1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 OFIR HANAN, et al., Case No. 23-cv-02414-HSG

8 Plaintiffs, ORDER DENYING PLAINTIFFS’

MOTION FOR SUMMARY

9 v. JUDGMENT AND GRANTING

GOVERNMENT’S CROSS-MOTION

10 U.S. CITIZENSHIP AND IMMIGRATION FOR SUMMARY JUDGMENT SERVICES (USCIS), et al., 11 Re: Dkt. Nos. 22, 24 Defendants. 12 13 Pending before the Court are cross-motions for summary judgment. Dkt. Nos. 22, 24. The 14 Court finds these matters appropriate for disposition without oral argument and the matters are 15 deemed submitted. See Civil L.R. 7-1(b). For the reasons detailed below, the Court DENIES 16 Plaintiffs’ motion for summary judgment and GRANTS Defendants’ cross-motion. 17 I. BACKGROUND 18 A. Factual Background 19 Plaintiffs Ofir Hanan and Melanie Gillum seek judicial review of the decisions of the 20 Board of Immigration Appeals (“BIA”) and the United States Citizenship and Immigration 21 Services (“USCIS”) denying Plaintiff Gillum’s I-130 petition to classify Plaintiff Hanan as the 22 immediate relative spouse of a United States citizen. See Dkt. No. 1 (“Compl.”). Hanan is a 23 citizen of Israel, and entered the United States on a B-2 nonimmigrant visa in April 2008. See 24 Dkt. No. 19-4 (“CAR2”) at 340–41, 348–350.1 He has been married to two U.S. citizens. He 25 married Margarita Jaimes on May 15, 2010, and they divorced on February 14, 2012. See Dkt. 26

27 1 The Certified Administrative Record (“CAR”) is in two parts, and located at Dkt. No. 19-3 and 1 No. 19-3 (“CAR1”) at 145; CAR2 at 347. Hanan never sought any immigration benefits based on 2 his marriage to Jaimes. See id. He married Plaintiff Gillum on January 4, 2014. CAR1 at 144. 3 In September 2014, Plaintiff Gillum filed a Form I-130, Petition for Alien Relative, on 4 Hanan’s behalf, and Hanan correspondingly filed a Form I-485, Application to Register 5 Permanent Residence or Adjust Status. Id. at 139–40; CAR2 at 340–45. As part of the review of 6 Plaintiffs’ I-130 and I-485, USCIS immigration officers interviewed Plaintiff Hanan’s ex-wife 7 Jaimes in November 2016. See CAR1 at 128–31. Jaimes provided a written sworn statement in 8 which she stated that she agreed to marry Hanan in exchange for money. Id. at 129. Specifically, 9 she explained that while she was working at Little Caesars she was approached by someone who 10 asked how much money she made in that job. Id. She said she made “enough,” but struck up a 11 friendship with him. Id. He later asked her if she would marry his cousin, Hanan, “for some extra 12 cash.” Id. She said that she “took the deal,” and was paid approximately $1,500 to $2,000 the day 13 of their wedding, and $500 a month for approximately nine months. Id. Jaimes said that they 14 never lived together. Id. Hanan eventually asked her to move with him to San Francisco, but she 15 said that she “didn’t want[] to move” and “didn’t want to help him anymore,” so they filed for 16 divorce. Id. Jaimes stated that “[t]he whole purpose” of their arrangement “was for him to get his 17 papers and for [her] to get extra cash.” Id. 18 In March 2017, Plaintiffs appeared for an interview with USCIS. CAR2 at 132–38. When 19 confronted with Jaimes’s statement, Hanan explained that he met Jaimes through friends and he 20 intended to start a life with her. See CAR2 at 125–27. According to Hanan, however, they were 21 “very young” when they got married—Jaimes was only 19—and she was “very emotional and 22 yelled a lot” and “abused alcohol even though she was underage.” Id. at 125–26. Hanan said he 23 did not pay her money to marry him, although he did give her money at times, and she in fact 24 demanded it from him, including during their divorce process. Id. at 126–27. Hanan suggested 25 that Jaimes offered her statement because she was “probably angry about the divorce.” Id. at 127. 26 USCIS issued three Notices of Intent to Deny (“NOID”) the I-130 petition, and provided 27 Plaintiffs an opportunity to respond to each. 1 probative evidence that Hanan had attempted or conspired to enter into a marriage with Jaimes for 2 the purpose of evading immigration laws. CAR1 at 121–24. The NOID cited Jaimes’s statement, 3 and explained that Hanan’s response was “unpersuasive” and did not meaningfully rebut Jaimes’s 4 statement. Id. at 123–29. In response to the NOID, Plaintiffs submitted 16 photographs of Hanan 5 and Jaimes, as well as three short declarations from Hanan’s father, friend, and uncle. Id. at 110– 6 20. Hanan’s father stated that he and his daughter visited Hanan and Jaimes once a few months 7 after their wedding, and that “[i]t was my feeling at the time that Ofir and Margarita were trying to 8 build a life together.” Id. at 113. Hanan’s friend, who was present at the wedding, similarly stated 9 that “[f]rom my observation of the wedding and the relationship, I believed and understood that 10 Margarita and Ofir were trying to start a life together.” Id. at 119. Hanan’s uncle also stated that 11 he was not present at the wedding but Hanan and Jaimes visited them on their honeymoon and 12 they “were looking very happy together” and that the “relationship [was] moving to right direction 13 [sic].” Id. at 116. None of them offered any detail to explain their impressions about the 14 relationship. 15 During their ongoing investigation, USCIS identified a July 2011 investigation report from 16 the California Department of Justice, Bureau of Gambling Control (“BGC”), in which Hanan 17 made statements about his marriage to Jaimes. See id. at 97–98. Hanan was interviewed by the 18 BGC as part of an unrelated investigation regarding illegal slot machines in the Bay Area. Id. 19 During the interview, Hanan described to the agents how a third party involved in the slot machine 20 scheme arranged for him “to marry a U.S. citizen in order to get a green card.” Id. According to 21 the report, Hanan told the agents that this third party “found James [sic] and that he paid her to 22 marry him.” Id. Hanan also said that he was “told to pay James [sic] $250.00 every month until 23 he received his green card.” Id. at 98. He paid her by depositing money “directly into James [sic] 24 bank account.” Id. The third party also sent him to an immigration attorney to help him with his 25 paperwork. Id. USCIS issued a second NOID in July 2020, citing both Jaimes’s sworn statement 26 and excerpts of this BGC report. Id. at 92–98. 27 In response, Plaintiffs requested that USCIS produce the entire BGC report for their 1 “never paid Margarita Jaimes any amount of money to marry me.” Id. at 90. He repeated that he 2 married her “with the intention to build a life together.” Id. Hanan also said that he “was attracted 3 to her” and “thought [they] could make a go of it.” Id. He acknowledged that he consulted with 4 an immigration attorney, but said he and Jaimes “discussed [his] immigration status as any couple 5 does when one of them is not [a] U.S. citizen.” Id. 6 USCIS issued a third NOID in February 2021, attaching the BGC report. Id. at 62–83. 7 Parts of the report, including the names of the BGC agents and the alleged co-conspirators in the 8 illegal slot machine ring, were redacted by BGC. See id. at 68–79. USCIS said that it “ha[d] not 9 relied on any evidence that is redacted in determining that the beneficiary engaged in marriage 10 fraud.” Id. at 66. In response, Plaintiffs offered legal arguments that, as they acknowledged, 11 “largely reiterate[d] the arguments that they [] repeatedly put forth . . . .” Id. at 55. Plaintiffs 12 argued that Hanan had a due process right to cross-examine Jaimes. Id. at 56. They further 13 argued that the redacted BGC report made it impossible for them to identify and speak with the 14 officers and other individuals named in the report. Id. at 58. 15 USCIS ultimately denied the I-130 visa petition in March 2022. See id. at 48–54. USCIS 16 explained that Plaintiffs had failed to provide credible and persuasive evidence that Hanan’s 17 marriage to Jaimes was bona fide, given Jaimes’s sworn statement and Hanan’s statements in the 18 BGC interview. Id. Because it denied the visa petition, USCIS also denied Hanan’s I-485 19 adjustment of status application that same day. See CAR2 at 325–26. Plaintiffs appealed the 20 denial of the I-130 petition to the BIA. See CAR1 at 8–9. The BIA adopted and affirmed the 21 USCIS decision. See id. at 2–4. 22 B. Statutory Framework 23 A United States citizen may file an I-130 petition with USCIS to obtain lawful permanent 24 resident status for her noncitizen spouse, the “beneficiary” of the petition. See 8 U.S.C. 25 § 1154(a)(1)(A)(i). If USCIS grants an I-130 petition, then the beneficiary is classified as an 26 “immediate relative” who may seek adjustment of status to permanent residence by filing an I-485 27 application. See 8 U.S.C. §§ 1151(b)(2)(A)(i). The Ninth Circuit has explained that the “grant of 1 725 F.3d 1149, 1156 (9th Cir. 2013). “Immediate relative status for an alien spouse is a right to 2 which citizen applicants are entitled as long as the petitioner and spouse beneficiary meet the 3 statutory and regulatory requirements for eligibility.” Id. 4 “One bar to the grant of an I-130 petition is the so-called ‘marriage fraud bar,’ which 5 prohibits the grant of a petition if ‘the alien has previously been accorded, or has sought to be 6 accorded, an immediate relative or preference status as the spouse of a citizen of the United 7 States . . . by reason of a marriage determined by the [Director of the Bureau of Citizenship and 8 Immigration Services] to have been entered into for the purpose of evading the immigration 9 laws.’” Yocom v. United States Citizenship & Immigr. Servs., No. 23-55430, 2024 WL 2206342, 10 at *2 (9th Cir. May 16, 2024) (quoting 8 U.S.C. § 1154(c)). To apply this bar, the government 11 must “provide ‘substantial and probative evidence’ of marriage fraud.” Id. (quoting 8 C.F.R. 12 § 204.2(a)(1)(ii)); see also Zerezghi v. USCIS, 955 F.3d 802, 805 (9th Cir. 2020). The 13 “substantial-and-probative-evidence standard is a standard of proof, which is at least as high as a 14 preponderance of the evidence.” Zerezghi, 955 F.3d at 816. “The burden then shifts to the 15 petitioner to rebut that finding.” Id. 16 C. Procedural History 17 Plaintiffs filed a complaint in May 2023, claiming that in denying the I-130 petition 18 Defendants acted arbitrarily and capriciously in violation of the Administrative Procedure Act 19 (“APA”) and the Due Process Clause of the U.S. Constitution. Dkt. No. 1. Plaintiffs argued that 20 Defendants improperly applied the marriage fraud bar, 8 U.S.C. § 1154(c)(2), and that their due 21 process rights were violated because Jaimes was not made available for cross-examination in an 22 evidentiary hearing. See id. at ¶¶ 58–67. As such, they urge that the denial of the I-130 visa 23 petition was not supported by substantial and probative evidence that Hanan and Jaimes had 24 entered into a fraudulent marriage. See id. at ¶¶ 68–74. They also argue that the corresponding 25 denial of the I-485 application was similarly erroneous and in violation of the APA. See id. at 26 ¶¶ 75–79. 27 The parties filed cross-motions for summary judgment. See Dkt. No. 22, 24. In the 1 are relevant to the resolution of the cross-motions: Loper Bright Enterprises v. Raimondo, 144 S. 2 Ct. 2244 (2024) and Department of State v. Muñoz, 144 S. Ct. 1812 (2024). The Court gave the 3 parties an opportunity to file supplemental briefs addressing the impact of Loper Bright and 4 Muñoz on the issues raised in the cross-motions for summary judgment. Dkt. Nos. 32, 33. 5 II. LEGAL STANDARD 6 Summary judgment is proper when a “movant shows that there is no genuine dispute as to 7 any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 8 A fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson 9 v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a dispute is “genuine” if there is evidence 10 in the record sufficient for a reasonable trier of fact to decide in favor of the nonmoving party. Id. 11 But in deciding if a dispute is genuine, the court must view the inferences reasonably drawn from 12 the materials in the record in the light most favorable to the nonmoving party, Matsushita Elec. 13 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986), and “may not weigh the evidence 14 or make credibility determinations,” Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997), 15 overruled on other grounds by Shakur v. Schriro, 514 F.3d 878, 884–85 (9th Cir. 2008). If a court 16 finds that there is no genuine dispute of material fact as to only a single claim or defense or as to 17 part of a claim or defense, it may enter partial summary judgment. Fed. R. Civ. P. 56(a). 18 Summary judgment is the appropriate mechanism to review agency determinations under 19 the APA because the Court’s review is limited to the administrative record and it is not resolving 20 questions of disputed fact. See Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 F.3d 1468, 1471– 21 72 (9th Cir. 1994). Under the APA, the Court “must set aside the BIA’s decision if it is ‘arbitrary, 22 capricious, an abuse of discretion, or otherwise not in accordance with law.’” Zerezghi, 955 F.3d 23 at 807 (quoting 5 U.S.C. § 706(2)(A)). The Court reviews the agency’s legal determinations de 24 novo and its factual findings for substantial evidence. See Meza-Vallejos v. Holder, 669 F.3d 920, 25 924 (9th Cir. 2012); Zerezghi, 955 F.3d at 814–15. 26 III. DISCUSSION 27 A. Meaning of § 1154(c)(2) 1 § 1154(c)(2), applies here at all. Plaintiffs contend that § 1154(c) is inapplicable because Hanan 2 did not seek immigration benefits based on his prior marriage to Jaimes. See Dkt. No. 22 at 7–10. 3 Defendants, on the other hand, argue that the statute applies even if a noncitizen only “attempted” 4 or “conspired” to enter a marriage for the purpose of evading the immigration laws, whether or not 5 he ultimately sought immigration benefits. See Dkt. No. 24 at 8–12 (citing 8 U.S.C. § 1154(c)(2)). 6 In short, the parties disagree about the meaning of the marriage fraud bar. 7 In the Supreme Court’s recent opinion, Loper Bright v. Raimondo, the Court overruled 8 Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). See 9 Loper Bright, 144 S. Ct. at 2254–73. The parties agree that in light of Loper Bright, the BIA’s 10 interpretation of § 1154(c) is not entitled to deference under Chevron. See Dkt. No. 32 at 1–2; 11 Dkt. No. 33 at 1–2. Although the Court may consider an agency’s interpretation as “guidance,” it 12 may not defer to the agency. See Loper Bright, 144 S. Ct. at 2262 (quoting Skidmore v. Swift & 13 Co., 323 U.S. 134, 140 (1944)). Instead, the Court “must exercise independent judgment in 14 determining the meaning of statutory provisions.” Id. It “need not and under the APA may not 15 defer to an agency interpretation of the law simply because a statute is ambiguous.” Id. The Court 16 therefore conducts its own independent analysis of the meaning of § 1154(c)(2). 17 As with all questions of statutory interpretation, the Court begins with the plain language 18 of the statute. See Cheneau v. Garland, 997 F.3d 916, 919–20 (9th Cir. 2021) (en banc) (quoting 19 Jimenez v. Quarterman, 555 U.S. 113, 118 (2009)). The Court “read[s] the words ‘in their context 20 and with a view to their place in the overall statutory scheme.’” Cheneau, 997 F.3d at 919 21 (quoting King v. Burwell, 576 U.S. 473, 486 (2015)). The Court may also consider “‘other 22 traditional aids of statutory interpretation’ in order to ascertain congressional intent.” Id. at 920 23 (quoting Middlesex Cnty. Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 13 (1981)). 24 “The plain meaning of the statute controls, and courts will look no further, unless its application 25 leads to unreasonable or impracticable results.” Robinson v. United States, 586 F.3d 683, 687 (9th 26 Cir. 2009) (quotation omitted). 27 Section 1154(c) provides that no I-130 petition shall be approved if: (1) the alien has previously been accorded, or has sought to be 1 accorded, an immediate relative or preference status as the spouse of a citizen of the United States or the spouse of an alien lawfully 2 admitted for permanent residence, by reason of a marriage determined by the Attorney General to have been entered into for 3 the purpose of evading the immigration laws, or

4 (2) the Attorney General has determined that the alien has attempted or conspired to enter into a marriage for the purpose of evading 5 the immigration laws. 6 7 8 U.S.C. § 1154(c)(1)–(2). 8 Section 1154(c)(1) expressly bans noncitizens who have “previously been accorded” or 9 who have “sought to be accorded” immigration benefits based on a fraudulent marriage. By its 10 terms, § 1154(c)(1) thus only applies where a noncitizen “entered into” a marriage and “sought” 11 an immigration benefit based on that marriage (whether or not any benefit was actually obtained). 12 See Zerezghi, 955 F.3d at 804–05 (“The [marriage fraud bar] applies regardless of whether the 13 past sham marriage resulted in a successful immigration petition.”). Section 1154(c)(2), in 14 contrast, does not explicitly require a noncitizen to have sought any immigration benefit based on 15 a fraudulent marriage before the ban applies. Rather, the ban applies as long as the noncitizen 16 “attempted or conspired to enter into a marriage for the purpose of evading the immigration laws.” 17 8 U.S.C. § 1154(c)(2). As one judge has explained, under § 1154(c)(2) “[i]t does not matter 18 whether [a noncitizen] used the marriage to obtain a visa . . . . It is enough that he married—or 19 even just attempted or conspired to marry—with the forbidden purpose.” Ghaly v. I.N.S., 48 F.3d 20 1426, 1436 (7th Cir. 1995) (Posner, J., concurring). 21 Plaintiffs suggest that the Court should incorporate a requirement that immigration benefits 22 must have been sought into (c)(2) as well. See Dkt. No. 22 at 7–10. As will be discussed further 23 below, Plaintiffs contend that Congress created § 1154(c)(2) solely to “close the ‘fiancé loophole’ 24 where noncitizens would petition for fiancés from abroad and bring them to the United States, and 25 then after they arrived here would separate without every marrying.” See Dkt. No. 22 at 1. In 26 such circumstances, the noncitizen actually received an immigration benefit in the form of a K-1 27 visa. Setting aside the legislative history for now, (c)(2) says nothing about fiancés or K-1 visas 1 clearly chose to structure (c)(1) and (c)(2) differently, and the Court has no reason to believe that it 2 did so inadvertently. To the contrary, the Ninth Circuit has cautioned that “[w]here Congress 3 includes particular language in one section of a statute but omits it in another section of the same 4 Act, it is generally presumed that Congress acts intentionally and purposely in the disparate 5 inclusion or exclusion.” Cheneau, 997 F.3d at 920 (quoting I.N.S. v. Cardoza-Fonseca, 480 U.S. 6 421, 432 (1987)). 7 This presumption seems particularly apt where, as here, Congress amended (c)(1) and 8 created (c)(2) at the same time. See Immigration Marriage Fraud Amendments of 1986 (“IMFA”), 9 Pub. L. No. 99-639, 100 Stat. 3537, 3543 (1986). Had Congress intended both (c)(1) and (c)(2) to 10 require a noncitizen to seek immigration benefits, it could have drafted each section accordingly. 11 See Lopez v. Garland, -- F.4th--, No. 23-870, 2024 WL 4140626, at *8 (9th Cir. Sept. 11, 2024) 12 (“As the Supreme Court observed long ago, ‘[w]hen the language is plain, we have no right to 13 insert words and phrases, so as to incorporate in the statute a new and distinct provision.’”) 14 (quoting United States v. Temple, 105 U.S. 97, 99 (1881)). Plaintiffs’ interpretation would require 15 the Court to ignore the plain language of § 1154(c) and essentially rewrite the statute. 16 Plaintiffs respond that such a rewrite is nevertheless appropriate because if (c)(2) applies 17 where the noncitizen never sought immigration benefits, this would render (c)(1) superfluous. See 18 Dkt. No. 26 at 2; see also Dkt. No. 32 at 2–3 (expanding this argument in their supplemental brief 19 about the implication of Loper Bright). Plaintiffs contend that “[i]f § 1154(c)(2) applies where 20 there is no marriage and no immigration benefit sought, then § 1154(c)(1) has no meaning at all.” 21 Dkt. No. 26 at 2 (emphasis in original). In their view, “an attempt or conspiracy ‘to enter into a 22 marriage for the purpose of evading the immigration laws’ would subsume every act listed in 23 subsection (c)(1).” Dkt. No. 32 at 2. Although Plaintiffs do not flesh out this argument further, 24 the Court assumes that Plaintiffs are concerned, at least in part, that anyone who actually entered 25 into a marriage for the purpose of evading the immigration laws also necessarily conspired to do 26 so. However, this overlap would exist whether or not the Court assumes that (c)(2) requires a 27 noncitizen to seek immigration benefits. Plaintiffs’ suggestion that both (c)(1) and (c)(2) require 1 In any event, the Court agrees with Defendants that if Congress had only intended to 2 expand the marriage fraud bar to cover the “fiancé loophole,” it could have done so far more 3 straightforwardly. See Dkt. No. 24 at 11. There would have been no reason to add a second 4 clause at all. Instead, Congress could have extended the prior statute to cover engaged, as well as 5 married couples, by providing that: “[N]o petition shall be approved if the [noncitizen] has 6 previously been accorded, or has sought to be accorded, an immediate relative preference status or 7 nonimmigrant visa as the spouse or fiancé of a citizen of the United States or the spouse of a[] 8 [noncitizen] lawfully admitted for permanent residence, by reason of a marriage or engagement 9 determined by the Attorney General to have been entered into for the purpose of evading the 10 immigration laws.” 11 Defendants also point out that even as currently drafted, (c)(1) is not entirely subsumed by 12 (c)(2). See Dkt. No. 27 at 2–3. Section 1154(c)(1) does not require that the U.S. citizen and 13 noncitizen conspired or agreed to enter into a fraudulent marriage. It is therefore possible that 14 under (c)(1) only a noncitizen—and not their spouse—could enter into a marriage for the purpose 15 of evading the immigration laws. See Dkt. No. 27 at 2–3; cf. Matter of R. I. Ortega, 28 I&N Dec. 16 9, 13 (BIA 2020) (holding that a conspiracy under § 1154(c)(2) requires “an agreement to enter 17 into a marriage for the purpose of evading the immigration laws and an overt act in furtherance of 18 that agreement”); Bark v. Immigr. & Naturalization Serv., 511 F.2d 1200, 1201 (9th Cir. 1975) 19 (defining a sham marriage as one in which “the bride and groom did not intend to establish a life 20 together at the time they were married”). The Ninth Circuit has explained that “marriage fraud 21 may be committed by one party to the marriage, or a person who arranged the marriage, yet the 22 other spouse may genuinely intend to marry.” United States v. Orellana-Blanco, 294 F.3d 1143, 23 1151 (9th Cir. 2002) (quotation omitted). 24 And ultimately, the Court does not need to find an interpretation of the statute that 25 eliminates all overlap between (c)(1) and (c)(2). As the Ninth Circuit has explained, “canons of 26 statutory interpretation are not absolute and can be ‘overcome by other indicia of meaning.’” 27 United States v. Paulson, 68 F.4th 528, 539 (9th Cir. 2023) (quoting Lockhart v. United States, 1 completely rewriting the statute. Cf. In re Pangang Grp. Co., LTD., 901 F.3d 1046, 1056 (9th Cir. 2 2018) (“[W]e disfavor efforts to use canons of construction to introduce ambiguity into 3 straightforward text.”). “The first and most important canon of statutory construction is the 4 presumption that a legislature says in a statute what it means and means in a statute what it says 5 there.” Id. (quotation omitted). “[R]edundancies are common in statutory drafting—sometimes in 6 a congressional effort to be doubly sure, sometimes because of congressional inadvertence or lack 7 of foresight, or sometimes simply because of the shortcomings of human communication.” Pugin 8 v. Garland, 599 U.S. 600, 609 (2023) (quoting Barton v. Barr, 590 U.S. 222, 239 (2020)). The 9 Supreme Court “has often recognized” that “[s]ometimes the better overall reading of the statute 10 contains some redundancy.” Barton, 590 U.S. at 239 (quotation omitted). The Court finds that 11 this is such a case. A straightforward reading of the statute indicates that Congress intended to 12 ban both those who sought an immigration benefit based on a fraudulent marriage and also those 13 who only conspired to do so. Because the Court finds that the statute is unambiguous on its face, 14 the Court need not consider the legislative history. See, e.g., CVS Health Corp. v. Vividus, LLC, 15 878 F.3d 703, 706 (9th Cir. 2017) (“If the language has a plain meaning or is unambiguous, the 16 statutory interpretation inquiry ends there.”). 17 And even had the Court found the statute to be ambiguous, the legislative history of 18 § 1154(c) further supports the Court’s interpretation that (c)(2) does not require a noncitizen to 19 have sought any immigration benefit before the bar applies. When first enacted, § 1154(c) only 20 barred approval of a visa petition where the noncitizen had “previously been accorded a nonquota 21 or preference status . . . by reason of a marriage determined by the Attorney General to have been 22 entered into for the purpose of evading the immigration laws.” See An Act to Amend the 23 Immigration and Nationality Act, Pub. L. No. 89-236, 79 Stat. 911, 915 (1965) at § 4. The bar 24 therefore only applied if a noncitizen had obtained an immigration benefit based on a fraudulent 25 marriage. See, e.g., Matter of Concepcion, 16 I. & N. Dec. 10, 11 (BIA 1976) (concluding that 26 prior bar did not apply where the petitioner was accorded immediate relative status on the basis of 27 falsified documents and “[n]o marriage was entered into”); Matter of Isber, 20 I. & N. Dec. 676, 1 petitioner withdrew the visa petition on being confronted with evidence that the marriage was a 2 sham”). 3 The House Report to the IMFA, which amended § 1154(c), stated that the purpose of the 4 legislation was broadly “to deter immigration-related marriage fraud.” H. Rep. No. 99–906, at *1 5 (1986), reprinted in 1986 U.S.C.C.A.N. 5978, 5978. The House Report further explained the need 6 for the legislation: 7 Historically, U.S. immigration policy has recognized the importance 8 of protecting nuclear families from separation by permitting immediate family members of U.S. citizens to immigrate to the 9 United States without numerical limitation. Similarly, the law has long set aside a significant number of immigrant visas for immediate 10 relatives of permanent resident aliens. Because of this special status accorded such alien relatives, aliens who either cannot otherwise 11 qualify for immigration to the United States or who, though qualified, are not willing to wait until an immigrant visa becomes available, 12 frequently find it expedient to engage in a fraudulent marriage in order to side-step the immigration law. 13 14 Id. at *6 (emphasis added). Section 1154(c), therefore, was intended to deter noncitizens from 15 entering into a fraudulent marriage “in order to side-step” the immigration laws. More 16 specifically, the House Report states that “the bill perpetually bars from immigrating to the United 17 States any [noncitizen] who has conspired to engage in a fraudulent marriage or who has 18 attempted to obtain an immigration benefit on the basis of such marriage.” Id. at *6, *8. This 19 broad purpose is similarly reflected in the title of § 4 to the IMFA, “Restrictions on Future Entry 20 of [Noncitizens] Involved with Marriage Fraud.” See IMFA at § 4 (emphasis added). 21 Plaintiffs point out that the Department of Justice, in supporting the enactment of the 22 legislation, stated that the amendments would: 23 D[o] away with the distinction between fiancés and other aliens 24 whose benefits are based on marriage. Commonly, a fiancée who does marry the petitioning spouse will immediately terminate the 25 marriage, remarry, and file a preference petition for another alien. This significant loophole must be closed, and the bill would do that. 26 27 Id. at *10. Plaintiffs do not explain how the Department of Justice’s position on the legislation is 1 the so-called “fiancé loophole” does not suggest that this was the only—or even the primary— 2 purpose behind the changes to § 1154(c) so as to override the plain language of the statute. 3 Lastly, Plaintiffs argue that “[a]pplying § 1154(c)(2) to cases where no immigration benefit 4 was sought is unduly harsh . . . .” Dkt. No. 22 at 10. Courts have recognized that the marriage 5 fraud bar is a “harsh penalty.” See, e.g., Zerezghi, 955 F.3d at 813 (noting the “the harsh effects of 6 a marriage-fraud determination”); Ghaly, 48 F.3d at 1436 (Posner, J., concurring) (“This is a harsh 7 law . . . .”). Plaintiffs point out that Hanan was very young at the time of his first marriage to 8 Jaimes, and he now has a child with Gillum and faces permanent separation from his family as a 9 result of the BIA’s decision. See Dkt. No. 22 at 10–11. But Plaintiffs do not cite—and the Court 10 is not aware of—any principle that would allow it to rewrite a statute because of the severity of its 11 consequences. Congress, not the courts, makes these types of policy determinations. 12 B. Due Process 13 Next, Plaintiffs argue that even if § 1154(c)(2) could apply here, their due process rights 14 were violated. See Dkt. No. 22 at 11–14. Both in their NOID responses and summary judgment 15 briefs, Plaintiffs urge that they were entitled to cross-examine Jaimes but were not given the 16 opportunity to do so. See id.; see also Dkt. No. 26 at 7. 17 The Due Process Clause of the Fifth Amendment provides that no person shall “be 18 deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. The 19 Ninth Circuit has explained that “[a] threshold requirement to a substantive or procedural due 20 process claim is the plaintiff’s showing of a liberty or property interest protected by the 21 Constitution.” Ching, 725 F.3d at 1155 (quotation omitted). “To have a property interest in a 22 benefit,” a person must “have a legitimate claim of entitlement to it.” Id. (quotation omitted). 23 This is “determined largely by the language of the statute and the extent to which the entitlement 24 is couched in mandatory terms.” Id. (quotation omitted). 25 In Ching, the Ninth Circuit held that because the “grant of an I–130 petition for immediate 26 relative status is a nondiscretionary decision,” it is a protected interest that “is entitled to the 27 protections of due process.” Id. at 1156 (“Immediate relative status for an alien spouse is a right to 1 statutory and regulatory requirements for eligibility.”). The Ninth Circuit thus reversed a grant of 2 summary judgment where the petitioners were not afforded the opportunity to cross-examine the 3 noncitizen Teresita Ching’s ex-husband or the USCIS officer who took the ex-husband’s 4 statement. Id. at 1154–55. USCIS based its marriage fraud determination solely on a six-sentence 5 statement from the ex-husband, in which he said that he did not marry for love, was paid in cash 6 installments, and never lived with or had sex with Ching. Id. at 1153. Ching, on the other hand, 7 submitted a lengthy sworn declaration in which she described “in excruciating detail her intimate 8 relationship” with her ex-husband. Id. She also corroborated the account of her relationship with 9 “photographs of the couple, joint utility bills, an apartment lease, and a letter [her ex-husband] had 10 previously written to USCIS stating that he and Ching ‘truly loved each other.’” Id. The Ninth 11 Circuit held that under such circumstances, “due process required a hearing with an opportunity 12 for Ching to confront the witnesses against her.” Id. at 1159. 13 Plaintiffs urge that due process likewise required them to be given the opportunity to cross- 14 examine Jaimes. See Dkt. No. 22 at 11–13. Plaintiffs appear to characterize Ching as 15 categorically holding that due process always requires an opportunity to cross-examine witnesses 16 when assessing I-130 petitions. Id. However, in Ching, the Ninth Circuit emphasized that “due 17 process is flexible and calls for such procedural protections as the particular situation demands.” 18 Ching, 725 F.3d at 1157 (quoting Mathews v. Eldridge, 424 U.S. 319, 334–35 (1976)). The Court 19 noted that this is especially true in administrative proceedings, which require consideration of “the 20 specific circumstances involved . . . on a case by case basis.” Id. 21 When determining whether additional process is due in any given case, the Court must 22 consider the three Mathews factors: 23 First, the private interest that will be affected by the official action; 24 second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or 25 substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and 26 administrative burdens that the additional or substitute procedural requirement would entail. 27 1 i. Chenery Doctrine 2 As an initial matter, Plaintiffs argue that this Court cannot consider Ching or evaluate the 3 Mathews factors at all because the BIA did not explicitly do so. See Dkt. No. 22 at 13; Dkt. No. 4 26 at 6–7. Plaintiffs urge that Defendants are offering improper post hoc justifications. Id. 5 Plaintiffs cite SEC v. Chenery Corporation, in which the Supreme Court held that “a reviewing 6 court, in dealing with a determination or judgment which an administrative agency alone is 7 authorized to make, must judge the propriety of such action solely by the grounds invoked by the 8 agency.” 332 U.S. 194, 196 (1947); accord Navas v. I.N.S., 217 F.3d 646, 658, & n.16 (9th Cir. 9 2000) (noting that the court’s “review is confined to the BIA’s decision and the bases upon which 10 the BIA relied”). Here, in response to Plaintiffs’ argument that their due process rights were 11 violated, the BIA stated that “once apprised of the first wife’s sworn statement, the petitioner 12 could have asked the first wife to submit to cross-examination and could have provided that sworn 13 statement to the Director.” CAR1 at 4. Plaintiffs urge that the Court may only evaluate the BIA’s 14 discrete point that Plaintiffs’ due process rights were sufficiently protected because they had 15 notice of Jaimes’s statement and could have sought their own statement from her or asked her to 16 sit for cross-examination themselves. See Dkt. No. 22 at 13; Dkt. No. 26 at 6–7. 17 However, Plaintiffs’ argument turns on an overly narrow view of what the BIA 18 determined. Despite Plaintiffs’ suggestion otherwise, the BIA evaluated the scope of Plaintiffs’ 19 due process rights here, and determined that they did not require that the government make Jaimes 20 available for cross-examination. And, as Plaintiffs’ own authorities make clear, the Court 21 “review[s] de novo whether the BIA violated procedural due process in adjudicating an I-130 22 petition.” See Zerezghi, 955 F.3d at 807. Aside from quoting Chenery, Plaintiffs make no effort 23 to explain how it applies in this particular context where the Court does not defer to the agency. 24 Cf. Louis v. U.S. Dep't of Lab., 419 F.3d 970, 978 (9th Cir. 2005) (finding Chenery inapplicable 25 where a court reviews agency action de novo). It is not clear how the Court could conduct such a 26 de novo review without considering the requirements of due process under Ching and Mathews. 27 The Cour therefore rejects Plaintiffs’ cursory argument under Chenery. 1 ii. Prejudice 2 Before turning to the Mathews factors, Defendants suggest that Plaintiffs “may need to 3 show prejudice.” See Dkt. No. 24 at 15. In Ching, the Ninth Circuit noted that “[t]he question of 4 whether a plaintiff must demonstrate prejudice in the context of an I–130 visa petition is not 5 settled.” Ching, 725 F.3d at 1156. The Ninth Circuit declined to decide the issue definitively 6 because the petitioners there had demonstrated sufficient prejudice. Id. The Court noted that 7 “prejudice is shown if the violation potentially affects the outcome of the proceedings.” Id. at 8 1156–57 (emphasis in original). The Court found it sufficient that USCIS accepted the ex- 9 husband’s statement as true without the opportunity for cross-examination, and “in the face of 10 contradictory documents and affidavits.” Id. at 1156. The Court cautioned that the right to cross- 11 examine witnesses is particularly important “where the evidence consists of the testimony of 12 individuals whose memory might be faulty or who, in fact, might be perjurers or persons 13 motivated by malice, vindictiveness, intolerance, prejudice, or jealousy.” Id. (quotation omitted). 14 Here, Defendants acknowledge that it is not clear whether Plaintiffs must show prejudice. 15 See Dkt. No. 24 at 15–16. They cite the language in Ching above, but provide no further analysis 16 of the issue. It is also thus not clear whether Defendants actually believe that Plaintiffs must show 17 prejudice. The Court should not have to intuit Defendants’ position or make Defendants’ 18 arguments for them. Still, to the extent the parties assume that Plaintiffs must show prejudice, 19 their arguments turn on the nature of the other evidence in the record—particularly the BGC 20 report. Compare Dkt. No. 24 at 15–16 and Dkt. No. 27 at 9–10, with Dkt. No. 26 at 8. Their 21 arguments appear to collapse into a single question: whether, without Jaimes’s admission of 22 fraud, there remains substantial and probative evidence in the record supporting Defendants’ 23 conclusion that Hanan and Jaimes’s marriage was fraudulently entered into for the purpose of 24 evading the immigration laws. The Court addresses this question more directly in Section III.B.iii 25 and Section III.C below. 26 iii. Mathews Factors 27 a. First Factor 1 stake in adjudicating the I-130 without first providing Plaintiffs an opportunity to cross-examine 2 Jaimes. See Ching, 725 F.3d at 1157 (“The first Mathews factor is an assessment of the private 3 interest that will be affected by the official action”). In Ching, the Ninth Circuit reasoned that this 4 factor favored the plaintiffs because (1) Ching faced removal from the United States without the I- 5 130 approval; (2) “[t]he right to marry and to enjoy marriage are unquestionably liberty interests 6 protected by the Due Process Clause”; and (3) “[t]he right to live with and not be separated from 7 one’s immediate family is a right that ranks high among the interests of the individual and that 8 cannot be taken away without procedural due process.” Id. (quotation omitted); accord Zerezghi, 9 955 F.3d at 810 (relying on Ching’s analysis to define the private interests at stake). In a similar 10 case involving an I-130 petition, the Ninth Circuit explained that “being separated from one’s 11 spouse implicates strong private interests” under the first Mathews factor. Yocom, 2024 WL 12 2206342, at *2. Plaintiffs echo these concerns, stating that “Plaintiff Gillum will not be able to 13 live [] in the United States with Plaintiff Hanan, the father of her child.” See Dkt. No. 26 at 9. 14 Although Hanan is not currently in removal proceedings, Plaintiffs further urge that without the I- 15 130, “nothing prevent[s] the Department of Homeland Security from initiating proceedings in his 16 case.” Id. 17 The Supreme Court’s recent decision in Department of State v. Muñoz, however, calls into 18 question the nature of the private interests at stake here. 144 S. Ct. 1812, 1821 (2024). In Muñoz, 19 Sandra Muñoz, a U.S. citizen, filed an I-130 petition for her husband, which was granted. Id. at 20 1818. Because her husband had entered the United States unlawfully, he was required to return to 21 El Salvador and submit his visa application at a consulate there. Id. The consular officer 22 ultimately denied the husband’s visa application without explanation after finding that he was 23 associated with the transnational gang MS-13. Id. at 1817. Her husband could not challenge the 24 denial of his visa application, so Muñoz challenged it instead. Id. In doing so, she urged that 25 “[t]he right to live with her noncitizen spouse in the United States is implicit in the ‘liberty’ 26 protected by the Fifth Amendment,” and that “the denial of her husband’s visa deprived her of this 27 interest, thereby triggering her right to due process.” Id. She further argued that the consular 1 husband inadmissible. Id. 2 In reversing the Ninth Circuit, the Supreme Court held “that a citizen does not have a 3 fundamental liberty interest in her noncitizen spouse being admitted to the country.” Id. at 1821. 4 The Court recognized that “Congress can use its authority over immigration to prioritize the unity 5 of the immigrant family,” and it does so by, for example, exempting “immediate relatives” from 6 certain numerical quotas. Id. at 1825. But the Supreme Court explained that “the Constitution 7 does not require this result.” Id. (emphasis in original). The Court further explained: 8 Congress’s generosity with respect to spousal immigration has always 9 been subject to restrictions, including bars on admissibility. This is an area in which more than family unity is at play: Other issues, 10 including national security and foreign policy, matter too. Thus, while Congress may show special solicitude to noncitizen spouses, 11 such solicitude is a matter of legislative grace rather than fundamental right. 12 13 Id. (quotation omitted). 14 In light of Muñoz, the Court provided the parties with an opportunity to supplement their 15 briefs and address the implications of Muñoz for Plaintiffs’ appeal. See Dkt. Nos. 32, 33. 16 Defendants argue that the Supreme Court’s decision in Muñoz undermines the Ninth Circuit’s 17 analysis in Ching. See Dkt. No. 33 at 4–5. Defendants point out that when considering the first 18 Mathews factor, the Ninth Circuit in Ching explicitly assumed that petitioners had a right to 19 “enjoy marriage” and “live with and not be separated from one’s immediate family.” See Dkt. No. 20 33 at 4–5 (citing Ching, 725 F.3d at 1157). Defendants suggest that Muñoz casts doubt on these 21 assumptions, such that Plaintiffs’ asserted interest in living together in the United States is thus 22 less significant. As the Supreme Court explained, inherent in an asserted right to reside with one’s 23 noncitizen spouse is the idea that a citizen has the right to have that spouse enter and remain in the 24 United States. See Muñoz, 144 S. Ct. at 1823. The Supreme Court explained that such a 25 purported right is inconsistent with “the Government’s sovereign authority to set the terms 26 governing the admission and exclusion of noncitizens.” Id. Accordingly, Defendants contend that 27 for purposes of the first Mathews factor, Plaintiffs’ private interest is no more than an unprotected 1 For their part, Plaintiffs urge that an I-130 petition, and the underlying interests involved, 2 are different than those at issue in Muñoz. See Dkt. No. 32 at 5–7. Specifically, Plaintiffs argue 3 that because there is no discretion in the adjudication of an I-130 petition, Gillum has a property 4 interest in the approval of the petition. Id. This is different, they state, from a liberty interest in 5 residing with one’s noncitizen spouse in the United States. Id. In Muñoz, the I-130 petition had 6 already been approved, and the case only involved the subsequent and discretionary denial of a 7 consular visa. Id. 8 The Court acknowledges that in Ching, the Ninth Circuit held that the petitioners had a 9 property interest in the approval of the I-130 petition because “[w]here a petitioner of an 10 immediate relative petition proves that his marriage meets the requirements for the approval of an 11 I–130, he is entitled, as a matter of right, to the approval of his petition.” Ching, 725 F.3d at 1155. 12 Although the Court relied in part on the “protected liberty interest” that a U.S. citizen has in her 13 marriage to “buttress” this conclusion, the Court primarily looked to the language of 8 U.S.C. 14 § 1154 itself. Id. Consequently, Muñoz does not necessarily overrule Ching directly, and 15 Defendants do not argue that it does. See Dkt. No. 33 at 4–6; but see Kane v. U.S. Attorney 16 General, No. 23-cv-14192, 2024 WL 3650239, at *7 (11th Cir. Aug. 5, 2024) (per curiam) 17 (rejecting due process claim in adjudication of I-130 petition in light of Muñoz). 18 The Ninth Circuit has cautioned that only in cases of “clear irreconcilability” can district 19 courts “consider themselves bound by the intervening higher authority and reject the prior opinion 20 of [the Ninth Circuit] as having been effectively overruled.” Miller v. Gammie, 335 F.3d 889, 21 899–900 (9th Cir. 2003) (en banc). “This is a high standard,” which “requires [the district court] 22 to look at more than the surface conclusions of the competing authority.” Rodriguez v. AT & T 23 Mobility Servs. LLC, 728 F.3d 975, 979 (9th Cir. 2013) (quotation omitted). Given the different 24 procedural postures of Ching and Muñoz, the Court cannot say that the reasoning of Ching is 25 clearly irreconcilable with Muñoz. Plaintiffs may have a property interest in the approval of an I- 26 130 while lacking a liberty interest in residing in the United States together. The Court therefore 27 continues to conclude, as Ching found, that the grant of an I-130 petition is a “protected interest [] 1 But this does not end the inquiry. The Court in Ching went on to evaluate what if any 2 additional process petitioners were due as a result of this property right. See id. at 1157–59. 3 When evaluating the nature of the petitioners’ private interest under the first Mathews factor, the 4 Court explicitly considered the risk of family separation. See Ching, 725 F.3d at 1157 (noting that 5 “[t]he right to marry and to enjoy marriage are unquestionably liberty interests protected by the 6 Due Process Clause” and that “[t]he right to live with and not be separated from one’s immediate 7 family is a right that ranks high among the interests of the individual and that cannot be taken 8 away without procedural due process”). Muñoz directly discussed these rights, finding that a 9 citizen does not have a fundamental liberty interest in residing with her noncitizen spouse in the 10 United States. Consequently, Defendants contend that Muñoz requires the Court to “revisit the 11 private interests presumed in Ching and its progeny” under the first Mathews factor. Dkt. No. 33 12 at 6. 13 Plaintiffs offer no response to this specific argument, and it is not clear post-Muñoz what if 14 anything is left of the private interests identified in Ching. See Dkt. No. 32. Their property right 15 in the approval of the I-130 only appears to have significance insofar as it allows Plaintiffs to live 16 together in the United States. They state that “Plaintiff Gillum will not be able to live [] in the 17 United States with Plaintiff Hanan, the father of her child.” See Dkt. No. 26 at 9. Having 18 reviewed Plaintiffs’ briefs in detail, the Court concludes that they do not appear to identify any 19 interests distinct from their desire to live together in the United States. Accordingly, the Court 20 agrees with Defendants that in light of Muñoz, Plaintiffs’ private interests are appropriately 21 characterized as limited at best, such that the first Mathews factor does not clearly weigh in favor 22 of Plaintiffs. 23 b. Second Factor 24 The Court next considers the risk of an erroneous finding that Hanan’s marriage with 25 Jaimes was fraudulent against the probative value of making her available for cross-examination. 26 See Ching, 725 F.3d at 1157–58. The Ninth Circuit in Ching explained that “the risk of an 27 erroneous finding that a prior marriage was fraudulent is high in cases where an ex-spouse is relied 1 example, be “motivated by malice, vindictiveness, intolerance, prejudice, or jealousy.” Id. at 1156 2 (quotation omitted). Plaintiffs argue that these same risks exist here too. 3 Plaintiffs note that although they were given the opportunity to respond to Jaimes’s 4 statement, they have no insight into the nature of Defendants’ interactions with Jaimes, or whether 5 she felt intimidated or coerced into giving her statement as a result of Defendants’ conduct. See 6 Dkt. No. 22 at 13–14; Dkt. No. 26 at 8–9. In their responses to the NOIDs, Hanan further 7 suggested that Jaimes was an unreliable witness because she abused alcohol while they were 8 together and she was “probably angry about the divorce” and Hanan’s decision not to pay her 9 more during that process. CAR2 at 125–27. Plaintiffs suggest that they would have confronted 10 Jaimes with Hanan’s own contentions that, for example, he introduced her to his family and asked 11 her to move to San Francisco with him. See Dkt. No. 22 at 14. In short, Plaintiffs say they missed 12 the opportunity to undermine Jaimes’s credibility. 13 Such high-level credibility concerns are likely present in every case in which the 14 government relies on the statement of an ex-spouse. But as noted above, in Ching the Ninth 15 Circuit did not create a categorial rule that cross-examination is always required in such 16 circumstances. To the contrary, the court stated that the amount of process anyone is entitled to 17 depends on “the specific circumstances involved,” and directed courts to evaluate such claims on a 18 “case by case basis.” Ching, 725 F.3d at 1157. 19 In Ching, the court found it significant that USCIS based its marriage-fraud determination 20 exclusively on the ex-husband’s short statement notwithstanding the petitioner’s substantial 21 evidence that the marriage was bona fide. Id. at 1158. In contrast to her ex-husband’s “terse 22 statement,” the petitioner provided “excruciating detail” in a 21-page, single-spaced document 23 about their intimate relationship, the conversations they had, and why the relationship eventually 24 deteriorated. Id. at 1153. The petitioner also provided corroborating documentation. Id. at 1153, 25 1158. For example, the ex-husband stated that they never lived together, but the petitioner 26 provided a lease agreement and joint utility bills. Id. at 1153. The ex-husband stated that he did 27 not marry the petitioner for love, but the petitioner proffered a letter her ex-husband had 1 Ninth Circuit expressed concern that the BIA was willing to reject such detailed evidence based 2 solely on the ex-husband’s conclusory say-so. Id. at 1158. 3 Here, in contrast, Defendants did not rely solely on Jaimes’s statement. They also had a 4 contemporaneous report from a 2011 BGC interview with Hanan, which was conducted when he 5 was still married to Jaimes. The report reflected Hanan’s statement that a third party involved in 6 the slot machine scheme told him that “[w]e can help you stay here, like legally.” CAR1 at 72. 7 The report reflects that Hanan indicated that the person told him that he would arrange for Hanan 8 “to marry a U.S. citizen in order to get a green card.” Id. According to the report, Hanan told 9 agents that this third party “found James [sic] and that he paid her to marry him.” Id. Hanan had 10 her phone number, but did not know her birthdate. Id. Hanan said “he was told to pay James [sic] 11 $250.00 every month until he received his green card.” Id. Hanan said he “would deposit money 12 directly in James’ [sic] bank account.” Id. Hanan acknowledged that “he recently filed for 13 divorce from James [sic].” Id. 14 As discussed further in Section III.C below, it is clear that Plaintiffs believe Defendants 15 placed too much weight on this report and disagree with the conclusions that Defendants have 16 drawn from it. But regardless, unlike in Ching, Defendants here had separate evidence reflecting 17 that Hanan acknowledged that his marriage to Jaimes was arranged for immigration purposes, that 18 someone else found Jaimes for him to marry, and that he paid her monthly as instructed. 19 Defendants provided Plaintiffs with a copy of the report that BGC had redacted to exclude the 20 names of the BGC agents and the alleged co-conspirators in the illegal slot machine ring. Id. at 21 62–83. And Plaintiffs do not appear to dispute that Hanan did in fact meet with BGC agents, or 22 that in the process of answering questions about an illegal slot machine distribution ring, he 23 discussed his relationship with Jaimes. See Dkt. No. 22 at 3. Notably, despite having multiple 24 opportunities and every incentive to do so, Hanan does not argue that the report inaccurately 25 reflects what he discussed during the BGC interview. As discussed in more detail in Section III.C 26 below, Plaintiffs suggest that the report “contains no admission of marriage fraud,” see Dkt. No. 27 22 at 17–18, but never assert that the report inaccurately captured his statements or that cross- 1 report. 2 Hanan’s proffered rebuttal evidence is also far less compelling than that offered in Ching, 3 despite Plaintiffs having significant time to amass it. Plaintiffs provided just 16 photographs of 4 Hanan and Jaimes together from the course of their entire relationship, six of which were from the 5 wedding, and a handful of one-page conclusory declarations. Hanan, for his part, provided two 6 short statements, neither of which provided any specific detail about the nature of his courtship of 7 or marriage to Jaimes. He simply asserted in conclusory fashion that he “was attracted to” Jaimes 8 and married her “with the intention to build a life together.” See CAR1 at 90. Separately, he 9 stated that he met Jaimes “through friends” and that they “spent some time together.” See id. at 10 125. But he offered no detail about their introduction, what they did together, what they talked 11 about, or how they intended to build a life together. He offered similarly little detail about their 12 married life together, such as whether they lived together or shared finances, or even saw each 13 other outside of the wedding, honeymoon trip to Las Vegas, and a single visit from Hanan’s 14 family shortly after the wedding. 15 The three one-page declarations from Hanan’s friends and family members similarly offer 16 no insight into the nature of Hanan and Jaimes’s relationship. See CAR2 at 105–119. Hanan’s 17 friend stated that he “was not in really close contact with [Hanan] all the time,” but was invited to 18 Hanan’s wedding. Id. at 119. He concluded from his observations there that he “believed and 19 understood” Hanan and Jaimes “were trying to start a life together.” Id. He did not say what his 20 observations were. Hanan’s uncle stated that the couple “looked happy” on a honeymoon trip to 21 Las Vegas shortly after the wedding. See id. at 116. He said he “felt that this relationship [was] 22 moving to [the] right direction,” id., but didn’t explain why. And Hanan’s father visited Hanan 23 and Jaimes once “a few months after their marriage” and had a “feeling” they were trying to start a 24 life together. See id. at 113. Again, he offered no detail about the visit or the basis of his 25 “feeling” about Hanan and Jaimes’s intentions. 26 Such information does not come close to the level of rebuttal evidence provided in Ching. 27 Defendants’ reliance on the BGC report and Plaintiffs’ insufficient rebuttal evidence make the risk 1 because Defendants relied on information beyond Jaimes’s statement, the Court finds it unlikely 2 that cross-examining Jaimes would reduce the risk of an erroneous deprivation in this case. 3 Accord Alabed v. Crawford, 691 F. App’x 430, 432 (9th Cir. 2017); Graziani v. Barr, No. CV 18- 4 2420-CBM-SP(X), 2021 WL 822706, at *8 (C.D. Cal. Jan. 21, 2021), aff’d sub nom. Graziani v. 5 Whitaker, No. 21-55190, 2021 WL 5850908 (9th Cir. Dec. 9, 2021). 6 c. Third Factor 7 Lastly, the Court considers the government’s interest. The Ninth Circuit has stated that 8 “the government has a substantial interest in preventing marriage fraud and in avoiding 9 erroneously providing benefits.” Ching, 725 F.3d at 1158. “On the other hand, there is a 10 significant public interest in allowing those who are legitimately married to receive the benefits 11 intended for them.” Id. at 1158–59. The Court must therefore consider the burden on the 12 government in holding a hearing at which Plaintiffs could cross-examine Jaimes. Defendants 13 argue that this would unnecessarily burden the government when they had already provided 14 Plaintiffs with the substance of Jaimes’s statement. See Dkt. No. 24 at 18. They allude to the 15 financial and administrative burden this could cause, but Defendants offer little detail about the 16 true cost of providing this additional process in this case. In the absence of more specific 17 information, the Court finds that the burden of holding an evidentiary hearing and making Jaimes 18 available for cross-examination would be slight. 19 * * * 20 Having considered the parties’ arguments in detail, the first two Mathews factors weigh 21 against finding that Plaintiffs had a due process right to cross-examine Jaimes. And only the third 22 factor weighs in favor of Plaintiffs in this case. On balance, the Court therefore finds that 23 Plaintiffs did not have a due process right to cross-examine Jaimes under the circumstances. 24 C. Substantial Evidence 25 Even putting aside their due process concerns, Plaintiffs argue that the BIA’s 26 determination that Hanan and Jaimes’s marriage was fraudulent and the marriage fraud bar applies 27 was not supported by substantial and probative evidence. See Dkt. No. 22 at 15–20. The Court 1 substantial evidence standard.2 See Damon v. Ashcroft, 360 F.3d 1084, 1088 (9th Cir. 2004) 2 (“Whether [a beneficiary] entered into the qualifying marriage in good faith is an intrinsically fact- 3 specific question reviewed under the substantial evidence standard.”). The substantial evidence 4 standard “is an extremely lenient standard that asks courts to consider only whether the 5 administrative record contains sufficient evidence to support the agency’s factual determinations.” 6 Zerezghi, 955 F.3d at 814 (quotations and alterations omitted). “In the immigration context, the 7 substantial-evidence standard means that a reviewing court must affirm the BIA’s order when 8 there is such relevant evidence as reasonable minds might accept as adequate to support it, even if 9 it is possible to reach a contrary result on the basis of the evidence.” Id. at 814–15 (quotation 10 omitted). 11 As explained above, Defendants relied both on Jaimes’s statement and the BGC report. 12 Plaintiffs offer a scattershot list of critiques of Defendants’ evidence. See Dkt. No. 22 at 15–17. 13 In her statement, Jaimes admitted that she was approached by a friend to marry Hanan for 14 money, and that Hanan paid her $1,500 to $2,000 for the marriage. See CAR1 at 129. She said 15 that they agreed that Hanan would pay her $500 a month, although she “sometimes asked for 16 more.” See id. When Hanan asked her to move to San Francisco shortly after their wedding, she 17 said she didn’t want to move and didn’t want to help him anymore. Id. Jaimes summarized their 18 marriage by saying its “whole purpose” was for Hanan “to get his papers and for me to get extra 19 cash.” Id. The Court has already explained that Plaintiffs were not entitled to cross-examine 20 Jaimes. See Section III.B. Plaintiffs also suggest that Jaimes’s statement lacks credibility and 21 internal consistency. Specifically, Plaintiffs point out that Hanan asking Jaimes to move to San 22 Francisco is not consistent with Jaimes’s assertion that the marriage was a sham. But it is not for 23 the Court to reweigh the evidence and substitute its opinions and credibility determinations for 24 those of the agency. “The agency’s findings of fact are conclusive unless any reasonable 25

26 2 The government must prove marriage fraud by “substantial and probative evidence,” a standard that is “at least as high as a preponderance of the evidence.” See 8 C.F.R. § 204.2(a)(1)(ii); 27 Zerezghi, 955 F.3d at 816. Once the government has found substantial and probative evidence of 1 adjudicator would be compelled to conclude to the contrary.” Iman v. Barr, 972 F.3d 1058, 1064 2 (9th Cir. 2020). It is equally plausible, as Defendants assert, that Hanan asked her to move to 3 continue the fraud until he could apply for immigration benefits. See Dkt. No. 24 at 17–18. 4 As to the BGC report, Plaintiffs state that the report, although created by law enforcement 5 as part of an investigation, lacks indicia of reliability. Plaintiffs argue: 6 • The report is not a “sworn statement” from Hanan admitting to engaging in 7 marriage fraud. See Dkt. No. 22 at 17. However, Plaintiffs offer no authorities to 8 support the suggestion that evidence may only support a finding of marriage fraud 9 if it constitutes a sworn statement. 10 • The report was redacted in part, suggesting that Defendants did not provide them 11 with a complete administrative record. See Dkt. No. 26 at 12–13; see Zerezghi, 955 12 F.3d at 813 (“Given the harsh effects of a marriage-fraud determination, 13 [petitioners] are entitled to at least the complete administrative record on which 14 USCIS and the BIA relied in reaching its determinations . . . .”). But the record 15 makes clear that BGC—not Defendants—redacted the report. See CAR1 at 68–79. 16 And USCIS said that it “ha[d] not relied on any evidence that is redacted in 17 determining that the beneficiary engaged in marriage fraud.” Id. at 66. 18 • Jaimes’s name is misspelled as “James,” and Hanan’s description of the financial 19 contributions he provided to Jaimes are not identical to the amounts of money 20 Jaimes said he paid her. Id. The misspelling is unsurprising since the report was 21 dictated from a live interview, and “James” is a common spelling. And both Hanan 22 in the report and Jaimes in her statement appear to provide just approximations of 23 the amount Hanan paid her. Such minor differences do not undercut the agency’s 24 reliance on the report. 25 • Plaintiffs also take issue with the agent’s name being redacted in the report. See 26 Dkt. No. 22 at 17. But Plaintiffs do not explain how this undercuts the reliability of 27 the report. To the extent Plaintiffs now suggest that they should have had an 1 22 at 18, they do not offer any explanation as to what probative value this 2 additional process would have had.3 Plaintiffs do not dispute that Hanan actually 3 interviewed with BGC as part of its investigation. Nor do they propose a reason 4 why the agent who was investigating illegal slot machines had any reason to 5 misstate anything in the report—let alone such ancillary details about Hanan’s 6 marriage to Jaimes. In fact, and perhaps most significantly, Plaintiffs do not assert 7 that the agent inaccurately recounted Hanan’s statements from the interview at all. 8 Jaimes’s statement and the BGC report constituted substantial and probative evidence of a conspiracy 9 to commit marriage fraud. 10 Plaintiffs nevertheless assert that the BIA did not properly identify and apply the burden- 11 shifting framework. See Dkt. No. 22 at 18. But the BIA directly concluded that there was 12 “substantial and probative evidence” of marriage fraud “in the present case and present in the 13 record of proceedings.” See CAR1 at 4. The BIA identified both Jaimes’ statement and Hanan’s 14 statements in the BGC report. See id. The BIA further concluded that in response “the petitioner 15 submitted insufficient evidence to establish that the beneficiary’s first marriage was bona fide.” 16 Id. The record therefore reflects that the BIA correctly applied the relevant framework. The Court 17 further notes that the BIA expressly “agree[d]” with USCIS’s decision that Plaintiffs’ proffered 18 evidence was insufficient to overcome the evidence of marriage fraud, meaning that the Court may 19 also look to the underlying USCIS decision. Salazar-Paucar v. I.N.S., 281 F.3d 1069, 1073 (9th 20 Cir.), opinion amended on denial of reh’g, 290 F.3d 964 (9th Cir. 2002) (“When the BIA conducts 21 a de novo review of the IJ's decision, as here, we review the BIA’s decision rather than the IJ’s, 22 except to the extent that the BIA expressly adopts the IJ’s ruling.”). USCIS similarly noted the 23 burden-shifting framework, found substantial and probative evidence of marriage fraud, and 24

25 3 The Court notes that Plaintiffs only raise the purported need to cross-examine the agent in a single sentence as part of their argument why the government does not have substantial and 26 probative evidence. See Dkt. No. 22 at 17–18. They state: “[T]he redaction’s failure to identify the review officer leaves Plaintiffs without the notice that is required under Zerezghi, and unable 27 to subject the declarant to cross-examination under Ching.” Id. at 18. To the extent Plaintiffs 1 explained why Plaintiffs’ evidence was unpersuasive and insufficient in response. See CAR1 at 2 50–53. The Court is unpersuaded by Plaintiffs’ suggestion that Defendants had to use some 3 specific phrasing in adopting USCIS’s ruling and discussing the burden-shifting framework. See 4 Dkt. No. 26 at 13. 5 Finally, to the extent Plaintiffs suggest that the BIA failed to consider their contrary 6 evidence, see Dkt. No. 22 at 18, this simply is not true. Defendants clearly considered the 7 evidence offered to rebut the sham marriage showing, but determined it was insufficient, in both 8 quantity and quality, to carry their burden of proof. Although the BIA did not reference specific 9 pieces of evidence, the decision reflects that the BIA “agree[d]” with the USCIS Field Office 10 Director and noted that Gillum had not submitted “evidence of joint residency, joint ownership of 11 property, or commingling of finances.” See CAR1 at 3. As discussed above, there was an amply 12 reasonable basis for Defendants to discount the high-level statements provided by Hanan and his 13 friends and family, and the handful of photographs. In short, Defendants weighed all the evidence 14 presented and reasonably concluded that Plaintiffs did not overcome the probative value of 15 Jaimes’s statement and the BGC report, in which both Hanan and Jaimes discussed a conspiracy to 16 commit marriage fraud by marrying each other in exchange for money so Hanan could receive 17 immigration benefits. The substantial and probative evidence of marriage fraud in the record, 18 which Plaintiffs failed to sufficiently rebut, demonstrates that Defendants’ application of the 19 marriage-fraud bar was not arbitrary, capricious, an abuse of discretion, or otherwise contrary to 20 law. The BIA decision reflects careful consideration of all relevant factors, as well as Plaintiffs’ 21 arguments on appeal. 22 IV. MOTION TO SEAL 23 A. Legal Standard 24 Courts generally apply a “compelling reasons” standard when considering motions to seal 25 documents. Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 678 (9th Cir. 2010) (quoting Kamakana 26 v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006)). “This standard derives from the 27 common law right ‘to inspect and copy public records and documents, including judicial records 1 access is the starting point.” Kamakana, 447 F.3d at 1178 (quotations omitted). To overcome this 2 strong presumption, the party seeking to seal a judicial record attached to a dispositive motion 3 must “articulate compelling reasons supported by specific factual findings that outweigh the 4 general history of access and the public policies favoring disclosure, such as the public interest in 5 understanding the judicial process” and “significant public events.” Id. at 1178–79 (quotations 6 omitted). “In general, ‘compelling reasons’ sufficient to outweigh the public’s interest in 7 disclosure and justify sealing court records exist when such ‘court files might have become a 8 vehicle for improper purposes,’ such as the use of records to gratify private spite, promote public 9 scandal, circulate libelous statements, or release trade secrets.” Id. at 1179 (quoting Nixon v. 10 Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978)). “The mere fact that the production of records 11 may lead to a litigant’s embarrassment, incrimination, or exposure to further litigation will not, 12 without more, compel the court to seal its records.” Id. 13 The Court must “balance[] the competing interests of the public and the party who seeks to 14 keep certain judicial records secret. After considering these interests, if the court decides to seal 15 certain judicial records, it must base its decision on a compelling reason and articulate the factual 16 basis for its ruling, without relying on hypothesis or conjecture.” Id. Civil Local Rule 79-5 17 supplements the compelling reasons standard set forth in Kamakana: the party seeking to file a 18 document or portions of it under seal “must explore all reasonable alternatives to filing documents 19 under seal, minimize the number of documents filed under seal, and avoid wherever possible 20 sealing entire documents . . . .” Civil L.R. 79-5(a). The party must further explain the interests 21 that warrant sealing, the injury that will result if sealing is declined, and why a less restrictive 22 alternative to sealing is not sufficient. See Civil L.R. 79-5(c). 23 Records attached to nondispositive motions must meet the lower “good cause” standard of 24 Rule 26(c) of the Federal Rules of Civil Procedure, as such records “are often unrelated, or only 25 tangentially related, to the underlying cause of action.” See Kamakana, 447 F.3d at 1179–80 26 (quotations omitted). This requires a “particularized showing” that “specific prejudice or harm 27 will result” if the information is disclosed. Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 1 harm, unsubstantiated by specific examples of articulated reasoning” will not suffice. Beckman 2 Indus., Inc. v. Int'l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992) (quotation omitted). 3 B. Discussion 4 The parties have jointly sought to file under seal the certified administrative record in this 5 case in its entirety. See Dkt. No. 19. Because these records are more than tangentially related to 6 || the underlying action, the Court applies the “compelling reasons” standard. 7 The parties state that the administrative record contains “third party confidential 8 information that is protected from public disclosure by the Privacy Act of 1974, 5 U.S.C. § 552a,” 9 || as well as “sensitive personal and financial information.” Dkt. No. 19-1 at 93. Having reviewed 10 || the administrative record in detail, however, it is not apparent why it needs to be sealed in its 11 entirety. Although the record contains some personally identifying information and third party 12 || information, the parties have not explained why such information cannot be redacted in part. On 5 13 the other hand, the record contains information that is critical to understanding this case, including 14 || the USCIS and BIA’s decisions and Plaintiffs’ responses. The Court further notes that the parties 3 15 quote heavily from these documents, so it is clear that the parties do not believe that everything in 16 || the record warrants sealing. The parties have failed to meet their burden of establishing that 3 17 compelling reasons require the certified administrative record to be sealed in its entirety, and the || Court therefore DENIES the motion. Dkt. No. 19. 19 || Vv. CONCLUSION 20 Accordingly, the Court DENIES Plaintiffs’ motion for summary judgment, Dkt. No. 22, 21 and GRANTS Defendants’ cross-motion, Dkt. No. 24. The Court further DENIES the motion to 22 seal. Dkt. No. 19. The Court DIRECTS the parties to file public versions of all documents 23 previously filed under seal or file a new, more narrowed motion to seal, within seven days of this 24 || order. The Clerk is directed to enter judgment in favor of Defendants and close the case. 25 IT IS SO ORDERED. 26 || Dated: 9/25/2024 27 Abeer 8 Abl|. 28 HAYWOOD S. GILLIAM, JR. United States District Judge