Francis Flores Faustino v. Irene Martin

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 17, 2024
• Docket: 23-55792
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 17 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FRANCIS JOSEPH FLORES FAUSTINO, No. 23-55792

Plaintiff-Appellant, D.C. No. 2:22-cv-02799-SSS-AGR v.

IRENE MARTIN, San Bernardino Field MEMORANDUM* Office District Director, U.S. Citizenship and Immigration Services; ALEJANDRO N. MAYORKAS, Secretary, U.S. Department of Homeland Security; MERRICK B. GARLAND, Attorney General, U.S. Attorney General, U.S. Department of Justice,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Sunshine Suzanne Sykes, District Judge, Presiding

Submitted November 8, 2024** Pasadena, California

Before: W. FLETCHER, CALLAHAN, and DE ALBA, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Plaintiff Francis Joseph Flores Faustino filed the present action under the

Administrative Procedure Act (“APA”), challenging the denial of his Form I-130

petition to have his wife, Jinkee Leano Faustino, classified as an immediate

relative of a United States citizen. See 8 C.F.R. §§ 204.1(a)(1), 204.2. The United

States Citizenship and Immigration Services (“USCIS”) initially denied the

petition on the ground that Ms. Faustino had entered into her previous marriage to

Jose Luis Salgado for the purpose of evading the immigration laws. See 8 U.S.C.

§ 1154(c); 8 C.F.R. § 204.2(a)(1)(ii). Conducting de novo review, the Board of

Immigration Appeals (“BIA”) reached the same conclusion. Mr. Faustino then

filed this action, and the district court held that the BIA’s decision did not violate

the APA. Mr. Faustino timely appealed, and we have jurisdiction under 28 U.S.C.

§ 1291. We affirm.

We review the district court’s order de novo. Herrera v. U.S. Citizenship &

Immigr. Servs., 571 F.3d 881, 885 (9th Cir. 2009). Under the APA, we “must set

aside the BIA’s decision if it is ‘arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.’” Zerezghi v. U.S. Citizenship & Immigr.

Servs., 955 F.3d 802, 807 (9th Cir. 2020) (quoting 5 U.S.C. § 706(2)(A)).

Specifically, we review the BIA’s finding of marriage fraud for substantial

evidence, id. at 814 n.6, meaning that we will sustain it “as long as there is ‘such

relevant evidence as a reasonable mind might accept as adequate to support [the]

2 conclusion,’” id. at 814 (quoting Biestek v. Berryhill, 587 U.S. 97, 103 (2019)).

1. First, Mr. Faustino claims that the burden of proof was improperly

placed on him to prove that Ms. Faustino’s prior marriage was not fraudulent. We

disagree. Under the applicable burden-shifting framework, “[t]he initial burden of

proof is on the government” to show “‘substantial and probative evidence’ of

marriage fraud.” Id. at 805 (citing Matter of Kahy, 19 I. & N. Dec. 803, 806-07

(BIA 1988)); see 8 C.F.R. § 204.2(a)(1)(ii). “The burden then shifts to the

petitioner to rebut” the substantial and probative evidence of marriage fraud.

Zerezghi, 955 F.3d at 805 (citing Kahy, 19 I. & N. at 806-07). Reviewing USCIS’s

decision de novo, the BIA appropriately found that “[t]he record contains

substantial and probative evidence of prior marriage fraud.” It also considered, but

was “not persuaded by,” the rebuttal evidence submitted by Mr. Faustino.

Accordingly, the BIA properly applied the burden-shifting framework.

2. Second, contrary to Mr. Faustino’s contention, the BIA’s finding of

marriage fraud is supported by substantial evidence. For example, when USCIS

separately interviewed Ms. Faustino and Mr. Salgado in connection with a Form I-

130 petition that he had submitted on her behalf, USCIS identified a number of

discrepancies in their responses to questions about their relationship and claimed

cohabitation.

Also, when USCIS officers conducted unannounced site visits to Mr.

3 Salgado’s residence (the claimed communal residence of Ms. Faustino and Mr.

Salgado), Mr. Salgado’s property manager indicated that Mr. Salgado lived alone

and that he had never seen Ms. Faustino on the premises. Additionally, when the

officers visited Mr. Faustino’s residence, multiple workers outside the home

recognized a photograph of Ms. Faustino, and one worker stated that she lived

there.

The BIA’s finding is further supported by the long-term relationship

between Mr. and Ms. Faustino. They married in 2001 before entering the United

States and had a child together. In 2010, they divorced, and each remarried shortly

thereafter. In December 2012, Ms. Faustino divorced her second husband and

married Mr. Salgado the following month—just weeks after he had become a

naturalized citizen. When USCIS notified Mr. Salgado that it intended to deny his

Form I-130 petition in April 2015, he withdrew the petition, and the couple began

divorce proceedings in July 2015. Around this time, Ms. Faustino allegedly moved

back in with Mr. Faustino, even though they both remained married to other

individuals. Then, after they divorced their respective spouses, Mr. and Ms.

Faustino remarried in April 2017, just months before he became a naturalized

citizen. This sequence of events generally supports an inference that Ms. Faustino

had married Mr. Salgado in an attempt to obtain lawful permanent resident status.

Finally, the BIA reasonably found that there was insufficient evidence of a

4 joint life between Ms. Faustino and Mr. Salgado during their marriage.

Accordingly, even considering the rebuttal evidence submitted by Mr.

Faustino, the record would not “‘compel a reasonable finder of fact to reach a

contrary result.’” Herrera, 571 F.3d at 885 (quoting Family Inc. v. U.S.

Citizenship & Immigr. Servs., 469 F.3d 1313, 1315 (9th Cir. 2006)).

AFFIRMED.