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NOT FOR PUBLICATION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.
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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).
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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.
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