Is there a constitutional ‘right to marry and to enjoy marriage’?

Many have heard of the Declaration of Independence’s proclamation that our Creator gave us the unalienable right to the “pursuit of happiness.” Some, however, prefer the “happiness of pursuit”. “When fishing for happiness, catch and release” is the key to being happy, according to Shimon Edelman. A lawyer I know who is enjoying the good life believes in “catch and release”. He is a 20-game winner.

Now comes the U.S. Court of Appeals telling us, in an immigration case involving a Filipina, that “the right to marry and to enjoy marriage are unquestionably liberty interests protected by the Due Process Clause” of the U.S. Constitution. Ching v. Mayorkas, No. 11-17041 (9th Cir. 08/07/2013). They were not talking about gay marriage but Biblical marriage. We will concede that the “right to marry” might be a liberty interest protected by the Constitution. But the right “to enjoy marriage” is protected by the Constitution? Come on. How? Nobody, let alone a parchment, can guarantee “enjoyment” of anything, especially marriage.

Ching, a native of China but a citizen of the Philippines, lawfully entered the United States as a nonimmigrant visitor. She intended to stay for one month, but then began dating Fong, a U.S. citizen, whom she met on a dating website. They were married in two months. Fong filed a visa petition, Form I-130, for Ching.  Ching filed an application for adjustment of status, Form I-485, to obtain permanent residence. Ching withdrew the adjustment application informing USCIS that she planned to divorce Fong. A year later, Fong and Ching divorced.

The following month Ching married Joseph, a U.S. citizen. Joseph filed a visa petition on Ching’s behalf. After their interview, USCIS issued a Notice of Intent to Deny, saying that USCIS officers had visited Fong who provided a sworn statement that he and Ching were married in CA but that they “never had sex” and had “never lived together.” “$32,000 was offered and $14,000 was paid in cash installments.” Fong said that he and Ching “did not marry for love” and “I regret in full marrying” Ching.

Joseph and Ching responded with a sworn declaration from Ching describing her intimate relationship with Fong. She explained how their marriage deteriorated. She furnished photographs of the couple, joint utility bills, an apartment lease, and Fong’s letter that he and Ching “truly loved each other.”

USCIS denied Joseph’s I-130 petition, stating that Ching’s first marriage was not entered into in good faith, but was a sham, entered into for the sole purpose of evading immigration laws. USCIS found the evidence submitted by Joseph to be “self-serving”. The Board of Immigration Appeals affirmed.

Joseph and Ching filed a complaint in U.S. District Court, claiming that USCIS acted arbitrarily and capriciously in violation of the Administrative Procedure Act and the Due Process Clause by denying Joseph’s I-130 petition without affording them the opportunity to cross-examine Fong regarding his statement. The District Court held that there is no statutory right to an adjudicatory hearing, that the opportunity to respond to Fong’s statement was sufficient for due process, that there was no protected liberty or property interest in the adjudication of Joseph’s I-130 petition, and that they failed to show prejudice.

The U.S. Court of Appeals upheld the District Court’s finding that there is no statutory right of cross-examination in I-130 visa adjudications. However, the Court agreed with Joseph’s and Ching’s claim 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 Fong or the USCIS officer who took Fong’s statement.

Where a petitioner of an immediate relative visa petition proves that his marriage meets the requirement for approval of an I-130, he is entitled, as of right, to the approval of his petition pursuant to INA Section 240(b). The denial of a visa implicates the constitutional rights of American citizens because they have “a protected liberty interest” in their marriage “that gives rise to a right to constitutionally adequate procedures in the adjudication” of the alien spouse’s visa application.  The spouses demonstrated sufficient prejudice. Fong’s statement was accepted as true without the opportunity for cross-examination.

(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 900 Fort Street, Suite 1110, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites:  www.MilitaryandCriminalLaw.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication. No attorney-client relationship is established between the writer and readers relying upon and/or acting pursuant to the contents of this article.)