NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 2 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SEANLIM YITH; SEAK LEANG YITH, No. 22-15154

Plaintiffs-Appellants, D.C. No. 1:14-cv-01875-DAD-SKO v.

MELISSA MAXIM, in her Capacity as MEMORANDUM* District Director U.S. Citizenship and Immigration Services; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Dale A. Drozd, District Judge, Presiding

Argued and Submitted January 25, 2023 San Francisco, California

Before: GOULD, RAWLINSON, and BRESS, Circuit Judges.

Plaintiffs-Appellants and siblings Seanlim and Seak Leang Yith (“the

Yiths”) immigrated to the United States from Cambodia when minors. The Yiths’

entry was based on their father’s marriage to a United States citizen, Sarin Meas.

The district court found that the Yiths’ father’s marriage to Meas was not valid for

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. immigration purposes and held that the Yiths did not meet their burden of

establishing that they were lawfully admitted as permanent residents of the United

States. Because the parties are familiar with the facts, we will not expand on them

here in further detail. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

We review the district court’s factual findings, including whether a marriage

is bona fide, for clear error. See In re Grand Jury Proceedings, 777 F.2d 508, 509

(9th Cir. 1985) (per curiam); see also Smolniakova v. Gonzales, 422 F.3d 1037,

1044 (9th Cir. 2005). Other issues in the case are reviewed for abuse of discretion:

(1) whether the witness, Sarin Meas, was unavailable within the meaning of

Federal Rule of Evidence 804, see United States v. Yida, 498 F.3d 945, 952 (9th

Cir. 2007); (2) whether the district court erred by admitting Sarin Meas’s

statements, United States v. Magana-Olvera, 917 F.2d 401, 407 (9th Cir. 1990);

(3) whether the district court erred by allowing or excluding evidence based on

hearsay, Calmat Co. v. U.S. Dep’t Lab., 364 F.3d 1117, 1122 (9th Cir. 2004); (4)

whether the district court erred in controlling questioning at trial, United States v.

Archdale, 229 F.3d 861, 865 (9th Cir. 2000); and (5) whether the district court

erred by denying the Yiths’ motions in limine, United States v. Alvirez, 831 F.3d

1115, 1120 (9th Cir. 2016).

1. The district court applied the correct legal standard for marriage-based

permanent residency. “There is no set formula to be applied in determining

2 whether a marriage was entered into in good faith.” Damon v. Ashcroft, 360 F.3d

1084, 1089 (9th Cir. 2004). The “central question” is whether, at the time of

marriage, the parties intended to establish a life together. Id. at 1088. The party

seeking to rely on the marriage bears the burden of presenting “objective evidence”

of an intent to establish a life together. See id. at 1089. Appellants contend that

the district court misapplied the standard by interjecting its own judgment into the

test for intent to establish a life together. But the district court correctly considered

the types of “objective evidence” that we have held proper in determining whether

a marriage was bona fide. See id. at 1088.

Here, the evidence shows that Neth Yith and Meas never shared bank

accounts, insurance policies, leases, or mortgages; never jointly owned property;

never lived together independently; and contradicted one another regarding

whether they lived together at the home of Meas’s parents for a week after the

marriage of Neth and Meas. This evidence supported the district court’s finding

that the marriage was not bona fide.

2. The district court applied the correct burden of proof under 8 U.S.C.

§§ 1427 and 1429. Applicants for naturalization bear the burden of establishing

that their admission was lawful beyond being “regular only in form.” Monet v.

I.N.S., 791 F.2d 752, 753 (9th Cir. 1986). “The term ‘lawfully’ denotes

compliance with substantive legal requirements[.]” Id. The Yiths had the burden

3 of establishing that they were “lawfully admitted” in “compliance with substantive

legal requirements.” See id. Because their legal permanent resident status

depended on their father’s marriage to Meas, the validity of that marriage was a

“substantive legal requirement” for their lawful admission to the United States.

3. The district court did not abuse its discretion in finding that Meas was an

unavailable witness and that it could admit her deposition statements as former

testimony. Fed. R. Evid. 804(b)(1). For a declarant to be an “unavailable

witness,” the party offering the statement must show that they were unable “by

process or other reasonable means” to procure the declarant’s attendance at trial.

Fed. R. Evid. 804(a)(5). Appellees made a “good-faith effort” to secure Meas’s

presence by: (1) serving her with a trial subpoena at her home, (2) sending her an

email about her duty to attend the trial, (3) offering to pay for her travel expenses

and a per diem, and (4) reminding her of possible contempt sanctions for refusal to

comply with the subpoena. See Barber v. Page, 390 U.S. 719, 725 (1968).

4. The district court did not abuse its discretion by overruling Appellants’

hearsay objections and admitting the statements made by Luz Franco. Hearsay is

an out-of-court statement offered for the truth of the matter asserted and is

presumed to be inadmissible in court. Fed. R. Evid. 801(c),802. Here, even if

Franco’s testimony was erroneously admitted hearsay, the error was harmless. See

United States v. Payne, 944 F.2d 1458, 1472 (9th Cir. 1991). The district court

4 never cited Franco’s statements to support its conclusion about the legitimacy of

the marriage between Neth and Meas.

5. The district court did not abuse its discretion in how it controlled the

questioning of witnesses. The Yiths objected to two questions during Meas’s

deposition on the basis that they were “leading questions.” But the Federal Rules

of Evidence permit leading questions on direct “as necessary to develop the

witness’s testimony.” Fed. R. Evid. 611(c). There was no abuse of discretion by

the district court in permitting the use of leading questions as necessary to develop

Meas’s testimony because Meas was “reticent” in response during her deposition.

6. The district court did not abuse its discretion in denying Appellants’

motions in limine. The Yiths’ motions primarily pertained to their contentions

about the burden of proof and burden-shifting. However, the district court

properly assigned the burden of proof to the Yiths. The district court correctly

denied the Yiths’ motions in limine, and the Yiths were not prevented from

presenting a complete defense. See Alvirez, 831 F.3d at 1125.

AFFIRMED.

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