Vy Nhu Hoang Dinh v. United States

MEMORANDUM

Vy Dinh, a native of Vietnam, entered this country on an F-l student visa in 2002. In 2006, Dinh filed a petition seeking to adjust her status to legal permanent resident, citing a marriage to Man Van Chau. The United States Citizenship and Immigration Services (“USCIS”) found that Dinh had previously sought immigration benefits on the basis of a fraudulent marriage to Joey Duran, and that her current application was therefore subject to the marriage fraud bar in 8 U.S.C. § 1154 (c). The Board of Immigration Appeals (“BIA”) affirmed, adopting the US-CIS decision. Dinh then filed this action in the district court seeking relief under the Administrative Procedure Act, 5 U.S.C. § 702 . That court ordered the BIA to decide Dinh’s petition without reference to the marriage fraud bar. The government appealed, and we reverse.

1. We review the agency decision from the “same position” as the district court. Sierra Club v. Babbitt, 65 F.3d 1502, 1507 (9th Cir. 1995). Under the Administrative Procedure Act, an agency decision may be set aside only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C, § 706(2)(A). The court…