Tomer Graziani v. Matthew Whitaker

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 9, 2021
• Docket: 21-55190
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 9 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

TOMER GRAZIANI; RACHAEL No. 21-55190 KATHERINE WILMOTH, AKA Rachael Katherine Eicher-Graziani, D.C. No. 5:18-cv-02420-CBM-SP Plaintiffs-Appellants,

v. MEMORANDUM*

MATTHEW G. WHITAKER, Acting Attorney General; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Consuelo B. Marshall, District Judge, Presiding

Submitted December 6, 2021** Pasadena, California

Before: M. SMITH, LEE, and FORREST, Circuit Judges.

Plaintiff-Appellants Tomer Graziani and Rachael Katherine Eicher-Graziani

(collectively, the Grazianis) filed suit challenging the Board of Immigration

* 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). Appeals’ (BIA) determination that that they engaged in marriage fraud, making

Tomer Graziani ineligible for approval of the I-130 visa petition that Eicher-Graziani

filed on his behalf. They now appeal the district court’s grant of summary judgment

in favor of the government. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

We review the district court’s grant of summary judgment de novo, Wang v.

Rodriguez, 830 F.3d 958, 960 (9th Cir. 2016), and the Administrative Procedures

Act controls our review of the BIA’s decision, see Zerezghi v. U.S. Citizenship &

Immigr. Servs., 955 F.3d 802, 807 (9th Cir. 2020). “We review de novo whether the

BIA violated procedural due process in adjudicating an I-130 petition (thereby acting

‘not in accordance with law’).” Id. (citing Ching v. Mayorkas, 725 F.3d 1149, 1155–

59 (9th Cir. 2013)).

The Grazianis claim they were denied due process because they were not

allowed to cross-examine the adverse witnesses upon whose testimony the United

States Citizen and Immigration Services (USCIS) largely based its decision to deny

the I-130 visa petition. Specifically, the Grazianis claim they should have been

allowed to cross-examine their alleged neighbors or the USCIS investigators who

interviewed those neighbors. The Grazianis rely on Ching, in which we held that an

I-130 petitioner and his beneficiary spouse had a due process right to cross-examine

the beneficiary spouse’s ex-husband. 725 F.3d at 1159. But we have rejected a

2 general right to cross-examination in I-130 petition adjudications, id. at 1157, and

the determinative factors provided in Mathews v. Eldridge, 424 U.S. 319, 335

(1976), instruct that due process does not dictate such a right in this case.

In Ching, the USCIS based its marriage-fraud determination exclusively on

one piece of evidence—the ex-spouse’s “six-sentence” statement. 725 F.3d at 1158.

We noted that the right to cross-examine is particularly important in this context

where “the evidence consists of the testimony of individuals whose memory might

be faulty or who, in fact, might be perjurers or persons motivated by malice,

vindictiveness, intolerance, prejudice, or jealousy.” Id. Here, in contrast, the USCIS

relied on multiple similar statements from the Grazianis’ neighbors, as well as

documentary evidence related to the Grazianis’ residence and finances, much of

which was consistent with the neighbors’ statements.

Unlike in Zerezghi, 955 F.3d at 811–12, the Grazianis knew what evidence

the government was relying on and had an opportunity to present rebuttal evidence,

and did so, submitting personal declarations with their explanations of the

inconsistencies. This rebuttal evidence is far less compelling than that offered in

Ching. See 725 F.3d at 1158.

The USCIS’s reliance on numerous witness statements and documents and the

Grazianis’ insufficient rebuttal evidence make the risk that they were erroneously

deprived of their familial rights far lower here than it was in Ching. Moreover,

3 because the USCIS based its decision not just on the neighbors’ statements but also

on inconsistencies and deficiencies in the documentary evidence, it is unlikely that

cross-examination of the neighbors or investigators who interviewed the neighbors

would materially impact the outcome. See id.1

AFFIRMED.

1 For the reasons stated herein, we also reject the Grazianis’ argument that Alcaraz-Enriquez v. Garland, 13 F.4th 848 (9th Cir. 2021), dictates the conclusion that they were denied due process.