Ankush Sehgal v. Loretta Lynch , 813 F.3d 1025 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-2334
ANKUSH SEHGAL and MOHIT SEHGAL,
Plaintiffs-Appellants,
v.
LORETTA E. LYNCH,
Attorney General of the United States, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13 C 8576 — John Robert Blakey, Judge.
____________________
ARGUED DECEMBER 15, 2015 — DECIDED FEBRUARY 22, 2016
____________________
Before BAUER, POSNER, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. This appeal arises from an unu-
sual immigration case that was filed properly in the district
court. Plaintiffs Mohit and Ankush Seghal filed an “I-130” pe-
tition seeking lawful permanent resident status for Mohit,
who is a citizen of India, as the husband of Ankush, who is a
citizen of the United States. Immigration authorities denied
their petition on the ground that Mohit had tried years earlier
2 No. 15-2334
to gain lawful residence in the United States by a fraudulent
marriage to another woman. That made him ineligible for re-
lief even though his marriage to Ankush is legitimate. See 8
U.S.C. § 1154(c).
The decision to grant or deny an I-130 petition is not a mat-
ter of agency discretion, and Mohit is not subject to a removal
order. The proper means to challenge the denial is therefore a
suit in the district court under the Administrative Procedure
Act, 5 U.S.C. §§ 702 & 703. See Ogbolumani v. Napolitano, 557
F.3d 729, 733 (7th Cir. 2009); Ruiz v. Mukasey, 552 F.3d 269, 274-
76 (7th Cir. 2009). The Seghals sued under the APA.
The district court found that substantial evidence sup-
ported the agency’s finding of marriage fraud and thus
granted summary judgment against the Seghals. We affirm.
Although the agency’s handling of this case has involved pro-
cedural errors that are difficult to understand, the bottom-line
decision was legally sound. Substantial evidence, including
Mohit’s own written admission, supports the agency’s finding
that Mohit’s earlier marriage was fraudulent, so the denial of
Ankush’s I-130 petition on his behalf was correct.
We begin with the story of Mohit’s earlier marriage to
Renee Miller. Mohit Sehgal entered the United States lawful-
ly on a visitor’s visa in September 2000 but overstayed his
visa. Three years later, in June 2003, he married Renee Miller,
a United States citizen. She then submitted on Mohit’s behalf
a Form I-130, called a Petition for Alien Relative, to have him
recognized as an immediate relative for immigration pur-
poses. See 8 U.S.C. §§ 1151(b)(2)(A)(i), 1154(a)(1)(A)(i); 8
C.F.R. § 204.1(a)(1). At the same time, Mohit filed a Form I-485
application to adjust his status to lawful permanent resident
No. 15-2334 3
based on his claimed family relationship to U.S. citizen Miller.
See 8 U.S.C. § 1255(a).
Immigration authorities investigated the marriage be-
tween Mohit and Miller and concluded that it was not a good
faith marriage. During a 2005 interview concerning Miller’s
I-130 petition, Mohit and Miller asserted that they lived to-
gether at the home of Mohit’s mother. An immigration agent
had telephoned Mohit’s mother in March 2005 and was told
that she had “no idea” where to find Miller and had no means
of contacting her. Based on that conversation and the lack of
evidence of a “joint marital union,” Miller’s petition was de-
nied in November 2005 by United States Citizenship and Im-
migration Services (“USCIS”).
Miller responded by submitting additional evidence to
bolster the claim of a legitimate marriage. She included bank
statements from a joint account, rent receipts purportedly
from Mohit’s mother, and two sworn statements in the
mother’s name saying that Miller and Mohit had lived with
her since June 2003. Almost a year after receiving those doc-
uments, in December 2006, USCIS reopened the proceedings
on Miller’s I-130 petition.
By then, however, the marriage between Miller and Mohit
had ended. Miller gave birth in 2007, and USCIS received a
letter apparently signed by Mohit admitting that he was not
the child’s father. Miller later obtained a court order of protec-
tion against Mohit. In July 2008, an Illinois court entered a de-
fault judgment dissolving the marriage. The judgment noted
that the parties had separated around October 2003, just four
months after they married. Afterward, in December 2008, Mil-
ler and Mohit both failed to appear for a scheduled interview
with USCIS. In March 2011 the agency denied the reopened
4 No. 15-2334
I-130 petition on the ground that there no longer was a marital
relationship.
In the meantime, in September 2009, agents working for
Immigration and Customs Enforcement (“ICE”) had arrested
Mohit while investigating the woman who had prepared Mil-
ler’s I-130 petition for brokering fraudulent marriages. Her
name was Teresita Zarrabian, and she eventually pled guilty
to conspiring to defraud the United States under 18 U.S.C.
§ 371. She was sentenced to three years in prison. United
States v. Zarrabian, No. 13-cr-00106-1 (N.D. Ill. July 1, 2015).
Mohit gave the ICE agents a sworn confession admitting
that he had paid Zarrabian and Miller for help in obtaining
permanent residency by marrying Miller. Zarrabian had in-
troduced him to Miller, he said, and arranged the marriage in
exchange for $18,000 to be shared by the two women. Mohit’s
confession concluded by saying that his union with Miller
“was not a real marriage” and was done so that he could ob-
tain “permanent status” in the United States. Mohit initialed
the three pages of text and swore that he had read each page
of the confession and had given it “freely and voluntarily.”
In March 2011, Miller gave ICE agents a written statement
corroborating Mohit’s earlier confession that their marriage
had been a sham. That handwritten statement, which was not
shared with Mohit until the district court proceedings, ex-
plained that Miller was promised $5,000 to marry him. The
couple had intended to divorce, the statement continued, af-
ter Mohit received a “green card.” Although the agent who
faxed Miller’s statement wrote on the transmittal page that it
was sworn, no language in the statement itself shows that Mil-
ler had signed it under penalty of perjury.
No. 15-2334 5
Mohit’s confession of the earlier marriage fraud and the
corroborating 2011 statement by Miller suffice to support the
finding of fraud. See Ogbolumani v. Napolitano, 557 F.3d 729,
733–34 (7th Cir. 2009) (concluding that USCIS did not err in
basing denial of petition on admission of marriage fraud);
Aioub v. Mukasey, 540 F.3d 609, 612 (7th Cir. 2008) (admissions
that marriage was entered into in exchange for money and ac-
cess to apartment and vehicle provided “substantial evi-
dence” that marriage was fraudulent); Ghaly v. INS, 48 F.3d
1426, 1431 (7th Cir. 1995) (upholding denial of petition based
on sworn statement admitting marriage fraud); Matter of Isber,
20 I. & N. Dec. 676, 679 (BIA 1993) (explaining that spouse’s
admission that she married alien as favor to help him obtain
permanent residency shows that they “did not intend to es-
tablish a life together as husband and wife when they mar-
ried”). Moreover, Mohit’s story contains numerous inconsist-
encies, including the dates he allegedly lived with and sepa-
rated from Miller. See Reynoso v. Holder, 711 F.3d 199, 207 (1st
Cir. 2013) (explaining that record did not compel conclusion
of bona fide marriage when oral and written statements were
inconsistent).
On appeal, the Seghals attempt to undermine this evi-
dence of marriage fraud by attacking both Miller’s handwrit-
ten statement and Mohit’s September 2009 sworn confession
to ICE agents.
Miller’s Statement: First, the Sehgals contend, Miller’s state-
ment should be disregarded as unreliable hearsay. Hearsay is
admissible in immigration proceedings as long as it is proba-
tive and its use is not fundamentally unfair. See Ogbolumani,
557 F.3d at 734; Olowo v. Ashcroft, 368 F.3d 692, 699 (7th Cir.
2004).
6 No. 15-2334
Miller’s handwritten statement details the scheme be-
tween Miller, Mohit Sehgal, and Zarragian to commit mar-
riage fraud. It is highly probative as to whether Mohit entered
into a marriage to gain an immigration benefit. And the
Sehgals give no reason to question the statement’s reliability
other than the fact that it is unsworn. Their speculation about
Miller’s motive for writing the statement and the “chain of
custody” is insufficient to undermine the evidence. See Og-
bolumani, 557 F.3d at 734; Doumbia v. Gonzales, 472 F.3d 957,
962–63 (7th Cir. 2007).
But we also now know that USCIS and the Board did mis-
characterize Miller’s statement as “sworn.” Twice in its brief
to this court the government referred to Miller’s statement as
“sworn,” despite the assertion in the Seghals’ brief that it was
not. The government’s brief would not be cause for concern if
it were accurate, but elsewhere in the same brief (and when
pressed at oral argument) the author of the brief conceded
that Miller’s statement was not sworn.
It is difficult to understand how the government could
take both positions. It seems from the record that the govern-
ment was content to continue mischaracterizing Miller’s state-
ment as sworn until after a copy finally was shown to the
Sehgals during the proceedings in the district court. The time
to have set the record straight was immediately after USCIS
mischaracterized Miller’s statement as sworn, not more than
four years later after that same mistake was made in submis-
sions to the BIA, the district court, and now this court. The
label matters. As the Sehgals correctly argue, Miller’s state-
ment may have been weighed more heavily than it should
have been if it had been known to be unsworn. See Yu Yun
No. 15-2334 7
Zhang v. Holder, 702 F.3d 878, 881–82 (6th Cir. 2012) (recogniz-
ing that affidavits often are given more weight than unsworn
statements); Zuh v. Mukasey, 547 F.3d 504, 509 (4th Cir. 2008)
(same).
Still, although we are disappointed by the government’s
sloppiness, this error by USCIS and the Board was harmless.
Miller’s handwritten statement is corroborated in large part
by Mohit’s September 2009 confession. That confession was
sworn and came from Mohit himself, and it was clearly an ad-
mission against interest. See 5 U.S.C. § 706 (instructing re-
viewing court to take “due account” of “rule of prejudicial er-
ror”); People of the State of Ill. v. I.C.C., 722 F.2d 1341, 1348 (7th
Cir. 1983) (recognizing harmless error as exception to Chenery
doctrine). And given Mohit’s confession, Miller’s statement
was not necessary to the finding of marriage fraud.
Mohit Seghal’s Confession: We now turn to the Seghals’ at-
tack on Mohit’s own confession of marriage fraud. Recall that
Mohit had made that confession in writing in 2009 after he
was arrested by ICE agents. Mohit was released without
charges and four months later married Ankush, who filed a
new I-130 petition on Mohit’s behalf. The Seghals argue that
Mohit’s confession was coerced, is not reliable, and thus does
not provide substantial evidence of fraud.
The exclusionary rule does not ordinarily apply in immi-
gration proceedings. See INS v. Lopez-Mendoza, 468 U.S. 1032,
1050 (1984); Martinez-Camargo v. INS, 282 F.3d 487, 492 (7th
Cir. 2002). Suppression may be justified, however, if evidence
was obtained under circumstances involving “egregious vio-
lations of Fourth Amendment or other liberties that might
transgress notions of fundamental fairness and undermine
the probative value of the evidence obtained.” Lopez-Martinez,
8 No. 15-2334
468 U.S. at 1050–51; see Gutierrez-Berdin v. Holder, 618 F.3d 647,
652 (7th Cir. 2010); Martinez-Camargo, 282 F.3d at 492; Matter
of Toro, 17 I. & N. Dec. 340, 343 (1980).
An alien claiming coercion by government officials “must
come forward with proof establishing a prima facie case be-
fore the Service will be called on to assume the burden of jus-
tifying the manner in which it obtained the evidence.” In re
Burgos, 15 I. & N. Dec. 278, 279 (BIA 1975); see Luevano v.
Holder, 660 F.3d 1207, 1212 (10th Cir. 2011).
Mohit first asserted coercion on March 15, 2011, when he
and Ankush were interviewed in connection with her I-130
petition. Mohit asserted that he had not been given a copy of
the 2009 written confession. He claimed that while he was in
ICE custody, he had been “handcuffed despite being in a
cast,” “almost tortured,” and “kept in a dark room and then
in a stinking bathroom in the dark.” According to Mohit’s new
account, which again was sworn, he had married Miller with
the “honest perception” that he “would live a life with her.”
Days later the director of a USCIS field office issued a no-
tice of intent to deny Ankush’s I-130 petition on the ground
that Mohit’s marriage to Miller had been fraudulent. Al-
though Mohit and Miller had submitted “significant evi-
dence of marital union,” the notice explained, that evidence
was “impossible to reconcile” with the admissions of mar-
riage fraud from both. The notice quoted in full Miller’s hand-
written statement (which the agency characterized as sworn).
The notice also acknowledged but rejected Mohit’s repudia-
tion of his confession.
USCIS invited the Sehgals to submit additional evidence
to prove that Mohit’s marriage to Miller had been bona fide.
No. 15-2334 9
Mohit submitted an affidavit swearing that the marriage had
been “real” and elaborating on his confession to the ICE
agents. His admission of fraud, he attested, was given under
duress:
I was in the custody of immigration officials
who were threatening me with all kinds of
things. They had me sign a statement without
letting me read it first. They told me I had to
sign it. In addition, I was in an accident shortly
before I was taken into custody, and was on
medication and had my hand in a cast. Despite
the fact that I told the immigration officers both
of these facts, they still kept me handcuffed, on
my casted hand, and made me sign a statement
without reading it.
The affidavit said nothing about torture or being held in a
dark “stinking bathroom,” as Mohit had claimed during his
March 2011 interview. Mohit submitted medical records
showing that he had gone to a hospital emergency room com-
plaining of pain from kidney stones five days before he was
arrested and confessed. Also, Ankush submitted a letter offer-
ing her own assessment that Mohit would not commit fraud
and had “genuine” intentions in marrying Miller.
Mohit’s allegations of coercion are too vague and incon-
sistent to undermine his confession of fraud. See Matter of Is-
ber, 20 I. & N. Dec. at 679 (explaining that spouse’s “general
claim of duress is insufficient to retract her detailed admis-
sions as to the fraudulent nature of her marriage”). His two
statements claiming coercion, made only weeks apart, were
not even consistent with each other. In the first Mohit said he
was “almost tortured,” but in the second he asserted only that
10 No. 15-2334
he was handcuffed despite his arm being in a cast. Mohit did
not say how agents threatened him or say what the agents
said during his interview. The agents could have “threatened”
to do something entirely lawful. See Rajah v. Mukasey, 544 F.3d
427, 445 (2d Cir. 2008) (explaining that “threat of criminal
sanctions for willfully failing to provide required regulatory
information does not make providing the information coer-
cive”).
Mohit submitted medical records showing he was in pain
around the time of the interview. He has never disclosed what
medication he was taking, nor did he submit an affidavit from
his doctor or other medical evidence suggesting that the med-
ication would have undermined the voluntariness of his con-
fession. And Mohit’s remaining assertions are not the kind of
“egregious” actions calling for suppression of evidence. See
Gutierrez-Berdin, 618 F.3d at 652–53 (explaining that “self-serv-
ing affidavit” alleging “very minor physical abuse coupled
with aggressive questioning” did not warrant suppression);
Oliva-Ramos v. Attorney Gen. of U.S., 694 F.3d 259, 279 (3d Cir.
2012) (listing factors relevant to egregiousness inquiry, includ-
ing whether agents resorted to unreasonable shows of force
or physical abuse).
Accordingly, the Seghals have not shown sufficient rea-
son to discount either Mohit’s own confession of marriage
fraud or Miller’s written corroboration. They have not shown
that the agency decision was made without substantial sup-
porting evidence.
The Sehgals also raise procedural objections to the agen-
cy’s decision. They argue that USCIS violated one of its own
regulations by not providing them with a copy of Miller’s
handwritten letter during the administrative proceedings.
No. 15-2334 11
The regulation, 8 C.F.R. § 103.2(b)(16)(ii), prohibits the agen-
cy from basing a determination of statutory eligibility on in-
formation that has not been disclosed to the applicant or pe-
titioner. We have stressed before that “the better procedure”
is for agencies to “produce the statement in question,” Ghaly,
48 F.3d at 1435, and we are puzzled by USCIS’s continued fail-
ure to do so. See id. at 1437 (Posner, J., concurring) (describing
refusal to provide statement as “inexplicable, offensive, and
absurd, as well as contrary to the INS’s regulations”).
This point is especially relevant where, as in this case, the
government has mischaracterized evidence with an error that
would have been caught much earlier if the Sehgals had been
allowed to see the evidence. But we also have recognized that
a summary can suffice, see id. at 1434–35, and here USCIS pro-
vided more than the summary that we found in Ghaly was ad-
equate. The notice USCIS sent to the couple repeated Miller’s
handwritten statement verbatim, though as noted it did not
show that her statement was not sworn.
Finally, the Sehgals contend that the Board erroneously ig-
nored “egregious conduct” by USCIS. The agency had told
the Sehgals that it forwarded their appeal to the Board when
in fact it had not done so (and did not do so for another year
after making that representation). This error and delay were
also unfortunate, yet the Sehgals do not identify any regula-
tion that USCIS violated, nor do they say how they were
harmed by the agency’s error. Delay alone, we have ex-
plained, “does not constitute ‘affirmative misconduct’ on the
part of the government.” Mudric v. Attorney Gen. of U.S., 469
F.3d 94, 99 (3d Cir. 2006); see INS v. Miranda, 459 U.S. 14, 19
(1982) (explaining that government’s failure to process appli-
cation promptly “falls far short” of affirmative misconduct);
12 No. 15-2334
see also Rajah, 544 F.3d at 445 (characterizing “[i]mpoliteness
and slow service” as “unfortunate, but not uncommon, char-
acteristics of many ordinary interactions with government
agencies”).
To conclude, the agency had substantial evidence, in the
form of Muhit Sehgal’s and Miller’s written confessions to
marriage fraud, as well as the inconsistencies found in the
original investigation of their marriage, to support the finding
that Muhit had engaged in marriage fraud. He is therefore in-
eligible for relief under the I-130 petition that Ankush filed on
his behalf. The judgment of the district court is
AFFIRMED.