                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 GHILAMICHAEL ZEREZGHI; HURUIA                      No. 18-35344
 MESKEL, husband and wife,
               Plaintiffs-Appellants,                 D.C. No.
                                                   2:17-cv-00879-
                      v.                                JLR

 UNITED STATES CITIZENSHIP AND
 IMMIGRATION SERVICES; MICAH                          OPINION
 LYNN BROWN, Acting Field Office
 Director; BOARD OF IMMIGRATION
 APPEALS; WILLIAM P. BARR, United
 States Attorney General; UNITED
 STATES OF AMERICA,
                Defendants-Appellees.

         Appeal from the United States District Court
            for the Western District of Washington
          James L. Robart, District Judge, Presiding

             Argued and Submitted July 11, 2019
                    Seattle, Washington

                       Filed April 14, 2020

        Before: Danny J. Boggs, * Marsha S. Berzon,

    *
      The Honorable Danny J. Boggs, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2                      ZEREZGHI V. USCIS

              and Paul J. Watford, Circuit Judges.

                    Opinion by Judge Boggs


                          SUMMARY **


                           Immigration

    In a case where the United States Citizenship and
Immigration Service (“USCIS”) denied an I-130 immediate
relative visa petition on the ground that the non-citizen’s
prior marriage had been fraudulent, the panel reversed the
district court’s grant of summary judgment in favor of the
government, and remanded, holding that the Board of
Immigration Appeals violated due process by relying on
undisclosed evidence and by applying too low a standard of
proof.

    Ghilamichael Zerezghi, a United States citizen, filed an
I-130 petition on behalf of his non-citizen wife, Huruia
Meskel. USCIS denied the I-130 petition under 8 U.S.C.
§ 1154(c), which provides that “no petition shall be
approved” if USCIS determines that the noncitizen spouse
previously entered into a marriage “for the purpose of
evading the immigration laws.” USCIS and the BIA relied,
in part, on an apartment-rental application Meskel’s former
husband had previously submitted to USCIS.              The
application required him to list his past addresses, and
neither of the two he listed were the marital residence that
Meskel listed on her immigration paperwork. However, the

    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                    ZEREZGHI V. USCIS                        3

agency never told Meskel and Zerezghi that it had used the
application in making its fraud determination in their case.

    The panel concluded that Zerezghi had a constitutionally
protected interest in the grant of his I-130 petition,
explaining that this court has previously held that a citizen
petitioner has such a constitutionally protected interest
because the approval of an I-130 petition is
nondiscretionary.

    Next, the panel held that the government’s use of
undisclosed records in making its marriage-fraud finding
violated procedural due process. The panel concluded that
the first factor set out by Mathews v. Eldridge, 424 U.S. 319
(1976)—the private interest affected by the government’s
action—favored the couple, explaining that: 1) a finding of
past marriage fraud often means that the noncitizen spouse
faces removal; 2) the right to marry and enjoy marriage are
unquestionably liberty interests; and 3) the right to live with
one’s immediate family ranks high among individual
interests. The panel also concluded that the third Mathews
factor—the government’s interest—favored the couple,
explaining that the question here was not the government’s
interest in immigration enforcement, but its interest in not
disclosing information on which it based its decision.

    Next, the panel concluded that the second Mathews
factor—the risk of an erroneous deprivation of the
constitutionally protected interest and the probable value, if
any, of additional or substitute procedural safeguards—also
favored the couple. The panel explained that the couple had
maintained that, if they had been given the rental application,
they would have been able to refute (or at least attempt to
refute) the allegation that Meskel’s first husband lived at the
addresses listed on the application instead of with her.
Further, the panel concluded that the rental application was
4                    ZEREZGHI V. USCIS

the strongest piece of evidence against Meskel, and it was
thus vital that Meskel and Zerezghi have been given an
opportunity to rebut it.

    Finally, the panel held that the BIA applied too low a
standard of proof when it affirmed USCIS’s marriage fraud
determination. Under 8 C.F.R. § 204.2(a)(1)(ii), the agency
can deny any immigration petition if there is “substantial and
probative evidence” that the noncitizen has attempted or
conspired to enter into a marriage to evade the immigration
laws. The government argued this standard is equivalent to
how courts deferentially review an agency’s factual findings
for “substantial evidence,” and insisted that USCIS could
deny any immigration application as long as there was
evidence of marriage fraud, even if it was more likely than
not that the marriage was bona fide.

     The panel disagreed, observing that the “substantial and
probative evidence” language seems similar to the
“substantial evidence” standard, but clarifying that the latter
is a standard of review, while the other is a standard of proof.
The panel also explained that the BIA had recently held that,
to be “‘substantial and probative,’ the evidence must
establish that it is more than probably true that the marriage
is fraudulent.” Accordingly, the panel held that, given the
seriousness of a marriage-fraud determination and the risk of
a finding being made in error, the Constitution requires that
the substantial-and-probative evidence standard be least as
high as a preponderance of the evidence.


                         COUNSEL

Robert Pauw (argued), Gibbs Houston Pauw, Seattle,
Washington, for Plaintiffs-Appellants.
                    ZEREZGHI V. USCIS                        5


James J. Walker (argued), Trial Attorneyl Aaron S.
Goldsmith, Senior Litigation Counsel; William C. Peachey,
Director; Joseph H. Hunt, Assistant Attorney General; Civil
Division, United States Department of Justice, Washington,
D.C.; for Defendants-Appellees.


                         OPINION

BOGGS, Circuit Judge:

    Ghilamichael Zerezghi and Huruia Meskel used to be
roommates. They lived in a shared house together but
interacted little. After Zerezghi moved out, they became
friends, and then started dating. Zerezghi proposed, but
Meskel turned him down. A year later, Zerezghi tried again,
and this time Meskel accepted. They married in 2013.

    Zerezghi is a United States citizen and Meskel is a citizen
of Eritrea. After the wedding, Zerezghi attempted to sponsor
Meskel for permanent residency but the United States
Citizenship and Immigration Services (USCIS) denied the
application. This is Meskel’s second marriage, and USCIS
found that her previous marriage had been a sham, entered
into “for the purpose of evading the immigration laws.”
8 U.S.C. § 1154(c). This finding would make her ineligible
for any immigration benefit from her current marriage. Ibid.
The Board of Immigration Appeals (BIA) affirmed the prior-
marriage-fraud finding and, reviewing the BIA’s decision
under the Administrative Procedure Act, so did the district
court.

   We reverse. We hold that the BIA violated due process
by relying on undisclosed evidence that Zerezghi and
Meskel did not have an opportunity to rebut. In making its
6                   ZEREZGHI V. USCIS

initial determination of marriage fraud, the BIA also violated
due process by applying too low a standard of proof. On
remand, it must establish marriage fraud by at least a
preponderance of the evidence before it can deny any
subsequent immigration petition based on such a finding.

                   I. Legal Background

    When an American citizen marries a noncitizen, the
citizen may petition for lawful permanent residency for the
spouse. See 8 U.S.C. §§ 1151, 1154. To say that the process
is complicated would be an understatement. The process
begins when the citizen spouse files a Form I-130 Petition
for Alien Relative (I-130), which acts as a request for
immigration authorities to formally recognize the validity of
the marriage. 8 C.F.R. § 204.1(a)(1). USCIS then conducts
“an investigation of the facts” and adjudicates the petition.
8 U.S.C. § 1154(b). Once the I-130 petition is approved, the
noncitizen spouse may apply for permanent residency,
which—if successful—she receives only “on a conditional
basis,” and which can be revoked if the marriage is later
found to be a fraud. See id. §§ 1255(a), 1186a(a)(1). The
conditional permanent residency automatically expires after
two years, and if the noncitizen wishes the status to become
truly permanent, she must file a Form I-751 Petition to
Remove Conditions on Residence (I-751).                     Id.
§1186a(c)(1)(A). In addition to filing the I-751 petition, the
couple must also appear together for an interview with
USCIS. Id. § 1186a(c)(1)(B).

    The noncitizen spouse’s permanent residency becomes
unconditional (truly permanent) at the end of two years if the
I-751 petition is approved. See id. § 1186a(c)(3)(B). At all
times during this process, the couple must maintain that they
“married out of a bona fide desire to establish a life
together,” and must not have entered the marriage “to evade
                    ZEREZGHI V. USCIS                       7

immigration laws.” Agyeman v. INS, 296 F.3d 871, 879 n.2
(9th Cir. 2002); see also 8 U.S.C. § 1361.

    Separately, regardless of the strength of the current
marriage, “no petition shall be approved” if USCIS
determines that the noncitizen spouse previously entered into
a marriage “for the purpose of evading the immigration
laws.” 8 U.S.C. § 1154(c). This is a severe penalty in
several ways. First, it applies “[e]ven if [the] current
marriage is unquestionably bona fide.” Matter of Kahy, 19 I.
& N. Dec. 803, 805 n.2 (BIA 1988). Second, it is mandatory,
not discretionary: If the noncitizen committed marriage
fraud at any time in the past, “no petition shall be approved”
at any time in the future. 8 U.S.C. § 1154(c). The penalty
applies regardless of whether the past sham marriage
resulted in a successful immigration petition. 8 C.F.R.
§ 204.2(a)(1)(ii). All that is required is that the noncitizen
previously “sought” immigration benefits through a
fraudulent marriage, or “attempted or conspired to” do so.
Ibid. “[I]t is not necessary that the [noncitizen] have been
convicted of, or even prosecuted for, the attempt or
conspiracy.” Matter of Tawfik, 20 I. & N. Dec. 166, 167
(BIA 1990).

     How does USCIS determine whether there was marriage
fraud? A USCIS regulation provides: “The director will
deny a petition for immigrant visa classification filed on
behalf of any alien for whom there is substantial and
probative evidence of” an attempt or conspiracy “to enter
into a marriage for the purpose of evading the immigration
laws.” 8 C.F.R. § 204.2(a)(1)(ii) (emphasis added). The
initial burden of proof is on the government. See Kahy, 19 I.
& N. Dec. at 806–07. In making its initial determination, the
government often uses documents in its possession,
interviews with the couple, and observations made during
8                   ZEREZGHI V. USCIS

site visits to the couple’s marital residence. See Matter of
Singh, 27 I. & N. Dec. 598, 600–01 (BIA 2019). If the
government finds that there is “substantial and probative
evidence” of marriage fraud, it issues a Notice of Intent to
Deny the immigration petition. The burden then shifts to the
petitioner to rebut that finding. Kahy, 19 I. & N. Dec.
at 806–07. If the petitioner cannot rebut the charge to the
BIA’s satisfaction, the petition is denied.

           II. Factual and Procedural History

    There is no dispute over whether Meskel and Zerezghi’s
current marriage is bona fide. Instead, the government
insists that there is substantial and probative evidence that
Meskel’s first marriage to an American citizen was a sham.
The government used this determination of prior marriage
fraud to deny Zerezghi’s I-130 petition that he filed on
Meskel’s behalf.

    Meskel was born and raised in Eritrea. In 2003, when
she was 21, her parents arranged for her to marry Tesfai
Ghidei.     Arranged marriages were common in their
community, and Meskel and Ghidei married in Cairo in
2006. Ghidei, an American citizen, returned to the United
States after the wedding, and Meskel followed a year later,
after she obtained conditional permanent residency through
the I-130 process. From here, accounts diverge.

    According to USCIS, Meskel and Ghidei’s marriage was
a sham all along. It offered three reasons for this conclusion,
which were accepted by the BIA in rejecting Meskel and
Ghidei’s I-751 petition. These three reasons also form the
basis for the BIA’s rejection of Meskel and Zerezghi’s
current I-130 petition.
                         ZEREZGHI V. USCIS                                9

    First, there was documentary evidence that indicated that
Meskel and Ghidei did not live together. Meskel submitted
records indicating that after she came to the United States,
she lived in Edmonds, Washington with her sister and
brother-in-law (the “marital residence”). However, Ghidei
did not submit records that could verify that he also lived
there. Instead, Ghidei submitted records that linked him
with different addresses, such as a tax return that listed a P.O.
box and a rental application that listed two other addresses
in Edmonds. 1 Although Meskel submitted a joint lease that
was signed by her and Ghidei, USCIS found it to be
unreliable because it included dates that had been altered
with white-out. Second, Meskel provided inconsistent
information regarding when she had last lived with Ghidei.
At a joint interview with USCIS in December 2009, Meskel
and Ghidei told interviewers that they had lived together for
the past two years and that they were still living together.
Then, in a follow-up April 2010 interview, Meskel—
appearing without Ghidei—stated that she and Ghidei had
been living separately since January 2010. 2 Yet once USCIS
sent a Notice of Intent to Deny the I-751 application, Meskel
responded with a statement acknowledging that she had
misled USCIS at her previous interviews; asserting that
Ghidei had actually left the marital residence before the
couple’s December 2009 interview and that she had not had

    1
      This rental application was never made available to Zerezghi or
Meskel during their I-130 process and it forms the basis for the couple’s
procedural-due-process claim.
    2
       During a January 2010 site visit to the couple’s marital residence,
USCIS officers found that their room contained no male belongings even
though Meskel’s brother-in-law (the couple’s landlord) stated that
Meskel and Ghidei were living together at the time. It is unclear whether
this site visit occurred before or after Ghidei purportedly left the marital
residence.
10                  ZEREZGHI V. USCIS

any contact with him after April 2010. Both of these
statements, though, were inconsistent with information
contained in the couple’s judgment for divorce, which
indicated that Meskel and Ghidei had first separated on May
1, 2010. Finally, the BIA determined that Meskel had also
given misleading information about whether she had any
relatives living in the United States. In her December 2009
and April 2010 interviews, Meskel told investigators that she
had no relatives in the United States and that her brother-in-
law was merely her landlord. But Meskel’s brother-in-law
had appeared with her at the April 2010 interview to act as
her translator, and her family later acknowledged that her
brother-in-law had helped arrange her marriage to Ghidei
and had even traveled to Egypt to witness it. Given the
weight of these inconsistencies, USCIS concluded that none
of the statements that Meskel and Ghidei made about their
marriage could be fully credited. It therefore concluded that
the two had not lived together as husband and wife in the
United States and that the marriage was fraudulent.

    The USCIS narrative contrasts starkly with Meskel’s
version of events. According to Meskel, a bona fide
marriage swiftly deteriorated. According to her, she and
Ghidei lived together and, in support, she submitted a joint
tax return for 2008 and a voided check from a joint bank
account. The couple also slept together, and Meskel wanted
to have children. However, they began having problems
only a few of months after moving in together in the United
States. Ghidei would leave for several days or even weeks
at a time and would not say where he had been when he
returned. He began emotionally abusing Meskel by
belittling her, often calling her stupid or criticizing her
appearance. He withheld approval or affection as a form of
punishment, and insulted Meskel’s friends and family,
driving them away. He also threatened her with deportation,
                    ZEREZGHI V. USCIS                       11

telling her that she was not an American citizen and had no
rights. Eventually, Ghidei became physically abusive.
Meskel stated that he would push and shove her and would
even throw objects at her when he was unhappy. He would
also refuse to help her when she needed medical attention.

    Despite her situation, Meskel insists that she stayed with
Ghidei after her arrival in the United States in 2007 and
eventually, in 2009, she petitioned to remove the conditional
status of her permanent residency. Ghidei helped her submit
her application which, according to Meskel, indicated to her
that he intended to stay in the marriage even though he had
been talking about divorce. USCIS interviewed Meskel and
Ghidei in December 2009 and visited the house listed as their
marital residence in January 2010 as well as other addresses
linked to Ghidei. However, as the BIA later noted in its
opinion, USCIS officers observed no male belongings at the
marital residence during their visit. Meskel explained that
this was because Ghidei had left for a three-week trip to
Eritrea earlier that month. When Ghidei returned from his
trip in February, he told Meskel that he was no longer
interested in her and the two then only saw each other a
couple of times thereafter. Ghidei refused to go with Meskel
to their follow-up interview with USCIS in April 2010,
which explains why she attended the interview without him.
Meskel also explained that many of her inconsistent
statements made to USCIS investigators were made under
pressure from Ghidei, who had told her to tell authorities that
she did not have any relatives in the United States. She said
that she deferred to Ghidei because he had handled all of her
immigration paperwork since she arrived in the country, and
because she had wanted the marriage to work out. However,
given the abuse, Meskel and Ghidei formally separated in
May 2010 and officially divorced on August 1, 2012 (though
12                      ZEREZGHI V. USCIS

the court backdated the decree nunc pro tunc to June 1,
2011).

    Ultimately however, USCIS did not believe Meskel’s
version of the events and it denied her petition for removal
of conditional permanent residency. Because Meskel’s two
years of conditional permanent residency had expired, she
no longer had any legal status, and the Department of
Homeland Security began removal proceedings against her.
The Department initially alleged that Meskel had committed
marriage fraud, but later withdrew that charge. An
immigration judge ordered Meskel removed to Eritrea, but
granted her request for withholding of removal.

    Meskel and Zerezghi began dating shortly after her
divorce with Ghidei was finalized, and they married on
May 24, 2013. Zerezghi then filed an I-130 petition so that
Meskel could make a new application for permanent
residency. USCIS concluded that Meskel’s first marriage
had been a sham, and it denied the petition. 3

    Meskel and Zerezghi appealed to the BIA, which
affirmed USCIS’s denial of the I-130 petition, holding that
there was substantial and probative evidence of “fraud in
[Meskel’s] first marriage.” Meskel and Zerezghi then went
to the district court, where they sought review of the BIA’s
decision under the Administrative Procedure Act. The
district court granted summary judgment to the government,
holding that the BIA applied the correct standard of proof,

     3
       USCIS also found that Meskel and Zerezghi failed to establish that
their current marriage is genuine. The BIA and the district court declined
to reach this issue, so it is beyond the scope of our review. Andia v.
Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004) (“In reviewing the
decision of the BIA, we consider only the grounds relied upon by that
agency.”).
                    ZEREZGHI V. USCIS                      13

that the proceedings before the agency complied with due
process, and that substantial evidence supported its
marriage-fraud finding. Meskel and Zerezghi timely
appealed the district court’s order.

                      III. Discussion

                  A. Standard of Review

    Our review of the BIA’s decision to impose a marriage-
fraud penalty is governed by the Administrative Procedure
Act. We must set aside the BIA’s decision if it is “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). We review de
novo whether the BIA violated procedural due process in
adjudicating an I-130 petition (thereby acting “not in
accordance with law”). See Ching v. Mayorkas, 725 F.3d
1149, 1155–59 (9th Cir. 2013).

               B. Due-Process Framework

     Zerezghi and Meskel contend that the government
violated procedural due process when it determined that
Meskel’s prior marriage was fraudulent. First, they argue
that USCIS’s use of an apartment-rental application from
Meskel’s first husband to support its determination without
first disclosing it to them was unconstitutional. Second, they
argue that the BIA applied too low a standard of proof in
making its determination of marriage fraud and that, on
remand, the agency must apply a higher standard of proof.

    The Due Process Clause of the Fifth Amendment
requires that “[n]o person shall be . . . deprived of life,
liberty, or property, without due process of law.” U.S.
Const. amend. V. In determining whether a person’s rights
under that clause have been violated, the “standard analysis
14                   ZEREZGHI V. USCIS

. . . proceeds in two steps: We first ask whether there exists
a liberty or property interest of which a person has been
deprived, and if so we ask whether the procedures followed
by the [government] were constitutionally sufficient.”
Swarthout v. Cooke, 562 U.S. 216, 219 (2011).

      The “threshold requirement” for Meskel and Zerezghi’s
claim to succeed is that they have “a liberty or property
interest protected by the Constitution.” Wedges/Ledges of
California, Inc. v. City of Phoenix, Ariz., 24 F.3d 56, 62 (9th
Cir. 1994). We have held that a citizen petitioner has a
constitutionally protected interest in the grant of an I-130
petition. Ching, 725 F.3d at 1156. This is because approval
of an I-130 petition is nondiscretionary. By statute, the
Secretary of Homeland Security “shall, if he determines that
the facts stated in the petition are true and that the alien in
behalf of whom the petition is made is an immediate relative
. . . approve the petition[.]” Id. at 1155 (quoting 8 U.S.C.
§ 1154(b) (emphasis added)).            “[D]eterminations that
‘require application of law to factual determinations’ are
nondiscretionary,” meaning that USCIS must approve an I-
130 petition if the facts stated in the application are true and
the beneficiary is an immediate relative. Ibid. (quoting
Hernandez v. Ashcroft, 345 F.3d 824, 833–34 (9th Cir.
2003)). This administrative framework thus creates a
“legitimate claim of entitlement” that is “grounded in the
statute defining eligibility,” rather than on a mere “unilateral
expectation” for the petition’s approval. Bd. of Regents of
State Colleges v. Roth, 408 U.S. 564, 577 (1972). As we
explained in Ching, “as long as the petitioner and spouse
beneficiary meet the statutory and regulatory requirements
for eligibility” an “[i]mmediate relative status for an alien
spouse is a right to which citizen applicants are entitled[.]”
Ching, 725 F.3d at 1156 (emphasis added).
                     ZEREZGHI V. USCIS                       15

    The government contends that the grant of an
immigration petition is a privilege, and that because it has
determined that Meskel committed marriage fraud on a prior
occasion, Zerezghi is statutorily ineligible from succeeding
on the I-130 petition on her behalf. However, we squarely
rejected this argument in Ching, noting that it “confuses the
question of whether there is a protected interest in a benefit
with the question of eligibility for that benefit.” Ibid.
Because Ching established that the grant of an I-130 petition
is a nondiscretionary, statutory, entitlement, Zerezghi is
“entitled to the protections of due process” in insuring that
the government determination of ineligibility was properly
made. Ibid.

    Individuals are necessarily entitled to a proper procedure
to contest a government determination of ineligibility
because “[v]irtually no government benefit is available to
individuals without a requirement that certain conditions are
met.” Ibid. For example, in Goldberg v. Kelly, the Supreme
Court held that welfare recipients held an interest in the
continued receipt of their benefits even if the government
determined that they had become statutorily ineligible for
them. 397 U.S. 254, 262–63 (1970). Because the “benefits
[were] a matter of statutory entitlement for persons qualified
to receive them,” the recipients were entitled to the
protections of due process (in the form of a pre-deprivation
hearing) to contest the government’s determination of
ineligibility. Id. at 262; see also Roth, 408 U.S. at 577
(holding that the Goldberg plaintiffs “had not yet shown that
they were, in fact, within the statutory terms of eligibility”
but that the Court nonetheless “held that they had a right to
a hearing at which they might attempt to do so”). In sum,
because Zerezghi has a constitutionally protected interest in
the grant of his I-130 petition, the main issue for us to decide
16                   ZEREZGHI V. USCIS

is whether the procedures followed by the government in not
granting the petition were constitutionally sufficient.

              C. Use of Undisclosed Evidence

                        1. Background

     When Meskel first applied for an I-751 petition (during
her marriage with Ghidei) to remove the conditional status
of her permanent residency, USCIS denied her petition
based, in part, on an apartment-rental application that Ghidei
had submitted in 2008. The application had required Ghidei
to list his past addresses, and neither of the two that he listed
were the marital residence that Meskel had put as her address
on her immigration paperwork. Yet USCIS never made the
rental application available to Meskel. When Zerezghi later
applied for the couple’s I-130 petition, USCIS apparently
again relied on the application as a basis for concluding that
Meskel’s first marriage was a sham. However, the agency
never told Meskel and Zerezghi that it used the application
in concluding that there was “substantial and probative
evidence” of marriage fraud. USCIS’s Notice of Intent to
Deny stated, in relevant part:

        [A]lthough [Meskel] claims that her [first]
        marriage was in good faith and that she and
        Mr. Ghidei did live together at her sister’s
        house prior to their separation, USCIS
        records do not support such a finding, as Mr.
        Ghidei is not connected to the claimed
        address . . . . Rather, records indicate that Mr.
        Ghidei was living with his sister at another
        location during the relevant time period.

USCIS said nothing about the source or contents of these
“records” and it refused Zerezghi and Meskel’s request for
                       ZEREZGHI V. USCIS                            17

copies or more time to respond. 4 It simply denied the I-130
petition. Indeed, Meskel and Zerezghi only learned that
these “records” referred to Ghidei’s rental application from
the BIA’s opinion affirming USCIS’s denial of the I-130
petition, well after any opportunity for them to respond had
passed. See Matter of Soriano, 19 I. & N. Dec. 764, 766 (BIA
1988). Even then, the government did not actually produce
a copy of the application until it filed the administrative
record in the district court in this current proceeding.

             2. Procedural-Due-Process Analysis

    Meskel and Zerezghi contend that the government’s use
of undisclosed records like the rental application in making
a determination of marriage fraud was unconstitutional. We
agree.

    Since Zerezghi has a constitutionally protected interest
in the grant of the I-130 petition, “we must then determine
whether additional process was due.” Ching, 725 F.3d
at 1157. Three factors guide the analysis:

        First, the private interest that will be affected
        by the official action; second, the risk of an
        erroneous deprivation of such interest
        through the procedures used, and the
        probable value, if any, of additional or
        substitute procedural safeguards; and finally,
        the Government’s interest, including the
        function involved and the fiscal and

    4
      The formal denial letter included a bit more information about the
“records” in the form of a vague reference to the “testimony of the
manager of Mr. Ghidei’s previously associated address.” But it still did
not mention the rental application, name the manager, describe his
“testimony” in any way, or specify the “previously associated address.”
18                   ZEREZGHI V. USCIS

       administrative burdens that the additional or
       substitute procedural requirement would
       entail.

Mathews v. Eldridge, 424 U.S. 319, 335 (1976). All three of
these factors favor Meskel and Zerezghi.

    Ching held that the first Mathews factor—the private
interest affected by the government’s action—favors the
couple that filed an I-130 petition, for three reasons. First, a
finding of past marriage fraud often means that the
noncitizen spouse “faces imminent removal from the United
States, thus undoubtedly causing immense hardship to
herself and her husband.” Ching, 725 F.3d at 1157. Second,
“[t]he right to marry and to enjoy marriage are
unquestionably liberty interests protected by the Due
Process Clause.” Ibid. (citing Meyer v. Nebraska, 262 U.S.
390, 399 (1923)). Third, “[t]he right to live with and not be
separated from one’s immediate family is ‘a right that ranks
high among the interests of the individual’ and that cannot
be taken away without procedural due process.” Ching,
725 F.3d at 1157 (quoting Landon v. Plasencia, 459 U.S. 21,
34–35 (1982)). All three rationales apply with equal force
in this case, and so the first Mathews factor favors Meskel
and Zerezghi.

    The third Mathews factor—“the Government’s interest,
including the function involved and the fiscal and
administrative burdens that the additional or substitute
procedural requirement would entail”—similarly favors the
couple. Mathews, 424 U.S. at 335. The government interest
in immigration enforcement in general is surely substantial.
But the question here is not the government’s interest in
immigration enforcement but its interest in not disclosing the
information on which it based its decision. As to that
                    ZEREZGHI V. USCIS                       19

interest, the government does not assert that the rental
application is confidential or that its disclosure would be
even minimally expensive. Indeed, the government’s
briefing does not contest that its interest in withholding the
document would be quite low. Thus this factor, too, favors
the couple.

    The most contested Mathews factor in this case is the
second one—“the risk of an erroneous deprivation of [the
constitutionally protected] interest” and “the probable value,
if any, of additional or substitute procedural safeguards.”
Ibid.     Meskel and Zerezghi argue that USCIS’s
nondisclosure of the rental application during its
decisionmaking process violated due process, and that the
agency should have shared with them all documents upon
which it based its determinations of marriage fraud prior to
issuing its decision. The couple maintains that if they had
known about the rental application, they would have
researched the listed addresses, interviewed building
managers, and used other methods to establish that Ghidei
had not actually been living outside of the marital residence,
but had only occasionally appeared at or patronized the other
addresses.

    We agreed with a very similar argument in ASSE Int’l,
Inc. v. Kerry, 803 F.3d 1059 (9th Cir. 2015). The case
involved a State Department program that allowed foreign
citizens to visit the United States on cultural and educational
exchanges. ASSE was an organization that found qualifying
visitors, sponsored them for visas, and placed them with
third-party host organizations. Id. at 1064–65. Under the
program’s rules, the State Department could sanction ASSE
for any misconduct committed by the third-party host. Id.
at 1065. One of the program’s participants complained to
the State Department about the conditions at her host
20                   ZEREZGHI V. USCIS

organization and, after an investigation, the Department
“provided ASSE with a written Notice of Intent to impose
sanctions.” Id. at 1067. The notice named the host
organization and the complaining program participant, and
summarized that the participant reported “having endured
almost 30 separate instances of harassment, threats regarding
her immigration status, and threats to her family if she did
not remain silent about the working conditions imposed by”
the host. Id. at 1077. However, the Department never
produced a transcript nor any notes from its interview with
the participant. Ibid.

     We held that the Department violated procedural due
process by not providing ASSE with “complete interview
notes” associated with the participant’s complaint, because
withholding such documents precluded ASSE from having
“an opportunity to rebut the details of the harassment.” Ibid.
We reasoned that “had the Department given ASSE more
details about [the] accusations” then ASSE “may have been
able to produce evidence refuting them” and the evidence
could “have affected the Department’s decision as to the
severity of sanctions, or whether to even impose sanctions at
all.” Ibid.

    Meskel and Zerezghi’s claim is similar to ASSE’s. The
couple contends that if they had been given the rental
application, they would have been able to refute (or at least
attempt to refute) the allegation that Meskel’s first husband
lived at the addresses listed on the application instead of with
her. Importantly, the summary that the State Department
issued in ASSE was much more specific than the one that
USCIS issued to Meskel and Zerezghi, yet it was still
constitutionally deficient. The State Department’s summary
provided details about the identity of the complainant, the
parties involved, and the general contents of the allegations.
                    ZEREZGHI V. USCIS                     21

Here, by contrast, USCIS’s Notice of Intent to Deny
provided no crucial details and did not even list specific
documents that USCIS had in its possession other than a
vague reference to certain “records.” If the ASSE notice
violated due process, then the much vaguer notice in this
case did as well, especially in light of the harsh marriage-
fraud penalty.

    Kaur v. Holder, 561 F.3d 957 (9th Cir. 2009), reinforces
this conclusion. In Kaur, the BIA denied the plaintiff asylum
by relying on classified information submitted by the
Department of Homeland Security. Id. at 960. The
Department gave Kaur a short summary of the classified
evidence which stated, in part, that “reliable confidential
sources have reported that Kaur has conspired to engage in
alien smuggling; has attempted to obtain fraudulent
documents; and has engaged in immigration fraud by
conspiring to supply false documents for others.” Ibid.
(internal quotation marks omitted). We held that the BIA’s
“use of the secret evidence without giving Kaur a proper
summary of that evidence was fundamentally unfair and
violated her due process rights,” noting that “Kaur cannot
rebut what has not been alleged.” Id. at 961, 962. Again,
the same situation exists in our case: Zerezghi and Meskel,
back in 2011, received a “conclusory and opaque” statement
rather than “a proper summary” of the rental application. Id.
at 961–62.

    The government has three responses. First, USCIS had
apparently informed Meskel back in 2011 about the rental
application when it denied her application to remove the
conditional status of her permanent residency during her
marriage to Ghidei. USCIS’s denial of that application,
dated December 10, 2011—approximately four years before
Zerezghi filed the I-130 petition in this case—stated that
22                  ZEREZGHI V. USCIS

“officers visited the management office of the Alderwood
Heights apartment complex” and that “[t]he manager of the
apartment complex provided USCIS” with a copy of
Ghidei’s rental application. The denial then listed the
previous addresses provided on the 2008 rental application.
Thus, according to the government, Meskel and Zerezghi
essentially had notice about the 2008 rental application and
simply chose to not act on it.

    However, the government’s contention misconstrues
Meskel and Zerezghi’s argument. Even if the couple—
actually only Meskel, as Zerezghi was not a party to the
earlier proceeding—had access to a short description of the
rental application buried within the files of a different
proceeding that had ended years earlier, they still never had
access to the actual document. The couple also had no way
of knowing that the application summarized by USCIS in the
previous proceeding was also what the agency had relied on
in the current proceeding, because USCIS noted only that it
had “records indicat[ing] that Mr. Ghidei was living . . . at
another location during the relevant time period.” It never
specified what those “records” were, and did not specifically
connect that statement to a specific rental application which,
though mentioned in a previous proceeding, the couple had
never been given. Put simply, USCIS’s statement did not
allow the couple to know what to investigate or what to rebut
against. “Procedural due process requires that a party
against whom an agency has proceeded be allowed to rebut
evidence offered by the agency if that evidence is relevant.”
Carnation Co. v. Sec’y of Labor, 641 F.2d 801, 803 (9th Cir.
1981).

    Next, the government contends the Notice of Intent to
Deny put the couple on notice of the agency’s conclusion
that Ghidei had not been living at the marital home during
                    ZEREZGHI V. USCIS                       23

Meskel’s first marriage. But this argument contradicts Kaur
and ASSE, for in both cases the government had issued
documents that simply summarized findings without
disclosing the underlying documents themselves. In Kaur,
the summary issued by USCIS put the asylum applicant on
notice of the alleged smuggling and fraud, and the State
Department document in ASSE put the company on notice of
the accusations of misconduct against its host organization,
but in neither case did the government agency divulge
specific, rebuttable details about the situation or produce the
underlying documents. We held that the notices provided in
both cases were constitutionally insufficient. An agency
cannot satisfy due process merely by giving notice of the
conclusion it intends to reach. In our case, the Notice of
Intent to Deny was, “at best, conclusory and opaque.” Kaur,
561 F.3d at 961. Since Meskel and Zerezghi did not have
access to the rental application until after the administrative
record had been filed in the district court, they “did not have
a meaningful opportunity to rebut” the BIA’s allegations,
and thus the agency “did not afford [them] adequate
procedural protections.” ASSE, 803 F.3d at 1079.

     Finally, the government argues that the rental application
was not the only evidence of Meskel and Ghidei living at
different addresses while they were married. But the
evidence on this issue was mixed. Unlike other marriage-
fraud cases, there was no direct evidence indicating that
Meskel and Ghidei’s marriage was a sham. See Singh, 27 I.
& N. Dec. at 610; Kahy, 19 I. & N. Dec. at 805; cf. Simko v.
B.I.A., 156 F. Supp. 3d 300, 312 (D. Conn. 2015) (noting that
where there was “no direct evidence that Simko’s marriage
. . . was fraudulent,” it was arbitrary and capricious to
conclude that there was “substantial and probative evidence”
of marriage fraud). Instead, numerous declarants swore that
although Ghidei would often leave for long periods of time,
24                  ZEREZGHI V. USCIS

he and Meskel lived together as husband and wife. Meskel
also submitted joint rent receipts and a joint lease agreement.
Granted, Meskel made inconsistent statements during the
immigration process, but she explained that they were made
at the instruction of Ghidei and in deference of his desire to
supervise the process. With the rest of the record equivocal,
the rental application was the strongest piece of evidence
that Meskel and her first husband lived separately. It was
thus vital that Meskel and Zerezghi have been given an
opportunity to rebut it.

    All three Mathews factors favor Zerezghi and Meskel.
We hold that the BIA violated due process by not disclosing
the rental application to the couple before denying the I-130
petition on the basis that Meskel had committed prior
marriage fraud. Given the harsh effects of a marriage-fraud
determination, Zerezghi and Meskel are entitled to at least
the complete administrative record on which USCIS and the
BIA relied in reaching its determinations, including any and
all documents that the couple were not given prior to the
agency making its decisions. Indeed, it is an “immutable”
principle of due process “that where governmental action
seriously injures an individual, and the reasonableness of the
action depends on fact findings, the evidence used to prove
the Government’s case must be disclosed to the individual
so that he has an opportunity to show that it is untrue.”
Greene v. McElroy, 360 U.S. 474, 496 (1959); see also Am.-
Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045,
1070 (9th Cir. 1995) (holding that the “use of undisclosed
information in adjudications should be presumptively
unconstitutional”). Because Meskel and Zerezghi received
only a vague reference to unspecified “records,” they had no
meaningful opportunity to respond to the apartment-rental
application before USCIS made its determination. This
violated procedural due process.
                        ZEREZGHI V. USCIS                              25

 D. Standard of Proof Required to Establish Marriage
                       Fraud

   Meskel and Zerezghi also contend that the BIA applied
too low a standard of proof when it affirmed USCIS’s
marriage-fraud determination and that, on remand, the
agency must apply a more stringent standard. We agree.

     Under a USCIS regulation, the agency can deny any
immigration petition if there is “substantial and probative
evidence” that the noncitizen “has attempted or conspired to
enter into a marriage for the purpose of evading the
immigration laws.”          8 C.F.R. § 204.2(a)(1)(ii).      The
government acknowledges that it bears the initial burden of
proof. If it produces substantial and probative evidence of
marriage fraud, the burden shifts to the petitioner to rebut the
allegation. Kahy, 19 I. & N. Dec. at 806–07. In the
government’s view, “substantial and probative evidence”
requires much less than a preponderance of the evidence. In
its briefing and at oral argument, the government argued that
the standard is equivalent to how courts deferentially review
an agency’s factual findings for “substantial evidence,” only
that in this instance, it is applicable to initial determinations
of marriage fraud. 5 The government insists that this

    5
       To support its position, the government cited several district court
opinions that have seemingly used the “substantial and probative
evidence” and the “substantial evidence” standards interchangeably. See
Yu An v. Napolitano, 15 F. Supp. 3d 976, 981 (N.D. Cal. 2014); Zemeka
v. Holder, 989 F. Supp. 2d 122, 130–31 (D.D.C. 2013). However, these
cases involved situations in which the evidence of marriage fraud was so
overwhelming that a precise articulation of the standard of proof was
unnecessary. For example, in Yu An, the petitioner signed an affidavit
admitting that his marriage to the beneficiary was a sham, and that he
had never had a relationship with his purported wife. Yu An, 15 F. Supp.
3d at 979. In Zemeka, USCIS denied an I-130 petition after it determined
26                      ZEREZGHI V. USCIS

empowers USCIS to deny any immigration application as
long as there was evidence of marriage fraud, even if it was
more likely than not that the marriage was bona fide. This
is incorrect.

    Although the “substantial and probative evidence”
language in the USCIS regulation seems similar to how
courts review formal agency adjudications for “substantial
evidence,” the two are not the same. One is a standard of
review, while the other is a standard of proof. 6 Further
background on the two standards makes this clear.

    “The phrase ‘substantial evidence’ is a ‘term of art’ used
throughout administrative law to describe how courts are to
review agency factfinding.” Biestek v. Berryhill, 139 S. Ct.
1148, 1154 (2019) (citing T-Mobile South, LLC v. Roswell,
135 S. Ct. 808, 815 (2015)) (emphasis added). It is an

that the beneficiary had previously been married to an American woman
who had married a different noncitizen in the same month that she
married the beneficiary. Zemeka, 989 F. Supp. 2d at 131. That woman
filed immigration petitions for both noncitizens, but then failed to appear
for any subsequent hearings and also failed to respond to the agency’s
Notice of Intent to Deny. Ibid. The facts in these cases indicate that
even if the correct standard of proof was a preponderance of the
evidence, the government would have met it. Thus, the need for a clear
articulation of the substantial-and-probative-evidence standard was low.
However, the facts in our case present a much closer call.
    6
      As the Supreme Court has noted, the distinction between an initial
burden of proof and the standard of review is best illustrated in criminal
law, where a finding of guilt must be established beyond a reasonable
doubt, but an appellate court reviews only whether that judgment is
supported by sufficient evidence. See Woodby v. INS, 385 U.S. 276, 282
(1966). Here, the immigration judge or BIA must find that there was
marriage fraud by “substantial and probative evidence” but, on review,
the appellate court must examine whether there was “substantial
evidence” to support the finding.
                       ZEREZGHI V. USCIS                            27

extremely lenient standard that asks courts to consider only
whether the administrative record “contains ‘sufficien[t]
evidence’ to support the agency’s factual determinations.”
Ibid. (citing Consolidated Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)). It requires “more than a mere scintilla” of
evidence, but a court will sustain a determination as long as
there is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Ibid. (citation
omitted). “[W]hatever the meaning of ‘substantial’ in other
contexts, the threshold for such evidentiary sufficiency is not
high.” Ibid. In the immigration context, the substantial-
evidence standard means that a reviewing court “must affirm
the BIA’s order when there is such relevant evidence as
reasonable minds might accept as adequate to support it,
even if it is possible to reach a contrary result on the basis
of the evidence.” Oropeza-Wong v. Gonzales, 406 F.3d
1135, 1147 (9th Cir. 2005) (emphasis added).

     In contrast, the substantial-and-probative-evidence
standard is a standard of proof, not of review. Although the
phrase has never been included in any immigration statute,
it is stated in the agency regulation governing eligibility for
immigration petitions as the evidentiary standard for
establishing marriage fraud. 7 See 8 C.F.R. § 204.1(a)(1)(ii).
The phrase first appeared in a 1978 BIA opinion that held
that a denial of an immigration application based on a
finding of marriage fraud “must be based on evidence that is
substantial and probative.” Matter of Agdinaoay, 16 I. & N.
Dec. 545, 546 (BIA 1978). The opinion did not elaborate on
what level of proof—or what type of evidence (direct or
circumstantial)—would satisfy the standard, stating only

    7
     The phrase was first included in the regulation governing Section
204 of the Immigration and Nationality Act in 1992, two years after the
BIA decided Matter of Tawfik, 20 I. & N. Dec. 166 (BIA 1990).
28                  ZEREZGHI V. USCIS

that “a factual determination based on clear, convincing, and
unequivocal evidence” would suffice. Id. at 547; see also
Kahy, 19 I. & N. Dec. at 805 (concluding that “clear and
convincing” evidence is enough to sustain a finding of
marriage fraud).

    The standard was again invoked in Matter of Tawfik,
which held that a mere “reasonable inference [of marriage
fraud] does not rise to the level of substantial and probative
evidence[.]” 20 I. & N. Dec. at 168. In Tawfik, the only
evidence that indicated marriage fraud was that the
beneficiary had divorced his first citizen wife a little over a
year after they had married. Id. at 169. Despite the existence
of a divorce decree that averred that the couple were married
and had lived together, the factfinder apparently relied on
inferences from facts that were not in the record when
denying the petition. Id. at 170. On appeal, the BIA held
that this inference alone was insufficient for establishing
“substantial and probative” evidence of fraud and thus
vacated the finding. Id. at 167.

    After oral argument in our case, the BIA recently again
addressed the standard in Matter of Singh, which held that
“to be ‘substantial and probative,’ the evidence must
establish that it is more than probably true that the marriage
is fraudulent.” 27 I. & N. Dec. 598, 607 (BIA 2019).
Importantly, the BIA explained that “substantial and
probative evidence” is a “standard of proof” which “refers to
the quality and quantity of competent, credible, and
objective evidence.” Id. at 606. “Whether the evidence in
any given case is sufficiently substantial and probative to
support a finding of marriage fraud will depend upon the
factual circumstances of each case.” Id. at 607.

    In Singh—a situation in which the beneficiary was the
petitioner’s father, and who, at the time of filing for
                     ZEREZGHI V. USCIS                        29

immigration benefits, was married to the petitioner’s
maternal grandmother—the BIA determined that there was
“substantial and probative evidence” of marriage fraud
based on a variety of factors. For example, during an
interview with the beneficiary’s wife, at the marital
residence, the wife “admitted that she married the
beneficiary as a favor to her daughter,” the petitioner’s
mother, “to allow [the beneficiary] to remain in the United
States.” Id. at 600. The BIA held that “[a] sworn statement
by the parties admitting that the marriage is fraudulent . . . is
direct evidence of fraud that is ‘substantial and probative.’”
Id. at 607. But that was not the only evidence to support its
finding. Observations made by USCIS officers during the
visit also indicated that the beneficiary slept in the master
bedroom with his wife’s daughter, rather than with his wife.
Id. at 610. The BIA held that, together, these facts served to
constitute substantial and probative evidence of marriage
fraud.

     The exegeses offered by these BIA opinions makes it
clear that the substantial-and-probative-evidence standard is
a standard of proof, which is at least as high as a
preponderance of the evidence. We see no reason for
departing from this conclusion. Although a determination of
marriage fraud does not implicate as fundamental a right as,
for example a civil commitment, see Jones v. United States,
463 U.S. 354, 361 (1983); a loss of parental rights, see
Troxel v. Granville, 530 U.S. 57, 67 (2000); or an order of
removal, see Padilla v. Kentucky, 559 U.S. 356, 365 (2010),
it is nevertheless a harsh penalty, limiting the noncitizen’s
ability to obtain future immigration benefits and putting her
at risk of removal. On remand, the BIA can reexamine the
permissible interpretation of the words of its regulation. We
hold only that, given the seriousness of a marriage-fraud
determination and the risk of a finding being made in error,
30                ZEREZGHI V. USCIS

the Constitution requires at least a preponderance of the
evidence before imposing this sanction.

                    IV. Conclusion

   We REVERSE the order of the district court, and
REMAND to the BIA for further proceedings in accordance
with this opinion.
