                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


TERESITA CHING and BROOKE               No. 11-17041
JOSEPH ,
             Plaintiffs-Appellants,        D.C. No.
                                        4:10-cv-03520-
                 v.                          SBA

ALEJANDRO MAYORKAS, Director,             OPINION
U.S. Citizenship & Immigration
Services; ROBIN BARRETT , Field
Office Director, USCIS San
Francisco Office; JANET A.
NAPOLITANO , Secretary, U.S.
Department of Homeland Security;
ERIC H. HOLDER, JR., Attorney
General,
               Defendants-Appellees.


     Appeal from the United States District Court
        for the Northern District of California
    Saundra B. Armstrong, District Judge, Presiding

                 Argued and Submitted
       April 17, 2013—San Francisco, California

                 Filed August 7, 2013
2                      CHING V . MAYORKAS

       Before: Mary M. Schroeder, Sidney R. Thomas,
          and Barry G. Silverman, Circuit Judges.

                    Opinion by Judge Thomas


                           SUMMARY*


                           Immigration

    The panel affirmed in part and reversed in part the district
court’s summary judgment in favor of the government in the
action brought by Teresita Ching and her husband Brooke
Joseph challenging the United States Citizenship and
Immigration Service’s denial of Joseph’s Form I-130
immediate relative visa petition.

    The panel concluded that plaintiffs had a protected
property interest in the adjudication of Joseph’s I-130
petition, and held that their Fifth Amendment procedural due
process rights were violated because they were not given the
opportunity to cross-examine Ching’s first husband regarding
his statement that his marriage to Ching was fraudulent. The
panel held, however, that statutory protections in removal
proceedings do not apply to I-130 visa petitions and that there
is no statutory right of cross-examination in I-130
adjudications, and thus found that plaintiffs’ rights under the
Administrative Procedure Act were not violated.




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

                         COUNSEL

Sarah B. Castello (argued) and Robert B. Jobe, Law Office of
Robert B. Jobe, San Francisco, California, for Plaintiffs-
Appellants.

Ila C. Deiss (argued), Assistant United States Attorney;
Melinda Haag, United States Attorney; and Joann Swanson,
Chief, Civil Division, United States Attorneys’ Office, San
Francisco, California, for Defendants-Appellees.


                         OPINION

THOMAS, Circuit Judge:

    Teresita Ching and her husband, Brooke Joseph, claim
that their procedural due process rights and their rights under
the Administrative Procedure Act (“APA”) were violated
during the adjudication of Joseph’s I-130 visa petition for an
immediate relative. Under the circumstances of this case, we
conclude that their rights under the APA were not violated,
but their procedural due process rights were. We affirm in
part and reverse in part.

                               I

    Teresita Ching, a native of China and citizen of the
Philippines, lawfully entered the United States on November
5, 2004 as a nonimmigrant visitor. Ching claims that she
came to the United States intending to stay for one month, but
then began dating Elden Fong, a U.S. citizen, whom she met
on a dating website. Ching and Fong married on January 7,
2005, and Fong filed an I-130 visa petition on her behalf.
4                  CHING V . MAYORKAS

Eventually, Ms. Ching withdrew the I-485 application for
permanent residence and informed USCIS that she no longer
wished to proceed as a beneficiary of Fong’s petition because
she planned to divorce Fong, and USCIS denied the petition
for abandonment. A year later, on December 27, 2007, Fong
and Ching divorced.

    On January 27, 2008, Ching married her current husband,
Brooke Joseph, also a U.S. citizen, and Joseph filed an I-130
petition on Ching’s behalf. After their interview at a USCIS
office, USCIS issued a Notice of Intent to Deny, which
provided in relevant part:

       USCIS officers conducted a site visit at Mr.
       Fong’s place of residence, and he was
       interviewed in regards to his marriage to
       [Ching]. During that interview, Mr. Fong
       confessed and provided a sworn statement
       admitting the following: “My name is Elden
       Fong and Teresita Ching were married in
       Oakland on January 7, 2005 in Oakland, CA.
       Teresita and I never had sex. Teresita and I
       never lived together. $32,000 was offered and
       $14,000 was paid in cash /installments.
       Teresita and I did not marry for love. I regret
       in full marrying Teresita.”

The six sentences quoted above compose the entirety of
Fong’s statement.    Ching was not informed of the
circumstances under which Fong was visited or his statement
was taken.

    Joseph and Ching responded to Fong’s very terse
statement in the notice of intent to deny with a three-page,
                    CHING V . MAYORKAS                       5

single-spaced, 21-paragraph sworn declaration from Ching
describing in excruciating detail her intimate relationship
with Fong. Refuting Fong’s assertion that the couple never
consummated the marriage, Ching stated that they had sex for
the first time on their wedding night. She then proceeded to
describe in vivid detail how the two would sleep in on
weekends, have sex, and share intimate conversations. She
described his underwear and recounted some of their pillow
talk. She also went on to explain why the marriage
deteriorated and eventually ended in divorce. In addition, to
corroborate her claim of a bona fide marriage, she furnished
photographs of the couple, joint utility bills, an apartment
lease, and a letter Fong had previously written to USCIS
stating that he and Ching “truly loved each other.”

    On November 5, 2009, USCIS denied Joseph’s I-130,
stating that “the beneficiary’s first marriage was not entered
into [in] good faith, but was a sham, entered into for the sole
purpose of evading immigration laws.” Though it reviewed
the evidence Joseph had submitted, USCIS found the
evidence submitted by Joseph to be “self serving.”

    Joseph appealed to the BIA, which “agree[d] that the
record supports a finding that the beneficiary’s prior marriage
was entered into for the purpose of evading the immigration
laws.” The BIA explained that “we have considered the
arguments and evidence presented by the petitioner both in
response to the notice of intent to deny and on appeal, and we
must agree that these do not overcome the detailed affidavit
of the beneficiary’s prior spouse, which was given against his
own interest.”

   On August 11, 2010, Joseph and Ching filed their
complaint in district court, claiming that USCIS acted
6                    CHING V . MAYORKAS

arbitrarily and capriciously in violation of the APA and the
Due Process Clause of the U.S. Constitution by denying
Joseph’s I-130 petition without affording them the
opportunity to cross-examine Fong regarding his statement.
Both parties filed motions for summary judgment, and the
district court granted the Government’s motion for summary
judgment and denied the Plaintiffs’ cross-motion.

    The district court held that there is no statutory right to an
adjudicatory hearing, that the opportunity to respond in
writing to Fong’s statement was sufficient for due process,
and that there was no protected liberty or property interest in
the adjudication of Joseph’s I-130 petition. Finally, the
district court held that “[e]ven if Plaintiffs had demonstrated
that they have a protected property or liberty in an I-130 visa
petition–which they have not–they have failed to show
prejudice.”

                                II

    The district court correctly held that there is no statutory
right of cross-examination in I-130 visa adjudications.
Joseph and Ching claim that U.S. Citizenship and
Immigration Services (“USCIS”) acted arbitrarily and
capriciously and violated Section 240(b) of the Immigration
and Nationality Act (“INA”), 8 U.S.C. § 1229a(b), in denying
Joseph’s I-130 petition without affording Joseph and Ching
an opportunity to cross-examine Fong regarding his sworn
statement. Joseph and Ching rely on INA § 240(b), which
provides that during removal proceedings, “the alien shall
have a reasonable opportunity to examine the evidence
against the alien, to present evidence on the alien’s own
behalf, and to cross-examine witnesses presented by the
Government . . . .” 8 U.S.C. § 1229a(b)(4)(B). They argue
                    CHING V . MAYORKAS                        7

that once a beneficiary of a visa petition is in removal
proceedings, the I-130 petitioner is statutorily entitled to the
same due process rights as an alien in removal proceedings,
and that it is arbitrary and capricious to deny those
protections.

    However, visa petitions are distinct from removal
proceedings. See Elbez v. I.N.S., 767 F.2d 1313, 1314 (9th
Cir. 1985) (“Any determination regarding INS conduct during
a visa petition proceeding is collateral to a deportation
order . . . .”). The statutory protections provided in removal
proceedings do not apply to adjudications of I-130 visa
petitions.

    To the extent that the Plaintiffs claim that USCIS violated
INA § 240(b), which applies only to removal proceedings, the
district court lacked jurisdiction to consider that claim
because a petition for review with the court of appeals is the
“sole and exclusive means for judicial review of an order of
removal . . . .” 8 U.S.C. § 1252(a)(5). Furthermore, because
Ching’s removal proceedings are currently pending, there is
no agency action for this Court to review.

    The district court properly granted summary judgment on
this claim.

                              III

    Plaintiffs also argue 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 Ching’s first husband, Elden Fong, or the USCIS
officer who took Fong’s statement. We agree.
8                    CHING V . MAYORKAS

                                A

    The Due Process Clause of the Fifth Amendment provides
that no person shall “be deprived of life, liberty, or property,
without due process of law.” U.S. Const. amend. V. “A
threshold requirement to a substantive or procedural due
process claim is the plaintiff’s showing of a liberty or
property interest protected by the Constitution.”
Wedges/Ledges of Cal., Inc. v. City of Phoenix, 24 F.3d 56,
62 (9th Cir. 1994). Plaintiffs contend that their interest in the
I-130 visa petition is such an interest because the approval of
the petition is nondiscretionary.

    “To have a property interest in a benefit, a person clearly
must have more than an abstract need or desire for it. He
must have more than a unilateral expectation of it. He must,
instead, have a legitimate claim of entitlement to it.” Bd. of
Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972).
Supreme Court “cases recognize that a benefit is not a
protected entitlement if government officials may grant or
deny it in their discretion.” Town of Castle Rock v. Gonzales,
545 U.S. 748, 756 (2005). Instead, “[a] reasonable
expectation of entitlement is determined largely by the
language of the statute and the extent to which the entitlement
is couched in mandatory terms.” Wedges/Ledges, 24 F.3d at
62 (internal quotation marks omitted).

    Where a petitioner of an immediate relative petition
proves that his marriage meets the requirements for the
approval of an I-130, he is entitled, as a matter of right, to the
approval of his petition. Section 204(b) of the INA provides
that “After an investigation of the facts in each case, . . . the
                       CHING V . MAYORKAS                              9

[Secretary of Homeland Security (“Secretary”)1] 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 . . . .” 8 U.S.C.
§ 1154(b) (emphases added). The decision of whether to
approve an I-130 visa petition is a nondiscretionary one
because “determinations that ‘require application of law to
factual determinations’ are nondiscretionary.” Hernandez v.
Ashcroft, 345 F.3d 824, 833-34 (9th Cir. 2003) (internal
alteration omitted); see also Garfias-Rodriguez v. Holder,
702 F.3d 504, 525–26 n.16 (9th Cir. 2012) (en banc)
(contrasting INA § 204(b)’s language with discretionary
authority elsewhere in the INA); Spencer Enters., Inc. v.
United States, 345 F.3d 683, 691 (9th Cir. 2003) (explaining
that INA § 204(b)’s instruction that the Attorney General
“shall . . . approve the petition” suggests that the provision is
nondiscretionary).

    Bustamante v. Mukasey, 531 F.3d 1059 (9th Cir. 2008),
buttresses this conclusion. There, a U.S. citizen wife
challenged a consular official’s denial of a visa petition for
her husband, and the Court determined that “the denial of a
visa implicates the constitutional rights of American citizens”
because Bustamante “has a protected liberty interest in her
marriage that gives rise to a right to constitutionally adequate
procedures in the adjudication of her husband’s visa
application.” 531 F.3d at 1061, 1062.




  1
    The INA initially granted this authority to the Attorney General, but
with the 2003 creation of the Department of Homeland Security (“DHS”),
this responsibility now belongs to the Secretary of DHS. See 6 U.S.C.
§ 271(b)(1) (delegating authority to the Secretary).
10                  CHING V . MAYORKAS

     The government contends that when an exception to
eligibility exists, the right to obtain the I-130 visa no longer
exists, and the process is no longer nondiscretionary. This
argument confuses the question of whether there is a
protected interest in a benefit with the question of eligibility
for that benefit. Virtually no government benefit is available
to individuals without a requirement that certain conditions
are met. The Supreme Court explained that “the welfare
recipients in Goldberg v. Kelly [397 U.S. 254 (1970)] had a
claim of entitlement to welfare payments that was grounded
in the statute defining eligibility for them. The recipients had
not yet shown that they were, in fact, within the statutory
terms of eligibility. But we held that they had a right to a
hearing at which they might attempt to do so.” Roth,
408 U.S. at 577.

    The government also contends that the permit denial
means that there was no eligibility in the first instance and,
therefore, no due process right attached to the procedure.
However, “‘[a] first principle of Anglo-American
jurisprudence, . . . basic to the conception of due process in
the procedural sense’ is ‘that the ends do not justify the
means.’” Pillsbury Co. v. F.T.C., 354 F.2d 952, 964 (5th Cir.
1966) (quoting Douglas, We The Judges, 354 (Doubleday
1956)). It is process that the procedural due process right
protects, not the outcome.

    In sum, grant of an I-130 petition for immediate relative
status is a nondiscretionary decision. Immediate relative
status for an alien spouse is a right to which citizen applicants
are entitled as long as the petitioner and spouse beneficiary
meet the statutory and regulatory requirements for eligibility.
This protected interest is entitled to the protections of due
                    CHING V . MAYORKAS                        11

process. The district court erred in holding that there was no
protected interest.

                               B

    The district court alternatively determined that, even if
there were a protected liberty or property interest, the claims
failed because the Plaintiffs failed to show prejudice. The
question of whether a plaintiff must demonstrate prejudice in
the context of an I-130 visa petition is not settled. The
government asserts that a prejudice showing is required,
citing Padilla v. Ashcroft, 334 F.3d 921, 924–25 (9th Cir.
2003). But Padilla and its progeny involve deportation or
removal proceedings, and the government has been unable to
cite a case in support of its position in the visa context. As
we discussed earlier in rejecting Ching’s APA claim, visa and
removal proceedings, and the rights that attach to each, are
different. However, we need not resolve that question,
because the Plaintiffs demonstrated sufficient prejudice.
Fong’s signed statement was accepted as true without
affording the Plaintiffs the opportunity for cross-examination,
and in the face of contradictory documents and affidavits. As
the Supreme Court has explained, “[i]n almost every setting
where important decisions turn on questions of fact, due
process requires an opportunity to confront and
cross-examine adverse witnesses.” Kelly, 397 U.S. at 269.
An opportunity to confront and cross examine “‘is even more
important where the evidence consists of the testimony of
individuals whose memory might be faulty or who, in fact,
might be perjurers or persons motivated by malice,
vindictiveness, intolerance, prejudice, or jealousy.’” Id. at 270
(quoting Greene v. McElroy, 360 U.S. 474, 496–97 (1959)).
12                  CHING V . MAYORKAS

    The prejudice “standard does not demand absolute
certainty; rather prejudice is shown if the violation potentially
affects the outcome of the proceedings. We may infer
prejudice even absent any allegations as to what the petitioner
or his witnesses might have said . . . .” Zolotukhin v.
Gonzales, 417 F.3d 1073, 1077 (9th Cir. 2005) (internal
quotation marks, citation, and alteration omitted). Therefore,
the Plaintiffs’ “showing is sufficient to establish prejudice.”
Amponsah v. Holder, 709 F.3d 1318, 1327 (9th Cir. 2013).

                               C

     Having concluded that plaintiffs had a protected property
interest and had established sufficient prejudice, we must then
determine whether additional process was due. In doing so,
we recognize that “‘due process,’ unlike some legal rules, is
not a technical conception with a fixed content unrelated to
time, ‘place and circumstances.’” Mathews v. Eldridge,
424 U.S. 319, 334 (1976) (quoting Cafeteria Workers v.
McElroy, 367 U.S. 886, 895 (1961)). As the Supreme Court
has instructed, “due process is flexible and calls for such
procedural protections as the particular situation demands.”
Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).
Because of its inherent differences from the judicial process,
administrative proceedings in particular must be carefully
assessed to determine what process is due given the specific
circumstances involved. And we must do so on a case by
case basis.

    The proper analysis to determine whether additional
process was due in this case is provided in Mathews. There,
the Supreme Court identified the factors to be considered in
determining whether additional due process is required:
                    CHING V . MAYORKAS                       13

       [I]dentification of the specific dictates of due
       process generally requires consideration of
       three distinct factors: 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
       administrative burdens that the additional or
       substitute procedural requirement would
       entail.

Mathews, 424 U.S. at 335.

                               1

    The first Mathews factor is an assessment of the private
interest that will be affected by the official action. Here,
Plaintiffs explain that “[w]ithout an I-130 approval, Ms.
Ching faces imminent removal from the United States, thus
undoubtedly causing immense hardship to herself and her
husband.” The right to marry and to enjoy marriage are
unquestionably liberty interests protected by the Due Process
Clause. See, e.g., Meyer v. Nebraska, 262 U.S. 390, 399
(1923) (holding that protected liberty interests include “the
right of the individual . . . to marry, establish a home and
bring up children”). The 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. Landon v.
Plasencia, 459 U.S. 21, 34-35 (1982). Therefore, the first
Mathews factor favors Joseph and Ching.
14                  CHING V . MAYORKAS

                               2

    The second Mathews factor we consider is the risk of an
erroneous deprivation of such interest through the procedures
used and the probative value of additional procedural
safeguards. In this case, the risk of an erroneous finding that
a prior marriage was fraudulent is high in cases where an ex-
spouse is relied upon for evidence that the previous marriage
was fraudulent. Here, for example, USCIS officers went to
Fong’s home and solicited from him his six-sentence
statement; the BIA concluded on the basis of this “detailed”
statement alone that the prior marriage was fraudulent. An
unexpected visit from government officers can be quite
intimidating, particularly if the officials point out that having
filed a fraudulent I-130 petition could result in a $250,000
fine and imprisonment for up to five years. See 8 U.S.C.
§ 1325(c). The BIA even noted that Fong made his statement
“against his own interest,” though that statement is
unsupported by the record.

    The Supreme Court has explained that “[i]n almost every
setting where important decisions turn on questions of fact,
due process requires an opportunity to confront and
cross-examine adverse witnesses.” Goldberg, 397 U.S. at
269. An opportunity to confront and cross examine “‘is even
more important where the evidence consists of the testimony
of individuals whose memory might be faulty or who, in fact,
might be perjurers or persons motivated by malice,
vindictiveness, intolerance, prejudice, or jealousy.’” Id. at
269-70 (quoting Greene v. McElroy, 360 U.S. 474, 496–97
(1959)). Many ex-spouses could be motivated by “malice,
vindictiveness, . . . or jealousy.” These nefarious motivations
are even more likely if the marriage (and subsequent divorce)
were bona fide.
                    CHING V . MAYORKAS                      15

    The risk of erroneous deprivation is particularly high in
a case such as this, where the visa petitioner has substantial
evidence that the first marriage was bona fide. Ching
presented extensive details of her marriage to Fong, including
descriptions of intimate conversations, and evidence of her
life with Fong, including bills and a lease. When there is
such compelling evidence to rebut the prior spouse’s claim of
marriage fraud, there is a high risk of erroneous deprivation
when the agency relies exclusively on written evidence.

    As to the probative value of additional procedural
safeguards, Fong could have elaborated on his fraudulent
marriage to Ching and explained under what conditions he
wrote the statement that he and Ching “did not marry for
love.” Plaintiffs also explain they would attempt to find out
about any incentives Fong was offered before he signed the
statement, and would want to know how long he was
interviewed, by whom he was interviewed, and what, if
anything, he benefitted from his statement. These questions
are far from speculative, and given that the BIA was willing
to reject Plaintiffs’ evidence on the sole basis of Fong’s six-
sentence “detailed affidavit,” the risk of erroneous
deprivation and the likely probative value of additional
process are both great. This factor strongly favors Plaintiffs.

                              3

    In assessing the final Mathews factor, we consider the
Government’s interest, including the function involved and
the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail. Clearly, the
government has a substantial interest in preventing marriage
fraud and in avoiding erroneously providing benefits. “Those
who engage in [marriage fraud] unfairly cut in front of those
16                  CHING V . MAYORKAS

aliens lawfully waiting in line to emigrate here. This kind of
marriage fraud undermines the sovereign power of the United
States to control who may be allowed resident status.” Azizi
v. Thornburgh, 908 F.2d 1130, 1141 (2d Cir. 1990)
(Cardamone, J., dissenting). On the other hand, there is a
significant public interest in allowing those who are
legitimately married to receive the benefits intended for them.

    The additional procedures would entail the minimal cost
to the government of holding an additional hearing in this
case, and “[f]inancial cost alone is not a controlling weight in
determining whether due process requires a particular
procedural safeguard prior to some administrative decision.”
Mathews, 424 U.S. at 348. Additionally, because the process
sought by Plaintiffs is guaranteed to aliens in removal
proceedings, there are no practical problems with such a
requirement. See INA § 240(b), 8 U.S.C. § 1229a(b)(4)
(“[T]he alien shall have a reasonable opportunity to examine
the evidence against the alien, to present evidence on the
alien’s own behalf, and to cross-examine witnesses presented
by the Government.”). Therefore, we conclude that “the
fiscal and administrative burdens that the additional or
substitute procedural requirement would entail” are relatively
slight. See Mathews, 424 U.S. at 335.

                               4

    Upon considering all three factors, the extreme weight of
the first two factors leads us to conclude that the process by
which Joseph’s I-130 petition was denied was inadequate.
There were two witnesses to the Fong-Ching marriage: Fong
and Ching. In this case, it is not possible to determine that
Fong’s statement is true and that Ching’s is false solely by
reading them. In addition, Ching presented substantial and–at
                   CHING V . MAYORKAS                     17

this stage–uncontested documentary evidence to corroborate
her claim that the marriage was bona fide. Therefore, under
the specific circumstances of this case, due process required
a hearing with an opportunity for Ching to confront the
witnesses against her.

    Therefore, we must reverse the district court with
instructions to remand the case to the agency for the purpose
of holding an evidentiary hearing.

                             IV

    In sum, the district court properly granted summary
judgment on the APA claims. It erred in granting summary
judgment on the procedural due process claim. We reverse
the district court’s grant of summary judgment as to the due
process claim, and direct it to remand the case to the agency
so that the agency may hold an evidentiary hearing.

   Costs on appeal shall be awarded to Plaintiffs-Appellants.

  AFFIRMED IN PART; REVERSED IN PART;
REMANDED WITH INSTRUCTIONS.
