The department of homeland security can’t use statements instead of witnesses

Mrs. P., a citizen of India, hired us to petition the Eighth Circuit Court of Appeals to review her case, given Department of Homeland Security practice was to use sworn affidavits from ex-spouses describing marriage fraud.  Mrs. P. wanted to question her ex-husband in court. Scott Eric Bratton, Partner at Margaret W. Wong & Associates LLC, helped Mrs. P earn 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.

Our client and her mother testified that the marriage was in good faith.  However, the Department of Homeland Security submitted a statement from Mr. P, he ex-husband, stating that she used him to obtain her 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 immigration judge 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.”

“Through June of 2017, the Eighth Circuit denied all 34 petitions brought before it,” said Scott Bratton. “This makes Mrs. P’s case that much more important. 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.”