NOT FOR PUBLICATION FILED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
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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,
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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.
4