UNITED STATES DEPARTMENT OF JUSTICE BOARD OF IMMIGRATION APPEALS AMICUS INVITATION NO MARRIAGE FRAUD IN VISA PETITIONS

Transcription

1 Amicus Committee American Immigration Lawyers Association 1331 G Street, NW, Suite 300 Washington, D.C UNITED STATES DEPARTMENT OF JUSTICE BOARD OF IMMIGRATION APPEALS AMICUS INVITATION NO MARRIAGE FRAUD IN VISA PETITIONS AMICUS BRIEF OF THE AMERICAN IMMIGRATION LAWYERS ASSOCIATION Counsel for Amicus: Aaron C. Hall Dan Webb Howard Joseph Law Firm, P.C. Ogletree Deakins E. Second Avenue 222 SW Columbia Street, Suite 1500 Aurora, CO Portland, OR, (303) (877)

2 TABLE OF CONTENTS I. TABLE OF AUTHORITIES iii II. STATEMENT OF INTEREST OF AMICUS III. ISSUE PRESENTED IV. SHORT ANSWER V. DISCUSSION USCIS considers the complete evidentiary record before making a decision on an application or petition Section 204(c) s prohibition against visa petitions is inapplicable where the prior sham marriage finding was for the same petitioner and the same beneficiary Even in cases where the prohibition at section 204(c) may be applicable, the subsequent petition allows for the opportunity to reverse a previous erroneous finding of marriage fraud Evaluating each petition on the full evidentiary record often provides the only protection against erroneous fraudulent marriage findings a. Parties often have little immediate incentive to appeal a denial which includes a marriage fraud finding and the Board does not allow beneficiaries to appeal the denial of a visa petition b. The Service makes erroneous marriage fraud findings which are later corrected upon independent review ii

3 5. Independent review of the prior marriage fraud determination is a critical tool for avoiding potential constitutional problems a. The Supreme Court s decision in Kerry v. Din does not establish that a citizen petitioner lacks any right to due process with respect to the adjudication of his foreign spouse s immediate relative petition or visa application; indeed, it suggests just the opposite. 11 b. Obergefell strongly suggests: (i) that citizens do have due process rights with respect to government decisions that preclude them from living together with their foreign spouses in this country; (ii) that a one-sentence explanation for such decisions is inadequate in the absence of national security concerns; and (iii) that an ample explanation is required when necessary to overcome reasonable concerns about potential equal protection violations c. Here, reasoned explanations and citations to evidence are required to ensure that the government s decisions comport with the dictates of the equal protection doctrine because of documented past governmental discrimination against beneficiaries of particular nationalities and religions VI. CONCLUSION VII. CERTIFICATE OF COMPLIANCE ADDENDUM A Unpublished BIA Cases: Matter of, A (BIA July 23, 2009) Rebecca Bamfo, A (BIA June 5, 2014) iii

4 I. TABLE OF AUTHORITIES Federal Cases Boansi v. Johnson, 118 F.Supp.3d 875 (E.D. N.C. 2015) Kerry v. Din, 135 S. Ct (2015) , 12, 13, 15, 17, 21 Kleindienst v. Mandel, 408 U.S. 753 (1972) , 14 Obergefell v. Hodges, 135 S. Ct (2015) , 15, 16, 17, 19, 21, 23 Simko v. BIA, 2015 WL (D. Conn. Dec. 30, 2015) State of Washington v. Trump, No (9 th Cir., Feb. 9, 2017)... 22, 25 Struniak v. Lynch, 159 F.Supp.3d 643 (E.D. Va. 2016).. 19, 20, 21, 23, 24, 25 U.S. v. Cardozo-Fonseca, 480 U.S. 421 (1987) Washington v. Glucksberg, 521 U.S. 702 (1997) , 19 Agency Cases Matter of Agdinaoay, 16 I&N Dec. 545 (BIA 1978) Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966) Matter of Isber, 20 I&N Dec. 676 (BIA 1993) Matter of Sano, 19 I&N Dec. 299 (BIA 1985) Matter of Tawfik, 20 I&N Dec. 166 (BIA 1990) , 5, 6, 8, 24, 25, 27 Unpublished Agency Cases Matter of, A (BIA July 23, 2009) Rebecca Bamfo, A (BIA June 5, 2014) Statutes INA 204(c) passim INA 212(a)(3)(B) Regulations 8 C.F.R (a)(1)(ii) C.F.R (a)(5) Agency Guidance Board of Immigration Appeals Practice Manual Ch. 9.3(b) USCIS Adjudicators Field Manual Ch. 11.1(c) iv

5 II. STATEMENT OF INTEREST OF AMICUS The American Immigration Lawyers Association (AILA) is a national association with more than 14,000 members throughout the United States and abroad, including lawyers and law school professors who practice and teach in the field of immigration and nationality law. AILA seeks to advance the administration of law pertaining to immigration, nationality and naturalization; to cultivate the jurisprudence of the immigration laws; and to facilitate the administration of justice and elevate the standard of integrity, honor and courtesy of those appearing in a representative capacity in immigration and naturalization matters. AILA s members practice regularly before the Department of Homeland Security and before the Executive Office for Immigration Review, as well as before the United States District Courts, Courts of Appeal, and United States Supreme Court. III. ISSUE PRESENTED FOR CERTIFICATION Is a determination of marriage fraud in a prior visa petition proceeding alone sufficient to deny a subsequent visa petition submitted on behalf of the same beneficiary in a subsequent visa petition proceeding, or is the USCIS District Director obligated to conduct an independent determination as to whether there was a prior fraudulent marriage? 1

6 IV. SHORT ANSWER The Board of Immigration Appeals has long required that adjudicators determine whether INA 204(c) bars a visa petition through an independent review of all relevant evidence rather than giving conclusive effect to a prior marriage fraud finding. Because the parties often have little incentive or opportunity to challenge a marriage fraud finding in a visa petition denial at the time of the denial, the ability to present new evidence in subsequent visa petition proceedings often provides the sole meaningful opportunity for the agency to correct marriage fraud findings not based on substantial and probative evidence. Without this opportunity, specious findings of fraud could forever bar noncitizens from benefiting from a future visa petition. Moreover, the denial of this independent review of the prior marriage fraud determination would raise constitutional due process problems. The BIA should uphold Matter of Tawfik and continue to require the USCIS District Director to conduct an independent determination on whether there was a prior fraudulent marriage. V. DISCUSSION 1. USCIS considers the complete evidentiary record before making a decision on an application or petition. In an ordinary case, the burden of proof is on the petitioner or applicant to establish that he or she is eligible for the benefit sought by a preponderance of the 2

7 evidence. Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966); Adjudicators Field Manual Ch. 11.1(c). Under the preponderance of the evidence standard, USCIS is to consider petitioner s relevant, probative, and credible evidence and determine whether the petitioner s claim is more likely than not true. Adjudicators Field Manual Ch. 11.1(c); see U.S. v. Cardozo-Fonseca, 480 U.S. 421 (1987). The question presented by the Board is whether USCIS should be authorized to refuse to review relevant, probative, and credible evidence submitted by a petitioner and instead mechanically deny petitions filed where there has been a determination of marriage fraud in a prior visa petition on behalf of the same beneficiary. 2. Section 204(c) s prohibition against visa petitions is inapplicable where the prior sham marriage finding was for the same petitioner and the same beneficiary To the extent that the issue presented refers to subsequent visa petitions by the same petitioner on behalf of the same beneficiary, Board precedent holds that section 204(c) is inapplicable. The statutory prohibition against section 204(c) of the INA bars the approval of subsequent petitions where the alien has previously sought to be accorded immediate relative or preference category status as the spouse of a U.S. citizen through a marriage determined by the Attorney General to have been entered into for the purpose of evading immigration laws. 3

8 In Matter of Isber, 20 I&N Dec. 676 (BIA 1993), the petitioner s visa petition was denied after she stated that she had married the beneficiary as a favor so he could get his residency. Id. at 677. Following the denial, the petitioner submitted a second visa petition on behalf of the same beneficiary with a new affidavit retracting her prior statements as having been coerced by immigration officials. Id. The subsequent petition was denied under INA 204(c) because of the previous finding of a marriage entered for the purpose of evading immigration laws. Id. at 677. After considering the language of the statute along with the legislative history showing that the prohibition was intended to apply where there was a prior fraudulent marriage, the Board concluded that section 204(c) does not preclude the approval of a second marital visa petition filed by a petitioner on behalf of the same beneficiary. Id.at In so concluding, the Board recognized that there are cases in which the petitioner fails for some reason to establish the bona fides of the marriage, files a second visa petition with additional evidence, and on the second try convinces the Service that the marriage is bona fide. Id. at 278. Under Isber, section 204(c) is inapplicable to cases where, after a sham marriage finding, the same petitioner and beneficiary attempt for a second time to establish that their marriage was entered into in good faith. 3. Even in cases where the prohibition at section 204(c) may be applicable, the subsequent petition allows for the opportunity to reverse a previous erroneous finding of marriage fraud 4

9 Long established Board precedent provides that when deciding whether a prior marriage was fraudulent and would trigger the bar to subsequent visa petitions at INA 204(c), the adjudicator of the second petition should reach an independent conclusion based on all available evidence rather than simply giving conclusive effect to a prior sham marriage determination. Matter of Tawfik, 20 I&N Dec. 166 (BIA 1990). Adjudicators are only permitted to rely on evidence in the alien s file which must be substantial and probative. Id. at In a case where there is a previous finding of deportability for marriage fraud which required clear, unequivocal, and convincing evidence, the adjudicator is permitted to rely on that finding to invoke the prohibition to subsequent visa petitions at section 204(c). Matter of Agdinaoay, 16 I&N Dec. 545 (BIA 1978). Even in a situation where marriage fraud-based deportability was previously established, however, the Board in Agdinaoay noted that new evidence filed with the subsequent petition could support a collateral attack on the prior finding. Id. at 547. Regardless of whether the prior marriage fraud finding was done by the Service in a visa petition denial or in deportation or removal proceedings, Board precedent instructs adjudicators of subsequent petitions to review all record evidence before determining whether the bar at section 204(c) applies. 4. Evaluating each petition on the full evidentiary record often provides the only protection against erroneous fraudulent marriage findings 5

10 a. Parties often have little immediate incentive to appeal a denial which includes a marriage fraud finding and the Board does not allow beneficiaries to appeal the denial of a visa petition. A petitioner has the right to appeal the denial of an immigrant visa petition to the Board of Immigration Appeals. 8 C.F.R (a)(5). However, the Board has held that only the petitioner, not the beneficiary or any third party, has standing to appeal the denial of a visa petition. Matter of Sano, 19 I&N Dec. 299 (BIA 1985); Board of Immigration Appeals Practice Manual Ch. 9.3(b). A petitioner in a marriage which was entered into in good faith but which has disintegrated or become acrimonious may be less likely to give a beneficiary access to evidence or to participate in interviews during the I-130 adjudication. An undeveloped record may in turn make an ultimate determination of a sham marriage by the Service more likely. If the denial of the petition includes a sham marriage finding, the estranged petitioner has little incentive to invest resources in seeking to get the Service to retract the marriage fraud finding contained within a denial. The beneficiary also may have little immediate incentive to challenge such a finding where the marriage is no longer viable. Moreover, under Board precedent in Matter of Sano, even if the beneficiary wanted to seek review of a marriage fraud finding, he or she would not have standing to appeal. The right recognized in Matter of Tawfik giving the beneficiary to submit evidence in a subsequent visa petition that the previous marriage fraud finding was 6

11 erroneous and should therefore not bar the subsequent petition under section 204(c) represents the only meaningful protection against agency error in finding marriage fraud. b. The Service makes erroneous marriage fraud findings which are later corrected upon independent review By design, the prohibition against visa petitions at section 204(c) is devastating to the future immigration prospects of noncitizens who have engaged in marriage fraud. The bar is non-waivable and never expires. While the petitioner bears the burden of proving the visa eligibility, mere failure to meet that burden does not trigger section 204(c). Rather, the regulations require that the Service identify substantial and probative evidence of the attempt or conspiracy to enter into a marriage for purposes of evading the immigration laws for the fraudulent marriage bar to apply. 8 C.F.R (a)(1)(ii). As explained above, the parties to a marriage which was good faith at inception but which has since disintegrated will often have limited incentive and ability to challenge the marriage fraud finding embedded in a visa denial at the time of the denial. Experience shows, however, that the ability to challenge the finding in subsequent petitions effectively reverses agency error and allows noncitizens to avoid the lifelong consequences of section 204(c) based on specious or inadequately supported marriage fraud findings. 7

12 In Matter of Tawfik, the Board found that the district director s factual conclusions cited in the marriage fraud finding were both unsupported by evidence and of no relevance to a finding of fraud. Tawfik, 20 I&N Dec. at 169. The Board found no basis to support the district director s conclusion that the beneficiary s prior marriage to a United States citizen was entered into for the purpose of evading the immigration laws. Id. at 170. In Simko v. BIA, 2015 WL (D. Conn. Dec. 30, 2015), the Federal Court for the District of Connecticut criticized the agency for invoking the marriage fraud bar where it had no direct evidence that the previous marriage was fraudulent. Id. at *20. The court noted that the prior spouse s mother and sister had submitted sworn affidavits attesting to cohabitation and that the affidavits were corroborated by record evidence including family photos, bills, and financial records. Id. The record, rather than supporting a marriage fraud finding based substantial and probative evidence, showed evidence that the marriage fell apart due to the petitioner s opiate dependency. Id. The court ruled that the agency had acted arbitrarily and capriciously in invoking the marriage fraud bar and ordered the agency to grant the visa petition. Id. at *22, 26. In Boansi v. Johnson, 118 F.Supp.3d 875 (E.D. N.C. 2015), the court criticized the agency s denial of a subsequent petition with reference to section 204(c) despite pointing to no affirmative evidence of marriage fraud. There, the 8

13 petitioner and beneficiary had been interviewed three times and given consistent answers to 43 of 48 questions including questions about medications, most recent dates, and décor of the family residence. Id. at 878. The court noted that the agency had paid little attention to the evidence submitted in support of the legitimate marriage and concluded that the denial was because the couple had an unusual living arrangement rather than any actual evidence of fraud. Id. at 881. The agency s marriage fraud finding, the court found, rested on insinuation and inference rather than substantial and probative evidence and no reasonable person could reach the conclusion reached by the government in this case. Id. at 881. The Board itself has also had to rectify erroneous marriage fraud findings from prior visa petitions. In a 2014 unpublished decision, the Board reviewed the agency decision based on a couple having given radically different versions regarding their activities the night prior to their testimony in front of the agency. Rebecca Bamfo, A (BIA June 5, 2014). In its decision sustaining the appeal and finding no substantial and probative evidence of marriage fraud, the Board noted that the couple had neither been asked about nor affirmatively addressed their activities on the night before during their testimony at the I-130 interview. Id. at 2. 9

14 In an unpublished decision from 2009, the Board reversed the Service s invocation of 204(c) to deny a petition where the marriage fraud finding on the prior petition was based on evidence from an unrelated case. Matter of, A (BIA July 23, 2009). Without an independent review of marriage fraud findings in subsequent visa petition adjudications, future petitions on behalf of beneficiaries in cases like these would be denied with a mechanical reference to section 204(c). Sham marriage determinations embedded in I-130 denials would forever bar the agency from granting future visa petitions for the beneficiaries, regardless of whether the finding truly rested on substantial and probative evidence. As the examples cited above illustrate, this could allow specious, unsupported, and careless findings to forever bar a noncitizen from obtaining lawful permanent resident status. 5. Independent review of the prior marriage fraud determination is a critical tool for avoiding potential constitutional problems. The issue presented for certification is whether a determination of marriage fraud in a prior visa petition proceeding [is] alone sufficient to deny a subsequent visa petition submitted on behalf of the same beneficiary in a subsequent visa petition proceeding. Importantly, the question references the same beneficiary, but does not limit itself to a situation in which the same petitioner also filed the earlier petition. Thus, by its terms, the question contemplates scenarios that 10

15 include a citizen petitioner filing a petition on behalf of the particular beneficiary in question for the first time. This raises the question whether denying such a firsttime petition, with no more explanation provided to the citizen petitioner than please refer to our previous fraud determination impermissibly infringes on the constitutional rights of the citizen petitioner. In such circumstances, the citizen would be provided with essentially no explanation as to why the government was denying his petition to have the beneficiary classified as his immediate relative, a prerequisite to his ability to lawfully live with her in this country. As explained below, recent Supreme Court jurisprudence suggests that absent evident national security concerns precluding a citizen from bringing his spouse into the country, without providing any real explanation to the petitioner as to the basis for the decision, violates the citizen petitioner s rights under the Due Process Clause of the Fifth Amendment of the United States Constitution. Consequently, an independent determination as to whether there was a prior fraudulent marriage to quote the question for certification is an essential tool to ensure the adequate notice to the petitioner that is, in turn, essential to ensure the constitutionality of any government decision denying the petitioner s immediate relative petition. a. The Supreme Court s decision in Kerry v. Din does not establish that a citizen petitioner lacks any right to due process with respect to the adjudication of his foreign spouse s immediate relative petition or visa application; 11

16 indeed, it suggests just the opposite. In Kerry v. Din, 135 S. Ct (2015), the liberty interest that petitioner Fauzia Din sought to protect consisted of her freedom to live together with her husband in the United States. Id. at 2142 (Breyer, J., dissenting). Delivering the disposition of the Court, Justice Scalia, joined by Justices Thomas and Roberts, concluded that the right asserted by Din was not protected by the long-recognized implied substantive due process right to marry because the government had not refused to recognize Din s marriage to Berashk, but only her right to live together with him in her country of citizenship. Id. at 2138 (emphasis added). However, a plurality of the Justices, in the dissenting opinion authored by Justice Breyer and joined by Justices Ginsburg, Sotomayor, and Kagan, rejected Justice Scalia s reasoning and concluded that Din, with respect to the government s adjudication of her husband s visa petition, indeed possess[ed] the kind of liberty interest to which the Due Process Clause grants procedural protection. Id. at 2142 (Breyer, J., dissenting). According to the dissent, Din was entitled to an explanation from the government that contained sufficient detail to allow her to assess the correctness of the State Department s conclusion and determine what kinds of facts she might provide in response. Id. at In a concurring opinion authored by Justice Kennedy and joined by Justice Alito, Justice Kennedy noted that the Court s disposition should not be interpreted 12

17 as deciding whether a citizen has a protected liberty interest in the visa application of her alien spouse. Id. at 2139 (Kennedy, J., concurring). Rather, Justice Kennedy concluded that even assuming Din had a protected liberty interest, the notice she received regarding her husband s visa denial satisfied due process. Id. Thus, in Din, a total of six of the nine Justices either: (a) explicitly concluded that Din was entitled to due process protections with respect to the adjudication of her husband s visa petition; or (b) assumed that she was for purposes of rendering the decision. The remaining question was whether the process that the government provided a single-sentence citation to the terrorism bar found in INA 212(a)(3)(B) constituted sufficient process in the circumstances. Relying on Kleindienst v. Mandel, 408 U.S. 753 (1972), Justice Kennedy concluded that it did. In Mandel, college professors who were United States citizens protested exclusion of a self-described revolutionary Marxist based on his ideology. Id. at 756. They asserted a First Amendment right to hear his views and engage with him in a free and open academic exchange. Id. at 760. Despite Congress plenary power to make rules for the admission of aliens (id. at 766), the Court found that the citizen professors were entitled to a limited review to determine whether the government had provided a facially legitimate and bona fide reason for its action. Id. at

18 Applying that same standard to the case at hand, Justice Kennedy concluded that the government had satisfied it. Justice Kennedy s conclusion that the government had offered a facially legitimate and bona fide reason by citing the statutory provision in question was based on his observation that [ 212(a)(3)(B)] specifies discrete factual predicates the consular officer must find to exist before denying a visa. Din, 135 S. Ct. at (Kennedy, J., concurring). Importantly, in concluding that Mandel s very limited facially legitimate and bona fide review was all that was required in the circumstances, Justice Kennedy explicitly noted that the argument for limiting review thusly has particular force in the area of national security. Id. at (emphasis added). Thus, together, Justice Kennedy s concurrence and Breyer s dissent (representing the views of six of the nine Justices in all) leave very much open the possibility that in cases that do not involve questions of national security a citizen filing an immediate relative petition for his foreign spouse, or a citizen whose foreign spouse is applying for a visa to join him in the United States, is entitled to know the facts underlying the determination (id. at 2140, Kennedy, J., concurring, summarizing the nature of Din s request) if the petition or visa application is denied. Indeed, a subsequent decision by the Supreme Court, Obergefell v. Hodges, 135 S. Ct (2015), strongly suggests that a one-sentence explanation of the 14

19 sort offered in Din is insufficient where national security issues are not present. That being the case, any decision accompanied by no more explanation that please refer to previous fraud finding would be susceptible to a successful constitutional challenge on the ground that it violates the citizen petitioner s due process rights. b. Obergefell strongly suggests: (i) that citizens do have due process rights with respect to government decisions that preclude them from living together with their foreign spouses in this country; (ii) that a one-sentence explanation for such decisions is inadequate in the absence of national security concerns; and (iii) that an ample explanation is required when necessary to overcome reasonable concerns about potential equal protection violations. In Obergefell, the Court definitively rejected the reasoning that underpinned Justice Scalia s opinion in Din delivering the disposition of the Court. To wit, Justice Scalia reasoned in Din that the government had not infringed on Din s right to marry a long-settled fundamental liberty interest of United States citizens under the Constitution s Due Process Clause because it had not refused to recognize Din s marriage. Id. at Evidently, to Scalia, simply not declaring Din s marriage invalid was sufficient to ensure her liberty interest in her marriage. However, in Obergefell, the Court forcefully rejected this conception of the constitutional right to marry, which might fairly be described as the marriage as a piece of paper theory of matrimony. There, the Court recognized that the right 15

20 to marry extends well beyond a mere right to formal legal recognition of the couple s union. At the outset of its opinion, the Court observed that the annals of human history reveal the transcendent importance of marriage. Obergefell, 135 S. Ct. at Far from being honored simply as a legal contract, the Court went on to note that the right to marry includes a number of constituent essential attributes that are themselves protected by the Due Process Clause of the Constitution. Id. at For example, the Court identified the right of married couples to enjoy intimate association as a protected liberty interest under the Constitution itself. Id. The Court also identified as essential constituent parts of the marriage right the related rights of childrearing, procreation, and education, as well as the right to establish a home. Id. Judicial enforcement of such Constitutional rights, the Court noted in Obergefell affords permanency and stability to children s best interests and enables marriage to continue its role as the keystone of our social order. Id. at Plainly, however, spouses cannot enjoy their constitutional right of intimate association, nor adequately exercise their rights of childrearing [and] procreation if they are forced by a government decision to remain separated by hundreds or thousands of miles. (After all, there is no guarantee whatsoever that a citizen petitioner will be allowed by the government of her spouse s home country 16

21 to immigrate to that country if her immediate relative petition is rejected by the United States government.) Nor can they afford permanency and stability to their existing children (if any) in such circumstances. Thus, inasmuch as Obergefell explicitly recognizes the foregoing rights as constituent rights subsumed within the broader constitutional right to marry, the decision definitively rejects the marriage as a piece of paper conception that underpinned Justice Scalia s conclusion in Din that Din had no right to Due Process because the government had not infringed on any of her constitutional rights. However, Justice Scalia s opinion did not rely exclusively on his conclusion that Din s right to marry was not infringed in the first place by the government s denial of her husband s visa application. Rather, he also reasoned that a long practice of regulating spousal immigration precludes Din s claim that the denial of [her husband s] visa application has deprived her of a fundamental liberty interest. Din, 135 S. Ct He based this conclusion on Washington v. Glucksberg, 521 U.S. 702, (1997), which, according to Justice Scalia, allowed for recognition of an implied constitutional right only when supported by this Nation s history and practice. Id. at 2135, quoting Glucksberg, 521 U.S., at (emphasis deleted in Din). Importantly, however, the Court in Obergefell explicitly rejected the principle that a constitutional due process right can only be recognized if it is 17

22 firmly grounded in history and practice. There, after observing that the identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution, the Court pronounced: History and tradition guide and discipline this inquiry but do not set its outer boundaries. Obergefell, 135 S. Ct. at The Court then proceeded to reject respondents contention that the petitioners were asking it to recognize a new and nonexistent right to same-sex marriage. Id. at Rather, when discussing fundamental rights that involve marriage and intimacy, the Court announced, the proper jurisprudential approach is to inquire[] about the right to marry in its comprehensive sense, asking if there [is] sufficient justification for excluding the relevant class from the right. Id. The Court then proceeded to explained in greater detail how the Due Process Clause and equal protection doctrine interact, observing that they are connected in a profound way, though they set forth independent principles. Id. at Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right. Id. at Thus, the Court concluded, the Equal Protection Clause can help to identify and correct inequalities in the institution of marriage, vindicating precepts of liberty 18

23 and equality under the Constitution. Id. at Applying this analytical methodology, the Court concluded that denial to same-sex couples of the right to marry works a grave and continuing harm and that the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement. Id. Moving to the immigration law context, in Struniak v. Lynch, 159 F.Supp.3d 643, 663 (E.D. Va. 2016), the plaintiffs relied on the Court s decision in Obergefell in arguing that the USCIS s denial of the citizen spouse (Struniak) s I-130 petition impermissibly interfered with his protected liberty interest in marriage. USCIS argued in response that Struniak s argument was foreclosed by the Supreme Court s decision in Din. Id. The court disagreed, noting that the Supreme Court s subsequent decision in Obergefell has changed the way in which courts are to analyze substantive due process claims. Id. at 664. Expounding upon the methodological significance of Obergefell, the court explained that, in establishing definitively that the principles of liberty and equality are interlocking, the Obergefell methodology highlights that the decision to recognize an implied fundamental liberty interest as judicially enforceable turns, in part, on whether the liberty interest at issue has historically been denied on the basis of impermissible animus or, alternatively, on a legitimate basis aimed at protecting a vulnerable group. Id. at 666. Thus, under the purely historical or tradition-based Glucksberg methodology employed by Justice Scalia in Din, the 19

24 analysis of Struniak s claim was simple and straightforward : the nation s history and traditions establish the power of Congress to restrict immigrant presence in the United States even when the immigrant is married to a United States citizen ; therefore, Struniak s claim failed. Id. at However, under Obergefell, while an analysis of the nation s traditions remains relevant, the presence or absence of a history of impermissible animus is also relevant in assessing whether the restriction at issue impermissibly infringes on a judicially enforceable constitutional liberty interest of the affected citizen. Id. at 668. Of course, even where a judicially enforceable fundamental liberty interest has been recognized, the Supreme Court has made it plain that the government can restrict certain freedoms as necessary to protect or otherwise to further permissible interests. Id. at (emphasis omitted). Thus, in Struniak, the court concluded that the government had not violated any enforceable liberty interest of Struniak in residing in the United States with his non-citizen spouse because the restriction was based on Struniak s status as a convicted child sex offender. Id. at 668. Thus, [u]nlike in Obergefell, the restriction on Struniak stem[med] from his choice to engage in criminal conduct that is illegal precisely because it harms vulnerable persons. Id. Conversely, here, the question for certification contemplates situations in which citizens who have committed no criminal misconduct whatsoever are 20

25 precluded from bringing their foreign spouses into the United States to live with them, with potentially no greater explanation offered by the government that something akin to see previous fraud determination. A careful reading of Din, Obergefell, and Struniak reveals that this would violate the citizen petitioner s due process rights. This is true for three reasons. First, as explained above, Obergefell definitively rejects Justice Scalia s conclusion in Din that the government does not interfere with a citizen s constitutional marriage rights unless it actually declares her marriage invalid or refuses to recognize its legal legitimacy; rather, interfering with the citizen s rights of intimate association with her spouse and other essential attributes of marriage also interfere with her protected liberty interests. Second, where no national security concerns are present, a primary justification for eschewing any real explanation to the citizen petitioner of the basis for the government s decision disappears. Third, in Din, the petitioner did not raise (and, therefore, the Court did not address) any equal protection argument. However, as explained in Struniak, Obergefell establishes that an equal protection analysis can expose the government s actions to greater scrutiny, and enhance the petitioner s due process rights under appropriate conditions. As explained below, the question for certification contemplates circumstances in which such conditions are present. c. Here, reasoned explanations and citations to evidence are required to ensure that the government s decisions comport with the dictates of the equal protection doctrine because of documented past governmental discrimination against 21

26 beneficiaries of particular nationalities and religions. Earlier this year, two states, Washington and Minnesota, filed a lawsuit challenging Executive Order 13769, entitled Protecting the Nation From Foreign Terrorist Entry Into the United States (hereinafter, the Executive Order ), which, among other changes to immigration policies and procedures, purported to ban for 90 days the entry into the United States of individuals from seven countries. The plaintiffs challenged the Executive Order as unconstitutional and violative of federal law, and sought a temporary restraining order (TRO) enjoining its enforcement. The federal district court preliminarily ruled in their favor and temporarily enjoined enforcement of the Executive Order. The Government then moved the Ninth Circuit for an emergency stay of the district court s TRO while its appeal of that order proceeded. See State of Washington v. Trump, No , Slip Op., pp. 2-3 (9 th Cir., Feb. 9, 2017) (for publication). The court denied the government s motion for a stay of the TRO. For present purposes, the most significant aspect of the decision addresses the states Equal Protection Clause arguments. As the court noted in assessing these arguments, the Equal Protection Clause prohibits the Government from impermissibly discriminating against persons based on religion. Id. at p. 25. With respect to the Equal Protection Clause, the court summarized the states argument as follows: 22

27 The States argue that the Executive Order violates the Establishment and Equal Protection Clauses because it was intended to disfavor Muslims. In support of this argument, the States have offered evidence of numerous statements by the President about his intent to implement a Muslim ban as well as evidence they claim suggests that the Executive Order was intended to be that ban, including sections 5(b) and 5(e) of the Order. It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims. Id. The court ultimately concluded that this argument provided an independent reason to deny the government a stay because it presented significant constitutional questions. Id. at 26. This significant constitutional question as to whether the government has recently attempted to violate the Equal Protection Clause compels adequate due process for citizen petitioners when their immediate relative petitions for their foreign spouses are denied whether the stated reason for the denial is marriage fraud or some other reason. Specifically, given the recent announcement of an explicit government scheme to exclude intending immigrant spouses from certain countries from entering the United States quite possibly based on their religious orientation petitioners for spouses from those countries have very legitimate reason to fear that the government might apply differential, discriminatory standards that violate the equal protection doctrine when determining whether their beneficiaries are engaging or have engaged in fraud. Consequently, for the reasons articulated in Obergefell and Struniak, petitioners are entitled to a reasoned and 23

28 detailed explanation from the government, including a citation to relevant evidence, to ensure that they have received due process and that the denial of their petitions are not premised on equal protection violations. See Struniak, 159 F.Supp.3d at 668 (a history of impermissible animus is relevant in assessing whether the restriction at issue impermissibly infringes on a judicially enforceable constitutional liberty interest of the affected citizen ). Plainly, a simple statement along the lines of see preceding fraud determination would not satisfy this due process requirement, inasmuch as the petitioner may have had no involvement with the prior petition (if it is her first petition on behalf of the beneficiary in question), and, thus: (a) would have received no process with respect to that petition; and (b) would be left to wonder if the preceding fraud determination was based on permissible factors or impermissible national origin or religious discrimination. Instead, an independent analysis of the legitimacy of the prior fraud determination as contemplated in Matter of Tawfik, supra is essential to comport with due process requirements. Granted, the issue here is what process citizens are due with respect to a government decision determinative of their right to live in the United States with their foreign spouses, not whether the marriage fraud provision itself violates substantive due process. Plainly, it does not; the government has a compelling interest in preventing aliens admission into this country by fraud, and the fraud 24

29 provision is narrowly tailored to serve that interest as long as it is applied in a manner consistent with procedural due process requirements. Still, the fundamental teaching of Obergefell, as further explicated in Struniak, remains relevant in this context. Namely, when a class of persons has been subjected to documented past impermissible and invidious discrimination by the government, equal protection doctrine must be consulted in identifying what constitutional rights affected citizens have and what process they are due before the government deprives them of those rights. Here, the class of citizens most directly impacted by the Executive Order consists of citizen spouses who petition on behalf of foreign beneficiaries from the seven particular countries identified in that order, inasmuch as the order explicitly discriminates against intending immigrants of those national origins. As stated in Washington v. Trump, supra, there is a serious constitutional question as to whether the government has violated the Equal Protection Clause by intentionally discriminating against such beneficiaries for constitutionally impermissible reasons. In this context, the one-sentence explanation that sufficed in Din in which no equal protection argument was raised and concerns regarding national security were present will not suffice to meet the government s procedural due process obligations. The specter of impermissible discrimination based on national 25

30 origin or religion like the invidious sexual-orientation discrimination at issue in Obergefell means that any petitioner whose spouse is from one of the seven countries whose petition is denied based on a prior determination of fraud will be entitled to an explanation that is sufficiently detailed to demonstrate that the prior finding was not premised on the sort of impermissible discrimination that would constitute an equal protection (and due process) violation. (Of course, to fully comport with equal protection principles, citizen petitioners for beneficiaries from other countries would also be entitled to the same amount of process.) That is especially true given the many cases in which an independent review of a prior fraud determination has determined the earlier finding to be erroneous, invalid, or unsupported. See Section V(3)(b), supra. And proper process is only afforded if the director gives an explanation that goes beyond see previous decision. Specifically, the process due here is a relatively detailed explanation to the citizen petitioner, accompanied by citation to evidence sufficiently detailed to show that the government s denial of the petition is based on a prior fraud determination that is supported by legitimate factors, rather than impermissible characteristics such as national origin or religious orientation. The independent review of the record that Matter of Tawfik requires supports process that amply complies with this requirement. The BIA should uphold Matter of Tawfik and continue to follow the procedures articulated therein. They provide a critical tool 26

31 to avoid potential due process problems resulting from any more limited review of a prior marriage fraud determination. VI. CONCLUSION The requirement that the agency independently determine whether there was a prior fraudulent marriage in a visa petition adjudication provides the sole meaningful safeguard against otherwise irreparable damage that can be done by a marriage fraud determination not based on substantial and probative evidence. Published and unpublished case law shows the important role this safeguard plays in providing redress for agency error. The removal of this safeguard would allow the agency to preclude a citizen from bringing his spouse into the country without providing any real explanation to the petitioner as to the basis for the decision and would violate the citizen petitioner s rights under the Due Process Clause of the Fifth Amendment of the United States Constitution. For these reasons, the Board should uphold Matter of Tawfik and continue to require the USCIS District Director to conduct an independent determination on whether there was a prior fraudulent marriage. 27

32 Submitted this 15th Day of March, 2017, Aaron C. Hall, EOIR ID# PN Joseph Law Firm, P.C E. Second Avenue Aurora, CO (303) Dan Webb Howard Ogletree Deakins 222 SW Columbia Street, Suite 1500 Portland, OR, (877) Counsel for Amicus American Immigration Lawyers Association 28

33 VII. CERTIFICATE OF COMPLIANCE In accordance with the instructions in the Board s Amicus Invitation, three complete copies of this brief and all attached documents are being filed to the clerk of the Board of Immigration Appeals. Upon acceptance of the brief, the clerk will serve a copy on the parties. Respectfully submitted this 15 th Day of March, 2017, Aaron C. Hall, EOIR ID# PN Joseph Law Firm, P.C E. Second Avenue Aurora, CO ON BEHALF OF AMICUS AMERICAN IMMIGRATION LAWYERS ASSOCIATION 29

34 ADDENDUM A Unpublished BIA Cases: Matter of, A (BIA July 23, 2009) Rebecca Bamfo, A (BIA June 5, 2014) 30