you know morning council good morning your honors if it please the court my name is william frick i represent mrs cobb and her husband i couple little bit if you can just move that culture there i represent mrs cobb and her husband t ok we raise two issues in this case marriage interference with a previously granted the revocation of a previously granted right to reside with you or with your spouse is an interference with the fundamental liberty interest and deserves heightened scrutiny counsel i had trouble putting that argument in context you are unquestionably right that there's a constitutional right to marry under well established supreme court law yes but as i understand this case no one is interfering with the right to marry the claim is that she didn't marry but it's a fraudulent marriage the the liberty interest in marriage is also the right to live with your family and the second thing is that marriage is a function of the state it's not that the state isn't saying that the marriage  that they aren't married there it is their what they leave us government to saying we don't believe that you're married but the state of washington which is the entity that the states are the entities that are responsible for marriage in this country the washington state does recognize that marriage but you got married in cambodia true but it's still it's still recognized in washington she's she's legally married and it was originally granted so the government is taking away a right that it has already granted and some heightened scrutiny rather than just a application and it went to the embassy there was apparently some sort of very brief interview we don't know if the person who interviewed mr chime spoke english we don't know what happened with that interview but based upon that interview some information was given back that mr cheney didn't know his son's name or mr cheney didn't know whether his wife why his wife hadn't visited him we and based upon this he was then asked to prove that he didn't say these things and we weren't given the evidence of this we were we were given these bald allegations in letters from the u s c i s that he had said these things we did not have the context we were not able to ask the person who allege these things what the context  was we're not really allowed to rebut it and to say that it didn't happen while you have the information now right we were given the information after every bit of it my question is you have it now we have it now the administrative process your honor though we did not have  we could have written to the department of state asked this particular asked this this is our letter to be routed to the particular employee who said parents identified by a pseudonym what the context of  these statements was what other statements were were asked of mr cha and mr chang i'm sorry what did he get right was was this conducted in cambodia not a bona fide marriage do you agree that in this case this is not the marriage it's the privilege of having the beast right that's what we're talking about here is not not not your not not the wife's if you will right it's is whether or not the purported husband has the right the advantage to take advantage of a beast that's what we're talking about here right your honor i think it's the same thing it's the right of a family to live together it's a u citizens right to live with her husband i get your take on it but in this particular case under under section levon fifty eight a bunch of subsection i won't quote them to you the burden of proof here is on your client  right it's a burden by the preponderance of the evidence i'm ok but it's but by that proponent that it's your client's burden and the petition i mean the position of the government in this case is that your client has not met bird there are a number of allegations that are made some of them more weighty some less weighty perhaps the one of the initial interview is probably one of the least weight but the there were there were five allegations that number one that they did not believe that giovanni is the couple's child number two that mr chang had not tried to see his child that's that's silly he's been trying to see his child since they filed for this he said it's the u s c i s who kept him from seeing his child so for the u s c i s to say that that's evidence that he will help us take the communication  that the third one of picture numbers letters anything like that there is no evidence of that there were pictures there were there were perfectly reasonable pictures and were sent to him yes he has pictures of all of that he he will acknowledge find repeatedly is when the government will say x and you don't say no that didn't happen you said you may say didn't happen but there you don't provide any evidence to corroborate what you're saying and where example the phone thing you say there's you know the only communications were by prepaid phone card no evidence of purchases of such cards no evidence of evidence there no evidence of people watching the purchase of the cards or anything to back it up your honor this is this is a very particular community these are cambodians they're very unsophisticated as the record as we indicate in the record miss both mr chang and miss  routes they grew up under refuge in refugee camps they were concerned and still on a daily basis are mostly consumed with survival they have never become literate they don't have email they don't use email accounts for most of the third world countries that i've been in where people can't afford to have computers at home because the countries are too or they have internet cafes all this guy each other there in different countries and email the big pictures and that kind of thing i have been in those countries as well iran or cambodia in two thousand and three two thousand and four two thousand and seven i'm not sure that that that that was the case it was ok but it's not the case for everybody it's the case for it's a case for tourists sophisticated man whatever your client sophistication there are represented right through all these proceedings yes and the lawyer i'm sure if it's you it was a very capable intelligent bright person the lawyer the one who helps the client make the presentation notwithstanding that fact we don't see in the record and many instances of any kind of evidentiary bottle to what the government put out that's what i placed i'm struggling with write in english she's she's completely unsophisticated in modern technology in modern communications she speaks on the phone she she buys she bought those cards and that's pretty sophisticated and to buy a card at a convenience store i call that you can communicate with somebody other country by buying a phone card oh that's that's not bad ok that's yes but are a lot of a lot of us have family members who are not sophisticated but if you go to an internet cafe there countless teenage boys who just love to show their where your technological sophistication and they help people well i don't know that that mr  have found one of those those young boys but i i think to take away a fundamental liberty interest spaced upon speculation that they're not telling the the speculation is that these people are really married she had she and he have to show they're married they are married your honor there's a there's a there's a marriage certificate he went to the trouble of putting his name on the  his son's birth certificate meaning that he is undoubtedly the father that was quite a bit after the birth what four years later he has to sign the documents what were the explanation that's why the hospital would not allow i never heard that assertion before then the hospital in this country a requires a father to be present in order to get the name on the burst is there or is that corroborated in any way i would like for instance an a davit from the hospital director or something like that on or would you allow me to to present that to you or on remand we could my question was was that quite ready to why not because it her her statement i think is believable and i i did not i did not present it doesn't seem so from ordinary experience i think that's why my colleague and i are both wondering about some evidence that it's true i mean a lawyer i know was fishing when his kid was born but he's still on the birth certificate i would i would think that he signed it you know one thing that no he didn't he wasn't there you think maybe maybe one  some time later i don't know i don't know if there was room for him to these are these are different people it's a different culture it's they they have been traumatized by what come up with a variety of in the shia suggesting that it was not you said that's how she says it was he now says that it was so we then like to see whether you by a preponderance of the evidence have met this very week most of what you said is these are believable people this improbable thing happened this improbable thing happened this improbable thing happened and the reason why you can't take it away is because it's a constitutionally protected right is that when you hear cases now you know your honor we believe that we have met the preponderance standard which is fifty percent and a feather as someone of the u s c i s said to me the other day we believe that we've met that standard and the both the u s c s and the district court were wrong in indicating that we haven't we also believe that you cannot want a minute left just can't go less force what proves that there are actually married the marriage certificate the fact that they have pursued this litigation for almost ten years that they haven't just given it up is some indication of it the marriage certificate the fact that they have visited each other there are pictures of the family together there are affidavits from people who know them who indicate that they are i i believe that that should be sufficient for for a u s citizen to be able to one more thing your honor if if the government is concerned this is a fraudulent marriage there are safeguards there's a when a green card is granted the person has to go back in two years and show that he still married show that the marriage was still not fraudulent that's it that's enough of a safeguard that that these people should be given the benefit of the doubt and by your standard they should never be questioned in the first place no your honor they under mental right they should know i'm not saying i'm saying that a fundamental right means that a government has or should be narrowly tailored to should be narrowly tailored and i think a clear and convincing standard for r contradict their story they said that in the affidavits two of them state that plaintiff start communicating with each other and two thousand sex and plans story is that they started communicating in two thousand and seven and  then in a whirlwind i think it to ten day trip met each other and got married and i don't see what's the matter with that i mean in our culture it's customary to have love and courtship and marriage and that sort of thing a lot of cultures what the plaintiff showed which i think frankly some right by counsel is insufficient to sustain a holding that this is a bona fide marriage i don't think that's right is it record before this court and once again the standard before this court is how could it just record do that when the government didn't even provide the record right i mean you didn't just close that interview and state department  ok so on that record then the district court reviews the the judgment of  plaintiff had two decisions before us c i s that the agency level they made in written this will determination that the marriage that the plaintiff cannot establish that the american good faith with the intent to create a share my life together and then out of an abundance of caution us c i s reopen the i one thirty submitted a second request for evidence basically twice telling plaintiffs the type of evidence that they would need to carry the burden of proof and then  failed to produce that evidence they issued a second decision so there have been quite a few determinations in this case both at the district court and the agency level i think just earlier question was if we look at the the the list provided by plaintiff's counsel you know why does that not carry the burden of proof and my first comment is that the affidavit contradict their story in certain parts in the affidavit states the the the affiant say that they began communicating in two thousand and six worth plaintiff story is that they began communicating in two thousand and seven so that that's a fairly significant discrepancy council and as sensed from the panel because of the way this case came up in an unusual situation in a way because normally when you have sharply conflicting stories about fundamental aspects of the story it's not appropriate for summary judgment but in this case you have something came up through an administrative procedure have reviewed these matters in this case counsel and his clients are asked for supplementary evidence to back up their case two times if i understand correctly their eye doctor so having having looked at there's a rhyme going to go and our role in looking abuse of discretion we almost have to find that there was you got the law wrong in order to reverse this is that correct that the district court got the determination i'm confused by your answer i'm sorry if i'm saying we're reviewing the district court's decision right this court in this case is actually reviewing it it's my understanding that you're reviewing u s c i s is this determination judge  made a determination in this case that was appealed from him he's a district court judge right so we're reviewing the district court's review of the right ministry people lie and saying that my question to you is when we your so you're saying the district court reviewed the administrative law judge its decision based on whether the administrative law judge abused its trash and right yes you're saying that we in turn reviewed judge zill was that notwithstanding his opinion that the us yes a determination is arbitrary capricious this court can then reverse ok but i still don't think you're answering my question we understand what judge really did with respect to the administrative law judge my question is when we reviewed judge billy's decision do we review that for abuse of discretion i don't think that's for abuse of discretion or honor i think that this court is making it a noble review of the u s c i maybe i'm wrong that's my understanding is that they're making a just ignore basically what judge really did we're just going to go back i think it's informative i think it's ok i think it's useful help me on another detail i'm sure i'm getting some facts wrong here right but i thought there was only one visit the marriage or sham marriage where they had the picture of the ceremony but then there is another picture where the father is with the putative son is that right so that was the original that's it's just to visit your honor there's the original visit in two thousand and seven when they get married and then there was another visit and i believe it's two thousand and twelve after the second request for evidence was issued and that's where the government asked for the d n a test and rather than doing a d n a test they flew to cambodia and  introduced the child was the government saying we're not going to accept that anyone is anyone's trial without a d n a test was the government saying you don't even know the kid's name so we're not satisfied and he wasn't in your name's not on the birth certificate so at this point we're not satisfied that you're the kid's father but if you want to prove it you can take a d n a test since the government would have thought that if they could approve maybe that would have been pretty compelling evidence that this actually was a bona fide marriage of plaintiff people don't like to do that because they feel insulted and it may mean that the child was not really the father's the mother's been with somebody else that kind of thing i mean i think that can be difficult but they also want to use the child to try to prove the marriage so at some point you know with them with the two requests for evidence you can have either without the other we're not we're not telling them how they have to prove their case counsel and have a child without marriage you can have a marriage without a child that you can have maryjane a child by somebody else there are a lot of possibilities short what i'm trying to find out here is does us c i s require d n a tests routinely or was this just an additional means of proof that coffee could have used i think it was an additional means of proof there was not a requirement that they we did not require in this instance even that they do d n a we said that you need to prove to turn it in this would be a good way of doing it there's nothing here that would preclude them from making a subsequent application there's been no finding of marriage fraud it's just that they did not care their burden of proof thank you  thank you both counsel for your argument we appreciate it we appreciate how important this case is for the plaintiffs here thank you very seriously the case just argued is submitted and we stand in recess for the day