USCIS Must Show Immigration Petitioner Derogatory Evidence And Provide Opportunity To Rebut It

by Emmanuel S. Tipon, Esq.

For several years, we and other lawyers for immigrants have been fighting the USCIS for the right to be shown derogatory evidence that it claims to have against immigration petitioners and their beneficiaries and an opportunity to rebut it under due process clause of the Constitution.USCIS has continuously refused to provide such evidence until it is told to do so by a higher authority such as the Board of Immigration Appeals or the federal courts. Why is there such a stubborn resistance of USCIS to give immigration petitioners and their beneficiaries a fundamental right?

In a previous article, we wrote about an alien who divorced his first spouse who then complained to USCIS that she “believed” her alien husband had married her for immigration purposes and cited lack of sexual relations, the alien remarried and his second spouse filed a new Form I-130 Petition for Alien Relative.

USCIS issued to the second spouse a Notice of Intent to Deny (NOID), citing the complaint of the first spouse. The agency refused to allow the alien and his second spouse to look at the first wife’s complaint so that they could properly rebut it.

The alien filed a reply anyway and said that his first marriage was bona fide, they had lived together as husband and wife, and that they had sexual relations many times.

USCIS denied the petition of the second spouse citing Section 204(c) of the Immigration and Nationality Act which provides:“… No petition shall be approved if (1) the alien has previously been accorded, or has sought to be accorded, an immediate relative or preference status as the spouse of a citizen of the United States or the spouse of an alien lawfully admitted for permanent residence, by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws, or (2) the Attorney General has determined that the alien has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws.”

The complaint of the first wife was not part of the record but the Director simply summarized it.

We appealed the case to the Board of Immigration Appeals. On October 19, 2021, the Board sustained our appeal. In Re WDC, 10/19/2021. The Board remanded the case for the USCIS Director “to provide the petitioner with derogatory evidence from earlier proceedings involving the beneficiary and his prior spouse.”

The Board said: “Given that the record does not contain the derogatory information relied on in the NOID and in the decision of the Director, evidence of the purported fraudulent marriage between the beneficiary and his prior spouse is not sufficiently ‘documented in the [beneficiary’s] file.’ Thus the Director’s decision improperly gave ‘conclusive effect’ to a determination made in a prior proceeding that the beneficiary’s marriage was entered into for the purpose of evading the immigration laws, rather than reaching his own ‘independent conclusion based on the evidence before him.’”

“Moreover, given that there is some evidence in the record tending to support the valid nature of the beneficiary’s relationship with his prior spouse, the record – as presently constituted – does not contain substantial and probative evidence establishing that the beneficiary’s prior marriage was entered into for the primary purpose of obtaining an immigration benefit.”

Due Process Right To Approval Of I-130 Visa Petition
The Board cited Zerezghi v. USCIS, 955 F.3d 802 (9th Cir. 2020) which said: “The Due Process Clause of the Fifth Amendment requires that “[n]o person shall be … deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. In determining whether a person’s rights under that clause have been violated, the “standard analysis … proceeds in two steps: We first ask whether there exists a liberty or property interest of which a person has been deprived, and if so we ask whether the procedures followed by the [government] were constitutionally sufficient.”

The court in Zerezghi said that a citizen petitioner has a constitutionally protected interest in the grant of an I-130 petition. Ching v. Mayorkas, 725 F.3d 1149, 1156  (9th Cir. 2013). This is because approval of an I-130 petition is nondiscretionary. By statute, the Secretary of Homeland Security “shall, if he determines that the facts stated in the petition are true and that the alien in behalf of whom the petition is made is an immediate relative … approve the petition[.]” Id. at 1155 (quoting 8 U.S.C. § 1154(b) (emphasis added)).

“[D]eterminations that `require application of law to factual determinations’ are nondiscretionary,” meaning that USCIS must approve an I-130 petition if the facts stated in the application are true and the beneficiary is an immediate relative. Ibid. (quoting Hernandez v. Ashcroft, 345 F.3d 824, 833-34 (9th Cir. 2003)).

This administrative framework thus creates a “legitimate claim of entitlement” that is “grounded in the statute defining eligibility,” rather than on a mere “unilateral expectation” for the petition’s approval. Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). As we explained in Ching, “as long as the petitioner and spouse beneficiary meet the statutory and regulatory requirements for eligibility” an “[i]mmediate relative status for an alien spouse is a right to which citizen applicants are entitled[.]” Ching, 725 F.3d at 1156 (emphasis added).

Using Undisclosed Records Unconstitutional
Individuals are necessarily entitled to a proper procedure to contest a government determination of ineligibility because “[v]irtually no government benefit is available to individuals without a requirement that certain conditions are met.”Since the petitioner has a constitutionally protected interest in the grant of his I-130 petition, the main issue for the court to decide is whether the procedures followed by the government is not granting the petition were constitutionally sufficient. The government’s use of undisclosed records in deciding on marriage fraud is unconstitutional.

The information provided in this article is not legal advice. Publication of this information is not intended to create, and receipt by you does not constitute an attorney-client relationship.

ATTY. EMMANUEL S. TIPON was a Fulbright and Smith-Mundt scholar at Yale Law School where he obtained a Master of Laws degree specializing in Constitutional Law. He has a Bachelor of Laws degree from the University of the Philippines. He is admitted to practice before the U.S. Supreme Court, New York, and the Philippines. He practices federal law, with emphasis on immigration law and appellate federal criminal defense. He was the Dean and a Professor of Law of the College of Law, Northwestern University, Philippines. He has written law books and legal articles for the world’s most prestigious legal publisher and writes columns for newspapers. He wrote the best-seller “Winning by Knowing Your Election Laws.” Listen to The Tipon Report which he co-hosts with his son Attorney Emmanuel “Noel” Tipon. They talk about immigration law, criminal law, court-martial defense, and current events. It is considered the most witty, interesting, and useful radio show in Hawaii. KNDI 1270 AM band every Thursday at 8:00 a.m.  Atty. Tipon was born in Laoag City, Philippines. Cell Phone (808) 225-2645.  E-Mail: Website:

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