Tania Garcia-Lopez v. Michael Aytes , 500 F. App'x 666 ( 2012 )

FILED
NOT FOR PUBLICATION DEC 12 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TANIA GARCIA-LOPEZ, AKA Tania No. 11-16327
Carolina Garcia-Lopez,
D.C. No. 3:09-cv-02592-RS
Plaintiff - Appellant,
v.
ALEJANDRO MAYORKAS, Director,* MEMORANDUM**
U.S. Citizenship and Immigration
Services; ROBIN BARRETT, Field Office
Director, U.S. Citizenship and
Immigration Services, San Francisco
Office; JANET NAPOLITANO, Secretary
of the Department of Homeland Security;
ERIC H. HOLDER JR., Attorney General,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Richard Seeborg, District Judge, Presiding
*
Alejandro Mayorkas, Director, U.S. Citizenship and Immigration Services,
is substituted for his predecessor, Michael Aytes, Acting Deputy Director, pursuant
to Fed. R. App. P. 43(c)(2).
**
This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
Submitted December 7, 2012***
San Francisco, California
Before: HAWKINS, TASHIMA, and MURGUIA, Circuit Judges.
Tania Garcia-Lopez (“Garcia-Lopez”) appeals the district court’s entry of
summary judgment in favor of the government defendants (the Director of the United
States Citizenship and Immigration Services (“USCIS”), Field Office Director of
USCIS, Director of Department of Homeland Security, and the U.S. Attorney
General). Garcia-Lopez filed an immediate relative visa petition on behalf of her
husband, Fathi Abedel Ghani (“Ghani”). However, based on a declaration by Ghani’s
former wife, Celeste Winders (“Winders”), USCIS determined that Ghani had
previously entered into a fraudulent marriage to obtain immigration benefits, and
denied the new petition. Garcia-Lopez alleges that the agency’s actions in denying
her petition were arbitrary and capricious and violated the Administrative Procedure
Act (“APA”).
In actions challenging an agency’s decision to deny or revoke a visa, we review
the district court’s grant of summary judgment de novo; however, the underlying
agency action may be set aside only if “‘arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.’” Family Inc. v. U.S. Citizenship &
***
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
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Immigration Servs., 469 F.3d 1313, 1315 (9th Cir. 2006) (quoting 5 U.S.C. §
706(2)(A)). We must affirm an agency’s factual determination unless the evidence
compels the contrary conclusion. Id.; see also Nakamoto v. Ashcroft, 363 F.3d 874,
883 (9th Cir. 2004).
Garcia-Lopez argues USCIS violated the APA by relying on Winders’s
uncorroborated statement while simultaneously ignoring Garcia-Lopez’s evidence,
which she claims includes “three sworn affidavits” from Ghani’s friends about
meeting Winders and/or seeing her at Ghani’s residence. She is mistaken on both
counts: (1) the agency clearly considered the evidence offered to rebut the sham
marriage, but found it was insufficient to carry Garcia-Lopez’s burden of proof, and
(2) the statements from Ghani’s friends were not sworn affidavits, and the agency
properly discounted their value as such, while also noting the lack of detail in the
statements and the difficulty contacting two of the three friends at the numbers
provided. See generally 8 C.F.R. § 204.2.
Other than Ghani’s self-serving declaration that his marriage to Winders was
not a sham, Garcia-Lopez failed to submit any of the types of materials typically
introduced to overcome allegations of a sham marriage, e.g., photos from the prior
wedding, affidavits from wedding attendants, letters to one another or other evidence
of courtship, etc. See Nakamoto, 363 F.3d at 882 (listing types of objective evidence
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of a bona fide marriage); see also In re Velarde-Pacheco, 23 I. & N. Dec. 253, 256
(BIA 2002); Matter of Laureano, 19 I. & N. Dec. 1, 3 (BIA 1983). USCIS weighed
all the evidence presented and reasonably concluded Garcia-Lopez’s submissions did
not overcome the probative value of Winders’s statement-against-interest admitting
to marriage fraud. The evidence in this case does not compel a contrary conclusion.
Cf. Nakamoto, 363 F.3d at 882 (finding a marriage fraud determination supported by
substantial evidence, despite evidence of three-year correspondence and courtship as
well as financial support); Sharma v. Holder, 633 F.3d 865, 872-74 (9th Cir. 2011)
(photos, co-mingled accounts, letters congratulating the couple on marriage, and a
brief affidavit from a spouse that lacked details about courtship or rationale for
marriage did not establish that the motivation to marry was bona fide).
AFFIRMED.
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