- Introduction: Vladimirov v. Lynch and Due Process in Immigration Proceedings
- Facts of Vladimirov v. Lynch
- Grounds under which Relief was Sought
- Vladimirov v. Lynch: Due Process Arguments and Decision
- Conclusion: Vladimirov v. Lynch and Due Process in Immigration Proceedings
On November 10, 2015, the United States Court of Appeals for the Tenth Circuit rendered a decision with regard to the due process rights of an alien in removal proceedings that were triggered by a charge of marriage fraud. In Vladimirov v. Lynch, No. 13-9595 (10th Cir. Nov. 10, 2015) [PDF version], the Tenth Circuit rejected numerous arguments by the petitioner, Vladimir Vladimirov, that is due process rights had been violated in immigration proceedings. In this article, we will examine the facts of the case and the Tenth Circuit's decision.
Vladimirov was in the United States without lawful status when he married Valentina Bakhrakh, a United States citizen in 2005. Bakhrakh filed a Form I-130 petition to sponsor Vladimirov for adjustment of status as the spouse of a U.S. citizen.
In 2006, Vladimirov and Bakhrakh allegedly gave conflicting statements to a United States Citizenship and Immigration Services (USCIS) officer (Officer Randall) that called into question the bona fides of the marriage. Based upon those discrepancies, a different USCIS officer (Officer Gibson) visited Vladimirov. Vladimirov confessed that the marriage was not valid. The next day, the Officer Gibson visited Bakhrakh to discuss the evidence of the sham marriage and to explain the legal consequences of filing a fraudulent Form I-130. After the meeting, Bakhrakh withdrew the Form I-130.
Vladimirov's Form I-485 application to adjust status was denied and he was issued a Notice to Appear (NTA) alleging that he had “entered into a sham marriage … in order to obtain permanent resident status.” The NTA further charged that Vladimirov had sought to procure immigration benefits by fraud or willful misrepresentation of a material fact.
The Immigration Judge determined that the government had met its burden to establish Vladimirov's removability based on his sham marriage (under INA 239a(c)(3)(A)). Officer Randall testified in the proceedings, but Officer Gibson did not. Bakhrakh testified that she was threatened and coerced by Officer Gibson into withdrawing the Form I-130. Vladimirov did not testify.
The BIA dismissed Vladimirov's appeal, and he subsequently appealed to the Tenth Circuit.
The Tenth Circuit describes the three grounds under which Vladimirov sought relief:
- That he was not given notice of the conduct that formed the basis of the charges;
- That the government's evidence was not sufficient to prove the charges;
- That he was denied due process in immigration proceedings.
The Tenth Circuit rejected Vladimirov's arguments that he had not been given proper notice of the charges and that the government's evidence was insufficient.1 For this article, we will focus on Vladimirov's due process arguments.
The Tenth Circuit lists the four grounds under which Vladimirov argued that his due process rights were violated:
- He was not afforded an opportunity to cross-examine Officer Gibson
- The USCIS improperly admitted and considered the Form I-213 (Record of Deportable Alien)2 denying his Form I-485 because it contained “triple hearsay”;
- The information in the Form I-213 denying his Form I-485 could not be presumed to be reliable;
- Evidence of Bakhrakh's withdrawal of the Form I-130 should have been suppressed because Officer Gibson threatened and coerced her.
The Tenth Circuit ultimately rejected all four of Vladimirov's due process arguments. We will examine its reasoning on each point.
Administrative vs. Criminal Proceedings
The Tenth Circuit cited its own precedent from Schroeck v. Gonzales, 429 F.3d 947, 951 (10th Cir. 2005) [PDF version] in differentiating the due process requirement in criminal proceedings from the due process requirement in immigration proceedings, which are “civil in nature.” It quoted from the same case that “When facing removal, aliens are entitled only to procedural due process, which provides the opportunity to be heard at a meaningful time and in a meaningful manner.”
1. No Automatic Right to Cross Examine in Proceedings
Vladimirov argued that his due process rights were violated on account of not having an opportunity to cross-examine Officer Gibson, who did not testify at the hearing but submitted a report of her visit to Vladimirov (which included her recording of statements that he had made).
The Tenth Circuit noted that Vladimirov had the opportunity to challenge Officer Gibson's testimony, although Officer Gibson herself was not present. Relying on its precedent from Barrera-Quintero v. Holder, 699 F.3d 1239, 1248 (10th Cir.2012) [PDF version], the Tenth Circuit stated that where the absence of the witness “was legitimate and not contrived,” the “alien must establish not only error, but prejudice.”
The Tenth Circuit cited Seventh Circuit precedent from Barradas v. Holder, 582 F.3d 754, 763 (7th Cir. 2009) [PDF version] which stated that the agent who created a report “cannot be presumed to be an unfriendly witness or other than an accurate recorder.”
The Tenth Circuit held that Officer Gibson's absence from the hearing was legitimate and not contrived, and that her observations were duly reported. The Tenth Circuit held that Officer Gibson's are not per se inadmissible, “but better contrary evidence may have carried the day.” The Tenth Circuit also noted that Vladimirov had the opportunity to offer testimony to explain the statements Officer Gibson had recorded, but declined to do so.
2. Hearsay Evidence Can be Admissible in Proceedings
Vladimirov argued that the Form I-213 was inadmissible because it contained “triple hearsay” (Officer Randall's testimony described reports filed by Officer Gibson which related to Vladimirov's admission that the marriage was a sham and Bakhrakh's withdrawal of the Form I-130).
The Tenth Circuit quoted its rule from Bauge v. INS, 7 F.3d 1540, 1543 (10th Cir.1993) [PDF version] that evidence is admissible in a removal hearing so long as it “is probative and … its use is fundamentally fair.”3 The Tenth Circuit held that Officer Gibson's evidence was probative and that its use was not fundamentally unfair.
The Tenth Circuit cited its decision in Bague holding that “Hearsay is regularly used in administrative adjudication.” It cited Supreme Court precedent from Richardson v. Perales, 402 U.S. 389 (1971) [PDF version] which rejected the theory that the Due Process Clause of the Fifth Amendment of the U.S. Constitution creates the same rules for administrative proceedings as it does for criminal proceedings.
3. Form I-213 Presumed Reliable Unless there Exists Evidence to the Contrary
Vladimirov argued that the Form I-213 denial of his Form I-485 was not entitled to a presumption of reliability because it was prepared in anticipation of proceedings. The Tenth Circuit quoted from the Seventh Circuit decision in Gutierrez-Berdin v. Holder, 618 F.3d 647, 653 (7th Cir.2010) [PDF version]: the “Form I-213” is a presumptively reliable administrative document.” Sufficient evidence must be presented to rebut the presumption of reliability of the Form I-213. Based on the facts of the case, the Tenth Circuit held that Vladimirov had failed to provide evidence to rebut the presumption of reliability of the Form I-213, and accordingly that the Form I-213 was entitled to the presumption of reliability.
4. Bakhrakh was not Threatened or Coerced into Withdrawing Form I-130
The Tenth Circuit noted that according to BIA precedent from Matter of Barcenas, 19 I&N Dec. 609, 611 (BIA 1988) [PDF version], Vladimirov would have to establish either that:
- the information sought to be excluded is erroneous;
- the evidence was obtained by coercion or duress.
If Vladimirov could establish either of these points, the burden would fall upon the government to justify the manner in which it obtained the evidence. However, the Tenth Circuit held that Vladimirov failed to establish either. The Tenth Circuit added that for one, Barkhrakh did not file a complaint against Officer Gibson or attempt to reinstate the Form I-130. Furthermore, the Tenth Circuit cited the BIA: “informing someone of the legal consequences of marriage fraud and perjury is not coercive.”
The Tenth Circuit's decision touches on a number of interesting due process issues that arise in immigration proceedings. It is important to remember that immigration proceedings are administrative, and thus have different rules in many respects than criminal proceedings. An alien facing immigration proceedings, based on marriage fraud or otherwise, should always consult with an experienced immigration attorney who understands each step of the immigration adjudicative process.
- The Form I-213 is a mostly internal immigration document that serves as a fact sheet that is used by ICE to make sense of an alien's immigration history when he or she is placed into proceedings.
- Regarding the notice: under INA § 239(a)(1); 8 C.F.R. § 1003.15(b)
- The Tenth Circuit notes that most of the other Circuits have adopted a similar approach.