[00:00:01] Speaker 05:
Good morning, Your Honors.

[00:00:03] Speaker 05:
May it please the court?

[00:00:05] Speaker 05:
My name is Ding Chen, and I am the procular parent in this case.

[00:00:11] Speaker 05:
I would like to reserve two minutes for rebuttal.

[00:00:15] Speaker 05:
This case involves a de novo review of a decision made by the Army Board for Correction of Military Records, which I will refer to as the Correction Board, or the Board for Brevity, in 2020.

[00:00:30] Speaker 05:
The correction board affirmed Chen's 2012 discharge from the Army without modification.

[00:00:37] Speaker 05:
Challenging the correction board's decision is, in effect, challenging the underlying discharge.

[00:00:44] Speaker 05:
Both the correction board's decision and the discharge are legally flawed for two primary reasons.

[00:00:52] Speaker 05:
The first primary reason is as follows.

[00:00:55] Speaker 05:
During the discharge process,

[00:00:57] Speaker 05:
the Army skipped a critical procedural step required by its own regulations.

[00:01:05] Speaker 05:
The Army regulations 635-200 paragraph 7-17A2 requires that commanders verify the specific allegations underlying proposed discharges for fraudulent entry.

[00:01:23] Speaker 05:
This verification of allegations prior to discharge

[00:01:27] Speaker 05:
is a mandatory procedural requirement, not a discretionary act.

[00:01:33] Speaker 05:
The regulation even provides an example on how to conduct the verification through inquiry.

[00:01:40] Speaker 02:
Well, in what sense should they not verify the... One of the problems I'm having with this case is that the government is somewhat unclear as to exactly what was the basis

[00:01:54] Speaker 02:
for finding that there was a fraudulent entry into the army, but assuming at some points it seems to be that there was an actual fraudulent marriage and they seem to have made a finding at some junctures maybe that there was an actual fraudulent marriage.

[00:02:18] Speaker 02:
So why isn't that

[00:02:19] Speaker 02:
Why didn't, in what sense didn't they verify that?

[00:02:23] Speaker 02:
They got information from USCIS and what were they, what should they have done that they didn't do?

[00:02:28] Speaker 05:
Well, the army regulation requires the verification.

[00:02:32] Speaker 02:
I know.

[00:02:32] Speaker 02:
What should they have done to verify it that they didn't do?

[00:02:37] Speaker 05:
They determined, the army determined by itself, but the army has no jurisdiction over the marriage.

[00:02:48] Speaker 05:
because the marriage occurred before the enlistment.

[00:02:53] Speaker 05:
That's out of the army's jurisdiction.

[00:02:56] Speaker 05:
Therefore, the army cannot determine it.

[00:03:01] Speaker 05:
The army has to verify it.

[00:03:04] Speaker 01:
So if someone committed a crime before they joined the army, but there hadn't yet been a proceeding, a criminal prosecution, but they committed the crime and then later there's

[00:03:16] Speaker 01:
the army looks into, did this person commit this crime, the army can't decide that someone shouldn't be in the army because of the crime they committed?

[00:03:26] Speaker 05:
You said somebody admitted?

[00:03:29] Speaker 05:
I never admitted.

[00:03:32] Speaker 05:
I denied.

[00:03:33] Speaker 02:
But that's what they say is the problem, that this happened and you didn't admit it.

[00:03:39] Speaker 02:
And the question is, first they have to prove that it happened, right?

[00:03:44] Speaker 02:
Correct.

[00:03:45] Speaker 02:
So what do they have to do to prove it happened?

[00:03:48] Speaker 02:
Can't they simply go investigate the facts and come to the conclusion that it happened?

[00:03:55] Speaker 05:
That's out of the army's jurisdiction.

[00:03:59] Speaker 05:
The army cannot make a determination because that's

[00:04:03] Speaker 05:
before the enlistment under the army regulations says clearly?

[00:04:07] Speaker 02:
The word verification doesn't mean that it has to be on a piece of paper.

[00:04:11] Speaker 02:
They can just go find the facts.

[00:04:15] Speaker 02:
They can say the facts.

[00:04:16] Speaker 02:
We've looked into the facts.

[00:04:17] Speaker 02:
And in fact, it was not a legitimate marriage.

[00:04:21] Speaker 02:
And therefore, he wasn't legitimately in the country.

[00:04:24] Speaker 02:
The question is, did they do that?

[00:04:25] Speaker 02:
That's a different question.

[00:04:27] Speaker 02:
But why couldn't they do that?

[00:04:31] Speaker 05:
If you look at some fact and then draw a conclusion, so that's the determination.

[00:04:38] Speaker 05:
And to do the determination, you need a jurisdiction.

[00:04:42] Speaker 03:
Well, hold on, but they said that they looked at the statements of your wife who said that you had mutually agreed that you would pay her money in exchange to help for securing the green card, among other things that they indicate.

[00:04:56] Speaker 03:
Why isn't that investigation that they did, why isn't that sufficient for them to conclude that you did not have a valid immigration status when you entered the Army?

[00:05:11] Speaker 05:
OK, first of all, they do not have a jurisdiction.

[00:05:15] Speaker 05:
And the details about the marriage and the validity about the marriage is outside the scope of this case.

[00:05:27] Speaker 01:
I just want to clarify why you're saying there's this jurisdiction problem.

[00:05:31] Speaker 01:
So imagine, I just said crime before, but let's make it more specific.

[00:05:35] Speaker 01:
So let's say there's a bank robbery.

[00:05:37] Speaker 01:
And there's video of the bank robbery.

[00:05:41] Speaker 01:
commits this bank robbery, and Joe Smith enters the Army.

[00:05:46] Speaker 01:
And after they're in the Army, the bank robbery video comes clear, and the Army looks at the video and says, this is definitely Joe Smith robbing the bank.

[00:05:55] Speaker 01:
You're saying the Army cannot kick out Joe Smith because they don't have jurisdiction?

[00:06:00] Speaker 05:
Correct.

[00:06:01] Speaker 01:
Why?

[00:06:01] Speaker 01:
Where does it say that?

[00:06:04] Speaker 05:
Because the Army's jurisdiction is the UCMJ.

[00:06:10] Speaker 05:
It has started from

[00:06:12] Speaker 05:
the enlistment.

[00:06:14] Speaker 05:
So before the enlistment, the army has no jurisdiction.

[00:06:19] Speaker 01:
But what statute says that?

[00:06:20] Speaker 01:
I mean, why does the army need to keep the bank robber in the army if they don't want to?

[00:06:27] Speaker 05:
Well, if they don't want to, they can find some valid reason for the discharge.

[00:06:32] Speaker 05:
But they specifically use this reason.

[00:06:36] Speaker 05:
But this reason, they don't have a jurisdiction to make the determination.

[00:06:40] Speaker 01:
And where does it say that?

[00:06:42] Speaker 05:
The UCMJ, the Unified Code of Military Justice, it assesses the jurisdiction part.

[00:06:50] Speaker 05:
It assesses the army's jurisdiction start from the enlistment.

[00:07:00] Speaker 05:
So before the enlistment, I was a civilian and the army has no jurisdiction over a civilian.

[00:07:08] Speaker 02:
And, well, if we disagree with that, what further argument do you have?

[00:07:13] Speaker 05:
Another argument is the... Okay.

[00:07:20] Speaker 05:
So... Okay.

[00:07:24] Speaker 05:
The second primary reason is as follows.

[00:07:26] Speaker 05:
During the discharge process, the Army skipped another critical procedural step required by its own regulations.

[00:07:34] Speaker 05:
Specifically, the Army failed to provide

[00:07:37] Speaker 05:
with a meaningful opportunity to respond to the allegation prior to discharge, thereby violating both the applicable regulation and the chance... Can I ask a question?

[00:07:48] Speaker 02:
Where in the record can we find what... Were you asked anything specifically when you applied to go into the army?

[00:08:01] Speaker 02:
I understand you...

[00:08:07] Speaker 02:
presented your employment card.

[00:08:10] Speaker 02:
Did you claim to have a visa?

[00:08:14] Speaker 02:
What in the record shows what you presented to the Army in terms of your immigration status?

[00:08:21] Speaker 05:
I presented my employment authorization card.

[00:08:25] Speaker 02:
Did they ask you anything else?

[00:08:27] Speaker 02:
No.

[00:08:27] Speaker 02:
Is there anything in the record that shows that they asked you whether we had a visa or asked you what your immigration status was?

[00:08:34] Speaker 04:
No.

[00:08:37] Speaker 02:
And at that point, what was your immigration status?

[00:08:40] Speaker 02:
You were an applicant for a visa based on your marriage.

[00:08:45] Speaker 02:
But did you have a temporary visa at that point?

[00:08:49] Speaker 05:
No.

[00:08:50] Speaker 05:
The working permission, that working authorization card is the only document related to the immigration.

[00:09:00] Speaker 05:
And I submitted that to the army.

[00:09:04] Speaker 02:
And anywhere in the application, was there a question about whether you were legally in the country?

[00:09:09] Speaker 02:
Was that somewhere in the application?

[00:09:15] Speaker 05:
The working authorization card, that's the only thing I provided to the army.

[00:09:20] Speaker 02:
And nobody asked for anything else?

[00:09:23] Speaker 05:
No.

[00:09:25] Speaker 05:
OK.

[00:09:26] Speaker 02:
And then the ultimate finding was that you said you had a visa, but you didn't.

[00:09:30] Speaker 02:
Did you say you had a visa?

[00:09:34] Speaker 05:
Well, I think that's because there's some misunderstanding.

[00:09:38] Speaker 05:
The commander doesn't know the difference between the visa and the... That may be correct, but that's what I'm asking you.

[00:09:47] Speaker 02:
Did you ever say, I have a visa?

[00:09:50] Speaker 05:
No, I never said I have a visa.

[00:09:53] Speaker 02:
And were you ever asked whether you had a visa?

[00:09:56] Speaker 05:
No, nobody asked me.

[00:09:58] Speaker 05:
The only thing I provided was my working authorization card.

[00:10:07] Speaker 02:
Were you asked whether you were legally in the country, whether you had legal immigration status?

[00:10:14] Speaker 05:
Well, I provided my working authorization card, and they approved that.

[00:10:25] Speaker 02:
Go ahead.

[00:10:26] Speaker ?:
OK.

[00:10:28] Speaker 05:
Okay, the Army failed to provide Chen with a meaningful opportunity to respond to the allegation prior to the discharge, thereby violating both applicable regulation and Chen's due process rights.

[00:10:42] Speaker 05:
Chen was discharged without oral argument.

[00:10:45] Speaker 05:
The only opportunity to respond to the allegation was to submit written rebuttal materials.

[00:10:52] Speaker 05:
The Army regulation 635-200 paragraph 2-2C2

[00:10:58] Speaker 05:
provides that soldiers have the right to submit a statement in his or her own behalf prior to discharge.

[00:11:06] Speaker 05:
This right to submit inherently implies that any submitted materials must be properly reviewed and considered.

[00:11:16] Speaker 05:
Otherwise, the right to submit would be rendered meaningless.

[00:11:21] Speaker 05:
However, in this case, chances submitted rebuttal materials were not properly reviewed or considered.

[00:11:27] Speaker 05:
by the commander with the separation authority.

[00:11:30] Speaker 01:
So can I ask about that?

[00:11:32] Speaker 01:
I know they didn't agree with you, but how do you know that they didn't look at what you submitted?

[00:11:41] Speaker 05:
That's because I submitted, but there's no record that I... There's no record.

[00:11:50] Speaker 05:
And then the separation authority, when he...

[00:11:58] Speaker 05:
When he made the determinations and the findings, he specifically addressed some other materials.

[00:12:07] Speaker 01:
But maybe he believed those materials more than your materials, and that's why he talked about the other materials.

[00:12:13] Speaker 05:
Maybe, but he didn't mention my material at all.

[00:12:19] Speaker 05:
And even if he didn't mention the material, he should still keep my submitted material in the record.

[00:12:28] Speaker 05:
But my material is not in the record.

[00:12:32] Speaker 05:
So that looks not normal.

[00:12:37] Speaker 01:
And I... And you found that out because you requested the file and your submission wasn't in the file?

[00:12:44] Speaker 05:
Correct.

[00:12:47] Speaker 01:
I mean... Was your submission electronic or on paper?

[00:12:51] Speaker 01:
No, paper, paper.

[00:12:54] Speaker 01:
And so you don't know where that paper is now?

[00:12:58] Speaker 05:
I have no idea.

[00:12:59] Speaker 05:
I don't know.

[00:13:07] Speaker 01:
You had wanted to save time for rebuttal.

[00:13:08] Speaker 01:
Should we let you save the remaining time?

[00:13:14] Speaker 05:
Yeah.

[00:13:14] Speaker 05:
OK.

[00:13:15] Speaker 01:
OK.

[00:13:15] Speaker 01:
Thank you.

[00:13:38] Speaker 00:
Good morning, Your Honours.

[00:13:39] Speaker 00:
Corey Webster on behalf of the Secretary of the Army, Dan Driscoll.

[00:13:44] Speaker 00:
I think I want to start by addressing Judge Friedland's hypothetical.

[00:13:52] Speaker 00:
In the scenario where there was someone that was bankrupt, the Army would have authority.

[00:13:55] Speaker 00:
And I think where the disconnect is, is there wouldn't be authority to issue

[00:14:01] Speaker 00:
to have criminal charges brought against that person, but there would absolutely be authority under the administrative separation procedures that this case is about to separate that individual.

[00:14:16] Speaker 01:
And is that written somewhere?

[00:14:18] Speaker 00:
Well, it's under the procedures that we're talking about here, 7-17 of Army Regulation 635-200.

[00:14:27] Speaker 00:
an example given of a bank robber.

[00:14:30] Speaker 00:
But if you run that through the tests that the separation authority is required to do under paragraph 7-17, I think that that would be the conclusion they would reach.

[00:14:40] Speaker 00:
Now, that's not for me to say that that would be the determination made.

[00:14:46] Speaker 00:
But if that determination is made, then it would be supported.

[00:14:50] Speaker 00:
It would be authorized by that regulation.

[00:14:54] Speaker 01:
And sorry, would that be because something

[00:14:58] Speaker 01:
would have been fraudulent when the person applied?

[00:15:01] Speaker 01:
What would be the basis under 717 to say to address this bank robber?

[00:15:07] Speaker 00:
Okay, so the question is whether, essentially, is this of the disqualifying character?

[00:15:13] Speaker 00:
That's the first test, paragraph A1, which refers to the separate regulation that tells us what is disqualifying and not.

[00:15:23] Speaker 01:
But it says what is previously concealed information, whether the previously concealed information, so are you saying the bank robber would have an obligation to reveal the bank robbery and applying for the Army?

[00:15:35] Speaker 02:
Yes.

[00:15:36] Speaker 02:
All right.

[00:15:39] Speaker 02:
Disqualifying information here here.

[00:15:44] Speaker 02:
It was the fraudulent marriage So he should have revealed that he had a fraudulent marriage.

[00:15:51] Speaker 00:
He should have revealed the circumstances of his marriage that Yes, it was it was the fraudulent marriage He should have revealed the circumstances of the fraudulent marriage that he had agreed to pay Miss Larimore to to marry him in exchange for money so he could get a green card

[00:16:08] Speaker 00:
as well as the fact that it was investigated, that there was a search warrant and arrest warrants executed at his residence.

[00:16:18] Speaker 02:
Is there any question that he should not ask him whether he was investigated?

[00:16:27] Speaker 00:
Asking whether he was investigated?

[00:16:29] Speaker 00:
Yeah.

[00:16:29] Speaker 00:
Well, not directly saying were you investigated, but in terms of what there's a duty to disclose.

[00:16:34] Speaker 00:
So this gets to Army Regulation 601-210.

[00:16:41] Speaker 00:
In that regulation... Which paragraphs?

[00:16:48] Speaker 00:
Hold on just a moment.

[00:16:51] Speaker 00:
Or actually, I think where we want to start here is the form.

[00:16:54] Speaker 00:
The form that is submitted by the Enlistee.

[00:16:59] Speaker 00:
So Mr. Chen fills out the form.

[00:17:03] Speaker 00:
And on that form, let me find where in the record this is.

[00:17:05] Speaker 00:
I can direct you to it.

[00:17:17] Speaker 01:
The SCR 397, that form?

[00:17:21] Speaker 03:
397 Is that form G845?

[00:17:31] Speaker 00:
Yes, yes, that's that's the form.

[00:17:33] Speaker 00:
It's not known.

[00:17:33] Speaker 00:
It's not SR 397 It's not G845.

[00:17:39] Speaker 00:
It's the apologies just one moment

[00:17:50] Speaker 02:
86, that one.

[00:17:56] Speaker 00:
That's the right, yeah, say the number again, sorry.

[00:17:58] Speaker 00:
86.

[00:17:59] Speaker 00:
Yes, that's the form.

[00:18:01] Speaker 00:
Okay.

[00:18:01] Speaker 00:
So on the second page.

[00:18:04] Speaker 00:
Wait, sorry.

[00:18:04] Speaker 00:
Wait.

[00:18:05] Speaker 00:
Where in the record is this?

[00:18:06] Speaker 00:
I don't know what you're talking about.

[00:18:08] Speaker 00:
Or maybe you do.

[00:18:09] Speaker 00:
I apologize.

[00:18:10] Speaker 00:
Let me grab it.

[00:18:14] Speaker 03:
What FCR number?

[00:18:24] Speaker 00:
Okay.

[00:18:25] Speaker 00:
Page 803 of the sublinal excerpts.

[00:18:34] Speaker 00:
Form 3286.

[00:18:34] Speaker 00:
Another one.

[00:18:38] Speaker 00:
Statement for enlistment.

[00:18:43] Speaker 00:
So

[00:18:44] Speaker 00:
There's two documents that look like this.

[00:18:48] Speaker 00:
They both are titled Statement for Enlistment.

[00:18:50] Speaker 00:
In both of them, now on the second page, supplemental excerpts 804.

[00:19:06] Speaker 00:
In this, on this page there's representations about understandings based on what might happen if there's any misrepresentation in terms of his eligibility to become a citizen.

[00:19:18] Speaker 00:
And then.

[00:19:21] Speaker 01:
So could you point us to their letters?

[00:19:24] Speaker 01:
Could you point us to where you think it required him to say that the marriage was fraudulent?

[00:19:31] Speaker 01:
Which one is relevant?

[00:19:32] Speaker 00:
Yes, so, in fact, the specific language, I'm sorry, is in the second statement for enlistment, which follows that one in the record, starting at page 812 on page 813, paragraph 3F.

[00:19:51] Speaker 00:
I have provided complete, detailed, and accurate background information.

[00:19:56] Speaker 00:
in regards to list a few different categories of things, including moral history.

[00:20:00] Speaker 02:
All right.

[00:20:00] Speaker 02:
But this is why I got confused, because your brief does rely on that.

[00:20:05] Speaker 02:
But that isn't the basis on which he was separated.

[00:20:10] Speaker 02:
It wasn't his failure to answer that general question or any particular question, actually.

[00:20:19] Speaker 02:
It was that he actually, it was something to the effect of that he said he had a visa, but he didn't.

[00:20:26] Speaker 00:
Well, this is not the only basis here.

[00:20:28] Speaker 00:
This is something that required the disclosure.

[00:20:32] Speaker 00:
But he had to have valid immigration status through the MAVNI program.

[00:20:36] Speaker 02:
So which one is it that was the basis for the separation, which is that he didn't have the valid immigration status, that he said he had a valid immigration status, but didn't?

[00:20:48] Speaker 02:
Or what?

[00:20:49] Speaker 02:
Or that he didn't answer the question,

[00:20:52] Speaker 02:
By saying he didn't have a valid immigration status, it's very murky in the record and in your briefs.

[00:20:57] Speaker 00:
He was required to have valid immigration status.

[00:21:00] Speaker 00:
He represented that he did through his employment authorization document.

[00:21:05] Speaker 02:
Well, that was a valid employment immigration document, right?

[00:21:10] Speaker 00:
It was not valid.

[00:21:11] Speaker 02:
It wasn't valid?

[00:21:12] Speaker 00:
It was issued by the government, but it was not valid in the same sense that suppose there was a requirement to give a government-issued ID to present that.

[00:21:24] Speaker 00:
And if I present that with my enlistment, but I had procured that through fraud, it wouldn't be valid.

[00:21:32] Speaker 00:
It was issued by the government.

[00:21:34] Speaker 00:
It wasn't forged, but it would not be valid.

[00:21:37] Speaker 02:
But Mr. Chin was right in that the

[00:21:40] Speaker 02:
officer who wrote the report seemed confused about whether he had said he said he had a visa but he didn't have a visa but that's not true he never said he had a visa

[00:21:52] Speaker 00:
Yeah, that's not the basis for... But that's what it said.

[00:21:55] Speaker 02:
It said he claimed to have a visa, but he didn't have a visa.

[00:21:59] Speaker 02:
Or didn't have a valid visa.

[00:22:01] Speaker 00:
Yeah, what is being represented there is his immigration status was represented to be valid.

[00:22:06] Speaker 00:
Now, there was the application for the green card.

[00:22:08] Speaker 00:
By having a pending application, he then has issued the employment

[00:22:14] Speaker 02:
And he did have a pending application.

[00:22:15] Speaker 02:
Sorry?

[00:22:16] Speaker 02:
He did have a pending application.

[00:22:18] Speaker 00:
Yes, and he had a pending application.

[00:22:19] Speaker 02:
So when the the enlistment application came in... And they could have adjudicated it and found that it was fraudulent eventually and revoked the card.

[00:22:29] Speaker 02:
But in fact, they never did that.

[00:22:30] Speaker 02:
And in fact, they ended up giving him citizenship.

[00:22:34] Speaker 00:
USCIS did eventually give him citizenship, but not based on that application that was pending at the time.

[00:22:39] Speaker 00:
It wasn't an application for citizenship in the first place.

[00:22:42] Speaker 00:
That was something that was done separately.

[00:22:45] Speaker 02:
But apparently USCIS never actually determined that he had engaged, had a fraudulent marriage.

[00:22:53] Speaker 02:
And if he did have a fraudulent marriage, he couldn't have gotten citizenship.

[00:22:57] Speaker 00:
It never made any adjudication one way or the other.

[00:23:00] Speaker 00:
The only body that did is the military and it did so within the ambit of making a determination for administrative separation under the procedure that the board followed here.

[00:23:11] Speaker 00:
And there's nothing that prevented them from doing so.

[00:23:13] Speaker 03:
I guess I just want to be clear about something.

[00:23:16] Speaker 03:
I thought the board said,

[00:23:19] Speaker 03:
We're doing a discharge here because you did not have a valid immigration status.

[00:23:24] Speaker 03:
The reason you didn't have a valid immigration status was that you had this fraudulent marriage, and when you indicated that you were married and that you had a legal right to be here, that was incorrect.

[00:23:37] Speaker 03:
That was false.

[00:23:38] Speaker 03:
Is that correct?

[00:23:39] Speaker 00:
That's right, yes.

[00:23:41] Speaker 00:
Yeah, that's the basis for the finding, exactly.

[00:23:43] Speaker 01:
And the eventual citizenship, in your view, does not contradict that in some way?

[00:23:48] Speaker 01:
The eventual citizenship doesn't sort of implicitly say, you never lied about your marriage?

[00:23:53] Speaker 01:
What is the basis of the eventual citizenship?

[00:23:55] Speaker 00:
As far as I know, it was based on his military service.

[00:23:59] Speaker 00:
But we don't have a record of the citizenship application and determination or anything that was undertaken in that.

[00:24:07] Speaker 00:
And I don't think that it does bear on this at all.

[00:24:10] Speaker 01:
some sort of implicit adjudication of the prior, of the marriage, because it was not, what we do know is that it was not based on the marriage, because the marriage was... And so this response to Judge Mendoza takes us sort of away from the line of questioning from Judge Berzon, I think, because if it doesn't matter what he disclosed or not, because fundamentally the problem was that you think the marriage was fraudulent.

[00:24:34] Speaker 01:
We don't need to worry about what the questions were or whatever because it's just the underlying fact is the problem.

[00:24:39] Speaker 01:
Is that what you're saying?

[00:24:40] Speaker 01:
I think that's exactly right.

[00:24:41] Speaker 02:
That's the opposite of what you said before.

[00:24:43] Speaker 02:
This is why I became confused about this case because what you said before was the problem was that he was asked to a general question about any moral information and he didn't answer that.

[00:24:55] Speaker 00:
Well, that's a question on the... I think one way of looking at it is, where was a question on the forum that would have prompted answering this way?

[00:25:04] Speaker 00:
That's a question.

[00:25:06] Speaker 02:
I'm answering... Where in the enlisted forum... But your answer, Judge Friedland, is it doesn't matter whether there was a question on the forum that would have prompted anything.

[00:25:14] Speaker 02:
And it does seem to me that the basis for the separation

[00:25:17] Speaker 02:
was the conclusion that in fact he concealed information that its conditional residence in the country at the time was not valid because his visa was procured from a fraudulent marriage.

[00:25:28] Speaker 02:
Now that's not accurate because he didn't have a visa and he didn't say he had a visa, but it's somewhere in the vicinity.

[00:25:35] Speaker 02:
And he concealed that information.

[00:25:38] Speaker 00:
and that's all the court needs to to look at to see whether is there substantial evidence supporting that and and there absolutely is here and I'm happy to recite some of the top evidence but Judge Mendoza referred earlier to to some of that which was the the ex-wife's admission that there was an agreement between the two of them to marry for the purpose of him getting a green card there was also

[00:26:03] Speaker 00:
Evidence another witness who observed the two of that was a witness to him.

[00:26:08] Speaker 01:
Sorry can I interrupt?

[00:26:09] Speaker 01:
We know what that evidence is that?

[00:26:12] Speaker 01:
It seems like you've given inconsistent answers so Judge Burz on is looking at the actual letter and it says this thing about failure to disclose So are you defending that as the basis that there really was a failure to disclose?

[00:26:24] Speaker 01:
Or are you telling us none of that matters because regardless of what it said about disclosure the real problem is he didn't have a real marriage and

[00:26:33] Speaker 01:
You have two ways.

[00:26:35] Speaker 00:
It's the failure to disclose the circumstances of the fraudulent marriage.

[00:26:40] Speaker 01:
Okay, so you're back to this being the reason.

[00:26:43] Speaker 00:
I mean, I don't see that being different from what Judge Mendoza was saying.

[00:26:48] Speaker 01:
Well, if the question is whether he could have, if you're trying to defend the discharge just on the basis that the marriage was fraudulent,

[00:26:57] Speaker 01:
then it doesn't matter what questions were on the form or what he said or anything because the only issue is whether you had substantial evidence that the marriage actually was fraudulent.

[00:27:05] Speaker 01:
The other one embeds this issue of whether he should have said something about it.

[00:27:08] Speaker 00:
Yeah, well the tie-in is that under paragraph 7-17 of the regulation, what is being found is fraudulent entry into the army.

[00:27:18] Speaker 00:
And so that's the tie-in.

[00:27:20] Speaker 00:
You did not disclose

[00:27:22] Speaker 00:
the fraudulent marriage.

[00:27:25] Speaker 00:
That's what is the basis here.

[00:27:27] Speaker 00:
So they do tie together and they tie together in that the finding of fraudulent marriage ties into the basis for separation, which is paragraph 7-17, fraudulent entry.

[00:27:37] Speaker 01:
And you're basically saying that once there is a fraudulent marriage, you had the duty to disclose it.

[00:27:41] Speaker 00:
because the fraudulent leverage was the basis for him having valid status to enter, to enlist.

[00:27:50] Speaker 01:
Okay, can I go to the question that we ended with Mr. Chen, which is this, he's saying there should have been an opportunity for him to respond.

[00:28:01] Speaker 01:
He thinks it should have been oral, but even if it was written, he submitted something written, and it's not in the file.

[00:28:07] Speaker 01:
Can you respond to that?

[00:28:08] Speaker 00:
Yeah, so what he did submit that's written is in the file.

[00:28:11] Speaker 00:
How I understand the argument is that there was some additional material besides what is in the administrative record that he submitted.

[00:28:22] Speaker 01:
Can you point us to where that is?

[00:28:23] Speaker 01:
Where is his part of his submission in the file?

[00:28:27] Speaker 01:
Just because it seems like he thinks it's not there.

[00:28:29] Speaker 01:
So then if we see it, we might understand better.

[00:28:31] Speaker 02:
Yeah, so his application starts... That's his application, but he apparently maintains that he submitted information or an argument as to the separation or as to the attempt to change the documentation of the separation, which is not in the file.

[00:28:58] Speaker 02:
That's not about his application.

[00:29:00] Speaker 00:
So I don't see anything in the record that gives us any hint about some unidentified material that I think to this day I haven't seen in any of the briefs, any identification of exactly what he thinks was submitted that isn't in the record.

[00:29:15] Speaker 00:
And I think where that leaves us is under the case law for APA cases is a presumption that the process, that what's in the record is the complete record.

[00:29:28] Speaker 00:
And there's nothing even in the record that could tell us, suggest that there's something.

[00:29:33] Speaker 02:
What's ultimately disturbing here was that he was never, was he ever, he came in with this employment card.

[00:29:42] Speaker 02:
which is not in fact a visa, which apparently the recruitment person didn't realize.

[00:29:47] Speaker 02:
Was he ever asked whether he had valid immigration status at the time?

[00:29:53] Speaker 02:
Was he ever asked that question?

[00:29:55] Speaker 00:
Like by a person?

[00:29:56] Speaker 02:
By a person, by a piece of paper, by anything else.

[00:29:58] Speaker 00:
He was asked to provide documentation of that, and that's why he presented the employment authorization document.

[00:30:05] Speaker 02:
And how do we know he was even asked that?

[00:30:08] Speaker 00:
Because he would not be eligible to enlist in the army as a non-citizen unless he had that.

[00:30:15] Speaker 02:
Okay, but in fact that doesn't prove anything and nobody ever asked him what his immigration status was.

[00:30:22] Speaker 02:
Do we know that anybody ever asked him what his immigration status was?

[00:30:25] Speaker 02:
Ever.

[00:30:27] Speaker 00:
All we know is that he was required to provide valid immigration status and he presented that as his basis for valid immigration status.

[00:30:35] Speaker 02:
Other than the fact that we know he presented that card, is there a question somewhere or some statement or some evidence that he was actually asked?

[00:30:45] Speaker 00:
There's not evidence that a person asked him, but... A piece of paper asked him?

[00:30:50] Speaker 00:
Yeah, the form under which he's applying through the MAVNI program talks about what are the eligibility states, what he must show for eligibility.

[00:31:00] Speaker 00:
I don't know that there's a question there that says, are you... You have to be in balanced status in one of these categories for at least two years.

[00:31:09] Speaker 00:
Two consecutive years, correct.

[00:31:10] Speaker 00:
I see.

[00:31:13] Speaker 00:
So it directs him to those requirements, and then he submits the application, affirming that he satisfied those requirements, and he submits the authorization as the basis for his status for the past two years.

[00:31:30] Speaker 03:
And I think with regards to the status of immigration status, I think in SER 397 to 398, Mr. Chen did in fact indicate that he had a pending adjustment of status when he was asked by the Army.

[00:31:46] Speaker 03:
Is that correct?

[00:31:47] Speaker 00:
Yes, and that's the basis for him getting the employment authorization document.

[00:31:52] Speaker 02:
But he did have a pending adjustment of status.

[00:31:55] Speaker 00:
You did have, sorry?

[00:31:56] Speaker 02:
You did, in fact, have a pending adjustment of status at the time.

[00:31:59] Speaker 00:
Yeah, at the time.

[00:32:00] Speaker 00:
That's right.

[00:32:01] Speaker 00:
Based on the marriage.

[00:32:05] Speaker 00:
All right.

[00:32:06] Speaker 00:
I see I've been over time here.

[00:32:08] Speaker 00:
We just ask that the court affirm the judgment.

[00:32:12] Speaker 00:
Thank you.

[00:32:12] Speaker 01:
Thank you.

[00:32:13] Speaker 01:
We have some time for rebuttal.

[00:32:19] Speaker 05:
OK, may I introduce the court?

[00:32:21] Speaker 05:
About my immigration status, I was never

[00:32:25] Speaker 05:
asked to provide some additional visa or something.

[00:32:31] Speaker 05:
I only submitted my working employment authorization card, and the army approved.

[00:32:39] Speaker 05:
And here on the document, the waiver, it says yes.

[00:32:43] Speaker 05:
I believe there was a waiver issued, if you want to have a look.

[00:32:49] Speaker 05:
So OK, this is my immigration status.

[00:32:53] Speaker 05:
And also, regarding my marriage,

[00:32:55] Speaker 05:
that my ex-wife has a drug problem, and whatever she said is not very reliable.

[00:33:07] Speaker 05:
And also, Your Honor just mentioned that there is some money, but I, well, the issue is I never admitted that one first, and then

[00:33:26] Speaker 05:
to determine if a marriage is fraudulent?

[00:33:30] Speaker 03:
Sir, I'm not saying that that's true or not true.

[00:33:32] Speaker 03:
What I was referring to is that that's what the board decided to base our decision that the immigration status was invalid.

[00:33:41] Speaker 05:
That's what they decided.

[00:33:42] Speaker 05:
Okay, but even if there is some money transfer, still the marriage could be real because the

[00:33:53] Speaker 05:
To determine if a marriage is a real marriage, the only thing is to see if the couple intended to establish a life together when they married, at the time when they married.

[00:34:07] Speaker 05:
But even if there's some money transfer.

[00:34:15] Speaker 01:
Can I ask you about the things that are missing from the file that you say?

[00:34:18] Speaker 01:
Do you have a copy of the written papers that you say are missing from the file?

[00:34:24] Speaker 01:
Like, did you keep a copy for yourself of what you gave them?

[00:34:29] Speaker 05:
Well, that's many years ago.

[00:34:32] Speaker 01:
Because you say something's missing from the file, but we don't know what it is, right?

[00:34:36] Speaker 01:
Because unless you show us, this is what I sent on this day, here's the record of me sending it, we don't know what you're talking about, right?

[00:34:44] Speaker 05:
But OK, so the.

[00:34:48] Speaker 03:
And what it's related to.

[00:34:51] Speaker 03:
Related.

[00:34:52] Speaker 03:
Why is that important?

[00:34:57] Speaker 02:
It's what you say is missing material having to do with the separation, where you responded in some way.

[00:35:04] Speaker 05:
Yeah, I responded.

[00:35:05] Speaker 05:
I submitted the rebuttal materials.

[00:35:07] Speaker 05:
But I believe it's more probable than not that

[00:35:11] Speaker 05:
It's not revealed by the commander with the separation authority.

[00:35:15] Speaker 05:
And this is a violation of the regulation.

[00:35:17] Speaker 01:
But what did it say?

[00:35:18] Speaker 01:
Did you write, I love this wife?

[00:35:21] Speaker 01:
What did you write that they didn't consider?

[00:35:23] Speaker 05:
I provided some.

[00:35:31] Speaker 05:
But anyway, I don't remember.

[00:35:35] Speaker 05:
But I did provide a lot of materials from friends, from doctor, and from some police officer who had some record for some family issue, something.

[00:35:52] Speaker 01:
And those things said this is a real marriage.

[00:35:56] Speaker 05:
I used those documents to show that

[00:36:04] Speaker 05:
Well, I forgot the details, but anyway, the regulation says the right to submit means not only the submission, but also the submitted materials need to be reviewed by the... But if we don't know, if you didn't keep a copy so that we can say, here is what he sent that's not in the file, we don't know how to tell whether what you're saying is right.

[00:36:31] Speaker 05:
But based on the Laudamir case,

[00:36:34] Speaker 05:
The due process requires that I was given an opportunity to respond.

[00:36:39] Speaker 05:
And if this submitted material is not reviewed, then I was not given a meaningful opportunity to respond prior to the discharge.

[00:36:52] Speaker 05:
And this is a structural due process violation.

[00:36:56] Speaker 01:
So... That may be, but to prove that you're right, you'd have to say, here is what I sent.

[00:37:03] Speaker 01:
On this day, here's the proof, here's the FedEx receipt, and you don't seem like you have anything like that, right?

[00:37:09] Speaker 05:
I have a email correspondence between the Army officer and the... Here's the email correspondence between the Army officer and the USCIS

[00:37:31] Speaker 05:
officer, and it says specialist Chen submitted copies of his employment authorization cards.

[00:37:38] Speaker 05:
This is on the May 29th, 2012, Tuesday.

[00:37:45] Speaker 05:
So if this email can prove that I submitted something.

[00:37:51] Speaker 01:
But they have your employment authorization card.

[00:37:53] Speaker 01:
That's not missing.

[00:37:54] Speaker 05:
Other than this one, I also have other documents.

[00:37:57] Speaker 05:
This is just one piece of the

[00:38:00] Speaker 05:
the document.

[00:38:01] Speaker 05:
I submitted other things and it should be revealed.

[00:38:07] Speaker 05:
This is required by the Army regulation and this is also required by the due process of the Constitution.

[00:38:18] Speaker 02:
No, thank you.

[00:38:19] Speaker 01:
Okay, thank you.

[00:38:20] Speaker 05:
One more thing is that nobody really

[00:38:25] Speaker 05:
determined the alleged fraudulent marriage.

[00:38:29] Speaker 05:
And on the other hand, you just mentioned the naturalization.

[00:38:33] Speaker 05:
On the naturalization certificate, the director of the USCIS said that Chen, having complied in all respects with all of the applicable provisions of the naturalization laws of the United States,

[00:38:53] Speaker 05:
being entitled to be admitted as a citizen of the United States.

[00:38:57] Speaker 05:
So the director of the United States Citizenship and Immigration Service signed on this document.

[00:39:09] Speaker 05:
This is the official document signed by the

[00:39:12] Speaker 05:
the director of the USCIS and says, I complied in all respects with all of the applicable provisions of the naturalization laws.

[00:39:24] Speaker 02:
USCIS knew about the marriage investigation because they're the ones who went to the army about it.

[00:39:31] Speaker 05:
Well, the USCIS conducted the investigation.

[00:39:35] Speaker 02:
And they also at some point reported it to the army.

[00:39:38] Speaker 05:
Correct.

[00:39:39] Speaker 05:
And then they investigated.

[00:39:44] Speaker 05:
But after the investigation, there's no negative outcome.

[00:39:50] Speaker 05:
And after I was discharged, I naturalized.

[00:39:56] Speaker 05:
And I have this document.

[00:39:59] Speaker 01:
OK, thank you.

[00:40:00] Speaker 01:
I think we understand your arguments.

[00:40:01] Speaker 01:
Thank you very much.

[00:40:02] Speaker 01:
Thank you both sides for the arguments.

[00:40:04] Speaker 01:
This case is submitted.