FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TERESITA CHING and BROOKE

JOSEPH,

Plaintiffs-Appellants,

v.

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;

ERIC H. HOLDER, JR., Attorney

General,

Defendants-Appellees.

No. 11-17041

D.C. No.

4:10-cv-03520-

SBA

OPINION

Appeal from the United States District Court

for the Northern District of California

Saundra B. Armstrong, District Judge, Presiding

Argued and Submitted

April 17, 2013—San Francisco, California

Filed August 7, 2013
2 CHING V. MAYORKAS

 This summary constitutes no part of the opinion of the court. It has

*

been prepared by court staff for the convenience of the reader.

Before: Mary M. Schroeder, Sidney R. Thomas,

and Barry G. Silverman, Circuit Judges.

Opinion by Judge Thomas

SUMMARY

*

Immigration

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. 
CHING V. MAYORKAS 3

COUNSEL

Sarah B. Castello (argued) and Robert B. Jobe, Law Office of

Robert B. Jobe, San Francisco, California, for PlaintiffsAppellants.

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.

OPINION

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.

I

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.
4 CHING V. MAYORKAS

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,
CHING V. MAYORKAS 5

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 furnished

photographs of the couple, joint utility bills, an apartment

lease, and a letter Fong had previously written to USCIS

stating that he and Ching “truly loved each other.”

On November 5, 2009, USCIS denied Joseph’s I-130,

stating that “the beneficiary’s first marriage was not entered

into [in] good faith, but was a sham, entered into for the sole

purpose of evading immigration laws.” Though it reviewed

the evidence Joseph had submitted, USCIS found the

evidence submitted by Joseph to be “self serving.”

Joseph appealed to the BIA, which “agree[d] that the

record supports a finding that the beneficiary’s prior marriage

was entered into for the purpose of evading the immigration

laws.” The BIA explained that “we have considered the

arguments and evidence presented by the petitioner both in

response to the notice of intent to deny and on appeal, and we

must agree that these do not overcome the detailed affidavit

of the beneficiary’s priorspouse, which was given against his

own interest.”

On August 11, 2010, Joseph and Ching filed their

complaint in district court, claiming that USCIS acted
6 CHING V. MAYORKAS

arbitrarily and capriciously in violation of the APA and the

Due Process Clause of the U.S. Constitution by denying

Joseph’s I-130 petition without affording them the

opportunity to cross-examine Fong regarding his statement.

Both parties filed motions for summary judgment, and the

district court granted the Government’s motion for summary

judgment and denied the Plaintiffs’ cross-motion.

The district court held that there is no statutory right to an

adjudicatory hearing, that the opportunity to respond in

writing to Fong’s statement was sufficient for due process,

and that there was no protected liberty or property interest in

the adjudication of Joseph’s I-130 petition. Finally, the

district court held that “[e]ven if Plaintiffs had demonstrated

that they have a protected property or liberty in an I-130 visa

petition–which they have not–they have failed to show

prejudice.”

II

The district court correctly held that there is no statutory

right of cross-examination in I-130 visa adjudications.

Joseph and Ching claim that U.S. Citizenship and

Immigration Services (“USCIS”) acted arbitrarily and

capriciously and violated Section 240(b) of the Immigration

and Nationality Act (“INA”), 8 U.S.C. § 1229a(b), in denying

Joseph’s I-130 petition without affording Joseph and Ching

an opportunity to cross-examine Fong regarding his sworn

statement. Joseph and Ching rely on INA § 240(b), which

provides that during removal proceedings, “the alien shall

have a reasonable opportunity to examine the evidence

against the alien, to present evidence on the alien’s own

behalf, and to cross-examine witnesses presented by the

Government . . . .” 8 U.S.C. § 1229a(b)(4)(B). They argue
CHING V. MAYORKAS 7

that once a beneficiary of a visa petition is in removal

proceedings, the I-130 petitioner is statutorily entitled to the

same due process rights as an alien in removal proceedings,

and that it is arbitrary and capricious to deny those

protections.

However, visa petitions are distinct from removal

proceedings. See Elbez v. I.N.S., 767 F.2d 1313, 1314 (9th

Cir. 1985) (“Any determination regarding INS conduct during

a visa petition proceeding is collateral to a deportation

order . . . .”). The statutory protections provided in removal

proceedings do not apply to adjudications of I-130 visa

petitions.

To the extent that the Plaintiffs claim that USCIS violated

INA § 240(b), which applies only to removal proceedings, the

district court lacked jurisdiction to consider that claim

because a petition for review with the court of appeals is the

“sole and exclusive means for judicial review of an order of

removal . . . .” 8 U.S.C. § 1252(a)(5). Furthermore, because

Ching’s removal proceedings are currently pending, there is

no agency action for this Court to review.

The district court properly granted summary judgment on

this claim.

III

Plaintiffs also argue that the denial of Joseph’s I-130 visa

petition violated their Fifth Amendment Due Process rights

because they were not afforded the opportunity to cross

examine Ching’s first husband, Elden Fong, or the USCIS

officer who took Fong’s statement. We agree.
8 CHING V. MAYORKAS

A

The Due Process Clause of the Fifth Amendment provides

that no person shall “be deprived of life, liberty, or property,

without due process of law.” U.S. Const. amend. V. “A

threshold requirement to a substantive or procedural due

process claim is the plaintiff’s showing of a liberty or

property interest protected by the Constitution.”

Wedges/Ledges of Cal., Inc. v. City of Phoenix, 24 F.3d 56,

62 (9th Cir. 1994). Plaintiffs contend that their interest in the

I-130 visa petition is such an interest because the approval of

the petition is nondiscretionary.

“To have a property interest in a benefit, a person clearly

must have more than an abstract need or desire for it. He

must have more than a unilateral expectation of it. He must,

instead, have a legitimate claim of entitlement to it.” Bd. of

Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972).

Supreme Court “cases recognize that a benefit is not a

protected entitlement if government officials may grant or

deny it in their discretion.” Town of Castle Rock v. Gonzales,

545 U.S. 748, 756 (2005). Instead, “[a] reasonable

expectation of entitlement is determined largely by the

language of the statute and the extent to which the entitlement

is couched in mandatory terms.” Wedges/Ledges, 24 F.3d at

62 (internal quotation marks omitted).

Where a petitioner of an immediate relative petition

proves that his marriage meets the requirements for the

approval of an I-130, he is entitled, as a matter of right, to the

approval of his petition. Section 204(b) of the INA provides

that “After an investigation of the facts in each case, . . . the
CHING V. MAYORKAS 9

 The INA initially granted this authority to the Attorney General, but 1

with the 2003 creation of the Department of Homeland Security (“DHS”),

this responsibility now belongs to the Secretary of DHS. See 6 U.S.C.

§ 271(b)(1) (delegating authority to the Secretary).

[Secretary of Homeland Security (“Secretary”) ] shall, if he 1

determines that the facts stated in the petition are true and that

the alien in behalf of whom the petition is made is an

immediate relative[,] . . . approve the petition . . . .” 8 U.S.C.

§ 1154(b) (emphases added). The decision of whether to

approve an I-130 visa petition is a nondiscretionary one

because “determinations that ‘require application of law to

factual determinations’ are nondiscretionary.” Hernandez v.

Ashcroft, 345 F.3d 824, 833-34 (9th Cir. 2003) (internal

alteration omitted); see also Garfias-Rodriguez v. Holder,

702 F.3d 504, 525–26 n.16 (9th Cir. 2012) (en banc)

(contrasting INA § 204(b)’s language with discretionary

authority elsewhere in the INA); Spencer Enters., Inc. v.

United States, 345 F.3d 683, 691 (9th Cir. 2003) (explaining

that INA § 204(b)’s instruction that the Attorney General

“shall . . . approve the petition” suggests that the provision is

nondiscretionary).

Bustamante v. Mukasey, 531 F.3d 1059 (9th Cir. 2008),

buttresses this conclusion. There, a U.S. citizen wife

challenged a consular official’s denial of a visa petition for

her husband, and the Court determined that “the denial of a

visa implicates the constitutional rights of American citizens”

because Bustamante “has a protected liberty interest in her

marriage that gives rise to a right to constitutionally adequate

procedures in the adjudication of her husband’s visa

application.” 531 F.3d at 1061, 1062.
10 CHING V. MAYORKAS

The government contends that when an exception to

eligibility exists, the right to obtain the I-130 visa no longer

exists, and the process is no longer nondiscretionary. This

argument confuses the question of whether there is a

protected interest in a benefit with the question of eligibility

for that benefit. Virtually no government benefit is available

to individuals without a requirement that certain conditions

are met. The Supreme Court explained that “the welfare

recipients in Goldberg v. Kelly [397 U.S. 254 (1970)] had a

claim of entitlement to welfare payments that was grounded

in the statute defining eligibility for them. The recipients had

not yet shown that they were, in fact, within the statutory

terms of eligibility. But we held that they had a right to a

hearing at which they might attempt to do so.” Roth,

408 U.S. at 577.

The government also contends that the permit denial

means that there was no eligibility in the first instance and,

therefore, no due process right attached to the procedure.

However, “‘[a] first principle of Anglo-American

jurisprudence, . . . basic to the conception of due process in

the procedural sense’ is ‘that the ends do not justify the

means.’” Pillsbury Co. v. F.T.C., 354 F.2d 952, 964 (5th Cir.

1966) (quoting Douglas, We The Judges, 354 (Doubleday

1956)). It is process that the procedural due process right

protects, not the outcome.

In sum, grant of an I-130 petition for immediate relative

status is a nondiscretionary decision. Immediate relative

status for an alien spouse is a right to which citizen applicants

are entitled as long as the petitioner and spouse beneficiary

meet the statutory and regulatory requirements for eligibility.

This protected interest is entitled to the protections of due
CHING V. MAYORKAS 11

process. The district court erred in holding that there was no

protected interest.

B

The district court alternatively determined that, even if

there were a protected liberty or property interest, the claims

failed because the Plaintiffs failed to show prejudice. The

question of whether a plaintiff must demonstrate prejudice in

the context of an I-130 visa petition is not settled. The

government asserts that a prejudice showing is required,

citing Padilla v. Ashcroft, 334 F.3d 921, 924–25 (9th Cir.

2003). But Padilla and its progeny involve deportation or

removal proceedings, and the government has been unable to

cite a case in support of its position in the visa context. As

we discussed earlier in rejecting Ching’s APA claim, visa and

removal proceedings, and the rights that attach to each, are

different. However, we need not resolve that question,

because the Plaintiffs demonstrated sufficient prejudice.

Fong’s signed statement was accepted as true without

affording the Plaintiffs the opportunity for cross-examination,

and in the face of contradictory documents and affidavits. As

the Supreme Court has explained, “[i]n almost every setting

where important decisions turn on questions of fact, due

process requires an opportunity to confront and

cross-examine adverse witnesses.” Kelly, 397 U.S. at 269.

An opportunity to confront and cross examine “‘is even more

important where the evidence consists of the testimony of

individuals whose memory might be faulty or who, in fact,

might be perjurers or persons motivated by malice,

vindictiveness, intolerance, prejudice, or jealousy.’” Id. at 270

(quoting Greene v. McElroy, 360 U.S. 474, 496–97 (1959)).
12 CHING V. MAYORKAS

The prejudice “standard does not demand absolute

certainty; rather prejudice is shown if the violation potentially

affects the outcome of the proceedings. We may infer

prejudice even absent any allegations as to what the petitioner

or his witnesses might have said . . . .” Zolotukhin v.

Gonzales, 417 F.3d 1073, 1077 (9th Cir. 2005) (internal

quotation marks, citation, and alteration omitted). Therefore,

the Plaintiffs’ “showing is sufficient to establish prejudice.”

Amponsah v. Holder, 709 F.3d 1318, 1327 (9th Cir. 2013).

C

Having concluded that plaintiffs had a protected property

interest and had established sufficient prejudice, we must then

determine whether additional process was due. In doing so,

we recognize that “‘due process,’ unlike some legal rules, is

not a technical conception with a fixed content unrelated to

time, ‘place and circumstances.’” Mathews v. Eldridge,

424 U.S. 319, 334 (1976) (quoting Cafeteria Workers v.

McElroy, 367 U.S. 886, 895 (1961)). As the Supreme Court

has instructed, “due process is flexible and calls for such

procedural protections as the particular situation demands.”

Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).

Because of its inherent differences from the judicial process,

administrative proceedings in particular must be carefully

assessed to determine what process is due given the specific

circumstances involved. And we must do so on a case by

case basis.

The proper analysis to determine whether additional

process was due in this case is provided in Mathews. There,

the Supreme Court identified the factors to be considered in

determining whether additional due process is required:
CHING V. MAYORKAS 13

[I]dentification of the specific dictates of due

process generally requires consideration of

three distinct factors: First, the private interest

that will be affected by the official action;

second, the risk of an erroneous deprivation of

such interest through the procedures used, and

the probable value, if any, of additional or

substitute procedural safeguards; and finally,

the Government’s interest, including the

function involved and the fiscal and

administrative burdens that the additional or

substitute procedural requirement would

entail.

Mathews, 424 U.S. at 335.

1

The first Mathews factor is an assessment of the private

interest that will be affected by the official action. Here,

Plaintiffs explain that “[w]ithout an I-130 approval, Ms.

Ching faces imminent removal from the United States, thus

undoubtedly causing immense hardship to herself and her

husband.” The right to marry and to enjoy marriage are

unquestionably liberty interests protected by the Due Process

Clause. See, e.g., Meyer v. Nebraska, 262 U.S. 390, 399

(1923) (holding that protected liberty interests include “the

right of the individual . . . to marry, establish a home and

bring up children”). The right to live with and not be

separated from one’s immediate family is “a right that ranks

high among the interests of the individual” and that cannot be

taken away without procedural due process. Landon v.

Plasencia, 459 U.S. 21, 34-35 (1982). Therefore, the first

Mathews factor favors Joseph and Ching.
14 CHING V. MAYORKAS

2

The second Mathews factor we consider is the risk of an

erroneous deprivation ofsuch interest through the procedures

used and the probative value of additional procedural

safeguards. In this case, the risk of an erroneous finding that

a prior marriage was fraudulent is high in cases where an exspouse is relied upon for evidence that the previous marriage

was fraudulent. Here, for example, USCIS officers went to

Fong’s home and solicited from him his six-sentence

statement; the BIA concluded on the basis of this “detailed”

statement alone that the prior marriage was fraudulent. An

unexpected visit from government officers can be quite

intimidating, particularly if the officials point out that having

filed a fraudulent I-130 petition could result in a $250,000

fine and imprisonment for up to five years. See 8 U.S.C.

§ 1325(c). The BIA even noted that Fong made his statement

“against his own interest,” though that statement is

unsupported by the record.

The Supreme Court has explained that “[i]n almost every

setting where important decisions turn on questions of fact,

due process requires an opportunity to confront and

cross-examine adverse witnesses.” Goldberg, 397 U.S. at

269. An opportunity to confront and cross examine “‘is even

more important where the evidence consists of the testimony

of individuals whose memory might be faulty or who, in fact,

might be perjurers or persons motivated by malice,

vindictiveness, intolerance, prejudice, or jealousy.’” Id. at

269-70 (quoting Greene v. McElroy, 360 U.S. 474, 496–97

(1959)). Many ex-spouses could be motivated by “malice,

vindictiveness, . . . or jealousy.” These nefarious motivations

are even more likely if the marriage (and subsequent divorce)

were bona fide.
CHING V. MAYORKAS 15

The risk of erroneous deprivation is particularly high in

a case such as this, where the visa petitioner has substantial

evidence that the first marriage was bona fide. Ching

presented extensive details of her marriage to Fong, including

descriptions of intimate conversations, and evidence of her

life with Fong, including bills and a lease. When there is

such compelling evidence to rebut the prior spouse’s claim of

marriage fraud, there is a high risk of erroneous deprivation

when the agency relies exclusively on written evidence.

As to the probative value of additional procedural

safeguards, Fong could have elaborated on his fraudulent

marriage to Ching and explained under what conditions he

wrote the statement that he and Ching “did not marry for

love.” Plaintiffs also explain they would attempt to find out

about any incentives Fong was offered before he signed the

statement, and would want to know how long he was

interviewed, by whom he was interviewed, and what, if

anything, he benefitted from his statement. These questions

are far from speculative, and given that the BIA was willing

to reject Plaintiffs’ evidence on the sole basis of Fong’s sixsentence “detailed affidavit,” the risk of erroneous

deprivation and the likely probative value of additional

process are both great. This factor strongly favors Plaintiffs.

3

In assessing the final Mathews factor, we consider the

Government’s interest, including the function involved and

the fiscal and administrative burdens that the additional or

substitute procedural requirement would entail. Clearly, the

government has a substantial interest in preventing marriage

fraud and in avoiding erroneously providing benefits. “Those

who engage in [marriage fraud] unfairly cut in front of those
16 CHING V. MAYORKAS

aliens lawfully waiting in line to emigrate here. This kind of

marriage fraud undermines the sovereign power of the United

States to control who may be allowed resident status.” Azizi

v. Thornburgh, 908 F.2d 1130, 1141 (2d Cir. 1990)

(Cardamone, J., dissenting). On the other hand, there is a

significant public interest in allowing those who are

legitimately married to receive the benefits intended for them.

The additional procedures would entail the minimal cost

to the government of holding an additional hearing in this

case, and “[f]inancial cost alone is not a controlling weight in

determining whether due process requires a particular

procedural safeguard prior to some administrative decision.”

Mathews, 424 U.S. at 348. Additionally, because the process

sought by Plaintiffs is guaranteed to aliens in removal

proceedings, there are no practical problems with such a

requirement. See INA § 240(b), 8 U.S.C. § 1229a(b)(4)

(“[T]he alien shall have a reasonable opportunity to examine

the evidence against the alien, to present evidence on the

alien’s own behalf, and to cross-examine witnesses presented

by the Government.”). Therefore, we conclude that “the

fiscal and administrative burdens that the additional or

substitute procedural requirement would entail” are relatively

slight. See Mathews, 424 U.S. at 335.

4

Upon considering all three factors, the extreme weight of

the first two factors leads us to conclude that the process by

which Joseph’s I-130 petition was denied was inadequate.

There were two witnesses to the Fong-Ching marriage: Fong

and Ching. In this case, it is not possible to determine that

Fong’s statement is true and that Ching’s is false solely by

reading them. In addition, Ching presented substantial and–at
CHING V. MAYORKAS 17

this stage–uncontested documentary evidence to corroborate

her claim that the marriage was bona fide. Therefore, under

the specific circumstances of this case, due process required

a hearing with an opportunity for Ching to confront the

witnesses against her.

Therefore, we must reverse the district court with

instructions to remand the case to the agency for the purpose

of holding an evidentiary hearing.

IV

In sum, the district court properly granted summary

judgment on the APA claims. It erred in granting summary

judgment on the procedural due process claim. We reverse

the district court’s grant of summary judgment as to the due

process claim, and direct it to remand the case to the agency

so that the agency may hold an evidentiary hearing.

Costs on appeal shall be awarded to Plaintiffs-Appellants.

AFFIRMED IN PART; REVERSED IN PART;

REMANDED WITH INSTRUCTIONS.