Gurjeet Kaur, Plaintiff, v. SESSIONS III (2021)

United States Court of Appeals, Ninth Circuit.2021-08-12No. No. 19-17384

Summary · law.co

Holding. The court affirmed the district court's grant of summary judgment for the government, finding that USCIS's revocation of the visa petition was neither arbitrary and capricious under the Administrative Procedure Act nor a violation of due process, as the agency had substantial evidence of marriage fraud and the plaintiffs received adequate procedural opportunities to respond.

Gurjeet Kaur and her adult daughter challenged USCIS's decision to revoke Kaur's I-130 family-based visa petition, claiming the agency violated the Administrative Procedure Act and the Fifth Amendment's Due Process Clause. The district court ruled in favor of the government, and the plaintiffs appealed.

The appeals court upheld the revocation. USCIS had initially approved Kaur's petition in error without considering its own prior findings of fraudulent marriages. When the agency discovered this mistake, it conducted a review and identified substantial evidence—including suspicious death certificate details, a quick remarriage, and inconsistent testimony—that Kaur had entered into marriages to evade immigration law. Because the agency found this evidence, the burden shifted to Kaur to refute the allegations, which she failed to do.

On the due process claim, the court found that Kaur had adequate opportunities to challenge the government's evidence. She could have appealed the earlier fraud findings to the Board of Immigration Appeals but did not, and she received 30 days to respond to the revocation notice but submitted no rebuttal. The plaintiffs' final argument about regulatory notice requirements was deemed waived because it was not raised in the district court.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether USCIS's revocation of an approved I-130 petition based on marriage fraud was arbitrary and capricious
Whether the revocation process complied with Fifth Amendment due process requirements
Whether plaintiffs received adequate opportunity to rebut allegations of fraudulent marriages

Procedural posture

Plaintiffs appealed the district court's grant of summary judgment to the government in a challenge to USCIS's revocation of Kaur's family-based visa petition.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM ***

Gurjeet Kaur and her adult daughter (Plaintiffs) filed a complaint in the district court alleging that the United States Citizenship and Immigration Services’ (USCIS) decision to revoke Kaurs I-130 petition violated both the Administrative Procedure Act (APA) and the Due Process Clause of the Fifth Amendment. The district court granted summary judgment to the government, and Plaintiffs timely appealed. We review the district courts decision de novo, Love Korean Church v. Chertoff, 549 F.3d 749, 753–54 (9th Cir. 2008), but we do not set aside an agency action unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. USCISs revocation decision was not arbitrary and capricious. Section 204(c) of the Immigration and Nationality Act prohibits the approval of a visa petition where there is “substantial and probative evidence” that the noncitizen has entered into a marriage “for the purpose of evading the immigration laws.” 8 C.F.R. § 204.2(a)(1)(ii); see also 8 U.S.C. § 1154(c). Here, USCIS mistakenly granted Kaurs petition without considering its own prior findings that she had entered into a fraudulent marriage. After USCIS realized its error, the agency “performed an independent review” of Kaurs immigration file and found substantial and probative evidence that she had entered into two fraudulent marriages. Specifically, USCISs Notice of Intent to Revoke (NOIR) emphasized that the death certificate of Kaurs second husband failed to indicate any relationship to Kaur, listed his marital status as widowed, and indicated that he lived at a different address than Kaur during their alleged marriage. The NOIR also stated that Kaur married her third husband only nine days after her second husbands death and described significant discrepancies between Kaurs testimony and that of her third husband relating to their civil ceremony and purported shared residence. Because USCIS identified substantial and probative evidence of prior fraudulent marriages, the burden shifted to Plaintiffs to rebut the allegation of marriage fraud. See Zerezghi v. USCIS, 955 F.3d 802, 813 (9th Cir. 2020). Plaintiffs failed to provide additional evidence or explain the discrepancies described in the NOIR. Accordingly, USCIS had “good and sufficient cause” to revoke Kaurs visa petition, see 8 U.S.C. § 1155, and we affirm the district courts decision granting summary judgment to the government on Plaintiffs’ APA claim.

2. Plaintiffs next argue that the revocation proceedings violated their due process rights because they did not have a meaningful opportunity to respond to the NOIR. However, even assuming Kaurs adult daughter has a constitutionally protected interest in living in the United States with her mother, cf. Ching v. Mayorkas, 725 F.3d 1149, 1156 (9th Cir. 2013) (“Immediate relative status for an alien spouse is a right to which citizen applicants are entitled ․”) (emphasis added), USCIS afforded Plaintiffs adequate opportunities to rebut the governments allegations, see Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). First, Kaur had an opportunity to appeal USCISs prior findings of marriage fraud to the Board of Immigration Appeals in 2005 and 2007 but did not. See 8 C.F.R. § 103.2(b)(8)(iv). Second, Plaintiffs had 30 days after receiving the NOIR to rebut its allegations but, again, did not. Id. Moreover, Plaintiffs have not identified any evidence that they were denied the opportunity to present at the revocation proceeding and, therefore, have not shown an “erroneous deprivation” of their constitutionally protected rights. See Mathews, 424 U.S. at 335, 96 S.Ct. 893. Plaintiffs’ due process argument fails.

3. Plaintiffs finally argue that USCIS did not give Kaur an opportunity to present rebuttal evidence in violation of 8 C.F.R. § 103.2(b)(16)(i)—a regulation requiring that petitioners be advised of derogatory evidence of which they are unaware. This argument was never argued before the district court, so we deem it waived. See Club One Casino, Inc. v. Bernhardt, 959 F.3d 1142, 1153 (9th Cir. 2020).

AFFIRMED.