Opinion

‘Secret evidence’ denials are unconstitutional'

IMMIGRATION CORNER - Michael J. Gurfinkel - The Philippine Star

May 17, 2020 | 12:00am

On April 14, 2020, the Ninth Circuit Court of Appeals (which is one level below the US Supreme Court) ruled it is unconstitutional for the USCIS to deny a petition or application based on secret or undisclosed evidence. This case is very important for people who had their cases denied based on USCIS’s claims that it had obtained an affidavit or confession from some unnamed witness or ex-spouse, or it uncovered some undisclosed record or evidence, but never provided the statements or evidence to the person, in order to give the person a chance to rebut or challenge the incriminating evidence.

In that case, a US citizen’s petition of his alien spouse was denied on the grounds that the alien spouse’s prior marriage to a different US citizen was fraudulent or fixed. (By law, if a person is ever caught in a fixed marriage, no future petition can be approved.)

Apparently, USCIS had relied on an apartment-rental application the alien’s former husband had previously submitted to USCIS, which required him to list his past addresses. However, none of the prior addresses he listed included the residence he and the alien supposedly lived together at. Therefore, USCIS concluded the alien did not live together with the first spouse. However, in denying the second US citizen spouse’s petition, USCIS never told the couple it had used that rental application in making its fraud determination about her prior marriage.

It was only when her case finally made its way to the federal court that USCIS submitted the rental agreement as part of the record. That was the first time the alien was ever made aware of this derogatory or negative evidence. Had they been given the derogatory evidence sooner, they could have been able to refute (or at least attempt to refute) the accusation that she had not lived together with her first husband.

The Ninth Circuit held that the government’s use of undisclosed records in making its marriage-fraud finding violated the person’s constitutional right to due process, as it denied her a meaningful opportunity to respond.

This case is important because many times, a person’s case is denied because USCIS states it has obtained certain records, documents, or affidavits, but fails to produce or provide that evidence. Other times, the USCIS may have obtained a “confession” of someone, such as an ex-spouse, but quotes only portions of that statement, when other parts of that confession or statement exonerates the alien, or demonstrates their eligibility.

The ruling is not limited to only marriage cases. Other times, USCIS or the embassy will deny a case but never really explain the basis for the denial, or they give some general explanation, such as the person “does not have the required relationship,” or they committed fraud, but don’t explain what the fraud was, leaving people guessing.

This case confirms a person has the right to be provided with the evidence being used against them, so they have the opportunity to defend themselves and refute the claims. Many times, there is a reasonable explanation for discrepancies, or there was a spiteful ex-spouse who lied in an affidavit, by claiming the marriage was not bona fide. I’ve encountered many such cases, and was able to clear my client’s name.

If your case was denied based on secret or undisclosed records or statements, and you believe you are legitimately entitled to that immigration benefit, you should consult with an attorney, who can require the government to produce the derogatory evidence and give you the constitutional right to due process and an opportunity to be heard.

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