FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT GHILAMICHAEL ZEREZGHI; HURUIA No. 18-35344 MESKEL, husband and wife, Plaintiffs-Appellants, D.C. No. 2:17-cv-00879- v. JLR UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; MICAH OPINION LYNN BROWN, Acting Field Office Director; BOARD OF IMMIGRATION APPEALS; WILLIAM P. BARR, United States Attorney General; UNITED STATES OF AMERICA, Defendants-Appellees. Appeal from the United States District Court for the Western District of Washington James L. Robart, District Judge, Presiding Argued and Submitted July 11, 2019 Seattle, Washington Filed April 14, 2020 Before: Danny J. Boggs, * Marsha S. Berzon, * The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. 2 ZEREZGHI V. USCIS and Paul J. Watford, Circuit Judges. Opinion by Judge Boggs SUMMARY ** Immigration In a case where the United States Citizenship and Immigration Service (“USCIS”) denied an I-130 immediate relative visa petition on the ground that the non-citizen’s prior marriage had been fraudulent, the panel reversed the district court’s grant of summary judgment in favor of the government, and remanded, holding that the Board of Immigration Appeals violated due process by relying on undisclosed evidence and by applying too low a standard of proof. Ghilamichael Zerezghi, a United States citizen, filed an I-130 petition on behalf of his non-citizen wife, Huruia Meskel. USCIS denied the I-130 petition under 8 U.S.C. § 1154(c), which provides that “no petition shall be approved” if USCIS determines that the noncitizen spouse previously entered into a marriage “for the purpose of evading the immigration laws.” USCIS and the BIA relied, in part, on an apartment-rental application Meskel’s former husband had previously submitted to USCIS. The application required him to list his past addresses, and neither of the two he listed were the marital residence that Meskel listed on her immigration paperwork. However, the ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. ZEREZGHI V. USCIS 3 agency never told Meskel and Zerezghi that it had used the application in making its fraud determination in their case. The panel concluded that Zerezghi had a constitutionally protected interest in the grant of his I-130 petition, explaining that this court has previously held that a citizen petitioner has such a constitutionally protected interest because the approval of an I-130 petition is nondiscretionary. Next, the panel held that the government’s use of undisclosed records in making its marriage-fraud finding violated procedural due process. The panel concluded that the first factor set out by Mathews v. Eldridge, 424 U.S. 319 (1976)—the private interest affected by the government’s action—favored the couple, explaining that: 1) a finding of past marriage fraud often means that the noncitizen spouse faces removal; 2) the right to marry and enjoy marriage are unquestionably liberty interests; and 3) the right to live with one’s immediate family ranks high among individual interests. The panel also concluded that the third Mathews ...
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