FILED
NOT FOR PUBLICATION SEP 25 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTINE MARY NOVICIO, No. 10-16388
Plaintiff - Appellant, D.C. No. 3:09-cv-00688-RCJ-VPC
v.
MEMORANDUM*
ERIC H. HOLDER, JR.,** Attorney
General,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, Chief District Judge, Presiding
Argued and Submitted September 12, 2012
Las Vegas, Nevada
Before: RAWLINSON, BYBEE, and IKUTA, Circuit Judges.
Christine Novicio appeals the district court’s dismissal of her challenge to
the constitutionality of 8 U.S.C. § 1154(c), which prohibits an alien spouse from
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
Eric H. Holder, Jr. is substituted for his predecessor Michael B.
Mukasey as Attorney General. Fed. R. App. P. 43(c)(2).
becoming a lawful United States resident if the alien spouse had been involved in
marriage fraud. We affirm.
Novicio had standing to challenge the constitutionality of § 1154(c) because
the provision prevents Novicio from residing with her husband in the United
States, an “injury in fact” that would be redressed by a decision invalidating
§ 1154(c) as unconstitutional. See Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000) (citing Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560–61 (1992)).
Even if § 1154(c) burdens Novicio’s constitutional right to marry, because it
imposes no particular procedure for determining whether an alien spouse is eligible
for legal resident status, it is not a procedural statute that must be analyzed under
Mathews v. Eldridge, 424 U.S. 319 (1976). As a substantive provision, § 1154(c)
is subject to limited judicial review under the deferential standard articulated in
Fiallo v. Bell, 430 U.S. 787 (1977). The enactment of § 1154(c) is justified by the
“facially legitimate and bona fide reason” of deterring marriage fraud by aliens.
Id. at 794–95. Therefore, we hold that § 1154(c) is not unconstitutional even if it
burdens Novicio’s constitutional right to marry by preventing her from living with
her alien spouse in the United States.
AFFIRMED.
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