Huyhn, et al v. Holder

Filing 920101115

Opinion

U n i t e d States Court of Appeals T e n t h Circuit

FILED

N o v e m b e r 15, 2010
U N I T E D STATES COURT OF APPEALSl i s a b e t h A. Shumaker E F O R THE TENTH CIRCUIT
C l e r k of Court

T H U THUY HUYHN; F O N G THI BUI; TU THI BUI, Petitioners, v. E R I C H. HOLDER, JR., U n i t e d States Attorney General, Respondent. N o . 10-9509 ( P e t i t i o n for Review)

O R D E R AND JUDGMENT * B e f o r e LUCERO, EBEL, and O'BRIEN, Circuit Judges. T h u Thuy Huyhn, 1 a Vietnamese citizen, was charged as being subject to r e mo v a l under 8 U.S.C. § 1227(a)(1)(A), because she procured her admission into t h e United States by fraud or by willfully misrepresenting a material fact under 8 U.S.C. § 1182(a)(6)(C)(i). The government alleged that Huyhn married Phuoc A f t e r examining the briefs and appellate record, this panel has determined u n a n i mo u s l y that oral argument would not materially assist the determination of t h i s appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is t h e r e f o r e ordered submitted without oral argument. This order and judgment is n o t binding precedent, except under the doctrines of law of the case, res judicata, a n d collateral estoppel. It may be cited, however, for its persuasive value c o n s i s t e n t with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. T h e two other petitioners, Fong Thi Bui and Tu Thi Bui, are Huyhn's minor c h i l d r e n who entered the United States as derivatives on Huyhn's visa.
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B u i , a United States citizen, to procure an immigration visa. After two hearings o n the charge, the Immigration Judge ("IJ") ordered Huyhn removed, concluding t h a t the charge had been proven by clear and convincing evidence. The Board of I mmi g r a t i o n Appeals ("BIA") affirmed the IJ's decision and dismissed the appeal. Huyhn now seeks review of the agency's decision. Exercising jurisdiction under 8 U.S.C. § 1252, we deny the petition for review. I In June 2000, Bui traveled to Vietnam to visit his country of origin and to f i n d a compatible spouse. His nephew, Thien Tuan Bui, who goes by the n i c k n a me "Se," 2 introduced him to Huyhn. At the time, Se and Huyhn were in the p r o c e s s of getting divorced, but Bui testified that Se did not inform him of the ma r r i a g e . The divorce became final in August 2000. B u i and Huyhn spent time together in Vietnam in the summer of 2000 and c o n t i n u e d to correspond after Bui returned to the United States. In the summer of 2 0 0 1 , Bui petitioned for a visa on behalf of Huyhn. Huyhn was admitted to the U n i t e d States on a K-1 non-immigrant fiancée visa in August 2001 and married B u i in September of the same year. In November 2002, Bui and Huyhn attended H u y h n ' s adjustment of status interview. After the interview, Huyhn was granted c o n d i t i o n a l resident status.

W e refer to Thien Tuan Bui hereinafter as "Se" to avoid confusion with P h u o c Bui. -2-

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H u y h n testified that the marriage was happy for the first six months but that t h i n g s changed in March or April of 2002 when she discovered that Bui was i n v o l v e d with another woman. She further testified that she and Bui continued to l i v e together after that time, although they did not share a bedroom or engage in a s e x u a l relationship after March 2002. Bui testified that his marriage to Huyhn was initially harmonious, but they n e v e r consummated the marriage because Huyhn wanted to wait until they had a t r a d i t i o n a l wedding ceremony in Vietnam. Bui testified that "things changed" o n c e Huyhn obtained her "green card." He explained that he became suspicious w h e n he found out that Huyhn called her ex-husband, Se, in Vietnam, that she had ma d e plans to return to Vietnam in December without telling him, and that she w a s looking for a United States citizen to sponsor Se to enter the United States. In December 2002, Huyhn and Bui traveled separately to Vietnam. Bui t e s t i f i e d that he intentionally planned to arrive before Huyhn so that he could i n v e s t i g a t e his suspicions. Bui visited Se's home and found letters and p h o t o g r a p h s that Huyhn sent Se from the United States. Bui testified that he c o n f r o n t e d Huyhn in Vietnam when he discovered that she was staying with Se a n d that during that conversation Huyhn told him she was still Se's wife and that s h e had only been with Bui to get a green card. Bui testified that he was very a n g r y and that he told Huyhn he was going to return to the United States and r e p o r t her to immigration officials. He further testified that they offered to pay -3-

h i m money if he would refrain from reporting Huyhn. When Bui refused, Se and H u y h n threatened him. When Bui returned to the United States in February 2003, he reported H u y h n ' s fraud to the Department of Homeland Security ("DHS"). Bui filed for an a n n u l me n t of his marriage on February 18, 2003, and submitted a "Petition for D e c l a r a t i o n of Invalidity" to the Denver District Court, alleging that his marriage s h o u l d be declared invalid based on Huyhn's fraud. D H S requested that Bui provide some evidence of the alleged fraud. Bui s u b mi t t e d a recorded telephone conversation involving himself, Huyhn, and Se, as w e l l as a written statement. The transcript of the tape shows that Bui asked H u y h n , "[y]ou and I are we husband and wife?" Huyhn responded, "[n]ot in r e a l i t y , but on paper we are." Se states to Bui, "[y]ou and I are uncle and n e p h e w . But treat us just as you are doing it to anyone else. You helped my wife t o enter the country. It's 50% successful already. Now you just tell me the p r i c e . " Bui later asks Huyhn if she is happy with the $15,000 amount Se agreed t o pay him to continue the fraudulent marriage and Huyhn responds, "[Se] is my h u s b a n d . If he is happy, then I'll be happy." DHS Immigration and Customs Enforcement Agent Cory Voorhis testified b e f o r e the IJ about his investigation into Bui's allegations, including his i n t e r v i e w s with Bui and Huyhn. Voorhis stated that Huyhn told him that her ma r r i a g e had effectively ended in March 2002, although she admitted she did not -4-

t e l l this to the immigration official at her adjustment of status interview in N o v e mb e r 2002. Voorhis also asked Huyhn if Se had agreed to pay Bui $15,000 t o continue their marriage. Huyhn initially denied that there had been a payment, b u t began crying and admitted to the payment when Voorhis told her that he had a t a p e of the February 2003 telephone conversation. The IJ ordered Huyhn removed from the United States. On Huyhn's a p p e a l , the BIA remanded to the IJ to prepare a separate oral or written decision f o r review. On remand, the IJ read his February 23, 2006, decision into the r e c o r d as a separate oral decision. The IJ found by clear and convincing evidence t h a t Huyhn "procured her admission or her documentation or benefit to come to t h e United States by fraud by entering into a sham marriage with Mr. [Bui]" and t h a t Huyhn was therefore removable as charged. On Huyhn's second appeal, the BIA issued a single-member opinion a f f i r mi n g the IJ's decision and dismissing the appeal. The BIA stated that "[i]n p a r t i c u l a r , we find no clear error in the [IJ's] extensive findings of fact, including h i s credibility findings," and that "in light of the [IJ's] findings of fact, we find n o error in his determination that the respondents are removable as charged." II " A BIA order dismissing an appeal constitutes a final order of removal w h i c h we review pursuant to 8 U.S.C. § 1252(a)(1) and (b)(2). We may consult t h e oral decision of an IJ to the extent the BIA's order incorporates its reasoning." -5-

W i t j a k s o n o v. Holder, 573 F.3d 968, 973 (10th Cir. 2009) (citation omitted). "We r e v i e w the BIA's factual findings for substantial evidence." Id. at 977. Under t h i s standard, "factual findings are conclusive unless any reasonable adjudicator w o u l d be compelled to conclude to the contrary." Id. (quotation omitted). We r e v i e w de novo questions of law and constitutional challenges. See Ferry v. G o n z a l e s , 457 F.3d 1117, 1126 (10th Cir. 2006). A T h e IJ indicated that Huyhn's credibility, and the credibility of most of the o t h e r witnesses, was lacking. He concluded that the only credible witnesses were V o o r h i s and Huyhn's daughter. Huyhn complains that the IJ's adverse credibility d e t e r mi n a t i o n was not supported by the record and that the IJ "ma[de] no a s s e r t i o n s of inconsistency, problematic demeanor determinations or any other b a s i s for finding lack of credibility." Huyhn has not accurately characterized the I J ' s decision. The IJ summarized the testimony from the hearing, as well as other e v i d e n c e , and pointed out several inconsistencies with Huyhn's testimony. For e x a mp l e , the IJ recounted that Huyhn's daughter testified Bui was upset when he f o u n d out Huyhn had been corresponding with her ex-husband in Vietnam. The IJ n o t e d that Huyhn denied that she had done so, but the IJ found that there had in f a c t been correspondence between Huyhn and her ex-husband, and this finding w a s based on letters that were submitted into evidence. The IJ also found that -6-

H u y h n lied about the $15,000 payment from her ex-husband to Bui. Further, the I J found that Huyhn lied about a $250 payment to a woman Huyhn wanted to ma r r y her ex-husband so that he could enter the United States; a canceled check a n d other correspondence in the record supported the IJ's finding. We conclude t h a t the IJ provided a sufficient basis for his credibility determination, and that t h e BIA properly affirmed the IJ's decision. B H u y h n also argues that the agency's decisions violate the Administrative P r o c e d u r e Act ("APA") and her due process rights because they are conclusory. We disagree. An agency is not required to provide a lengthy explanation of its d e c i s i o n as long as it explains its action "with such clarity as to be u n d e r s t a n d a b l e . " SEC v. Chenery Corp., 332 U.S. 194, 196 (1947). Both the IJ and the BIA decisions satisfy this standard. The IJ provided s u f f i c i e n t factual findings to support his decision that Huyhn fraudulently entered i n t o a marriage with Bui for the purpose of gaining admission into the United S t a t e s . The BIA's decision provides adequate reasoning. It finds no clear error i n the IJ's factual findings, and relies on those factual findings to conclude that t h e IJ properly found Huyhn removable as charged. Huyhn has accordingly failed t o establish a violation of the APA. Huyhn's APA-related due process claim likewise fails because she has not d e mo n s t r a t e d that the agency decisions are fundamentally unfair. See Alzainati v. -7-

H o l d e r , 568 F.3d 844, 851 (10th Cir. 2009) ("[A]n alien in removal proceedings is e n t i t l e d only to the Fifth Amendment guarantee of fundamental fairness." ( q u o t a t i o n omitted)). C H u y h n raises several additional due process arguments that are unrelated to t h e APA. First, she complains that the record exhibits were not "provided" or " o f f e r e d " to her in preparation for her appeal before the BIA. But Huyhn fails to e x p l a i n what steps, if any, she took to obtain the exhibits. BIA Practice Manual R u l e 1.5 allows a party to obtain any portion of the record. Because Huyhn does n o t allege, much less demonstrate, that the BIA refused a proper request to obtain e x h i b i t s , she has not demonstrated error by the agency. N e x t Huyhn argues that her case must be remanded because the government f a i l e d to produce an adequate transcript of her two hearings. As in other contexts, the government's failure to produce an adequate t r a n s c r i p t does not necessarily rise to the level of a due process v i o l a t i o n mandating reversal or remand. Rather, to demonstrate a d e n i a l of due process and obtain relief, an alien must show that the d e f i c i e n t transcript prejudiced [her] ability to perfect an appeal. That i s , an alien must show that the gaps in the transcript relate to matters ma t e r i a l to [her] case and that they materially affect [her] ability to o b t a i n meaningful review. W i t j a k s o n o , 573 F.3d at 974-75 (citations, quotations, and alterations omitted). H u y h n claims there are 109 "indiscernible" notations in the record, but she does n o t articulate how these gaps in the transcript were material or materially affected

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h e r ability to obtain meaningful appellate review. Similarly, Huyhn asserts that t h e IJ did not adequately identify and mark the exhibits in the administrative r e c o r d , but she again fails to explain how this alleged deficiency prejudiced her c a s e . Accordingly, there is no cause for remand based on these contentions. See i d . at 975. D F i n a l l y , Huyhn asserts that this case should be remanded to the IJ to d e t e r mi n e whether the credibility of Voorhis, the DHS agent who investigated her c a s e , should be reexamined in light of his actions subsequent to this case. Citing t o extra-record evidence, Huyhn contends that Voorhis was terminated from his e mp l o y me n t at DHS "amid a flurry of accusations involving his character." But w e may not consider this argument because Huyhn did not raise it before the BIA. See Torres de la Cruz v. Maurer, 483 F.3d 1013, 1017 (10th Cir. 2007) ("[W]e h a v e jurisdiction only over those claims that were presented to the BIA and were p r o p e r l y appealed to this court . . . ."). Although Huyhn asserts that she could not h a v e raised this issue in her appeal to the BIA because Voorhis' termination was n o t administratively final until May 2010, she nevertheless must raise this issue w i t h the agency before obtaining review in this court. Cf. 8 C.F.R. § 1003.2(c)(1) ( g o v e r n i n g a motion to reopen based on new facts).

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III F o r the foregoing reasons, we DENY the petition for review. E n t e r e d for the Court

C a r l o s F. Lucero C i r c u i t Judge

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