What are you talking about?

[00:15:04] Speaker 03:
Sure, that during the course of a marriage, you would expect there to be joint utility bills, tax bills, a lease, other information like that.

[00:15:12] Speaker 03:
But all the information seems to point to the fact that Ms.

[00:15:14] Speaker 03:
Mangrich and Mr. Gavrilescu had a wedding, but not that they had a marriage.

[00:15:20] Speaker 03:
And additionally, there's also in the record, the record of the annulment proceedings.

[00:15:24] Speaker 03:
There's not just the judgment, but there is a showing that there was a contested family proceeding there where both the appellant and Mr. Gavrileski, or appellant and Ms.

[00:15:35] Speaker 03:
Mangrich were able to testify as well.

[00:15:38] Speaker 00:
Are there any removal proceedings against Mr. Gavrileski?

[00:15:41] Speaker 03:
No.

[00:15:42] Speaker 00:
Have there been any, do you know?

[00:15:43] Speaker 03:
No.

[00:15:44] Speaker 00:
But I assume he's removable, right?

[00:15:46] Speaker 03:
He is removable, but he's not in removal proceedings now.

[00:15:53] Speaker 00:
He came here, I think, at a visa that allowed him to stay for 60 days.

[00:15:56] Speaker 00:
He's now been in here unlawfully for 25 years.

[00:16:01] Speaker 00:
The government says he's perpetrated fraud.

[00:16:04] Speaker 00:
And then what's baffling is in the first case we heard, Gonzalez Pena, we have someone who's married to an American citizen, legitimate marriage, has two American citizens, and DHS wants to remove him.

[00:16:15] Speaker 00:
We have here someone who has been here for 20, almost 24, 25 years, could be removal, and nothing has happened.

[00:16:24] Speaker 00:
I mean, it's just baffling to me.

[00:16:26] Speaker 03:
I understand, Your Honor, but I can't speak to the prosecutorial discretion of ICE, who is also not a party to this case.

[00:16:36] Speaker 02:
It really does stand out.

[00:16:37] Speaker 02:
The contrast is pretty stark.

[00:16:40] Speaker 02:
Understandable, Your Honor, yes.

[00:16:42] Speaker 02:
Can I get back to a question related to what Judge Fletcher was asking?

[00:16:45] Speaker 02:
Because Ching's been on the books for a long time.

[00:16:47] Speaker 02:
It sounds to me like the government hasn't set up any procedures for allowing cross-examination if somebody were to ask for it.

[00:16:59] Speaker 03:
Is that fair?

[00:16:59] Speaker 03:
That's correct.

[00:17:00] Speaker 03:
And I think that speaks just to the extraordinary circumstances that are in the chain case, right?

[00:17:05] Speaker 03:
I mean, those facts were extraordinary and perhaps unique where USCIS just only result only relied on this terse statement that was taken at a surprise USCIS officer visit to the ex-spouse in contrast to

[00:17:20] Speaker 03:
a mountain of evidence.

[00:17:21] Speaker 03:
And here we have, there's other reliance on other evidence.

[00:17:25] Speaker 03:
It's not just Ms.

[00:17:26] Speaker 03:
Mangrich's withdrawal letter.

[00:17:27] Speaker 03:
We're also looking at the objective documentation from the annulment proceedings as well as a lack of evidence.

[00:17:35] Speaker 04:
I'm following up now on Judge Wynn's question.

[00:17:39] Speaker 04:
If the agency has Ching staring it in the face for over 10 years and never sets up a procedure that would tell people, essentially, that you have a right to a cross-examination,

[00:17:55] Speaker 04:
Can we assume that the agency doesn't really want to do it?

[00:18:00] Speaker 04:
I mean, that seems to me a pretty logical conclusion from the agency has done nothing to set up an administrative procedure to comply with Chang and to notify people that they have a right to do it, which then feeds me into the question of, well, maybe the failure to request is excused because of futility.

[00:18:20] Speaker 04:
I mean, the agency seems to be absolutely uninterested in complying with Chang.

[00:18:24] Speaker 03:
Well, Your Honor, first I would disagree that there is a right to cross-examination.

[00:18:29] Speaker 04:
Well, Ching says there is.

[00:18:30] Speaker 03:
There is no blanket right to cross-examination.

[00:18:32] Speaker 03:
Ching was limited specifically to the facts of that case.

[00:18:36] Speaker 04:
Well, it was limited to the facts of that person has said something, put it in the record that's adverse to me, and I get to cross-examiner on that.

[00:18:44] Speaker 04:
That's how I read Ching.

[00:18:46] Speaker 03:
The government reads Ching differently.

[00:18:47] Speaker 04:
How does the government read Ching?

[00:18:49] Speaker 03:
In that just, so the government agrees, of course, that due process and what processes are

[00:18:54] Speaker 03:
are supposed to be provided is should be determined on a case by case basis here.

[00:19:00] Speaker 03:
And in Ching after and after engaging in a Matthews analysis found that there was a high risk of erroneous deprivation of this right just because the USCIS focused entirely on one statement by an ex-spouse that flew in the face of his previous statements and all of the other evidence in the record.

[00:19:18] Speaker 03:
So in those cases, there may be a possibility for a cross-examination.

[00:19:24] Speaker 03:
However, those facts are extreme and they don't seem to have been repeated anywhere else.

[00:19:30] Speaker 04:
Well, they haven't been repeated anywhere else because apparently, as far as we know, nobody else has asked for a chain hearing.

[00:19:36] Speaker 04:
And maybe they haven't asked for a chain hearing because the government has been unwilling to set up a procedure that tells people they're entitled to one.

[00:19:43] Speaker 03:
Certainly, but to the extent that there is no right to cross-examine.

[00:19:50] Speaker 03:
There's no right guarantee.

[00:19:51] Speaker 02:
Right.

[00:19:52] Speaker 02:
I think you're going back to your point, and we get your position.

[00:19:56] Speaker 02:
But as I understand it, don't worry about the clock.

[00:19:58] Speaker 02:
We can add a little bit of time onto it so that you have a full opportunity to respond to the court's concerns.

[00:20:05] Speaker 02:
As I understand your argument, you're not really reading Ching as a unique one-off.

[00:20:10] Speaker 02:
You're saying that under

[00:20:11] Speaker 02:
appropriate circumstances, there is a right to have cross-examination, but the circumstances would have to be extreme as in Ching.

[00:20:20] Speaker 02:
So I get that, but that doesn't really fully address the point that Judge Fletcher and I raised, which is it doesn't seem like there is a way to get cross-examination even if your facts rises to the level of Ching.

[00:20:34] Speaker 02:
there doesn't seem to be a mechanism for it.

[00:20:37] Speaker 03:
Sure, but even if the heart of due process is the ability to be heard and advocate for yourself, that already exists here in the process of the NOID, the Notice of Intent to Deny.

[00:20:47] Speaker 03:
There USCIS has to put forth, by regulation, has to put forth the specific derogatory information that exists in the record and provide the petitioning beneficiary with the opportunity to rebut with specificity that information.

[00:21:01] Speaker 03:
So to the extent

[00:21:01] Speaker 04:
But that only means he gets to say, not true.

[00:21:06] Speaker 04:
That doesn't mean he gets to say, hey, I want to talk to her, and I want to put her on the stand, because as soon as I start cross-examining her, her story's going to fall apart.

[00:21:16] Speaker 03:
To that effect, though, appellants could have sought out Ms.

[00:21:20] Speaker 03:
Mangrich and asked for her to provide a contrary affidavit or declaration, but there's no evidence that she did so.

[00:21:25] Speaker 03:
Yeah, good luck with that one.

[00:21:26] Speaker 04:
She's mad as can be.

[00:21:28] Speaker 03:
But they still could have asked her, and there's no information that appellants put forward saying that they asked and she was rebuffed.

[00:21:33] Speaker 03:
There are other cases, such as Alibab, where witnesses had previously put forth adverse statements and then years later submitted

[00:21:44] Speaker 03:
sorry, contrary affidavits walking back their statements.

[00:21:47] Speaker 03:
And this court held that USCIS and the BIA's recognition and credibility determinations showed that they could weigh how they felt one set of statements over the other.

[00:21:57] Speaker 03:
All right.

[00:21:57] Speaker 03:
Thank you very much, counsel.

[00:21:59] Speaker 03:
Let's put two minutes on the clock.

[00:22:06] Speaker 01:
Thank you, Your Honors.

[00:22:08] Speaker 01:
With respect to the question that's been posed about whether any type of fraud is sufficient in the marriage to create a 204C finding, I actually think this is black letter law at this point.

[00:22:18] Speaker 01:
In matter of piecing, which is 27 INN decision 598, the board says, a fraudulent marriage is one that is entered into for the primary purpose of circumventing the immigration laws.

[00:22:29] Speaker 01:
So to Judge Fletcher's question, Your Honor, is if he only lied about wanting to have kids and there was no misrepresentation about his desire to get married for immigration purposes, that certainly doesn't meet the standard of a marriage entered into primarily for circumventing immigration laws.

[00:22:48] Speaker 01:
Clearly, there has to be a fraudulent component related to immigration for that standard to be met.

[00:22:54] Speaker 01:
Secondly, Your Honors, with respect to the Nakamoto decision that both sides have been arguing favors them, this Court's finding in Nakamoto or its statements were specifically, the annulment itself is not dispositive of the question of whether Nakamoto married to procure her admission as an immigrant.

[00:23:12] Speaker 01:
So again, I think this answers the Court's question about whether the annulment order in this matter standing alone would have been sufficient to sustain a 204C finding

[00:23:23] Speaker 01:
such that whether or not he could cross-examine Ms.

[00:23:25] Speaker 01:
Ruiz is sort of irrelevant or wouldn't have changed anything.

[00:23:29] Speaker 04:
So we also heard from your adversary that there's other evidence in the record that suggests that there's fraud.

[00:23:36] Speaker 04:
Can you address that?

[00:23:38] Speaker 04:
Your Honor, I think... Such as lack of utility bills, lack of other evidence, and so on.

[00:23:42] Speaker 04:
Can you address that question?

[00:23:43] Speaker 01:
Oh, yes, Your Honor.

[00:23:44] Speaker 01:
Ms.

[00:23:44] Speaker 01:
Mingrich herself admitted in her accusatory statement that they lived together for seven months.

[00:23:49] Speaker 01:
She said the address you have on record, which was the joint address they listed,

[00:23:53] Speaker 01:
the joint address on their marriage certificate and which Mr. Gavrilescu described as being Ms.

[00:23:58] Speaker 01:
Ruiz's parents' home that they lived at.

[00:24:00] Speaker 01:
She said had not been his address since a particular date, I believe in March of 2000, which was seven months after they got married.

[00:24:07] Speaker 01:
She admits that they lived together for seven months.

[00:24:09] Speaker 01:
There's also a detailed statement from Mr. Gravulescu's father discussing the fact that after he and his wife traveled here on visas, which we have their visa stamps, for the wedding, that the couple, Mr. Weas and Mr. Gravulescu, and his parents, went on vacation together.

[00:24:25] Speaker 01:
There's pictures of the family together, I think, in Las Vegas in the record.

[00:24:28] Speaker 01:
So the absence of utility bills is sort of, I think, not very probative when you have a U.S.

[00:24:34] Speaker 01:
citizen admitting, we live together in my family's home.

[00:24:37] Speaker 04:
The utility bills wouldn't have been to them because they're apparently living in her family's, her parents' house.

[00:24:43] Speaker 04:
Exactly, Your Honor, and the fact is... The utility bills would have gone to the parents.

[00:24:46] Speaker 01:
Yes, Your Honor.

[00:24:47] Speaker 01:
And the fact is that utility bills are generally used to establish a joint residence.

[00:24:51] Speaker 01:
The joint residence itself is not in question in this matter.

[00:24:53] Speaker 01:
It's admitted to by both parties to the marriage.

[00:24:56] Speaker 01:
And with respect to the finances, the annulment order itself actually ordered a division of marital debt that had been accrued during the course of the marriage on credit cards between the two parties.

[00:25:07] Speaker 01:
Again, evidence of, in fact, a joint financial relationship between Mr. Weese and Mr. Gavrilescu.

[00:25:13] Speaker 02:
All right.

[00:25:13] Speaker 02:
Thank you very much, counsel.

[00:25:14] Speaker 02:
Thank you, Your Honor.

[00:25:16] Speaker 02:
The matter is submitted.