Maria E. Smith v. Merrick B. Garland, Attorney General, et al.

When a U.S. citizen marries a foreign national, Congress requires the Attorney General to investigate the citizen’s petition under 8 U.S.C. § 1154(b) and approve it if it contains true facts. The U.S. Citizenship and Immigration Services, in the agency’s regulation, 8 C.F.R. § 103.2(b)(16), fleshes out the Attorney General’s non-discretionary authority. USCIS permits petitioners to inspect their records unless the record contains classified information. § 103.2(b)(16)(iv). But if USCIS believes it has found derogatory information that warrants denial of the petition, the citizen petitioner loses the right to inspect USCIS’s record. § 103.2(b)(16)(i). In that situation, USCIS’s adjudicating officer can issue a notice of intent to deny (NOID) the petition under § 103.2(b)(8) and deny the petition if the petitioner fails to mount a successful rebuttal to USCIS’s derogatory information. USCIS interprets the breadth of its authority, which courts have affirmed, to allow its adjudicating officers the discretion to choose the wording with which to summarize the derogatory information the citizen petitioner must rebut. When, as here, the agency does not file its administrative record, if the citizen petitioner sues, the reviewing court has no view of what USCIS believes is derogatory information and just accepts USCIS’s word that what it believes is derogatory information is enough to deny the citizen’s green card petition of his or foreign spouse. The question presented is: Did the agency violate Mrs. Smith’s due process rights by requiring that she rebut what it asserted