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The Department of Homeland Security Can’t Use Statements Instead of Witnesses

Mrs. P., a citizen of India, with the help of Scott Eric Bratton, Partner at Margaret W. Wong & Associates LLC, has earned her day in court.  The Eighth Circuit Court of Appeals’ Judge Kelly granted Mrs. P’s petition for review August 22, 2017. 

Mrs. P. came to the United States with a Green Card sponsored by her husband, a United States citizen. After a contentious divorce, she requested removal of the conditions on her residency with a good faith marriage waiver. The Department of Homeland Security denied her request and put her in removal proceedings. 

At the hearing, where our client and her mother testified that the marriage was in good faith, the Department of Homeland Security submitted a statement from the ex-husband stating that she used him for a Green Card. Our client objected that admitting a written statement in place of the witness was unfair because she couldn’t cross-examine her ex-husband. The IJ overruled the objection, denying our client’s request to question her ex-husband in court, and denied extension of her Green Card.

Our client appealed to the Board of Immigration Appeals in Arlington, Virginia. The Board of Immigration Appeals denied her appeal. So then Mrs. P. ask the Eighth Circuit Court of Appeals to grant a review.

The Eighth Circuit agreed that not giving Mrs. P. the opportunity to cross-examine her ex-husband made the hearing unfair. The Eighth Circuit said the government cannot deny a person’s right to cross-examine a witness by replacing a witness with documents. 

“My congratulations to Scott Bratton,” said Margaret W. Wong, Esq., founder and managing partner of the firm. “This is very important for practitioners of immigration law. For decades, ex-spouses were frightened into providing the Department of Homeland Security with derogatory statements without the presence of family members.  DHS used the statements in court to deport former spouses by proving fraudulent marriage.” 

“The first six months of 2017, the Eighth Circuit has denied all 34 petitions brought before it,” said Scott Bratton. “This underscores the importance of Mrs. P’s case. The Department of Homeland Security had great power over foreign born seeking to stay in the USA despite having been divorced.  Government lawyers would argue marriage fraud, obtain a derogatory statement, and the court would side with the Government lawyers. Now we can get ex-spouses into court.  This is an important decision to protect the rights of those in removal proceedings.”

Scott Bratton is the head of Litigation at Margaret W. Wong & Associates LLC, and has more than 35 precedent setting and published cases across all circuit courts, district courts, Ohio state courts, the Board of Immigration Appeals, and immigration courts. 

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Gordon Landefeld