Giovanni Vilchez Zarate v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 23, 2020
• Docket: 17-73267
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUL 23 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GIOVANNI MARIA VILCHEZ No. 17-73267 ZARATE, AKA Giovanni Vilches, AKA Giovani Vilchez Zarate, AKA Giovanni Agency No. A077-016-880 Vichez Zarate,

Petitioner, MEMORANDUM*

v.

WILLIAM P. BARR, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted July 21, 2020**

Before: GRABER, TALLMAN, and CLIFTON, Circuit Judges.

Giovanni Maria Vilchez Zarate, a native and citizen of Peru, petitions for

review of the Board of Immigration Appeals’ order dismissing her appeal from an

immigration judge’s decision pretermitting her application for adjustment of status.

* 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). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence

the agency’s factual findings, and review de novo questions of law. Tamang v.

Holder, 598 F.3d 1083, 1088 (9th Cir. 2010). We deny the petition for review.

1. The BIA did not err in affirming the IJ’s determination that Vilchez

Zarate is inadmissible because of willful misrepresentation. See 8 U.S.C.

§ 1182(a)(6)(C)(i).

Vilchez Zarate’s June 1999 and March 2001 applications for adjustment of

status misrepresented the material fact of her marriage to a U.S. citizen through her

use of an inauthentic marriage certificate to support both applications. Substantial

evidence supports the IJ’s finding by clear and convincing evidence that she knew

the marriage was not legitimate and that the marriage certificate was not authentic

when she used it to seek immigration benefits. See Nakamoto v. Ashcroft, 363 F.3d

874, 882 (9th Cir. 2004) (combining the substantial evidence standard of review

with the burden of proof).

The BIA properly considered relevant evidence and sufficiently explained its

decision. See Najmabadi v. Holder, 597 F.3d 983, 990–91 (9th Cir. 2010). The

BIA appropriately considered the inconsistencies the IJ noted between the

information on the marriage certificate and Vilchez Zarate’s testimony. Where the

details on the document conflicted with the details she recalled about the alleged

2 ceremony, such as the number of witnesses and the name of the officiant, it was

reasonable to infer that she knew the marriage certificate was inauthentic when she

reviewed and signed it. That Vilchez Zarate nonetheless submitted the marriage

certificate, swearing to its truth and accuracy, supports a finding of willful

misrepresentation. See Forbes v. INS, 48 F.3d 439, 442 (9th Cir. 1995) (noting

that to establish a willful misrepresentation, showing “knowledge of the falsity of a

representation is sufficient”).

The BIA also appropriately considered circumstances showing that the

alleged marriage was not bona fide, supporting the IJ’s finding that Vilchez Zarate

knew her representations were false. See Malhi v. I.N.S., 336 F.3d 989, 994 (9th

Cir. 2003) (considering evidence “probative of the motivation for marriage” to

determine whether fraud occurred). The BIA considered the IJ’s findings

regarding the short time in which the parties knew each other, the unusual nature of

their purported ceremony, and their separate living arrangements and few

interactions thereafter. See id.; Nakamoto, 363 F.3d at 882. Evidence that Vilchez

Zarate sought a divorce in 2009 may suggest that she believed in the “bare fact” of

her marriage, Malhi, 336 F.3d at 994, but does not undercut the finding that her

motivation was to obtain immigration benefits. Nor does it compel the conclusion

3 that she believed the marriage certificate she used in attempt to obtain such

benefits was accurate and authentic.

The BIA did not err in affirming the IJ’s inadmissibility determination.

Because Vilchez Zarate is inadmissible, it follows that the agency properly

pretermitted her latest application for adjustment of status. 8 U.S.C. § 1255(a).

2. Vilchez Zarate’s due process claim fails, where the record does not

support her contentions that the IJ was biased and prejudged her case. See

Almaghzar v. Gonzales, 457 F.3d 915, 922 (9th Cir. 2006) (holding that petitioner

“had ample opportunity to present his case, and the record as a whole does not

suggest that the IJ did not conduct the hearing with an open mind”); Lata v. INS,

204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error and substantial prejudice to

prevail on a due process claim).

PETITION FOR REVIEW DENIED.