Luu Pham v. Jefferson Sessions ( 2017 )

  •                                                                             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                                NOT FOR PUBLICATION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
     v.                                                                  A057-574-458
    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
          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.
    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
            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).
    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
    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.