Yun Ju Yi v. Jefferson Sessions, III

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 6, 2018
• Docket: 17-71217
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUL 06 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

YUN JU YI, No. 17-71217

Petitioner, Agency No. A076-867-246

v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

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

Argued and Submitted June 11, 2018 Anchorage Old Federal Building, Alaska

Before: THOMAS, Chief Judge, and CALLAHAN and BEA, Circuit Judges.

Yun Ju Yi (Yi) challenges the denial of a waiver from the requirement that

she file a joint petition with her U.S. husband to remove the conditions on her

permanent resident status pursuant to 8 U.S.C. § 1186a(c)(4)(C). Yi argues that

she was denied due process in the immigration proceedings and that she

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. demonstrated that she was entitled to a good faith marriage waiver. We deny the

petition for review.1

1. Yi asserts that she was deprived of due process because the interpreter

translated her testimony as stating that she grew to “like” her husband, Nolan,

rather than grew to “love” Nolan. We have recognized that due process requires an

applicant be given competent translation services. See He v. Ashcroft, 328 F.3d

593, 598 (9th Cir. 2003). To make out a violation of due process as a result of an

inadequate translation, petitioner must demonstrate that a better translation likely

would have made a difference in the outcome of the hearing. Acewicz v. INS, 984

F.2d 1056, 1063 (9th Cir. 1993); Kotasz v. INS, 31 F.3d 847, 850 n.2 (9th Cir.

1994). In addition, petitioner must show prejudice. United States v. Ramos, 623

F.3d 672, 680 (9th Cir. 2010).

Here, there is evidence only that the word “like” could have been translated

to “love,” not that it was, in fact, mistranslated. Although the Immigration Judge

(IJ) noted that Yi had testified that she grew to “like” Nolan, the Board of

Immigration Appeals (BIA) stated that it could not “conclude that the [IJ]’s

reliance on [Yi]’s testimony that she grew to ‘like’ Nolan, as opposed to growing

1 Because the parties are familiar with the factual and procedural history of the case, we need not recount it here. 2 to ‘love’ him, is significant to the [IJ]’s determination that [Yi] did not establish a

bona fide marriage.” This determination is supported by substantial evidence. See

Zhi v. Holder, 751 F.3d 1088, 1091 (9th Cir. 2014) (“We may reverse factual

determinations only when ‘any reasonable adjudicator would be compelled to

conclude to the contrary’ based on the evidence in the record.” (citation omitted)).

Moreover, Yi fails to establish that she suffered prejudice as a result of this

potential mistranslation.

2. Yi’s assertion that the BIA engaged in impermissible de novo review of

the IJ’s findings is not well taken. See 8 C. F. R. § 1003.1(d)(3)(I). The BIA did

not impermissibly “re-weigh” the factors in this case. Instead of deciding whether

Yi’s testimony should be translated as “like” or “love,” the BIA determined that

any “mistranslation” was insignificant because the other evidence before the IJ was

sufficient to support the IJ’s finding that the marriage was not entered into in good

faith.

3. Substantial evidence supports the agency’s conclusion that Yi did not

demonstrate that she entered into a good faith marriage. For us to reverse under

the substantial evidence standard, “the evidence must be so compelling that no

reasonable factfinder could fail to find the facts were as the alien alleged.” Singh v.

Reno, 113 F.3d 1512, 1514 (9th Cir. 1997); INS v. Elias-Zacarias, 502 U.S. 478,

3 483–84 (1992). Here, the agency based its determination that Yi failed to establish

she entered into a good faith marriage with Nolan on a number of findings,

including that: (1) Yi and Nolan did not commingle finances; (2) Yi and Nolan

lived together for only 2 months after she received conditional permanent

residency; (3)Yi and Nolan lived in separate bedrooms; and (4) there were no

photographs of Yi and Nolan living as a couple. This is sufficient. Even if the

agency could have concluded otherwise, the evidence does not compel such a

conclusion. See Oropeza-Wong v. Gonzales, 406 F.3d 1135, 1148 (9th Cir. 2005)

(“Although it might be possible to reach a contrary conclusion on the basis of the

record, under the substantial evidence standard, the evidence presented here does

not compel a finding that Oropeza met his burden of proving that the marriage was

entered into in good faith.”).

4. Because Yi has not shown that the agency was compelled to find that she

entered into a good faith marriage, we need not, and do not, decide whether Yi was

subject to “extreme cruelty.” See 8 U.S.C. § 1186a(c)(4)(C).

The petition for review is denied.