Mariano Bazaldua-Hernandez v. Lee Cissna

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 23 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARIANO JAVIER BAZALDUA- No. 16-56892 HERNANDEZ, D.C. No. Plaintiff-Appellant, 5:15-cv-01383-JGB-SP

v. MEMORANDUM* LEE FRANCIS CISSNA, as Director, US Citizenship and Immigration Services; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Jesus G. Bernal, District Judge, Presiding

Submitted April 11, 2019** Pasadena, California

Before: RAWLINSON and MURGUIA, Circuit Judges, and GILSTRAP, *** District Judge.

* 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). *** The Honorable James Rodney Gilstrap, United States District Judge for the Eastern District of Texas, sitting by designation. Appellant Mariano Bazaldua-Hernandez petitioned U.S. Citizenship and

Immigration Services (“USCIS”) for U nonimmigrant status (a “U Visa”). USCIS

denied Appellant’s petition on the basis that Appellant failed to establish that he

suffered substantial physical or mental abuse as a result of a qualifying criminal

activity. Appellant appealed USCIS’ denial, and the Administrative Appeals Office

(“AAO”) dismissed the appeal. Appellant filed suit in the District Court for judicial

review of USCIS’ denial and the AAO’s dismissal. The District Court granted

USCIS’ motion for summary judgment; Appellant timely appealed.

A district court’s grant of summary judgment is reviewed de novo. Nev. Land

Action Ass’n v. U.S. Forest Serv., 8 F.3d 713, 716 (9th Cir. 1993). “An agency’s

decision should be overturned if it was ‘arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with the law.’” W. Radio Servs. Co. v. Espy, 79 F.3d

896, 900 (9th Cir. 1996) (quoting 5 U.S.C. § 706(2)(A)).

Appellant argues that “[i]t [was] arbitrary and capricious to deny a U Visa”

where: (1) he was a victim of domestic violence when his daughter’s ex-boyfriend

tried to murder his family in 2000 (the “Attempted Homicide”); (2) he endured

familial distress at seeing his teenage daughter suffer domestic violence (e.g.,

beatings, rape, and kidnapping); (3) he suffers from PTSD as a result of his

daughter’s ex-boyfriend’s actions; and (4) the Attempted Homicide triggered his

diabetes and increased his need for medical attention.

2 16-56892 A U Visa petitioner bears the burden of “demonstrat[ing] eligibility for U–1

nonimmigrant status,” and “USCIS will determine, in its sole discretion, the

evidentiary value of previously or concurrently submitted evidence, including Form

I–918, Supplement B, ‘U Nonimmigrant Status Certification.’” 8 C.F.R.

§ 214.14(c)(4). The petitioner must establish by a preponderance of the evidence

his eligibility for the benefit sought. See Matter of Chawathe, 25 I. & N. Dec. 369,

375 (AAO 2010).

The beatings, kidnapping, and rape suffered by Appellant’s daughter—

heinous as they are—were not identified in Appellant’s I-918 Supplement B as

qualified criminal activities upon which Appellant’s U Visa petition relies. The only

qualified criminal activity identified was the Attempted Homicide.

The USCIS reasonably concluded that Appellant’s PTSD and diabetes

resulted from causes other than the Attempted Homicide. The record before this

Court does not compel a different outcome. Monjaraz-Munoz v. I.N.S., 327 F.3d

892, 895 (9th Cir. 2003), as amended, 339 F.3d 1012 (9th Cir. 2003) (explaining

that an agency’s findings are upheld “unless the evidence presented would compel a

reasonable finder of fact to reach a contrary result”) (emphasis in original); see also

Radio Servs., 79 F.3d at 900 (“the reviewing court may not substitute its judgment

for that of the agency” (citing Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 376

3 16-56892 (1989)). Accordingly, we conclude that the District Court did not err in granting

summary judgment.

AFFIRMED.

4 16-56892