Luu Pham v. Jefferson Sessions

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 21, 2017
• Docket: 13-71758
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION DEC 21 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

LUU THI PHAM, No. 13-71758

Petitioner, Agency No. A057-960-802 A057-574-457 v. A057-574-458 A057-574-464 JEFFERSON B. SESSIONS III, Attorney A057-574-465 General, A058-425-930

Respondent. MEMORANDUM*

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

Argued and Submitted December 8, 2017 San Francisco, California

Before: M. SMITH and IKUTA, Circuit Judges, and HUMETEWA,** District Judge.

Luu Thi Pham (“Pham”) petitions for review of the Board of Immigration

Appeals’ (“BIA”) order dismissing her appeal from an immigration judge’s (“IJ”)

removal order and order denying her application for asylum. We have jurisdiction

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Diane J. Humetewa, United States District Judge for the District of Arizona, sitting by designation. under 8 U.S.C. § 1252. Mata v. Lynch, 135 S. Ct. 2150, 2154-55 (2015). We

review for substantial evidence the determination that an alien is removable for

marriage fraud. Nakamoto v. Ashcroft, 363 F.3d 874, 881 (9th Cir. 2004). We also

review for substantial evidence the factual findings on the asylum petition, see

Khudaverdyan v. Holder, 778 F.3d 1101, 1105 (9th Cir. 2015), and apply the

standards governing adverse credibility determinations created by the REAL ID

Act. Shrestha v. Holder, 590 F.3d 1034, 1039-43 (9th Cir. 2010) (credibility

findings no longer need to go “to the heart of the applicant’s claim” under the

REAL ID Act) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii))). “Where the BIA issues its

own decision but relies in part on the immigration judge’s reasoning, we review

both decisions.” Flores-Lopez v. Holder, 685 F.3d 857, 861 (9th Cir. 2012). We

deny the petition for review.

Substantial evidence supports the determination that Pham was removable

because she entered into her marriage for the purpose of procuring an immigration

benefit. See 8 U.S.C. §§ 1182(a)(6)(C)(i), 1227(a)(1)(A), (G). We need not

determine whether the IJ erred in giving weight to inculpatory statements by

Pham’s U.S. citizen spouse, Ni Chi Nguyen (“Nguyen”) because substantial

evidence, independent of Nguyen’s statements, supports the finding that Pham is

removable for marriage fraud. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.

2 2000) (holding that claimant alleging a due process challenge in immigration

proceeding must show error and prejudice, the latter “essentially a demonstration

that the alleged violation affected the outcome of the proceedings”).1 Pham

testified that she and Nguyen knew each other for only three days before getting

engaged, and soon after their Vietnamese marriage ceremony (the exact date or

month of which Pham could not remember), Nguyen returned to live in the United

States, only to see Pham over the next six years during his annual visits to

Vietnam. Bark v. INS, 511 F.2d 1200, 1201-02 (9th Cir. 1975) (holding that the

test for bona fide marriage is whether the couple “intend[ed] to establish a life

together at the time they were married”). Pham’s testimony also established that

the couple never held a joint bank account or filed a joint tax return; that her name

was never put on the lease for Nguyen’s apartment; and that she never paid rent on

his property. Nakamoto, 363 F.3d at 882 (identifying insurance policies, property

leases, tax forms, and bank accounts as types of objective evidence that may

support a finding that couple entered into the marriage with the intent to establish a

life together). In discounting Pham’s testimony as to the bona fides of their

1 We lack jurisdiction over Pham’s claim that the IJ erred in admitting Nguyen’s statements because the Government failed to use reasonable efforts to afford her an opportunity to cross-examine him. Pham did not raise this challenge to the BIA, and therefore did not exhaust her remedies. See 8 U.S.C. § 1252(d)(1); Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). 3 marriage, the IJ noted Pham gave inconsistent testimony regarding when or for

how long she lived with Nguyen; was evasive and inconsistent with regard to the

information provided to the Department of State about her relationship with her

prior husband; gave shifting accounts of Nguyen’s visits to Vietnam; and without

credible explanation, provided information on immigration forms that was

inconsistent with her testimony that she intended to live with Nguyen upon coming

to the United States, e.g., by listing her parents’ address, not Nguyen’s, as her

intended permanent residence in the United States, and failing to list Nguyen’s

apartment as a residence in her asylum application. See 8 U.S.C.

§ 1158(b)(1)(B)(iii) (requiring that the totality of the circumstances be considered

when making an adverse credibility determination). Without credible, competing

evidence, we are not compelled to find that the BIA erred in concluding that

Pham’s marriage to Nguyen was not bona fide. Even without Nguyen’s

statements, substantial evidence supported the finding that the government met its

burden to show Pham engaged in marriage fraud by clear and convincing evidence.

See Nakamoto, 363 F.3d 882-83. Accordingly, any error in considering Mr.

Nguyen’s statements did not prejudice Pham.

Even assuming that Pham’s untimely asylum application was excused due to

her lawful non-immigrant status, substantial evidence also supports the finding that

4 Pham did not meet her burden of showing her eligibility for asylum. See Shrestha,

590 F.30 at 1039-40. Pham’s asylum testimony was tainted by her

misrepresentations about her marriage. “Ninth Circuit precedent permits the BIA

to use an adverse credibility finding on one claim to support an adverse finding on

another claim….” Li v. Holder, 738 F.3d 1160, 1168 (9th Cir. 2013) (finding that

application of the maxim falsus in uno, falsus in omnibus is appropriate in

evaluating witness testimony in immigration cases). Pham’s remaining evidence –

a list of items taken from her home by the Vietnamese government, a declaration

from her father, and documents pertaining to country conditions in Vietnam – did

not establish that Pham suffered past persecution.

PETITION DENIED.