ZEREZGHI V.S. USCIS; #18-35344; D.C. NO. 2:17c-v-00879-JLR

In this case the United States Citizenship and Immigration Service (“USCIS”) denied an I-130 immediate relative visa petition on the ground that the non-citizen’s prior marriage had been fraudulent, the panel reversed the district court’s grant of summary judgment in favor of the government, and remanded, holding that the Board of Immigration Appeals violated due process by relying on undisclosed evidence and by applying too low a standard of proof.

Ghilamichael Zerezghi, a United States citizen, filed an I-130 petition on behalf of his non-citizen wife, Huruia Meskel. USCIS denied the I-130 petition under 8 U.S.C. §1154(c), which provides that “no petition shall be approved” if USCIS determines that the noncitizen spouse previously entered into a marriage “for the purpose of evading the immigration laws.” USCIS and the BIA relied, in part, on an apartment-rental application Meskel’s former husband had previously submitted to USCIS. The application required him to list his past addresses, and neither of the two he listed were the marital residence that Meskel listed on her immigration paperwork. However, the agency never told Meskel and Zerezghi that it had used the application in making its fraud determination in their case.

The panel concluded that Zerezghi had a constitutionally protected interest in the grant of his I-130 petition, explaining that this court has previously held that a citizen petitioner has such a constitutionally protected interest because the approval of an I-130 petition is nondiscretionary.

Next, the panel held that the government’s use of undisclosed records in making its marriage-fraud finding violated procedural due process. The panel concluded that the first factor set out by Mathews v. Eldridge, 424 U.S. 319 (1976)—the private interest affected by the government’s action—favored the couple, explaining that: 1) a finding of past marriage fraud often means that the noncitizen spouse faces removal; 2) the right to marry and enjoy marriage are unquestionably liberty interests; and 3) the right to live with one’s immediate family ranks high among individual interests. The panel also concluded that the third Mathews factor—the government’s interest—favored the couple, explaining that the question here was not the government’s interest in immigration enforcement, but its interest in not disclosing information on which it based its decision.

Next, the panel concluded that the second Mathews factor—the risk of an erroneous deprivation of the constitutionally protected interest and the probable value, if any, of additional or substitute procedural safeguards—also favored the couple. The panel explained that the couple had maintained that, if they had been given the rental application, they would have been able to refute (or at least attempt to refute) the allegation that Meskel’s first husband lived at the addresses listed on the application instead of with her. Further, the panel concluded that the rental application was the strongest piece of evidence against Meskel, and it was thus vital that Meskel and Zerezghi have been given an opportunity to rebut it.

Finally, the panel held that the BIA applied too low a standard of proof when it affirmed USCIS’s marriage fraud determination. Under 8 C.F.R. § 204.2(a)(1)(ii), the agency can deny any immigration petition if there is “substantial and probative evidence” that the noncitizen has attempted or conspired to enter into a marriage to evade the immigration laws. The government argued this standard is equivalent to how courts deferentially review an agency’s factual findings for “substantial evidence,” and insisted that USCIS could deny any immigration application as long as there was evidence of marriage fraud, even if it was more likely than not that the marriage was bona fide.

The panel disagreed, observing that the “substantial and probative evidence” language seems similar to the “substantial evidence” standard, but clarifying that the latter is a standard of review, while the other is a standard of proof. The panel also explained that the BIA had recently held that, to be “‘substantial and probative,’ the evidence must establish that it is more than probably true that the marriage is fraudulent.” Accordingly, the panel held that, given the seriousness of a marriage-fraud determination and the risk of a finding being made in error, the Constitution requires that the substantial-and-probative evidence standard be least as high as a preponderance of the evidence.


Proving a Bona Fide Marriage is Critical

Immigration law created the idea of conditional residence to prevent fraudulent or sham marriages. A sham marriage is when at least one of the parties of a marriage entered into the marriage for the purpose of circumventing immigration laws to falsely acquire immigration benefits. Fake marriages for the purposes of obtaining a green card can result in harsh penalties, including jail time and steep fines. A finding of fraud will also most likely eliminate the possibility of getting approved on future applications and have un-waivable immigration consequences far into the future. This law obligates U.S. Citizenship and Immigration Services (USCIS) to scrutinize your application for permanent residence with a period of conditional residence to make sure your relationship is everything you said it is.

Warning Signs There Isn’t a Bona Fide Marriage

According to the Adjudicators Field Manual (AFM), Section 21.3, a guide used by USCIS officers to make determinations on immigration cases, there are several factors that could be warning signs of possible marriage fraud. Some of these factors include:

• Large disparity of age;

• Inability of petitioner and beneficiary to speak each other’s language;

• Vast difference in cultural and ethnic background;

• Family and/or friends unaware of the marriage;

• Marriage arranged by a third party;

• Marriage contracted immediately following the beneficiary’s apprehension or receipt of notification to depart the United States;

• Discrepancies in statements on questions for which a husband and wife should have common knowledge;

• No cohabitation since marriage (although there can be valid reasons);

• Beneficiary is a friend of the family;

• Petitioner filed previous petitions in behalf of aliens, especially alien spouses.

These factors alone do not mean that you don’t have a bona fide marriage. But if one of the above criteria applies to you, you should expect additional scrutiny and more questions from USCIS. For example, a large disparity in age is not a reason to deny your petition. But it is reason for USCIS to look for solid proof that you have a bona fide marriage.

Another example would be living separately from your spouse. Certain employment, particular military service, is a reasonable explanation for not living together in the same home. This can make it more difficult to prove a bona fide marriage.

Documents Used to Prove a Bona Fide Marriage

A marriage certificate proves the legality of a marriage, but it doesn’t prove that the marriage is genuine for the purposes of removing the conditions on residence. USCIS wants to confirm that both parties entered the marriage in “good faith” and not for the purpose of circumventing immigration laws. When filing Form I-751, you must also submit copies of as many documents as you can to establish this fact and to demonstrate the circumstances of the relationship from the date of marriage to the present date. The documents can include but are not be limited to the following examples:

Evidence of Cohabitation

Generally, a married couple will live together. Although cohabitation is not always the case, it’s an indicator and good evidence to establish the couple has a bona fide marriage. The following are examples of acceptable documents you may use as evidence of cohabitation:

• Deed to property showing both names

• Mortgage or loan documents showing both names

• Lease agreement showing both names

• Driver’s licenses or IDs showing the same address

• Bank statements showing the same address

• Voided or cancelled checks showing the same address

• Utility bills showing the same address (electricity, water, gas, trash, cable, internet, cell phone, etc.)

• Property insurance agreements, statements, or cards showing the same address

• Health and life insurance statements showing the same address

• Correspondence from friends, family, or businesses showing the same address

• Affidavits from friends, family, neighbors, and landlords attesting to cohabitation

Evidence of Raising Children Together

Proof of a child born into the marriage is compelling evidence of a genuine marital relationship. But it’s not necessary that you had children born into the marriage or have any children at all. Adopted or stepchildren raised in the household may also help establish the bona fide marriage. The following are examples of acceptable documents you may use as evidence of raising children together:

• Birth certificates showing both spouses as parents

• Adoption certificates showing both spouses as parents

• Evidence of a relationship with children or step-children (photos, vacation itineraries, school records, affidavits from friends, family, and teachers)

• Medical records evidencing an ongoing pregnancy

• Evidence showing the non-related parent as an emergency contact for a step-child on school records, doctor’s records, etc.

Evidence of Commingling of Finances

Married couples will generally combine financial resources. This commingling of finances is strong evidence of your good faith marriage. Even if you prefer to keep your finances separate, you may have some evidence of commingling that you may not realize. The following are examples of acceptable documents you may use as evidence of commingling of finances:

• Bank statements for joint checking, savings, and credit card accounts

• Voided and cancelled checks for joint accounts

• Statements for joint loans or loans where one spouse is a co-signor for the other spouse

• Copies of bank statements from separate accounts and cancelled checks showing that you share jointly in your financial responsibilities and big purchases (for example, if each spouse pays half of rent from a separate account or if each spouse paid one half toward the purchase of a car)

• Joint health, life, property, and auto insurance agreements, statements, and cards

• Utility bills showing both names (electricity, water, gas, trash, cable, internet, cell phone, etc.)

• Tax returns filed as married showing both names

• Documents showing joint ownership of real property, cars, or investments

• Life insurance policies, wills, and trusts, designating your spouse as a beneficiary

Evidence of Intimacy

In most cases, couples filing Form I-751 are new to marriage. They’re in the “honeymoon phase” and are probably enjoying life experiences together. There are probably plenty records to demonstrate this. The following are examples of acceptable documents you may use as evidence of intimacy:

• Photos from the couple’s wedding, honeymoon, vacations, family dinners, holidays, etc. (Recommendation: List the names of any other individuals in the photos as well as the approximate date and location.)

• Travel itineraries and hotel bookings from joint vacations or trips

• Photos from joint vacations or trips, particularly trips abroad to visit family members

• Tickets to events you both attended or plan to attend

• Receipts for any gifts you have purchased for each other

• Cards from friends and family congratulating you on your wedding, anniversary, or other joint life events

• Evidence that each spouse has met or communicated with the other spouse’s parents and relatives such as photos, letters, cards, or emails

• Phone and text message records showing that you and your spouse communicate on a regular basis

• Social media records such as screen shots of Facebook pages, posts and Twitter messages that show you spending life events together


Consider asking your friends, family, neighbors, and employers to attest to the genuineness of your marriage. Affidavits help to support other types of evidence listed above. You may supply affidavits sworn to or affirmed by people who have known both of you since your conditional residence was granted and have personal knowledge of your marriage and relationship. (Such persons may be required to testify before an immigration officer as to the information contained in the affidavit.) You must submit the original affidavit, and it must contain the following information regarding the person making the affidavit: his or her full name and address; date and place of birth; relationship to you or your spouse; and details explaining how the person acquired his or her knowledge.


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