start with the seconds or rush key verses u s c i s thank you make here st that the board's conclusion in this case that ms mescal committed marriage fraud with respect to her st marriage is not supported by substantial evidence in any way there's overwhelming evidence that the the board's decision just to ensure that it's supported by substantial evidence the board has to and in reviewing and in looking at the board's decision the court has decide whether or not the board actually had a clear and convincing evidence of marriage fraud or in the board's terminology substantial in probative evidence of marriage fraud so the the standard the standard of review for the court of the board's decision is the substantial evidence or in the words of the supreme court clear convincing and unequivocal evidence that you think those two standards are the same will they should be the the substantial and the substantial and probative evidence standard is the standard the language that the board has used in deciding whether or not there's marriage fraud that's based on a regulation that's based on the regulation that's correct the supreme court in its fraud cases indicates that there should be clear and convincing evidence there's no court the board has never determined and as far as i know there's no court that's ever determined whether those two standards are in fact but those cases that you had virtually none of them are immigration cases or none of them relate to this particular regulation well there would be case is in the marriage fraud context yes that is and it seems to be applying something other than the ordinary substantial evidence to us something other than the ordinary substantial evidence case that we would test that we would apply to  for review for example yeah well the tough a case is not really clear as to what standard they don't but it talks about direct and that they say that a reasonable inference does not specific information or guideline that has been issued by the board there is i think a question i whether or not that substantial in probative evidence standard is the same as the clear and convincing evidence so what the board does in this particular case i think is incorrect where it shifts the burden of proof to the petitioner basically says well in this case the board does not even say that there has to be substantial in probative evidence in order to the burden shit in order for the burden to shift it just says where there is information of marriage fraud the burden shifts to the petitioner to disprove the marriage fraud allegation basically what that means is that the this marriage fraud penalty which is really a particularly severe penalty way it's designed to get people out of the country who have committed marriage fraud no matter what the equities that the person has no matter what family equities are community but he's and so on if it's  bar that's correct that's correct it's a very severe we might call it the civil immigration death penalty penalty but that that penalty according to the board can be imposed where the evidence sort of balances out dollars you know we're not it's because the burden shifts to the petitioner if the petitioner isn't able to prove more likely than not that marriage is valid in other words we're just not really sure it looks like maybe marriage fraud maybe not the board says we're going to impose that penalty that really is improper it's inconsistent with supreme court case law we shouldn't be breaking up families imposing a marriage fraud penalty where the evidence just sort of balances out equally and maybe it looks like a little bit of marriage fraud maybe not it looks like there's some evidence usually what the substantial evidence standard means i mean i'm familiar with that especially in the social security context where there's social security or substantial evidence of disability and there's substantial evidence of not disability and whichever way the fact finder goes that's ok because there's substantial evidence to support it yeah that's sort of the administrative law i many contexts that's what substantial evidence means but there is a difference between an important difference between the substantial evidence standard and the and the substantial and probative evidence tendered or clear and convincing evidence  live together the evidence of that if there really is no substantial evidence in the in the case there is some evidence that mr good day when he filled out his tax forms used the p o box well that doesn't show anything the more so the real evidence that the board is relying on is a fraud investigation that was done by c i s officers that was done about four year three and a half four years after the marriage of course the question in the case in america for a case is the intention of the parties at the time of the marriage in two thousand that has two thousand and six this fraud investigation was done about three and a half years later in january of two thousand and ten and they were looking at after mr good they came into the united states in after after ms mescal came into the united states in june of two thousand and seven where was she living you know the next year or so when she came into the united states when when they did the fraud investigation they went to an apartment the older wood apartments and found an application  day's application in that application he said well for the last seven months i've been living at this for wood apartment complex he doesn't say that he's been living with ms miscall so that raises some questions i guess actually it turns out that those fraud invest gazers went to the fir delap apartment and asked well you know is mr good day living here can you confirm that he's a resident here and they said no we can't confirm that he was residing here during the relevant time so the evidence that there are that the borders we lying on  actually the fraud report shows that the evidence is questionable it's certain there's no way that that could be considered substantial document my right which the application we're talking about he only puts down his own name he doesn't even put her name down as applying for this apartment during and that's during the period of marriage right it's in eight it's in two thousand and eight that's correct during the marriage and is there is there any scrap of paper that had that connects him to the th place apartment which is her no nobody's disputing that was her residence throughout i take it right right yes there is there the record is what i saw there's reference to the joint tax returns a joint checking account and then there's a reference to rent receipts i couldn't find paper copies of any of those or any the validity of her marriage you know maybe she was trying to protect her relatives from an immigration investigation about something i don't know she's admitted that she made false statements i think they're not material as to the question of  chorus case which hasn't been paid very much attention to and everything here as far as i can tell but it it's again other than telic seems to be the most directly on point case yes well we think that there is a due process violation because there is have been a hearing inching of course the u s citizen spouse had signed that the u s citizen husband had signed a statement saying it was a fraudulent marriage and so maybe there was an occasion in this case actually the husband says that the marriage was valid  o you know i could interrupt you for one thing you are referring to the statements from neighbors and a legit neighbors and relatives as i read those none of those refer to an address either it is those say you know they than the usual substantial evidence and forget exactly what it is but substantial and i don't know significant or something and it says that you can there has to be direct evidence of the marriage front so why don't we just imply that  very your distinction is between a direct finding and direct evidence yes wrong that is in this case there was a direct finding of the previous fraud in your saying in tawfiq if we read it there wasn't that's correct honor and here where there was an adjudication previously that the argument i believe that's correct john of the original adjudicator the reason why the of original educators decision was not up held is because it was based on a probability rather than a finding that adjudicator read the evidence and said even on these circumstantial facts the sort of little evidence i conclude that this person engaged in marriage fraud that may have been upheld and that's what has typically been upheld where a direct finding a fraud is can i ask you this administrative review scheme that frontline adjudicator i don't know if it's the district director or some us yes official what is this and have proof that that person applies to that initial finding that the marriage was  entered into for the purpose of gaining an immigration been better if i mail stuff from the beginning an individual petition arrives at c i s with a petition and they bear a preponderance burden to prove that their marriage is bona fide and that means they've got to present some sort of evidence documents photographs testimonials things that would establish by a preponderance of evidence fifty percent or more of the right nothing on the nd level just so that we're clear on where we are in the process we're not put that aside what's the point if i'm not i understand i'm not you know i haven't been able absorb at least this much so but what i'm talking about is when the frontline adjudicator then wants to look back to that earlier marriage as a basis for saying you are simply disqualified from from like i don't even need to look at the bonafide nature of your current marriage because i'm going to reach back and look at this earlier marriage and determine that you engaged in that for what purposes i'm talking about characterization of this process by appellants in their briefing suggests that there is this burden placed on them out of nowhere that they show up and suddenly they have to prove a negative that their marriage isn't rajoy and that simply isn't the case right that's why i'm asking as i understand it there needs to be some determination initially by the frontline adjudicator that you're at your earlier marriage was fraudulent and then at that point the burden shifts to the petitioner if you want to say yes  it this is the decision made on december twenty two two thousand and fifteen by the field office director you are i'm not talking about the standard that the reviewing court applies say the b i a or us i'm talking about the it's not substantial evidence i don't think is the standard it's some some likelihood that this fact is true or not so it's either by a preponderance of the evidence that sort of the lowest standard bright clear and convincing which is what i think th for here or you know i don't think it's beyond reasonable doubt be for a criminal case so it's not substantial evidence i don't think is the right answer that's the that's the nature of the evidence that we as a reviewing court would be looking to see if in fact the record you know substantial evidence that it's true in one direction you know there are could be substantial evidence in the other direction now you have to make a decision as the initial do to get it what what do you do we are and that's why the deference bar so high but that's deference that's not what  determines that there is substantial evidence of marriage fraud in other words somebody can get barred from life or come to this country if there is substantial evidence even if it but not a preponderance the evidence that he committed evidence is not a standard form and is revealed standard ordinarily i've never heard of it being the standard for the initial decision maker this court has sustained a number of marriage fraud findings on substantial evidence around here who isn't that what that's not your interpretation that's the language yes ross says that the finding of fraud requires quote substantial and probative evidence yes or no and i mean it may be you know it seems like when we get into this there's harshness on all sides but that's what we do in social security disability we we say that people you know have get no money from the government because there's substantial evidence that they're not disabled even if there's also substantial evidence that they are disabled but that's others that's the standard for us but it's not the standard that the original decision making is applying what the regulations here disagree with your honor as we're saying eight c f r so your position is that of that that the initial decision maker is supposed to find marriage fraud as long as there's you know some evidence on something which somebody can find marriage fraud even though he doesn't think there was marriage fraud with the standard and i'd like to also clarify that there is direct evidence in this case of marriage fraud and so this to getting these signs and be that there are due process rights with regard to the way that the hearing is hell i mean for one thing it would be an odd kind of due process to have the evidence standard the way you're suggesting it but nd of all i mean the notion that there's even an education here by us c i s when they don't have a hearing they don't make any and they don't see the witnesses and they just goin was a single very not a conclusion that there was a property interest and due process applies you are again showing wouldn't apply here because the the facts in chain were that there were evidence there was there was substantial evidence in the record evidence of marriage fraud then there is marriage fraud yes your honor in this case and chang there was substantial evidence of marriage front because there was this one document your honor the case and showing there was a great discrepancy and a great disparity between the evidence that on your theory that when matter and your theory and then make any difference as long as there is substantial evidence but that's not this case rather well that doesn't matter we need to know what the standard is the standard is substantial evidence john and so therefore entangling should the st husband was substantial evidence i couldn't say or i don't think they did what i did what i can say is that the evidence in this case is far stronger for marriage fraud than in the chain case and the evidence supporting the marriage is discredited by the fact that every witness and every person in this case lied at some point to c i s and so we have a direct evidence you were just referring to so yes one of the least that  she moved to this country in seeing that mr good a had a lease application for another apartment at the time that he was supposedly living with his wife and on that lease application he listed two other addresses that he had previously lived that were not the home of his w you know i guess what's troublesome i think about this set of facts it's maybe particular to this case i don't know but you know when you have an arranged marriage as as we do here there's just a much higher likelihood that even though the south very quickly and that kind of situation i think that's the concern i guess i have with the record here you're absolutely right that once you're more than a couple months in everything kind of starts to unravel for her in terms of being able to have proof that the marriage intact but we're you know the time period we're talking about is actually back in egypt in two thousand and six trying to figure out what was her state of mind and what were intentions then and i guess all of the evidence you're able to point to or the government's able to point to just doesn't speak to that moment in time and that's why i was a little puzzled when you said there is direct evidence of marriage for there really isn't there is circumstantial evidence that comes about later from what you then try to draw an inference back in time to two thousand so we are respectfully  the least application is direct evidence that mr good day at the very least asserted that he lives somewhere other than with his wife but that application was not given to them or i think they asked to see the documents and they didn't get them they were made aware of the information your honor and the fact  his sister provided the testimonial in this application saying that she knew the couple and knew them to be a married couple knew them to be living this address so having the information that his he was a ledge of live with a sister it stands to reason that she must have known the sister say that but it directly does say that it says that in the context of showing where there's a now it doesn't say that in the context of ching it says that and then it goes on to imply that concept of the consonant to the to the context of saying st it says that there is a due process right whether it was that information or not that was being lied on is one confusing why why wouldn't they utilize that information of they had to go back and rebut this can you tell me another kind of proceeding in which moment but there is standards in the a p a that when there is no informal when there's no formal proceedings the informal proceedings take place there is a minister of record you mentioned earlier and mr powers argument that there's no image record but there is and it's excerpts  here before this court showing the evidence that the government relied on for this case but which the parties didn't get to say yes your honor and that fact has been affirmed and upheld by this court and many times many times hasan in two thousand and ten as the case i refer to where it's been up held that that satisfies you process it satisfies the a p a that a summary of the information is provided an opportunity to rebut that information now opponents were made aware of this derogatory information they were told that there is evidence that mr  the characterization that this is destroying families taking something away those are also and correct and that's another point the government would like to make here this is a privilege this is a petition and when this person applying on this petition or comes the educator presenting lies presenting and accurate information and leading to an investigation that then discovers other information that shows that they were not living together very strong circumstantial evidence at the least that they were not living together time is up thank you very much sure with respect to a hearing under these processes the director is not an immigration judge that's where we usually hear about hearings is there a general process where the director can decide to hold a hearing or there are regulations that talk about when you would have such a hearing or does it go to an i j that's the i mean what happened inching where it was remain ended for a hearing was that a hearing before the the some type court munder stand that but that does not answer my question that we know i js have hearings to the district directors field office directors have hearings as a matter of when if the director thinks that things are evenly balance remained was to have a hearing yes and i'm just asking bureaucratically one would would you think that they then had a hearing was it referred to would it be referred to an i j but your answer is th yes if i can have a go again and try to explain this a difference between the substantial evidence and the substantial probative evidence standards because they are they are confusing they used the miller language the when this court should review the board's decision to determine whether or not the board properly applied this substantial in evidence tendered that's what we think should be the same as the clear and convincing standard in concluding making the conclude the legal conclusion that there wasn't that  there was marriage fraud in this case so the substantial and evident substantial probative standard it's a burden of proof standard that's different from what the court does in reviewing the factual determinations underlying that conclusion so for example in this case well let me say one more point about the substantial and evidently the board failed to apply that substantial and probative evidence standard if you look at the board's decision and i'm looking at the excerpts of record page twenty six the st page of the decision the board just says it does not talk about substantial probative evidence the board says that where the record contains information that the beneficiary was previously involved in marriage fraud then the burden shifts to the to the  petitioner so they just say where there's ever information they don't talk of they didn't they did not properly apply the substantial whistle went when you said which paragraph you're looking at i said i'm looking a paragraph three on the  st page yes which says we conclude the beneficiaries file contains substantial and prohibitive evidence that she was previously involved in a marriage which i thought was the support for the government's position where you quoting different sentence because you started reading the thing but it wasn't that sentence yeah i'm looking at the st nd rd paragraph where the record contains information that a beneficiary was previously the subject of a visa petition tied to a fraudulent marriage ok that's the information the burden shifts a bit above that they did conclude that it contains substantial and probative evidence right but i don't think that they apply that standard correctly because you know you disagree with their conclusion with the application the substantial and probative evidence standard you're saying our evidence is so good that their evidence couldn't be substantial and probative is that a fair way to put it yeah that's ok yeah yeah that's  convincing evidence standard that's one that's understood well understood the court should we think do that and nd we think that the court should reject this idea that the burden shifts to the petitioner because when that happens in shifting the burden to the petitioner basically what that allows for is where the evidence balances out five thousand and fifty there's some evidence of fraud there's some evidence that there's no fraud then we're going to impose this very serious penalty against the  beneficiary in the case and we may end up just having her deported from the united states unable to get status and that is a question i asked your adversary are there hearings before the district director that is if we said if we said exactly what was said showing we remain in for a hearing you'll get to see the piece of paper which is in the record that we've all seen it now right and you can do whatever you want would that be something that a would please you and be bureaucratically is possible so bureaucratically possible my understanding what would happen is that it would go back to an immigration officer not to an immigration judge there would not be a  the question as well was a contemplating a hole is going to add this cross is hearing what the cross examination and if this court were to order that of course then the immigration service would be obligated to do that all i'm asking is what what what was  opportunity for cross examination and sometimes i mean they might have done a video of them but normally i've never seen them do a transcript of the hearing as such and have a court reporter there but quite frankly i don't