Congress has clearly sought to exclude beneficiaries of applications who have never resided in the United States when considering family-based immigrant petitions in a manner it has not when considering waivers of removal. See 8 U.S.C. §§ 1154, 1155. Because 8 C.F.R. § 205.

Compare 8 U.S.C. § 1154(a)(1)(F) and 8 U.S.C. § 1154(a)(1)(H). In adjudicating an I- 526 petition, USCIS must determine whether the facts stated in the petition and supporting documents are true, see 8 U.S.C. § 1154(b), and it may reject statements it finds unsubstantiated or without a factual basis. See Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001).

This action ensued. ARGUMENT I. BOARD FAILED TO ACT IN ACCORDANCE WITH LAW BY RELYING UPON INFERENCES TO FIND SUBSTANTIAL AND PROBATIVE EVIDENCE OF MARITAL FRAUD Case 1:15-cv-05541-PKC Document 28 Filed 08/05/16 Page 16 of 29 11 A. SUBSTANTIAL AND PROBATIVE EVIDENCE OF MARITAL FRAUD CANNOT BE FOUND ON THE BASIS OF AN INFERENCE In order for a petition to be denied under 8 U.S.C. § 1154(c) the record must show that there is substantial and probative evidence that the beneficiary entered into the marriage for the purpose of evading the immigration laws. However, “a reasonable inference does not rise to the level of substantial and probative evidence requisite to the preclusion of approval of a visa petition in accordance with section 204(c) of the Act.”

2(b)(16)(i) and (ii). The remedy is to order the agency’s decision vacated and to remand these proceedings to the agency with instructions that it provide Petitioner with an opportunity to respond to its legal position that the approval of the Form I-130 is prohibited by virtue of 8 U.S.C. §1154(c). Case 8:15-cv-01439-MSS-TGW Document 34 Filed 08/15/16 Page 10 of 14 PageID 209   11   E. By failing to provide the information upon which the denial was based the agencies violated Plaintiff’s rights to substantive due process The Board, in Matter of Obaigbana, addresses the issue of due process in responding to a denial.

For example, VAWA authorized noncitizens who had been abused by U.S. citizen or LPR spouses or parents to self-petition for lawful immigration status, without having to rely on their abusive family members to petition on their behalf. See 8 U.S.C. §§ 1154(a)(1)(A)(iii)-(iv), (vii). Consistent with congressional will, USCIS granted deferred action to these noncitizens whenever their visa applications had been approved but the visa itself was not immediately available — usually because the approval came near the end of the year, when the statutory cap on VAWA visas had been reached.

In addition, Congress expanded the Executive’s VAWA deferred action program in 2000 by making eligible for “deferred action and work authorization” children who could no longer self-petition under VAWA because they were over the age of 21. See Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106- 386, § 1503(d)(2), 114 Stat. 1464, 1522 (codified at 8 U.S.C. § 1154(a)(1)(D)(i)(II), (IV)). Similarly, in 2008, as part of legislation authorizing DHS to grant “an administrative stay of a final order of removal” to any individual who could make a prima facie showing of eligibility for a T or U visa, Congress stated that “[t]he denial of a request for an administrative stay of removal . . . shall not preclude the alien from applying for . . . deferred action.”

CONCLUSION This Court thus lacks jurisdiction under the Mandamus Act to grant Plaintiffs’ requested relief. USCIS acted upon Plaintiffs’ application request on April 25, 2017, when it issued a Case 1:17-cv-00262-JEB Document 12-1 Filed 05/22/17 Page 5 of 6 6 decision approving Plaintiffs’ I-130 petition in accordance with 8 U.S.C. 1154 (a) and (b). Because Plaintiffs have now received the exact relief they sought, this Court lacks jurisdiction to provide them with relief under the Mandamus Act.

STANDARDS OF REVIEW I. Petitioners Have The Burden Of Proof. In adjudicating an I-526 petition, USCIS must determine whether the facts stated in the petition and supporting documents are true, see 8 U.S.C. § 1154(b), and it may reject statements that it finds unsubstantiated or without a factual basis. See Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001).

L. No. 106-386, § 1503(d)(2), 114 Stat. 1464, 1522 (codified at 8 U.S.C. § 1154(a)(1)(D)(i)(II), (IV)). Similarly, in 2008, as part of legislation authorizing DHS to grant “an administrative stay of a final order of removal” to any individual who could make a prima facie showing of eligibility for a T or U visa, Congress stated that “[t]he denial of a request for an administrative stay of removal . . . shall not preclude the alien from applying for .

VIII. GARCIA HAS NO DUTY TO LEAVE THE COUNTRY Sergio Garcia is a “family sponsored immigrant” under 8 U.S.C. 1153(a)()), having been converted to that status automatically when his father became a USS. citizen. 8 U.S.C. 1154(k)(1). In our opening brief, we stated that such 15 status did not confer any additional rights upon him.