[00:00:00] Speaker 04:
Good morning, Your Honors. May it please the court. My name is Stacey Tolchin, and I, with Megan Brewer, will be representing the plaintiff's appellants.

[00:00:07] Speaker 03:
Good morning.

[00:00:10] Speaker 04:
Plaintiff Honan is now 39 years old. He's the father of two United States citizens' children now. He's been married for more than 12 years to a U.S. citizen.

[00:00:20] Speaker 04:
He faces permanent— This is William. I'm sorry?

[00:00:23] Speaker 01:
This is Gilliam.

[00:00:25] Speaker 04:
Honan is the non-citizen.

[00:00:27] Speaker 01:
Yes.

[00:00:29] Speaker 04:
He faces permanent separation from his family based on a marriage that took place when he was 23 years old, more than 15 years ago, when no immigration petition was filed.

[00:00:40] Speaker 04:
This court has three issues to review today. The first is whether the statute at 1154C2 applies when no immigration benefit was sought.

[00:00:51] Speaker 01:
Well, just a minute. Let's look at this. What is my standard to review on this decision?

[00:00:57] Speaker 04:
Your standard is de novo, Your Honor.

[00:00:59] Speaker 01:
Why is it de novo when Zaregi says that my decision to impose the marriage fraud under the APA, and that's what we're here under, will be set aside only if it is arbitrary, capricious, or an abuse of discretion?

[00:01:19] Speaker 04:
Because this is an issue on the first issue.

[00:01:21] Speaker 01:
Well, just a minute. It's a decision on whether the marriage fraud will apply, isn't it?

[00:01:29] Speaker 04:
But C2 is pure statutory interpretation.

[00:01:32] Speaker 01:
I understand what C2 is. And I understand that there's a C1 as well. But all I'm trying to say is in imposing those, aren't we looking at this on an arbitrary, capricious, and abusive discretion determination?

[00:01:49] Speaker 04:
Arbitrary, capricious, and contrary to law, right?

[00:01:51] Speaker 01:
Well, contrary to law. Okay, Lynn, let's look at this. It seems to me that under C-2, what we're really looking at is the Attorney General could find this problem. It wouldn't be necessarily on filing of the I-30, I-130, sorry, but it might be under some other overt act.

[00:02:17] Speaker 01:
And the overt act in this particular situation would be the payment of money to get married.

[00:02:25] Speaker 01:
And so therefore, C2 would apply.

[00:02:29] Speaker 04:
Your Honor, that is a possible interpretation.

[00:02:32] Speaker 01:
Not possible. It's exactly what happened.

[00:02:35] Speaker 04:
Can I direct you, Your Honor, to the House report that's at 99-906? And when it discusses Section 4, so the amendments that are at issue here, it says this section amends 204C of the Act to ensure that aliens who unsuccessfully sought immigration benefits through marriage fraud may never receive immediate relative or preference status. And so there is a requirement under a congressional –

[00:03:19] Speaker 02:
and that overt act could be paying money for a sham marriage, why would it need to require seeking benefits in order for the marriage bar to apply?

[00:03:29] Speaker 04:
Because I don't think, Your Honor, that it is the plain language of the statute, that if you look at the IMFA statute, that the reference to a petition at the end for the effective date does imply that a petition has to be filed. And again, it's for seeking immigration benefits, right? And so even the payment of money for a marriage that may be fraudulent, let's say it's a marriage where one person... I mean, C-1 mentions the seeking of benefits. Correct. But C-2 does not.

[00:03:55] Speaker 02:
Right. C-2 doesn't.

[00:03:59] Speaker 04:
Yeah, that's the issue in the case, right?

[00:04:00] Speaker 01:
C2 does not...

[00:04:27] Speaker 04:
If the Overt Act was for the purpose of an immigration benefit, but how do you tell that if there's no benefit that's sought?

[00:04:35] Speaker 01:
Just a minute. It doesn't say anything about benefit there. It says for the purpose of evading the immigration laws.

[00:04:42] Speaker 01:
That doesn't have anything to do with benefit. Now, it does have about benefit in C-1. But C-2, that's why I read you C-2. Right. Because it's evading the immigration laws. And frankly, I said, well, what do you have to have for that? Well, you've got to have an overt act. And so what could the overt act do? Well, you could have got married, but then it would be the criminal statute. And so you don't go with that. So you've got to have something over and above that.

[00:05:15] Speaker 01:
So paying the money, which is exactly what happened here in the first marriage.

[00:05:21] Speaker 04:
So, Your Honor, that is disputed that that was for the purpose of immigration benefits, as you know, right?

[00:05:25] Speaker 01:
Purpose of evading immigration laws.

[00:05:28] Speaker 04:
Correct. The plaintiff maintains he was supporting his wife financially.

[00:05:33] Speaker 03:
Right. Well, that's a different question, right? We're struggling with two different issues here. One is the plain meaning of the statute. And I'm not unsympathetic to the fact that we really dig into the legislative history of It appears that C-2 was really amended to address the K-1 fiancé visa situation. I get all that, and you've briefed the issue well. The problem is the plain language really controls, and in subsection 1...

[00:06:05] Speaker 03:
It's been accorded or has sought to be accorded an immediate relative or preference status. So that is an attempt to secure the benefit. But C2 doesn't have that. It's merely an attempt to or a conspiracy to enter into marriage for the purpose of evading immigration laws. Now, whether the government can actually establish that, I mean, we can view that as a separate question, but the statutory interpretation here, it's really hard to fight the plain language.

[00:06:37] Speaker 04:
Your Honor, I understand. I do want to just note a couple more things about C-2 that are important. C-2 expanded what the benefits were. So C-1 is only a spousal-based visa, essentially, a green card through a spouse. C-2 expands that benefit. So if you seek asylum based on a fraudulent marriage, you'd fall under C-2. If you seek an H-1B as a spouse based on a fraudulent marriage, you'd fall under C-2. And so that broader language seems to not only address those people who never got married, like the fiancé's, but also much broader immigration benefits that are not contemplated under C-1.

[00:07:11] Speaker 04:
If I can move on to the Ching issue, just given my time.

[00:07:14] Speaker 03:
Well, but follow that logically through. How does that help your statutory interpretation?

[00:07:19] Speaker 04:
Again, it shows that there must be an immigration benefit sought, right? So if somebody gets married to somebody who is applying for asylum... just because they want to get an asylee derivative status, that would fall under C2 if the asylum application was filed. It broadens C1 extensively, but I don't think it broadens to the point of just requiring only a marriage and the avoid act, let's say, of the payment. Because if nothing is sought, then there is no furtherance of the immigration fraud.

[00:07:49] Speaker 02:
I mean I agree that one of the purposes of the statute was to encompass sham visa applications where the marriage isn't finalized.

[00:08:06] Speaker 02:
But that doesn't mean that that would be the sole focus of it if there are other – I guess I have a hard time seeing that Congress intended to amend the statute in 1986 to cover more grounds for sham marriages. But they meant to specifically carve out or exclude a sham marriage where a marriage benefit happened to not be applied for at that time.

[00:08:29] Speaker 04:
I think the issue, Your Honor, is what's the meaning of C-1 then? Right. What's left of C1? Because if if the example of just a marriage and an overt act falls under C2, why do you need C1? C1 becomes totally irrelevant.

[00:08:40] Speaker 02:
Well, I mean, you know, I mean, the government made a plausible argument that you that C1 can involve one sided petitions. And I read your brief and I didn't quite agree with the notion that the only way the one sided could be is if the petition or if the if if the person seeking asylum benefits was the one that was unaware. Why couldn't you have the U.S. citizen be unaware that this marriage is not a bona fide one and that the person seeking the benefits was doing it only to obtain an immigration benefit and then was intending to, say, divorce soon after?

[00:09:16] Speaker 04:
So, Your Honor, one thing to point out is that C2 includes attempt or conspires, right? And so the attempt language would include the filing of an immigration benefit. So in the unilateral marriage example where only the U.S. citizen believes the marriage is real – There still has to be a filing of an immigration benefit, and that's clearly an attempt. So I don't see how there's any situation where you could have the ground of C-1 apply and not be encompassed by C-2.

[00:09:43] Speaker 02:
Well, C-2 encompasses people that are in cahoots, right? If you're conspiring, you're involved in the attempt to evade immigration laws.

[00:09:52] Speaker 04:
Or an attempt.

[00:09:54] Speaker 02:
Or the attempt.

[00:09:54] Speaker 04:
Or the attempt. So you don't have to have a conspiracy. Right.

[00:09:58] Speaker 02:
No, that's true. You don't have to have a conspiracy. But I think the district court made the point, and I think it's not wrong, that you don't have to have – there can be overlap and Congress can still decide to have these two separate provisions to encompass different areas of conduct. And I haven't really seen you explain that the overlap is complete, that it covers every – because this is one of those examples, right? C1 does not cover this circumstance where someone has not applied for immigration benefits.

[00:10:28] Speaker 02:
And perhaps one of the purposes that Congress sought was to cover sham marriages where an immigration benefit has not been sought. And you get it through C2.

[00:10:37] Speaker 04:
Your Honour, I still think the reading, and I don't think the statute is unambiguous, and I do think, therefore, the legislative history does come in, and that's when you look at the intent on the filing or seeking of immigration benefits. If you don't mind, can I move to Ching? All right. We only have a few minutes. So the next issue, of course, is the right of cross-examination of the ex-spouse. And the court, as Your Honor is aware, in Gavrilescu, recently in an unpublished case, noted that USCIS has yet to apply qing on a practical level to any cases.

[00:11:09] Speaker 03:
Assuming that all that is true, is there prejudice shown here?

[00:11:12] Speaker 04:
There is, Your Honor.

[00:11:13] Speaker 03:
Given that by his own admission, he engaged in marriage fraud.

[00:11:17] Speaker 04:
So, Your Honor, there's two pieces of evidence the government relies on. One is the Hymus statement. The other is the BGC report. Now, the BGC report, the plaintiff, Honan, contests that he made the statement. He contests that there was marriage fraud. The problem with the BGC report is it's redacted and the author is not identified. And so there is no presumption of reliability that usually applies to a government doctrine. And we know that there's a lot of unreliable information in here. It says that immigration benefits were sought. That wasn't true. It said that there was a divorce.

[00:11:48] Speaker 04:
That wasn't true. He contests that information, and that's why the court's decision in Zarazegui is very important. This is not substantial and probative evidence. The standard for that is credible, reliable information. That's from the board's case in matter of P. Singh. And it does not meet that standard. So there is prejudice because the only things that the government relies on don't meet the substantial probative.

[00:12:11] Speaker 03:
Well, whose burden is it to show prejudice?

[00:12:14] Speaker 04:
So in the Ching analysis, it is the plaintiff's burden.

[00:12:20] Speaker 04:
in the analysis of substantial probative evidence, that is the government's burden, the matter of peace seeing burden. So the court needs to look at what is the record when you take out the Hymus statement and you take out the BGC statement. There's nothing there.

[00:12:35] Speaker 01:
You skipped right to prejudice, assuming that there's some due process right here.

[00:12:42] Speaker 01:
And I guess I'm trying to figure out why there is.

[00:12:45] Speaker 04:
Happy to answer that, Your Honor.

[00:12:46] Speaker 01:
Did BIA ignore due process altogether?

[00:12:50] Speaker 04:
The BIA says you argued Ching, go to the ex-wife and get a statement from her.

[00:12:56] Speaker 01:
You don't need to tell me what they said. Did they ignore it?

[00:12:59] Speaker 04:
They acknowledged that Ching could apply.

[00:13:01] Speaker 01:
But did they ignore it?

[00:13:03] Speaker 04:
No.

[00:13:03] Speaker 01:
Okay, so then we can't send it back to them to think about due process. We're going to take it up ourselves.

[00:13:11] Speaker 04:
Your Honor.

[00:13:12] Speaker 01:
Is that where you are? Because I got the idea you wanted us to send it back to have them think about due process again.

[00:13:20] Speaker 04:
If the court believes they should, you should... No, I'm not asking what the court believes.

[00:13:24] Speaker 01:
I'm asking what's your argument.

[00:13:25] Speaker 04:
I think it's a Chenery issue, right?

[00:13:26] Speaker 01:
You can't... Well, I guess I'm trying to figure out, do you think they addressed it or not? They addressed it, but I don't think... Well, if they addressed it, did they conclude that Ching was not applicable?

[00:13:38] Speaker 04:
No.

[00:13:39] Speaker 01:
OK, if they didn't clue that wasn't available, didn't she get an opportunity to get plaintiff get opportunity to give evidence that was an adequate substitute for the hearing? No. Well, now, just a minute. Let's think about that.

[00:13:55] Speaker 01:
In Ching, without an I-130 approval, Ching faced imminent removal, the right to marry and enjoy marriage as liberty interest protected by the due process clause. Here, Munoz would throw out the liberty interest. We don't have to think about the liberty interest in this particular situation because of Munoz.

[00:14:21] Speaker 01:
So they did find a property interest, but they never analyzed it. So we really haven't got Ching on dead set here in the first Matthews factor in my book. Because we don't have any liberty interest anymore. All we have is a property interest, and it wasn't analyzed. Would you agree?

[00:14:42] Speaker 04:
I agree, but Ching recognizes a property interest.

[00:14:45] Speaker 01:
They do recognize, but they never analyzed it. Let's look at the second factor. the risk of an erroneous deprivation of such an interest. In Qing, the only evidence was the testimony of the ex-spouse.

[00:15:01] Speaker 01:
The evidence presented extensive details of her marriage to Fong, including descriptions of intimate conversations, evidence of her life with Fong, bills, and a lease they both had. The I-30 was denied after only one intent to deny given to the plaintiff. Here, we have totally different interests, different situations. We have three notices of intent which were given.

[00:15:32] Speaker 01:
Information was given on March 2017. Denials were given on June 2017, July 2020, and again in February 2012.

[00:15:49] Speaker 01:
The responses from the plaintiff gave no extensive details of the marriage, none. In fact, the only thing he said was, we married young, she had a drinking problem, we have photos of the wedding, my father, uncle, and friend think it was bona fide of married.

[00:16:10] Speaker 01:
The testimony of the wife in this instance was not given for this problem, it was given for a gambling case.

[00:16:19] Speaker 01:
Plaintiff himself in the gambling case said the authorities, guess what, I entered into this marriage fraudulently. That's what he told the gambling authorities.

[00:16:32] Speaker 01:
Plaintiff didn't make the arguments he's making here about due process interest to the BIA. In fact, he just thought that the documents supplied by the government agent would be there.

[00:16:44] Speaker 01:
So I'm saying to myself, it doesn't seem to me there's any risk of erroneous deprivation in this particular instance if I take the second factor.

[00:16:55] Speaker 01:
Now, how do you respond to that?

[00:16:56] Speaker 04:
Your Honor, do I have permission to keep going? Yes, please answer that question.

[00:17:01] Speaker 01:
Well, I'm trying to have you respond. Tell me why I've missed the second factor.

[00:17:05] Speaker 04:
The second factor takes you look at what does the evidence look like for the government who has the burden?

[00:17:12] Speaker 01:
Well, I am. I laid it out here so you could respond.

[00:17:15] Speaker 04:
Yes. And so the only evidence is the report. That's the only thing they have. And he contested that.

[00:17:23] Speaker 01:
Well, now, just a minute. That's not exactly the only evidence. I just went through it.

[00:17:30] Speaker 04:
So, Your Honor, in a marriage fraud case, it's a bifurcated approach. So you first look at the government's evidence. Have they established by substantial and probative evidence that the marriage is fraudulent? Then the burden shifts if they have met that standard. So that is why there's two items listed. You take out the high misstatement. You look at the BGC report. Does it meet that substantial probative standard? Under a matter of piecing, it does not. So then you get to the evidence. And yes, the evidence may be scarce. It was a two-year marriage. It was volatile.

[00:18:01] Speaker 04:
But that doesn't matter if the government has not met its initial burden. And that's what step two of the Matthews v. Eldridge.

[00:18:07] Speaker 01:
The big situation then is, as the district court found, the government had met its burden.

[00:18:15] Speaker 04:
The district court did find that.

[00:18:17] Speaker 01:
And I went through the testimony for you so you could tell me why the district court was wrong.

[00:18:23] Speaker 04:
Because the BGC report is redacted. It's not reliable. It's not substantial and probative evidence of marriage fraud. This is a high burden.

[00:18:31] Speaker 03:
Assuming that you lose on that, and we agree with the district court that the government has met its burden, then we look at whether substantial evidence supports your claim or your client's claim that the marriage was legitimate, right? Correct. And here, unlike in Qing, you've got some declarations with very conclusory, if you look at the nature of the evidence presented here, it's very different than the weight of the evidence in Qing, no? No.

[00:18:57] Speaker 04:
It is, Your Honor. But when you look at the bifurcated approach, that's why the court has to hold the agency to this high standard for a matter of P. Singh and Zarazegui. Again, this is not a case where did they meet their initial burden? Did the plaintiffs meet their initial burden? It is a case of did the government meet its burden of more than a preponderance of evidence that the marriage was fraudulent? Now, I do agree that there's not an abundance of evidence like there is in the Ching case. But these were people that were 23 and 19 years old that were apparently drinking heavily and had a very short-lived relationship.

[00:19:30] Speaker 04:
So many marriage cases start out like this. And the fact that they did not file is significant. The fact that they didn't seek an immigration benefit really supports that they did not seek immigration fraud.

[00:19:42] Speaker 02:
I mean, I think...

[00:19:44] Speaker 02:
I keep wondering, with four opportunities, why was no attempt ever made to file anything that related to a lease or any indicia of an ongoing marriage? Unlike Ching, you know, there's no joint property, no shared residence, no commingling of financial resources, like none of those things. And so I'm not sure I agree with your notion that it's this bifurcated thing and the court doesn't look at the totality. You know, the deprivation is, should we subject this ex-spouse to cross-examination because there would be a harm here?

[00:20:23] Speaker 02:
And the facts that are lacking in this case make that deprivation much lower. I'm not sure that it has – and there probably is enough in the state's report, in the BCG report, that said, well, this is what Mr. Hanan said, and this corroborates some of the details about what the ex-spouse said.

[00:20:47] Speaker 04:
So there's very little in the report. It's just a statement that it was arranged for immigration fraud.

[00:20:52] Speaker 04:
I just want to point out.

[00:20:53] Speaker 02:
I mean, they both mentioned George, right? So this illusory George figure crops up a couple of times now.

[00:21:00] Speaker 04:
Right, but this is why cross-examination matters. Again, they were 19 and 23 years old. In Qing, they were adults. Very few people who get married at 19 and 23 are going to have the same sort of corroborating documents that you would for a marriage. And in fact, many marriage cases start out where nothing is filed.

[00:21:17] Speaker 02:
Did they ever live together?

[00:21:20] Speaker 04:
He says they were together sometimes. She says they were not. They visited his family. He asked her to move to San Francisco. She said no. That's really what broke down the marriage. So again, they were very, very young, and so you just can't expect the level of corroboration. I am way over, Your Honor.

[00:21:37] Speaker 03:
Yes, you are. Our questions did take you over time, but we appreciate your responses. Let's hear from the government.

[00:21:51] Speaker 00:
Good morning, Your Honors, and may it please the Court. Assistant U.S. Attorney Kelsey Helland for the government.

[00:21:57] Speaker 00:
Your Honors, Appellant Ophir Hanan told California law enforcement officers in 2011 that his first marriage had been arranged so that he could get his green card. He told them that he had been instructed to pay his then-wife until he got that immigration benefit, and he provided details about how he had done so by providing direct deposits to her bank account.

[00:22:19] Speaker 00:
Five years later, completely independently, his former wife tells US immigration officials that she had married Hanan. The whole purpose of them doing this married thing was for him to get his papers and her to get some extra cash.

[00:22:35] Speaker 00:
Now, Congress decided over 40 years ago that no marriage-based immigration petition shall be approved if the government has determined that it was entered into for the purpose of evading the immigration laws.

[00:22:49] Speaker 03:
I have a question on your statutory interpretation. It appears to me that if we were to accept the government's reading, subsection one would be entirely subsumed. So it's completely superfluous. I know that the government and the district court came up with the one-sided marriage fraud example and And Judge Sanchez's question told you a little bit about that. Can you play out that example for me and explain to me why the attempt to enter into marriage wouldn't cover that hypothetical scenario?

[00:23:25] Speaker 00:
I'm not sure that the attempt prong wouldn't cover that scenario, Your Honor.

[00:23:28] Speaker 03:
I think if the alien did not have the— But it wouldn't, so it essentially would cover that scenario. I'm trying to think of an example or scenario where one is covered, but yet two is not. Can you think of an example?

[00:23:43] Speaker 00:
I think one where the alien was not at fault in the first petition, in the first marriage, that is. So if the U.S. citizen spouse had the intent to commit fraud, the alien did not. then I think that would be covered by C1.

[00:23:54] Speaker 03:
Okay, so that's a one-sided marriage where it's not the alien trying to enter into marriage and the citizen is innocent or unknowing. It's the flip scenario is what you're thinking of. The citizen is essentially entering into the marriage for the benefit of the alien, but the alien doesn't know it.

[00:24:15] Speaker 00:
I think that's right. I think it's an unlikely case.

[00:24:16] Speaker 03:
Does that ever happen in real life?

[00:24:18] Speaker 00:
Not that I'm aware of, Your Honor.

[00:24:20] Speaker 02:
And even for fairness, why would that create a marriage bar? If the alien is there wanting to enter into a marriage, why would the agency ever apply a marriage bar to that circumstance?

[00:24:32] Speaker 00:
I think it's unlikely that Congress drafted the statute with that specific circumstance in mind. I don't think they were trying to create these two provisions together. such that that would be the only area that wasn't an overlap.

[00:24:43] Speaker 02:
But it sounds like you agree with your friend on the other side that the attempt in C2 would seem to encompass the other one-sided scenario of the alien wanting to enter into a sham marriage and not the U.S. citizen.

[00:24:58] Speaker 00:
Yes, and I think that's entirely consistent with Congress's stated purpose of deterring immigration fraud. The purpose of these amendments, when Congress enacted them in 1986— was to deter immigration fraud. It was not to close one or another loophole. It was to solve a massive problem of marriage-related immigration fraud.

[00:25:18] Speaker 03:
Right. Well, we're supposed to read these two provisions in a way that harmonizes both if we're able to do that. So what do we do in a situation where one completely subsumes the other?

[00:25:28] Speaker 00:
You give effect to the plain meaning of the statute. There's plenty of precedent, including cited in our papers, that where some redundancies between the text that Congress passed or that's present, that's not licensed to rewrite the statute to avoid surplusage. There's the Pugin case and the Barton v. Barr case from the Supreme Court. In both of those cases, also involving immigration statutes, also involving redundancies in criminal offenses, the Supreme Court explained that there are often, they used the word, often redundancies in statutory drafting.

[00:26:01] Speaker 00:
And there could be a variety of reasons why that's so. It could be Congress trying to come at the problem from multiple angles. It could be legislative oversight.

[00:26:10] Speaker 02:
Yes, there are canons about redundancy, but another canon is that we don't read a statute to make one completely superfluous.

[00:26:20] Speaker 02:
And so I think there's a distinction to be made between a redundancy versus essentially wiping out any need for C-1.

[00:26:27] Speaker 00:
I'm not sure that there is. I think if you look at how the statute was amended here, what Congress did makes a lot of sense. There was a pre-existing marriage bar before 1986.

[00:26:38] Speaker 00:
That one was found to be insufficient in various ways. Congress kept that provision in C-1. Before, there was just C. There was no C-1. Congress kept that provision in C-1, but broadened it by applying it not only when immigration benefits had been awarded, but also when the petition sought to be awarded. So it included attempt and success in C-1. So when Congress added C-2... It kept the prior historical marriage bar in place. It didn't completely do away with it.

[00:27:10] Speaker 00:
But then it added C2 to broadly deter other kinds of immigration fraud that hadn't been adequately caught previously. So I think what you see in the drafting is an effort to preserve the historic marriage bar. They didn't completely get away with that version of it. They expanded it, but they didn't give away it. Rather, they added another kind of marriage bar.

[00:27:32] Speaker 01:
Councillor, I'm wondering why you have abandoned the BIA's approach to this particular situation, which is that C2 has to have an overt act. I mean, I tried to put together the BIA's approach to the statute. That's why I asked council about that. Why has the government abandoned that approach? which they took in Matter of Ortega. They took an 8 CFR 204.2 A1. Both of those approaches are that the first C1 has to do with filing the petition, the I-130 petition.

[00:28:11] Speaker 01:
But C2 deals with marriage or some other overt act, which would be something that the AG could do. And that's what they said in Matter of Ortega. Why did you abandon this? Seems to be obvious.

[00:28:28] Speaker 00:
It's a perfectly reasonable reading, Your Honor, and I think the court could adopt it here. Can we adopt it? I don't see why not, Your Honor.

[00:28:35] Speaker 01:
Because we have a de novo review? Or is it we have quite opposite, an abuse of discretion review?

[00:28:47] Speaker 00:
So it's abuse of discretion to the ultimate question applying it. It is de novo as to questions of statutory interpretation.

[00:28:55] Speaker 00:
I think applying that test here, there clearly was an overt act. There was a conspiracy. There was a meeting of the minds between the appellants and his former spouse. You see multiple sources of evidence for that. They're independent statements. There was an overt act. Whether that's the marriage itself, the payments that were made, there clearly was an overt act here.

[00:29:16] Speaker 01:
Well, and further, the reason that this seems more likely than interpreting a statute to...

[00:29:25] Speaker 01:
to the same thing that the first part of the statute can be, is that in matter of Ortega, it even goes further to say, it is not enough, however, if two parties merely agree to enter into the marriage for the purpose of evading the laws, but never engage in any other action or conduct that favors that agreement.

[00:29:52] Speaker 00:
But that's not the case here, Your Honor.

[00:29:54] Speaker 01:
I understand that's not the case, but nonetheless, it accentuates the reasoning given to their interpretation of C-1 and C-2.

[00:30:03] Speaker 00:
Sure, and that may be a good way to harmonize these two provisions. I don't think the court needs to make that decision because either way, it clearly was met here. There was a conspiracy, there were plenty of overt acts, and there's no substantial evidence to the contrary.

[00:30:19] Speaker 01:
Maybe we should move to due process. Do we have to give due process here?

[00:30:24] Speaker 00:
Your Honor, there's always due process. The question is what process is due. Here under Munoz, as Your Honor has recognized, there's no longer a recognized liberty interest. I heard my friend on the other side agree with Your Honor on that point.

[00:30:38] Speaker 00:
and the remaining property interest is not material in any way that require additional process to be provided, and certainly not an additional cross-examination of the witness that they have been requesting.

[00:30:50] Speaker 02:
Well, wait a minute. Ching does talk about the property interest and I – so it doesn't go away.

[00:31:01] Speaker 02:
Why would that interest alone not be enough to require cross-examination under certain circumstances?

[00:31:09] Speaker 00:
So interests come up in two ways in the due process analysis. there has to be a threshold interest to even get to Matthews to have that apply. And then in the first factor under Matthews, there's an evaluation of the nature of the interest at stake. So Ching talked about property interests at that first threshold level because the granting of I-130 is mandatory, not discretionary. It passes that initial threshold of triggering Matthews.

[00:31:35] Speaker 00:
But at the first Matthews factor, where the court actually looks to the nature of the interest, Ching doesn't talk about a property interest there. Ching talks about the liberty interests of having a spouse live together in the United States. And that is, under Munoz, that is out the window.

[00:31:51] Speaker 02:
I get that, but let's stick with the property interest. If someone has a right on a statutory basis, if they qualify for the I-130 to receive it, And the government is denying it on the basis of – let's take the Ching example and ex-spouses' statements that are very vague but contradicted by detailed information that there was a marriage. Why wouldn't that possibly – why wouldn't that alone trigger a possible need for cross-examination?

[00:32:26] Speaker 02:
I'm not saying that that's this case. I'm just wondering why you're pressing an argument that doesn't need to be pressed, that you don't ever have to have a cross-examination under a property interest.

[00:32:36] Speaker 00:
I don't think the court here can ignore what the Supreme Court said in Munoz, and I'm trying to faithfully apply Munoz to the Matthews factor.

[00:32:43] Speaker 02:
And I'm not relying on Munoz. I'm relying on the statutory property interest.

[00:32:48] Speaker 00:
Because if you take the liberty interest that Munoz rejected off the table, then what is left of that property interest? Again, you've gotten past the threshold of getting into the Matthews factor. So sure, the property interest is sufficient to get to that point. But the court's supposed to look at the nature of the interest, at what's at stake. What value is an approved I-130 if it doesn't carry with it the exact liberty interests that Munoz has rejected? It's a piece of paper that serves no purpose because those liberty interests are what actually gives it value.

[00:33:22] Speaker 00:
I think the district court handled this properly when it said any remaining interest based on the property interest in the approved I-130 is limited at best. And ultimately, therefore, the first Matthews factor weighs in favor of the government. I think that's the appropriate way to handle it.

[00:33:37] Speaker 01:
Okay. So if we go to the risk of erroneous deprivation, what's your argument about that? It seems to me that Ching was pretty heavy on the fact that this was a tough argument for the government. And I laid out as best I could the best argument that I could do for the government in this. Is that enough to switch the B, the second factor of the Matthews, in the government's favor?

[00:34:08] Speaker 00:
Yes, Your Honor, it is. Because as this court has found at least four times since Ching, when there's that much evidence in favor of the government's position and only meager evidence on the petitioner's side, a cross-examination hearing is not required.

[00:34:23] Speaker 01:
Well, when you say that much, your opposition counsel said there wasn't hardly any.

[00:34:30] Speaker 00:
Well, you have the petitioner's own statement, his statement against his own interest in 2011.

[00:34:35] Speaker 03:
I think that's why she broke it into that two-tier, two-step analysis and say, well, the government didn't carry its burden, so we don't really need to worry too much about the step two on what the petitioner was able to come forward with.

[00:34:48] Speaker 00:
Oh, but I disagree, Your Honor. I think as the Three different notices of intent to deny providing petitioner the opportunity to respond showed there was substantial evidence in favor of the government's determination that the first marriage was fraudulent. Again, there was petitioner's own statement in 2011. He admits that he made that statement, right, in 2011. That is to say, he admits that he spoke to California law enforcement officers in 2011.

[00:35:16] Speaker 00:
In his brief, he said as much.

[00:35:18] Speaker 00:
He doesn't take issue with hardly any details from that statement except the assertion that he paid his wife in order to get a green card. That's the only thing that he disputes from that statement.

[00:35:31] Speaker 00:
It is, of course, in his self-interest to dispute that fact. But he doesn't bring any details. He doesn't do what the petitioner did in Ching itself, where there was detailed testimony about the nature of their marriage, the romantic details of the marriage. There was documentary evidence in the form of a joint lease or utility bills. Those things are absent here. So I think the government clearly met its burden at the initial step of that two-step analysis and the agency reasonably found that he had not rebutted the government's evidence.

[00:36:05] Speaker 00:
So I mentioned there were four cases at least that this court has found that Ching hearings were not required. I think the fact that petitioner's own statement incriminated himself here puts this case on those lines, on that side of the line, as compared to Ching itself.

[00:36:20] Speaker 03:
Well, counsel points out, and I think that that's not a bad point, that when you're 20, I think 23, he was at that time, and...

[00:36:30] Speaker 03:
the partner was 20 or 21, there may not be the type of evidence that you would expect to see in Ching. But as to that issue, we're on substantial evidence review, right?

[00:36:42] Speaker 00:
That's right, Your Honor.

[00:36:43] Speaker 03:
That's not a de novo to question that record.

[00:36:45] Speaker 00:
That's right, Your Honor. But also, if I may, he could still provide evidence of how their relationship was formed, more details about how he met her, why he wanted to marry her in the first place. That's absent here, right? That's the kind of thing. I see that I'm out of time. If I could just finish. Go ahead and wrap up, please. Thank you. That's the kind of thing. It's consistent with the kind of details that were provided in Ching, and they are totally absent here. He could have provided them, but he didn't, and that speaks volumes. Your Honor, the government request.

[00:37:13] Speaker 03:
Let me see if my colleagues have any additional questions. All right. Thank you very much for your argument. Thank you to both sides. It's been very helpful. The matter is submitted, and we'll issue our decision in due course.