FILED
NOT FOR PUBLICATION
MAY 24 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMJAD ABDELSALEM ALI ALABED; No. 15-16067
SAMAH HUSSEIN,
D.C. No. 1:13-cv-02006-SKO
Plaintiffs-Appellants,
v. MEMORANDUM*
JONATHAN CRAWFORD;
ALEJANDRO MAYORKAS;
JEFFERSON B. SESSIONS III, Attorney
General,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Sheila K. Oberto, Magistrate Judge, Presiding
Argued and Submitted May 17, 2017
San Francisco, California
Before: W. FLETCHER and TALLMAN, Circuit Judges, and SILVER,** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Roslyn O. Silver, United States District Judge for the
District of Arizona, sitting by designation.
Appellants Amjad Abdelsalem Ali Alabed and Samah Hussein filed suit to
challenge the Board of Immigration Appeals’ (“BIA”) determination that Alabed is
ineligible to be the beneficiary of an I-130 immediate-relative visa petition because
he previously entered into a fraudulent marriage. They now appeal the district
court’s grant of summary judgment in favor of Defendants United States
Citizenship and Immigration Services (“USCIS”) and the BIA. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
We review de novo the district court’s grant of summary judgment. Wang v.
Rodriguez, 830 F.3d 958, 960 (9th Cir. 2016). We may set aside an agency action
if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law.” 5 U.S.C. § 706(2)(A). We review de novo constitutional due process
challenges to immigration decisions. Ramirez-Alejandre v. Ashcroft, 319 F.3d 365,
377 (9th Cir. 2003).
First, the BIA’s denial of Appellants’ I-130 petition was not arbitrary and
capricious. Its determination that Alabed had entered into a fraudulent marriage
with Lourdes Murillo was supported by substantial evidence. A petitioner seeking
an immediate-relative visa bears the burden of proving that the intended
beneficiary is eligible to receive such a visa. 8 U.S.C. § 1361. If USCIS
determines that an individual has entered into a fraudulent marriage for the purpose
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of evading the immigration laws, that individual is statutorily barred from
receiving an immediate-relative visa. 8 U.S.C. § 1154(c). Under 8 C.F.R.
§ 204.2(a)(1)(ii), “[t]he director will deny a petition for immigrant visa
classification filed on behalf of any alien for whom there is substantial and
probative evidence of . . . an attempt or conspiracy” to enter into a marriage for the
purpose of evading the immigration laws. Although the government bears the
initial burden of producing evidence of marriage fraud, the burden then shifts back
to the petitioner to establish that the marriage is bona fide and to rebut the evidence
of fraud. In re Kahy, 19 I. & N. Dec. 803, 806-07 (BIA 1988).
Alabed and Murillo submitted very little documentation in support of their I-
130 petition, and Alabed and Murillo gave inconsistent answers to certain
questions during their interviews. When Murillo was confronted with these
inconsistencies, she admitted the marriage was fraudulent and provided USCIS
with a sworn statement attesting that Alabed had paid her to enter into the
marriage. Moreover, USCIS obtained a police report in which Alabed mentioned
his girlfriend, Gina Botello. Botello provided a sworn statement to USCIS
indicating that she had been in a romantic relationship with Alabed since June
1998, prior to Alabed’s marriage to Murillo. The romantic relationship between
Alabed and Botello was confirmed by PG&E records showing that the two lived
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together from 1999 until 2000. This was substantial and probative evidence of
marriage fraud. Appellants did not successfully rebut this evidence or establish
that Alabed’s marriage to Murillo was bona fide. The BIA reasonably determined
that the new declarations from Botello and Murillo were not credible and that the
declarations from friends and family were not inconsistent with a sham marriage.
See Malhi v. INS, 336 F.3d 989, 994 (9th Cir. 2003) (“[A]n applicant must offer
evidence that is probative of the motivation for marriage, not just the bare fact of
getting married.”).
Second, Appellants did not have a due process right to cross-examine
Botello, Murillo, or the USCIS officers who interviewed Botello and Murillo.
Appellants rely on Ching v. Mayorkas, 725 F.3d 1149 (9th Cir. 2013), 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. Id. at 1159. But a case-
specific analysis of the factors set forth in Mathews v. Eldridge, 424 U.S. 319
(1976), leads to a different result in this case. In Ching, USCIS based its marriage
fraud determination solely on a six-sentence statement from an ex-spouse, and the
petitioners submitted compelling rebuttal evidence. 725 F.3d at 1158. Here, by
contrast, USCIS relied on evidence other than Murillo’s sworn statement in making
its marriage fraud determination, and Appellants’ rebuttal evidence was less
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compelling. The risk of erroneous deprivation is therefore far lower than it was in
Ching. Furthermore, Appellants had access to and submitted declarations from the
very witnesses they wish to cross-examine. It is therefore unlikely that cross-
examination would significantly reduce the risk of erroneous deprivation.
AFFIRMED.
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