Case 2:21-cv-06244-AS Document 32 Filed 04/18/22 Page 1 of 24 Page ID #:779

1

2 3 4 5 6 7

UNITED STATES DISTRICT COURT

8

CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION

9 10 SHIZHE SHEN and CHAORAN YU, CASE NO. CV 21-6244 AS 11 Plaintiffs, 12 v. MEMORANDUM OPINION AND ORDER 13 IRENE MARTIN, San Bernardino DIRECTING JUDGMENT IN FAVOR OF 14 Field Office Director, U.S. Citizenship and Immigration DEFENDANTS AND DISMISSING CASE 15 Services; UR M. JADDOU, Director, U.S. Citizenship and 16 Immigration Services;1 ALEJANDRO MAYORKAS, Secretary, 17 U.S. Department of Homeland Security; MERRICK B. GARLAND, 18 U.S. Attorney General, 19 Defendants. 20 21 INTRODUCTION 22 23 On August 27, 2019, Plaintiff filed a Complaint for 24 Declaratory Relief and Injunctive Relief (“Complaint”) against 25 Defendants pursuant to the Administrative Procedure Act (“APA”), 5 26

27 1 Pursuant to Federal Rule of Civil Procedure 25(d), Director Jaddou is substituted for her predecessor. 28 Case 2:21-cv-06244-AS Document 32 Filed 04/18/22 Page 2 of 24 Page ID #:780

1 U.S.C. § 701 et seq., challenging the denial of a Form I-130 2 Petition for Alien Relative (“I-130 petition” or “petition”), filed 3 on October 4, 2016, by Plaintiff Chaoran Yu, a United States 4 citizen, on behalf of her husband, Plaintiff Shizhe Shen, a Chinese 5 citizen. (Dkt. No. 1). The U.S. Citizenship and Immigration 6 Services (“USCIS”) denied the I-130 petition on September 6, 2018, 7 pursuant to section 204(c) of the Immigration and Nationality Act 8 (“INA”), which precludes approval of an 1-130 petition if the 9 beneficiary has ever sought benefits based on a marriage entered 10 into to evade immigration laws (i.e., a “sham marriage”). (Compl. 11 ¶¶ 1, 16); 8 U.S.C. 1154(c). This was based on Plaintiff Shen’s 12 prior marriage to Selena Gonzalez, a United States citizen whose 13 December 2014 I-130 petition on behalf of Plaintiff was denied on 14 February 10, 2016. (See Compl. ¶¶ 12-16). On June 22, 2021, the 15 Board of Immigration Appeals (“BIA”) upheld the USCIS’s decision 16 to deny Plaintiff Yu’s I-130 petition. (See Compl. ¶¶ 1, 17, Exh. 17 B). Plaintiffs now seek reversal of the BIA decision under the APA 18 on the grounds that it is arbitrary, capricious, an abuse of 19 discretion, and unsupported by substantial evidence. 20 21 Defendants filed an Answer to the Complaint on October 4, 2021 22 (Dkt. No. 18), followed by Certified Administrative Record 23 (“Administrative Record” or “CAR”) filed under seal on January 12, 24 2022 (Dkt. No. 26).2 The parties then filed briefs regarding the 25 26 2 The Administrative Record is filed as two volumes – Dkt. No. 27 26-1 (“1 CAR”) and Dkt. No. 26-2 (“2 CAR”), respectively. Consistent with the parties’ briefs, citations to the 28 Administrative Record refer to the page numbers assigned by the

2 Case 2:21-cv-06244-AS Document 32 Filed 04/18/22 Page 3 of 24 Page ID #:781

1 Administrative Record: (1) Plaintiffs’ Opening Brief (“Pls. Opening 2 Br.,” Dkt. No. 28); (2) Defendants’ Response (Dkt. No. 29); (3) 3 Plaintiffs’ Reply (“Pls.’ Reply,” Dkt. No. 30); and (4) Defendants’ 4 Surreply (Dkt. No. 31). 5 6 The parties have consented to proceed before a United States 7 Magistrate Judge (Dkt. Nos. 16-17) and submitted this matter on 8 the briefs and Administrative Record. (See Dkt. No. 21). The Court 9 has taken the matter under submission without oral argument. See 10 C.D. Cal. C. R. 7-15. For the reasons stated below, the Court 11 concludes that judgment should be entered in favor of Defendants 12 and against Plaintiffs. 13 14 LEGAL AND FACTUAL BACKGROUND 15 16 A. I-130 Petitions 17 18 Spouses of U.S. citizens may obtain lawful permanent resident 19 status as an immediate relative of the U.S. citizen. See 8 U.S.C. 20 § 1151(a)(1), (2)(A)(i). The U.S. citizen (the “petitioner”) must 21 file a Form I-130 petition with USCIS on behalf of his or her non- 22 citizen spouse (the “beneficiary”) to have the beneficiary 23 classified as an “immediate relative.”3 8 U.S.C. § 24 Court’s electronic case filing system (CM/ECF) in the two 25 respective volumes. 26 3 If the I-130 petition is granted, the beneficiary spouse must file a Form I-485 Application to Register Permanent Residence or 27 Adjust Status to adjust his or her status to lawful permanent resident. 8 U.S.C. § 1255. 28

3 Case 2:21-cv-06244-AS Document 32 Filed 04/18/22 Page 4 of 24 Page ID #:782

1 1154(a)(1)(A)(i). “After an investigation of the facts in each 2 case,” USCIS decides whether to approve the Form I-130 petition. 8 3 U.S.C. § 1154(b). “[N]o petition shall be approved if” the 4 Government determines that the beneficiary spouse has “attempted 5 or conspired to enter into a marriage for the purpose of evading 6 the immigration laws.” 8 U.S.C. § 1154(c)(1); see also 8 C.F.R. § 7 204.2(a)(1)(ii) (“The director will deny a petition for immigrant 8 visa classification filed on behalf of any alien for whom there is 9 substantial and probative evidence of . . . an attempt or 10 conspiracy” to enter into a marriage for the purpose of evading 11 the immigration laws.). 12 13 A “marriage entered into for the purposes of circumventing 14 immigration laws is considered a fraudulent marriage or sham 15 marriage and is not recognized as enabling an alien spouse to 16 obtain immigration benefits.” Avitan v. Holder, 2011 WL 499956 at 17 *7 (N.D. Cal. Feb. 8, 2011) (citing Vasquez v. Holder, 602 F.3d 18 1003, 1014 n.11 (9th Cir. 2010)). A person’s second I-130 petition 19 may be denied on the basis that a prior marriage was fraudulent 20 even if USCIS had not affirmatively determined there was fraud when 21 investigating the prior marriage. See Garcia-Lopez v. Aytes, 2010 22 WL 2991720 at *2 (N.D. Cal. Jul. 28, 2010) (denying second I-130 23 petition because USCIS determined that petitioner had previously 24 entered into a fraudulent marriage, even though his first I-130 25 petition was denied for failure to prosecute). When marriage fraud 26 from a previous marriage is the basis for denying an I-130 petition, 27 the USCIS district director “should not give conclusive effect to 28 determinations made in a prior proceeding, but, rather, should

4 Case 2:21-cv-06244-AS Document 32 Filed 04/18/22 Page 5 of 24 Page ID #:783

1 reach his [or her] own independent conclusion based on the evidence 2 before him [or her].” 8 C.F.R. § 204.2(a)(1)(ii). 3 4 USCIS “bears the initial burden of producing evidence of 5 marriage fraud.” Alabed v. Crawford, 691 F. App’x 430, 431 (9th 6 Cir. 2017). The USCIS’s burden of proof requires “substantial and 7 probative evidence,” a standard that is “at least as high as a 8 preponderance of the evidence.” Zerezghi v. United States 9 Citizenship & Immigr. Servs., 955 F.3d 802, 816 (9th Cir. 2020) 10 (“[G]iven the seriousness of a marriage-fraud determination and 11 the risk of a finding being made in error, the Constitution requires 12 at least a preponderance of the evidence before imposing this 13 sanction.”).4 In making a marriage fraud determination, USCIS “may 14 rely on any relevant evidence, including evidence having its origin 15 in prior [USCIS] proceedings involving the beneficiary, or in court 16 proceedings involving the prior marriage.” See Matter of Tawfik, 17 20 I. & N. Dec. 166, 168 (BIA 1990). Direct evidence of intent is 18 not required. Sablan v. Nielson, 2018 WL 5880174, at *6 (C.D. Cal. 19 Oct. 25, 2018) (noting that “courts have upheld marriage fraud 20 determinations based on circumstantial evidence alone”) 21 (citing Patel v. Johnson, 2015 WL 12698427, at *7-9 (C.D. Cal. Oct. 22 7, 2015); Ogbolumani v. Napolitano, 557 F.3d 729, 734 (7th Cir. 23 2009); Liu v. Lynch, 149 F. Supp. 3d 778, 788 (S.D. Texas 2016)). 24 The USCIS “often uses documents in its possession, interviews with 25 4 As the Ninth Circuit explained in Zerezghi, this “substantial- 26 and-probative-evidence standard is a standard of proof, not of review.” 955 F.3d at 815. It is therefore distinct from the less- 27 demanding “substantial evidence” standard of review employed by the reviewing court. See id. at 814-15 & n.6. 28

5 Case 2:21-cv-06244-AS Document 32 Filed 04/18/22 Page 6 of 24 Page ID #:784

1 the couple, and observations made during site visits to the 2 couple’s marital residence.” Zerezghi, 955 F.3d at 805 (citing 3 Matter of Singh, 27 I. & N. Dec. 598, 600–01 (BIA 2019)). 4 5 Where the record contains substantial and probative evidence 6 of marriage fraud, USCIS must issue to the petition a Notice of 7 Intent to Deny the petition (“NOID”). 8 C.F.R. § 103.2(b)(8)(iv). 8 The NOID informs the petitioner of the “derogatory information” 9 and provides the petitioner with a chance to rebut that 10 information. Alabed v. Crawford, 2015 WL 18889289 at *9 (E.D. Cal. 11 Apr. 24, 2015) (citation omitted). Upon receiving the NOID, “the 12 burden then shifts back to the petitioner to establish that the 13 marriage is bona fide and to rebut the evidence of fraud.” Alabed, 14 691 F. App’x 430, 431 (9th Cir. 2017) (citing Matter of Kahy, 19 15 I.&N. Dec. 803, 806-807 (BIA 1988)). “To qualify as a bona fide 16 marriage, a marriage must be based on an actual and legitimate 17 relationship and the focus of any inquiry is whether the parties 18 intended to establish a life together.” Yu An v. Napolitano, 15 F. 19 Supp. 3d 976, 981 (N.D. Cal. 2014) (citing Nakamoto v. 20 Ashcroft, 363 F.3d 874, 882 (9th Cir. 2004)). 21 22 To satisfy this burden, the petitioner “must offer evidence 23 that is probative of the motivation for marriage, not just the bare 24 fact of getting married.” Alabed, 691 F. App’x at 432 (quoting 25 Malhi v. INS, 336 F.3d 989, 994 (9th Cir. 2003)). “Evidence of the 26 marriage’s bona fides may include: jointly-filed tax returns; 27 shared bank accounts or credit cards; insurance policies covering 28 both spouses; property leases or mortgages in both names; documents

6 Case 2:21-cv-06244-AS Document 32 Filed 04/18/22 Page 7 of 24 Page ID #:785

1 reflecting joint ownership of a car or other property; medical 2 records showing the other spouse as the person to contact; 3 telephone bills showing frequent communication between the spouses; 4 and testimony or other evidence regarding the couple’s courtship, 5 wedding ceremony, honeymoon, correspondences, and shared 6 experiences.” Agyeman v. INS, 296 F.3d 871, 882–83 (9th Cir. 2002). 7 “If the petitioner cannot rebut the charge to the [USCIS’s] 8 satisfaction, the petition is denied.” Zerezghi, 955 F.3d at 805. 9 10 The petitioner may appeal the USCIS’s decision with the BIA. 11 See 8 C.F.R. §§ 103.3(a), 1003.1(b)(5). 12 13 B. Shen’s Prior Marriage and Prior I-130 Petition 14 15 On January 23, 2013, Plaintiff Shen, a Chinese citizen, 16 arrived in the United States and was lawfully admitted as a student 17 on an F-1 visa. (2 CAR 246). In June 2014, he first met Gonzalez 18 at a McDonald’s in Los Angeles where she was working. (2 CAR 174). 19 Two months later, on August 28, 2014, Shen and Gonzalez married in 20 Alhambra, California. (2 CAR 246, 251). Gonzalez filed a I-130 21 petition with USCIS on December 4, 2014, seeking to have Shen 22 classified as an immediate relative as the spouse of a U.S. Citizen. 23 (2 CAR 128, 157). Concurrently, Shen filed a Form I-485, 24 Application to Register Permanent Residence or Adjust Status. (2 25 CAR 128). Shen and Gonzalez claimed that they lived together at 26 11550 Paramount Boulevard, Apt. 18, Los Angeles, California. (2 27 CAR 246). The documentary joint evidence with the I-130 petition 28 included Time Warner Cable bills, insurance policy statements,

7 Case 2:21-cv-06244-AS Document 32 Filed 04/18/22 Page 8 of 24 Page ID #:786

1 Chase Bank account statements, 2014 federal income tax returns, 2 and gas company bills. (See 2 CAR 252-307). 3 4 On April 29, 2015, Shen and Gonzalez appeared for interviews 5 at the USCIS office in Los Angeles in connection with the 6 applications. (2 CAR 174–76). During their separate interviews, 7 they both testified, among other things, that they met at 8 McDonald’s in June 2014 and no one introduced them; they began 9 dating in June 2014; they paid $1050.00 for rent to Ron Byrd, the 10 apartment manager; they had a gas stove in the apartment; Gonzalez 11 met Shen’s mother in February 2015; and Shen’s parents resided in 12 China. (See 2 CAR 174-76). However, they gave differing answers to 13 two questions. First, when asked the last time they went out on a 14 date, Gonzalez responded that they went to In & Out Burger in 15 Downey on April 26, 2015, whereas Shen responded that they went to 16 Stonewood Mall two weeks ago with Gonzalez’s sister and had lunch 17 at Mongolian Grill. (2 CAR 175). Second, when asked what was the 18 last movie they went to see together, Gonzalez answered 19 “Unfriended,” but Shen answered “Fast and Furious 7.” (2 CAR 175– 20 76). After the interview, the immigration officer referred the file 21 for suspected fraud. (2 CAR 163). 22 23 On July 15, 2015, two USCIS officers conducted an unannounced 24 site visit at the address of record (11550 Paramount Boulevard, 25 Apt. 18). (2 CAR 165–66, 168–70). The officers knocked on the door, 26 but no one answered. (2 CAR 169). The officers interviewed 27 neighbors from two adjacent apartments. The first neighbor 28 recognized Shen as having lived there for six months and recognized

8 Case 2:21-cv-06244-AS Document 32 Filed 04/18/22 Page 9 of 24 Page ID #:787

1 Gonzalez as a visitor whom he had seen only twice before. (2 CAR 2 169). He also stated that Shen did not regularly live at the 3 apartment, but sometimes would be seen there for two or three weeks 4 straight and would then “disappear[].” (2 CAR 169). The second 5 neighbor recognized Shen as having lived there for five to six 6 months but noted that he was rarely there. (2 CAR 169). The officers 7 then interviewed the property manager, who recognized Shen and 8 Gonzalez as the married couple from the address of record. (2 CAR 9 169). He had seen Shen three or four days earlier, and he recalled 10 that Gonzalez had come to the apartment three weeks after Shen 11 moved in. (2 CAR 170). 12 13 That same day, the officers conducted an unannounced site 14 visit to 11153 S. San Pedro Street, Los Angeles, California, which 15 was listed as Gonzalez’s address in public records. (2 CAR 166, 16 170–71). When the officers announced their presence at the locked 17 front gate, a woman appeared in the window, identified herself as 18 Gonzalez’s mother, and told the officers that Gonzalez lived there. 19 (2 CAR 170). A man then came out of the house, identified himself 20 as Gonzalez’s father, and told the officers that Gonzalez lived 21 with them and did not live anywhere else. (2 CAR 170). He also said 22 she was single and had no boyfriend. (2 CAR 171). When shown a 23 picture of Shen, the father denied knowing him. (2 CAR 171). At 24 that time, a woman claiming to be Gonzalez’s sister joined the 25 conversation and said Gonzalez sometimes lived with them, and she 26 did not know where else Gonzalez lived or if Gonzalez was married. 27 (2 CAR 171). 28

9 Case 2:21-cv-06244-AS Document 32 Filed 04/18/22 Page 10 of 24 Page ID #:788

1 On September 11, 2015, Shen and Gonzalez submitted additional 2 documents consisting of bank statements, utility bills, car and 3 renter’s insurance policies, and photographs. (2 CAR 178). On 4 September 22, 2015, USCIS issued a NOID stating that USCIS believed 5 the marriage was fraudulent based on the site visits and two 6 inconsistent answers in the interview. (2 CAR 157-61). On October 7 7, 2015, USCIS issued a notice denying the I-130 petition for 8 failure to demonstrate a bona fide marriage. (2 CAR 151-54). This 9 premature decision was apparently the result of USCIS mistakenly 10 construing Shen and Gonzalez’s additional documents from September 11 11 as a response to the NOID. (See 2 CAR 153). On October 15, 2015, 12 Gonzalez and Shen submitted a motion to reopen (2 CAR 137-38), 13 which was later granted (2 CAR 135). 14 15 Gonzalez and Shen also submitted a response to the NIOD 16 including declarations from Shen, Gonzalez, Gonzalez’s sister, and 17 the property manager at the Paramount Boulevard address. (2 CAR 18 139-49). Gonzalez’s declaration explained that their differing 19 answers to two interview questions was due to, first, a “different 20 definition of a ‘date’ after marriage,” and second, “a very fine 21 lapse of memory about a minute detail.” (2 CAR 145). She noted that 22 they “have evidence of either receipts or movie tickets to show 23 all the events that occurred.” (2 CAR 145). The property manager’s 24 declaration stated that he told the investigating officers that he 25 knew Shen and Gonzalez were married and had lived in the apartment 26 together since October 2014. (2 CAR 149). Gonzalez’s sister’s 27 declaration explained that when the officer asked if Gonzalez lived 28 with her and her parents at that house, she replied “no” and said

10 Case 2:21-cv-06244-AS Document 32 Filed 04/18/22 Page 11 of 24 Page ID #:789

1 Gonzalez “lives with her husband Shizhe [Shen] on 11550 Paramount 2 Blvd. Apt. 18, Downey, CA 90241.” (2 CAR 146). 3 4 On February 10, 2016, USCIS issued a decision denying the I- 5 130 petition. (2 CAR 127–32). The decision noted that the newly 6 submitted evidence failed to explain Gonzalez’s father’s statement 7 from the July 15 interview and that the declaration from Gonzalez’s 8 sister contradicted her earlier statements and was submitted 9 without any confirming identification. (2 CAR 131). The decision 10 also rejected Shen’s and Gonzalez’s explanations for their 11 differing interview answers. (2 CAR 131). 12 13 When the decision issued, Shen and Gonzalez had been separated 14 since November 18, 2015. (1 CAR 297). Their divorce was finalized 15 on May 25, 2016. (1 CAR 295). 16 17 C. Shen and Yu’s Marriage and I-130 Petition 18 19 Plaintiffs Shen and Yu married on September 12, 2016. (1 CAR 20 289, 294). USCIS received Yu’s I-130 petition to have Shen 21 classified as an immediate relative on October 4, 2016. (1 CAR 22 289). Included with the petition was an affidavit of support from 23 Theodore S. Ebner who stated: “Shizhe [Shen] met his ex-wife Selena 24 [Gonzalez] in 2014 and got married in a heartbeat. Although in 25 retrospect, [Shen] admitted he should have treated his relationship 26 with Selena Gonzalez with more circumspect instead of passion, I 27 have to argue they entered the marriage with good faith.” (2 CAR 28 33). On June 7, 2018, USCIS issued a NOID stating that Yu’s I-130

11 Case 2:21-cv-06244-AS Document 32 Filed 04/18/22 Page 12 of 24 Page ID #:790

1 petition would be denied because Shen’s prior marriage to Gonzalez 2 was fraudulent. (1 CAR 285–87). 3 4 Shen and Yu responded to the NOID on July 3, 2018, and provided 5 additional supporting evidence, including a letter from Yu, support 6 letters from Shen’s friends, copies of the declarations submitted 7 from the prior response to the 2015 NOID, a new declaration from 8 the property manager at the Paramount Boulevard address, bank 9 statements and bills from the prior marriage, and photographs from 10 the prior marriage. (1 CAR 128, 135-256). 11 12 On September 6, 2018, USCIS issued a denial of Yu’s I-130 13 petition based on Shen’s prior marriage being fraudulent. (1 CAR 14 125–31). In reviewing the totality of the evidence, USCIS noted 15 that Yu’s current marriage to Shen had been established as bona 16 fide. (1 CAR 129). The decision further noted that the 2015 17 declarations were either unsupported by documentary evidence or 18 contradicted by the 2015 interview and site visits, and the bank 19 statements reflected only minimal joint activity. (1 CAR 129-30). 20 21 Yu appealed USCIS’s decision to the BIA on October 3, 2018, 22 and submitted new evidence. (1 CAR 15; see 1 CAR 40). On June 22, 23 2021, the BIA dismissed the appeal, concluding that there was 24 substantial and probative evidence that Shen’s prior marriage to 25 Gonzalez was not bona fide and was entered into for the purpose of 26 evading immigration laws. (1 CAR 3-5). 27 28

12 Case 2:21-cv-06244-AS Document 32 Filed 04/18/22 Page 13 of 24 Page ID #:791

1 STANDARD OF REVIEW 2 3 The APA provides that a reviewing court must set aside an 4 agency’s final action if the action was “arbitrary, capricious, an 5 abuse of discretion, or otherwise not in accordance with law.” 5 6 U.S.C. § 706(2)(A). This is a “highly deferential” standard under 7 which there is a presumption that the agency’s action is valid “if 8 a reasonable basis exists for its decision.” Kern Cty. Farm Bureau 9 v. Allen, 450 F.3d 1072, 1076 (9th Cir. 2006). An agency decision 10 is arbitrary and capricious where it “relied on factors which 11 Congress has not intended it to consider, entirely failed to 12 consider an important aspect of the problem, offered an explanation 13 for its decision that runs counter to the evidence before the 14 agency, or is so implausible that it could not be ascribed to a 15 difference in view or the product of agency expertise.” Motor 16 Vehicle Mfr.’s Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 17 29, 43 (1983); San Luis & Delta-Mendota Water Auth. v. Locke, 776 18 F.3d 971, 994-95 (9th Cir. 2014). In evaluating whether an agency’s 19 decision meets this standard, “[courts] ask whether the agency 20 ‘considered the relevant factors and articulated a rational 21 connection between the facts found and the choice made.’” Natural 22 Res. Def. Council v. U.S. Dep’t of the Interior, 113 F.3d 1121, 23 1124 (9th Cir. 1997) (quoting Pyramid Lake Pauite Tribe of Indians 24 v. U.S. Dep’t of the Navy, 898 F.2d 1410, 1414 (9th Cir. 1990)). 25 26 A court reviewing under the APA may also “hold unlawful and 27 set aside agency action, findings, and conclusions” that are 28 “without observance of procedure required by law” or “unsupported

13 Case 2:21-cv-06244-AS Document 32 Filed 04/18/22 Page 14 of 24 Page ID #:792

1 by substantial evidence,” among other grounds. 5 U.S.C. § 2 706(2)(D), (E). In determining whether a decision is supported by 3 substantial evidence in the record, the Court will not substitute 4 its own judgment for that of the agency but rather considers whether 5 the decision is based on relevant evidence that a reasonable mind 6 might accept as adequate to support the agency’s conclusion. San 7 Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601 (9th 8 Cir. 2014). This “is an extremely lenient standard that asks courts 9 to consider only whether the administrative record ‘contains 10 sufficien[t] evidence to support the agency’s factual 11 determinations.’”5 Zerezghi, 955 F.3d 802, 814 (9th Cir. 2020) 12 (quoting Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019)). 13 14 Under the APA, the district court’s review of an agency’s 15 decision is usually limited to the administrative record. 5 U.S.C. 16 § 706; see also County of Los Angeles v. Shalala, 192 F.3d 1005, 17 1011 (D.C. Cir. 1999) (when reviewing final agency action, the 18 district court is not managing a “garden variety civil suit,” but 19 rather “sits as an appellate tribunal”). In reviewing an 20 administrative decision under the APA, “there are no disputed facts 21 that the district court must resolve.” Occidental Eng’g Co. v. INS, 22 753 F.2d 766, 769 (9th Cir. 1985). Instead, “the function of the

23 5 As noted above, this standard is distinct from the “substantial and probative evidence” standard of proof that the 24 agency must satisfy when ruling on the petition. See Manor v. 25 Mayorkas, 2021 WL 4777000, at *1 (9th Cir. Oct. 13, 2021) (“While the agency’s finding of marriage fraud must be based on 26 ‘substantial and probative evidence, on review, we must examine whether there was substantial evidence to support the finding.’”) 27 (quoting Zerezghi, 955 F.3d at 814 n.6) (some internal quotation marks and alterations omitted). 28

14 Case 2:21-cv-06244-AS Document 32 Filed 04/18/22 Page 15 of 24 Page ID #:793

1 district court is to determine whether or not as a matter of law 2 the evidence in the administrative record permitted the agency to 3 make the decision it did.” Id.; see also City & County of San 4 Francisco v. United States, 130 F.3d 873, 877 (9th Cir. 1997). 5 6 When the “BIA conducts a de novo review of the [Immigration 7 Judge’s] (“IJ(’s)”)] decision,” the district court reviews “the 8 BIA’s decision rather than the IJ’s, except to the extent that the 9 BIA expressly adopts the IJ’s ruling.” Salazar-Paucar v. INS, 281 10 F.3d 1069, 1073 (9th Cir. 2002); Alaelua v. INS, 45 F.3d 1379, 1382 11 (9th Cir. 1995) (reviewing both the BIA and Immigration Judge’s 12 decisions when it is clear that the BIA decision “clearly 13 incorporates” the Immigration Judge’s decision); see also Patel v. 14 Johnson, 2015 WL 12698427, at *6 (C.D. Cal. Oct. 7, 2015) (applying 15 this to USCIS decision upheld by BIA). 16 17 DISCUSSION 18 19 Plaintiffs contend that the BIA’s decision was arbitrary, 20 capricious, and not in accordance with law. (See Pls.’ Opening Br. 21 at 3, 21; Pls. Reply at 2-5, 7). They also argue that the procedures 22 employed by the USCIS were improper and/or deficient. (See Pls.’ 23 Opening Br. at 16-17; Pls.’ Reply at 6-7). For the reasons stated 24 below, Plaintiffs fail to establish any basis for relief from the 25 BIA’s decision to deny the I-130 petition. 26 27 28

15 Case 2:21-cv-06244-AS Document 32 Filed 04/18/22 Page 16 of 24 Page ID #:794

1 A. Plaintiffs Fail to Demonstrate that the BIA’s Decision Was 2 Arbitrary and Capricious 3 4 The BIA’s denial of Plaintiffs’ I-130 petition was based on 5 its finding that the petition was barred by section 204(c) of the 6 Immigration and Naturalization Act because it was “‘more than 7 probably true’ that [Shen’s] prior marriage was fraudulent.” (1 8 CAR 5) (quoting Matter of Singh, 27 I. & N. Dec. at 607). The BIA 9 provided several grounds for this decision which, taken together, 10 reasonably constitute substantial and probative evidence in support 11 of the decision. 12 13 First, the BIA supported this determination by referencing 14 the USCIS’s findings that Shen and Gonzalez had “provided 15 inconsistent statements concerning their last date and last movie 16 they had seen together outside of their home.” (1 CAR 3-4; see 2 17 CAR 128). Specifically, on April 29, 2015, as noted above, when 18 asked the last time they went out on a date, Gonzalez responded 19 that they went to In & Out Burger in Downey on April 26, 2015, 20 whereas Shen responded that they had lunch with Gonzalez’s sister 21 at Mongolian Grill in the mall two weeks prior. (2 CAR 175). When 22 asked what was the last movie they went to see together, Gonzalez 23 answered “Unfriended,” but Shen answered “Fast and Furious 7.” (2 24 CAR 175–76). 25 26 Plaintiffs have contended that the first discrepancy was due 27 to Shen’s and Gonzalez’s differing interpretations of a “date,” 28 which led Shen to answer with their last date at a more “formal”

16 Case 2:21-cv-06244-AS Document 32 Filed 04/18/22 Page 17 of 24 Page ID #:795

1 restaurant. (See Pls.’ Opening Br. at 15; Pls.’ Reply at 3; 1 CAR 2 140; 2 CAR 175). The BIA rejected this explanation, however, 3 because both Shen and Gonzalez responded with restaurants, and 4 meeting Gonzalez’s sister for lunch at a restaurant in the mall 5 does not suggest a more “formal” occasion. (1 CAR 4). The BIA’s 6 rejection on this point is reasonable, as neither of the purported 7 dates seems particularly more “formal” (or “date-like”) such that 8 it might justify these conflicting answers. 9 10 Plaintiffs have also argued that the movie discrepancy was 11 due simply to a “a memory lapse” regarding whether they had last 12 seen “Unfriended” or “The Fast and the Furious 7.” (Pls.’ Opening 13 Br. at 15; Pls.’ Reply at 3). Plaintiffs assert that both these 14 movies were released in April 2015, and that they provided the 15 movie tickets to the examiner. (Id.). The BIA also rejected this 16 explanation. (See 1 CAR 4). Moreover, as Plaintiffs acknowledge, 17 no such movie tickets are in the record. Given Plaintiffs’ vague 18 explanation and the lack of support in the record, the BIA 19 reasonably considered this discrepancy in denying the petition. 20 21 Plaintiffs contend that in relying on these two inconsistent 22 interview responses, the BIA improperly ignored the fact that Shen 23 and Gonzalez answered many other questions consistently, such as 24 regarding “when and how they met, how much they paid in rent, that 25 the stove was gas, that they did not attend school, that they 26 enjoyed shopping and movies and so forth.” (Pls. Opening Br. at 27 15; Pls. Reply at 2-3). However, these other questions generally 28 concerned facts about each other which the pair could have learned

17 Case 2:21-cv-06244-AS Document 32 Filed 04/18/22 Page 18 of 24 Page ID #:796

1 regardless of whether they had a bona fide marriage relationship. 2 In contrast, the two questions answered inconsistently relate to 3 the nature or existence of a shared, ongoing relationship at the 4 time of the interview. As such, it was reasonable for the BIA to 5 rely on Shen and Gonzalez’s inconsistent responses to these latter 6 questions, notwithstanding their consistent answers to other 7 questions. 8 9 The BIA also supported its decision by referencing the July 10 2015 site visits in which USCIS officers determined that Gonzalez 11 did not reside at the couple’s claimed address, but instead lived 12 with her mother and father, and her father did not recognize Shen 13 and said Gonzalez was single. (1 CAR 4; see 2 CAR 129). The BIA 14 “acknowledge[d] the apartment building manager’s statement to USCIS 15 officers that [Shen and Gonzalez] lived together at his apartment,” 16 but the BIA found that the evidence nonetheless failed to 17 adequately explain why Gonzalez’s parents said she lived with them, 18 and her father said he did not recognize Shen. (1 CAR 4). Plaintiffs 19 contend that the BIA should have given greater weight to the 20 building manager’s statement and rejected statements by Gonzalez’s 21 father, who, according to Plaintiffs, was “lying to the 22 investigating officers by claiming he did not know who Plaintiff 23 Shen was.” (Pls.’ Reply at 4). Plaintiffs assert that they 24 demonstrated this by submitting a photograph of Shen with 25 Gonzalez’s father. (Id.). However, as Defendants point out, the 26 photograph in the record before the BIA was undated,6 and it is 27 6 The record under consideration by the BIA consisted of the 28 evidence that had been submitted to the USCIS, including an undated

18 Case 2:21-cv-06244-AS Document 32 Filed 04/18/22 Page 19 of 24 Page ID #:797

1 unaccompanied by any other supporting evidence regarding Gonzalez’s 2 father’s familiarity with Shen prior to the statement provided to 3 the officers during the site visit. Even assuming the photograph 4 predated the site visit, that would not necessarily mean the father 5 was lying when he said he did not recognize Shen. Notwithstanding 6 Plaintiffs’ contentions, this Court cannot reweigh the evidence. 7 The father’s statements that he did not recognize Shen’s picture, 8 and that Gonzalez was single and lived with her parents, reasonably 9 support the BIA’s finding that Gonzalez and Shen did not have a 10 bona fide marriage. 11 12 In addition, the BIA noted that even though the couple had a 13 joint bank account, the account appeared mainly to be Shen’s; and 14 that while Gonzalez was named on Shen’s car insurance policy, 15 Gonzalez’s declaration indicated that she did not drive (1 CAR 4; 16 see 1 CAR 129-30, 166-204, 206-08; 2 CAR 130). Plaintiffs argue 17 that the limited evidence of shared finances and transactions can 18 be explained by the fact that “they were young, low income and had 19 no assets.” (Pls.’ Reply at 5). Regardless, the BIA reasonably 20 21 version of the referenced photograph submitted in response to the 22 2015 NOID and the 2018 NOID. (See 1 CAR 252; 2 CAR 147). Although Plaintiffs later submitted a dated version of the photograph to 23 the BIA, along with other new evidence, the BIA expressly declined to consider any newly submitted evidence because Plaintiffs had 24 been given adequate notice and opportunity to submit such evidence 25 on review before the USCIS. (See 1 CAR 5); see also Matter of Soriano, 19 I. & N. Dec. 764 (BIA 1988) (BIA will not consider new 26 evidence on appeal where petitioner had notice of deficiencies and opportunity to present it earlier); 8 C.F.R. § 1003.1(d)(3)(iv)(A) 27 (“The Board will not engage in factfinding in the course of deciding cases . . . .”). 28

19 Case 2:21-cv-06244-AS Document 32 Filed 04/18/22 Page 20 of 24 Page ID #:798

1 determined that the financial and insurance documentation at least 2 did not weigh strongly in favor of finding a bona fide marriage. 3 4 Plaintiffs contend that the BIA decision was arbitrary and 5 capricious because it “fail[ed] to mention” some of the evidence 6 in the record, including some affidavits, cable and utility bills, 7 tax returns, and photographs. (Pls.’ Reply at 5). However, the BIA 8 was not required to specifically mention or discuss every piece of 9 evidence in the record. See Szonyi v. Whitaker, 915 F.3d 1228, 1238 10 (9th Cir.), opinion amended, 942 F.3d 874 (9th Cir. 2019) (“[T]his 11 court generally presumes that the BIA thoroughly considers all 12 relevant evidence in the record.”); Garcia v. Holder, 749 F.3d 785, 13 791 (9th Cir. 2014) (“Contrary to [petitioner’s] assertion, we do 14 not require that ‘the BIA . . . discuss each piece of evidence 15 submitted.’”). Moreover, Plaintiffs do not demonstrate that any of 16 this unmentioned evidence should have led to a difference decision. 17 18 Accordingly, Plaintiffs have failed to demonstrate that the 19 BIA’s decision was arbitrary, capricious, or not in accordance with 20 law. To the contrary, the BIA “considered the relevant factors and 21 articulated a rational connection between the facts found and the 22 choice made.” Natural Res. Def. Council v. U.S. Dep’t of the 23 Interior, 113 F.3d at 1124 (quoting Pyramid Lake Pauite Tribe of 24 Indians, 898 F.2d at 1414. The BIA reasonably determined that the 25 evidence in the record, taken together, constituted substantial 26 and probative evidence that Plaintiff Shen’s prior marriage was 27 fraudulent, and denial of Plaintiffs’ I-103 petition was therefore 28 required by section 204(c) of the Immigration and Nationality Act.

20 Case 2:21-cv-06244-AS Document 32 Filed 04/18/22 Page 21 of 24 Page ID #:799

1 B. Plaintiffs Fail to Demonstrate Any Procedural Deficiencies 2 Warranting Relief 3 4 Plaintiffs contend that the USCIS used improper procedures by 5 questioning Shen and Gonzalez separately in their initial 6 interviews and depriving them of a second interview. (Pls.’ Opening 7 Br. at 16-17; Pls.’ Reply at 6). Plaintiffs assert that Shen and 8 Gonzalez should have been interviewed together first, followed by 9 separate interviews only if the agency found reason to suspect the 10 marriage was fraudulent, in accordance with the procedures set 11 forth in Stokes v. INS, No. 74 Civ. 1022 (S.D.N.Y. Nov. 10, 1976). 12 (Pls.’ Opening Br. at 16-17). However, as Defendants point out, 13 this procedural requirement in the Stokes consent decree has no 14 force or effect on I-130 petitions filed outside of New York.7 See, 15 e.g., Abdulraman v. Whitaker, 2019 WL 9784647, at *3 (W.D. Mo. Jan. 16 14, 2019) (Stokes holding does not bind courts for I-130 petitions 17 filed outside of New York). Plaintiffs otherwise do not identify 18 any authority indicating that their interviews violated applicable 19 rules, regulations, or procedures. 20 21 Although Plaintiffs concede that the Stokes procedures were 22 not required, they assert that “the same principles should apply 23 here.” (Pls. Reply at 6). Plaintiffs vaguely contend that they were 24 thus deprived of a fair opportunity to present their case. (Id.). 25 7 Stokes resulted in a consent decree governing “all interviews 26 and examinations held before presiding immigration officers in connection with the determination of I-130 spouse visa petitions 27 filed in the New York District Office of the INS.” Braimah v. INS, 1995 WL 390108, at *2 (S.D.N.Y. July 3, 1995). 28

21 Case 2:21-cv-06244-AS Document 32 Filed 04/18/22 Page 22 of 24 Page ID #:800

1 Although unclear, Plaintiffs seems to suggest that the interview 2 procedure employed here shows that the USCIS was prejudiced against 3 their case from the beginning and “sought[] evidence to support 4 its theory.” (Pls.’ Reply at 6). However, they fail to identify 5 any persuasive evidence of prejudice. They also fail to demonstrate 6 any violation of their due process rights.8 It is undisputed that 7 Plaintiffs were provided with the NOID on Jun 7, 2018, giving them 8 prior notice of the grounds for USCIS’s intended denial of their 9 petition and an opportunity to submit rebuttal evidence. (1 CAR 10 285-87). Plaintiff Shen and Gonzalez similarly had been provided 11 with such notice and opportunity for rebuttal with respect to their 12 petition. (2 CAR 157-61). After the notice and opportunity for 13 rebuttal, Plaintiffs were given a final decision denying the 14 petition. (1 CAR 125–31; 2 CAR 127–32). That decision was based on 15 several different specific reasons supported by evidence in the 16 record. Plaintiffs were then able to appeal the decision to the 17 BIA. 18 19 “[N]ot every case requires a formal hearing or an opportunity 20 to cross-examine witnesses to satisfy due process.” Shashlov v. 21 Sessions, 2017 WL 6496440, at *3 (C.D. Cal. Dec. 4, 2017). To 22 8 “A threshold requirement to a substantive or procedural due 23 process claim is [a] plaintiff’s showing of a liberty or property interest protected by the Constitution.” Wedges/Ledges of Cal., 24 Inc. v. City of Phoenix, 24 F.3d 56, 62 (9th Cir. 1994). The Ninth 25 Circuit has held that I-130 petitioners have a constitutionally protected interest in the grant of their I-130 petitions and are 26 therefore entitled to due process in such proceedings. See Zerezghi v. United States Citizenship & Immigr. Servs., 955 F.3d 802, 808 27 (9th Cir. 2020) (citing Ching v. Mayorkas, 725 F.3d 1149, 1156 (9th Cir. 2013)). 28

22 Case 2:21-cv-06244-AS Document 32 Filed 04/18/22 Page 23 of 24 Page ID #:801

1 determine whether further procedures are required, courts consider 2 three factors: (1) the private interest at stake; (2) the risk of 3 erroneously depriving the petitioner of that interest under the 4 procedures currently in use, and the probable value, if any, of 5 additional or substitute procedural safeguards; and (3) the 6 government’s interest, including the burdens of adding or 7 substituting the procedures used. Mathews v. Eldridge, 424 U.S. 8 319, 335 (1976). Plaintiffs do not address these factors. Even 9 assuming the first and third factors weigh in Plaintiffs’ favor,9 10 Plaintiffs have offered no basis to find that a hearing or other 11 procedural safeguards would have any significant value in these 12 circumstances, particularly where the agency’s decision did not 13 rest on any single statement or piece of evidence, and Plaintiffs 14 were able to submit declarations and other evidence to rebut the 15 challenged statements or other evidence. Compare Ching, 725 F.3d 16 at 1158 (due process required hearing and opportunity for cross- 17 examination where USCIS based its marriage fraud determination 18 solely on a six-sentence statement from an ex-spouse, and the 19 9 The Ninth Circuit has held that the first factor weighed in 20 favor of plaintiffs in other I-130 petition cases, in part because 21 the noncitizen spouse in those cases faced imminent removal upon the denial of the petition. See Zerezghi, 955 F.3d at 810; Ching, 22 725 F.3d at 1157. As it does not appear that Plaintiff Shen faces imminent removal, this factor at least does not seem to weigh as 23 strongly in Plaintiffs’ favor. See, e.g., Graziani v. Barr, 2021 WL 822706, at *5 (C.D. Cal. Jan. 21, 2021) (private interests at 24 stake were minimal because noncitizen spouse was not in removal 25 proceedings), aff’d sub nom. Graziani v. Whitaker, 2021 WL 5850908 (9th Cir. Dec. 9, 2021); Shashlov v. Sessions, 2017 WL 6496440, at 26 *5 (C.D. Cal. Dec. 4, 2017) (same). Regardless, the Court need not determine whether the first and third Matthews factors weigh in 27 Plaintiffs’ favor here because Plaintiffs have failed to articulate any basis to find a due process violation. 28

23 Case 2:21-cv-06244-AS Document 32 Filed 04/18/22 Page 24 of 24 Page ID #:802

1 petitioners submitted substantial, uncontested documentary 2 evidence to corroborate claim that the marriage was bona fide), 3 with Alabed, 691 F. App’x at 432 (no right to hearing for cross- 4 examination where, unlike Ching, USCIS’s decision did not rely on 5 one statement, petitioners had ability to submit declarations from 6 witnesses they wished to cross-examine, and their rebuttal evidence 7 was less compelling); Ruhe v. Barr, 2019 WL 4492953, at *7 (C.D. 8 Cal. June 26, 2019) (same); Shashlov v. Sessions, 2017 WL 6496440, 9 at *4 (C.D. Cal. Dec. 4, 2017) (same). 10 11 Accordingly, Plaintiffs have failed to demonstrate that any 12 relief is warranted based on improper or constitutionally deficient 13 procedures. 14 15 CONCLUSION 16 17 For the foregoing reasons, IT IS ORDERED that Judgment be 18 entered in favor of Defendants and against Plaintiffs. 19 20 IT IS FURTHER ORDERED that the Clerk serve copies of this 21 Order and the Judgment herein on counsel for the respective 22 parties. 23 24 DATED: April 18, 2022 25 /s/ __________ 26 ALKA SAGAR

UNITED STATES MAGISTRATE JUDGE

27 28

24