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Ching v. Mayorkas

United States Court of Appeals, Ninth Circuit

August 7, 2013

Teresita Ching and Brooke Joseph, Plaintiffs-Appellants,
Alejandro Mayorkas, Director, U.S. Citizenship & Immigration Services; Robin Barrett, Field Office Director, USCIS San Francisco Office; Janet A. Napolitano, Secretary, U.S. Department of Homeland Security; E ric H. Holder, Jr., Attorney General, Defendants-Appellees

Argued and Submitted April 17, 2013 San Francisco, California

Appeal from the United States District Court for the Northern District of California, D.C. No. 4:10-cv-03520-SBA Saundra B. Armstrong, District Judge, Presiding


Sarah B. Castello (argued) and Robert B. Jobe, Law Office of Robert B. Jobe, San Francisco, California, for Plaintiffs-Appellants.

Ila C. Deiss (argued), Assistant United States Attorney; Melinda Haag, United States Attorney; and Joann Swanson, Chief, Civil Division, United States Attorneys' Office, San Francisco, California, for Defendants-Appellees.

Before: Mary M. Schroeder, Sidney R. Thomas, and Barry G. Silverman, Circuit Judges.



The panel affirmed in part and reversed in part the district court's summary judgment in favor of the government in the action brought by Teresita Ching and her husband Brooke Joseph challenging the United States Citizenship and Immigration Service's denial of Joseph's Form I-130 immediate relative visa petition.

The panel concluded that plaintiffs had a protected property interest in the adjudication of Joseph's I-130 petition, and held that their Fifth Amendment procedural due process rights were violated because they were not given the opportunity to cross-examine Ching's first husband regarding his statement that his marriage to Ching was fraudulent. The panel held, however, that statutory protections in removal proceedings do not apply to I-130 visa petitions and that there is no statutory right of cross-examination in I-130 adjudications, and thus found that plaintiffs' rights under the Administrative Procedure Act were not violated.


THOMAS, Circuit Judge

Teresita Ching and her husband, Brooke Joseph, claim that their procedural due process rights and their rights under the Administrative Procedure Act ("APA") were violated during the adjudication of Joseph's I-130 visa petition for an immediate relative. Under the circumstances of this case, we conclude that their rights under the APA were not violated, but their procedural due process rights were. We affirm in part and reverse in part.


Teresita Ching, a native of China and citizen of the Philippines, lawfully entered the United States on November 5, 2004 as a nonimmigrant visitor. Ching claims that she came to the United States intending to stay for one month, but then began dating Elden Fong, a U.S. citizen, whom she met on a dating website. Ching and Fong married on January 7, 2005, and Fong filed an I-130 visa petition on her behalf. Eventually, Ms. Ching withdrew the I-485 application for permanent residence and informed USCIS that she no longer wished to proceed as a beneficiary of Fong's petition because she planned to divorce Fong, and USCIS denied the petition for abandonment. A year later, on December 27, 2007, Fong and Ching divorced.

On January 27, 2008, Ching married her current husband, Brooke Joseph, also a U.S. citizen, and Joseph filed an I-130 petition on Ching's behalf. After their interview at a USCIS office, USCIS issued a Notice of Intent to Deny, which provided in relevant part:

USCIS officers conducted a site visit at Mr. Fong's place of residence, and he was interviewed in regards to his marriage to [Ching]. During that interview, Mr. Fong confessed and provided a sworn statement admitting the following: "My name is Elden Fong and Teresita Ching were married in Oakland on January 7, 2005 in Oakland, CA. Teresita and I never had sex. Teresita and I never lived together. $32, 000 was offered and $14, 000 was paid in cash /installments. Teresita and I did not marry for love. I regret in full marrying Teresita."

The six sentences quoted above compose the entirety of Fong's statement. Ching was not informed of the circumstances under which Fong was visited or his statement was taken.

Joseph and Ching responded to Fong's very terse statement in the notice of intent to deny with a three-page, single-spaced, 21-paragraph sworn declaration from Ching describing in excruciating detail her intimate relationship with Fong. Refuting Fong's assertion that the couple never consummated the marriage, Ching stated that they had sex for the first time on their wedding night. She then proceeded to describe in vivid detail how the two would sleep in on weekends, have sex, and share intimate conversations. She described his underwear and recounted some of their pillow talk. She also went on to explain why the marriage deteriorated and eventually ended in divorce. In addition, to corroborate her claim of a bona fide marriage, she ...

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