Hanan et al v. USCIS et al

Filing 34

ORDER by Judge Haywood S. Gilliam, Jr. DENYING PLAINTIFFS' 22 MOTION FOR SUMMARY JUDGMENT AND GRANTING GOVERNMENT'S 24 CROSS-MOTION FOR SUMMARY JUDGMENT. *This order also DENIES docket no. 19 . * Motions due by 10/2/2024. (ndr, COURT STAFF) (Filed on 9/25/2024)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OFIR HANAN, et al.,
Plaintiffs,

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v.

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U.S. CITIZENSHIP AND IMMIGRATION
SERVICES (USCIS), et al.,

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United States District Court
Northern District of California

Defendants.

Case No. 23-cv-02414-HSG
ORDER DENYING PLAINTIFFS’
MOTION FOR SUMMARY
JUDGMENT AND GRANTING
GOVERNMENT’S CROSS-MOTION
FOR SUMMARY JUDGMENT
Re: Dkt. Nos. 22, 24

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Pending before the Court are cross-motions for summary judgment. Dkt. Nos. 22, 24. The

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Court finds these matters appropriate for disposition without oral argument and the matters are

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deemed submitted. See Civil L.R. 7-1(b). For the reasons detailed below, the Court DENIES

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Plaintiffs’ motion for summary judgment and GRANTS Defendants’ cross-motion.

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I.

BACKGROUND

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A.

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Plaintiffs Ofir Hanan and Melanie Gillum seek judicial review of the decisions of the

Factual Background

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Board of Immigration Appeals (“BIA”) and the United States Citizenship and Immigration

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Services (“USCIS”) denying Plaintiff Gillum’s I-130 petition to classify Plaintiff Hanan as the

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immediate relative spouse of a United States citizen. See Dkt. No. 1 (“Compl.”). Hanan is a

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citizen of Israel, and entered the United States on a B-2 nonimmigrant visa in April 2008. See

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Dkt. No. 19-4 (“CAR2”) at 340–41, 348–350.1 He has been married to two U.S. citizens. He

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married Margarita Jaimes on May 15, 2010, and they divorced on February 14, 2012. See Dkt.

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The Certified Administrative Record (“CAR”) is in two parts, and located at Dkt. No. 19-3 and
Dkt. No. 19-4, Ex. A. The Court refers to the CAR’s internal pagination unless otherwise
specified.
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No. 19-3 (“CAR1”) at 145; CAR2 at 347. Hanan never sought any immigration benefits based on

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his marriage to Jaimes. See id. He married Plaintiff Gillum on January 4, 2014. CAR1 at 144.

United States District Court
Northern District of California

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In September 2014, Plaintiff Gillum filed a Form I-130, Petition for Alien Relative, on

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Hanan’s behalf, and Hanan correspondingly filed a Form I-485, Application to Register

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Permanent Residence or Adjust Status. Id. at 139–40; CAR2 at 340–45. As part of the review of

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Plaintiffs’ I-130 and I-485, USCIS immigration officers interviewed Plaintiff Hanan’s ex-wife

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Jaimes in November 2016. See CAR1 at 128–31. Jaimes provided a written sworn statement in

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which she stated that she agreed to marry Hanan in exchange for money. Id. at 129. Specifically,

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she explained that while she was working at Little Caesars she was approached by someone who

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asked how much money she made in that job. Id. She said she made “enough,” but struck up a

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friendship with him. Id. He later asked her if she would marry his cousin, Hanan, “for some extra

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cash.” Id. She said that she “took the deal,” and was paid approximately $1,500 to $2,000 the day

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of their wedding, and $500 a month for approximately nine months. Id. Jaimes said that they

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never lived together. Id. Hanan eventually asked her to move with him to San Francisco, but she

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said that she “didn’t want[] to move” and “didn’t want to help him anymore,” so they filed for

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divorce. Id. Jaimes stated that “[t]he whole purpose” of their arrangement “was for him to get his

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papers and for [her] to get extra cash.” Id.

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In March 2017, Plaintiffs appeared for an interview with USCIS. CAR2 at 132–38. When

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confronted with Jaimes’s statement, Hanan explained that he met Jaimes through friends and he

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intended to start a life with her. See CAR2 at 125–27. According to Hanan, however, they were

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“very young” when they got married—Jaimes was only 19—and she was “very emotional and

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yelled a lot” and “abused alcohol even though she was underage.” Id. at 125–26. Hanan said he

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did not pay her money to marry him, although he did give her money at times, and she in fact

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demanded it from him, including during their divorce process. Id. at 126–27. Hanan suggested

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that Jaimes offered her statement because she was “probably angry about the divorce.” Id. at 127.

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USCIS issued three Notices of Intent to Deny (“NOID”) the I-130 petition, and provided
Plaintiffs an opportunity to respond to each.
In June 2017, USCIS issued the first NOID, finding that there was substantial and
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United States District Court
Northern District of California

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probative evidence that Hanan had attempted or conspired to enter into a marriage with Jaimes for

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the purpose of evading immigration laws. CAR1 at 121–24. The NOID cited Jaimes’s statement,

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and explained that Hanan’s response was “unpersuasive” and did not meaningfully rebut Jaimes’s

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statement. Id. at 123–29. In response to the NOID, Plaintiffs submitted 16 photographs of Hanan

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and Jaimes, as well as three short declarations from Hanan’s father, friend, and uncle. Id. at 110–

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20. Hanan’s father stated that he and his daughter visited Hanan and Jaimes once a few months

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after their wedding, and that “[i]t was my feeling at the time that Ofir and Margarita were trying to

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build a life together.” Id. at 113. Hanan’s friend, who was present at the wedding, similarly stated

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that “[f]rom my observation of the wedding and the relationship, I believed and understood that

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Margarita and Ofir were trying to start a life together.” Id. at 119. Hanan’s uncle also stated that

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he was not present at the wedding but Hanan and Jaimes visited them on their honeymoon and

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they “were looking very happy together” and that the “relationship [was] moving to right direction

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[sic].” Id. at 116. None of them offered any detail to explain their impressions about the

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relationship.

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During their ongoing investigation, USCIS identified a July 2011 investigation report from

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the California Department of Justice, Bureau of Gambling Control (“BGC”), in which Hanan

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made statements about his marriage to Jaimes. See id. at 97–98. Hanan was interviewed by the

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BGC as part of an unrelated investigation regarding illegal slot machines in the Bay Area. Id.

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During the interview, Hanan described to the agents how a third party involved in the slot machine

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scheme arranged for him “to marry a U.S. citizen in order to get a green card.” Id. According to

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the report, Hanan told the agents that this third party “found James [sic] and that he paid her to

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marry him.” Id. Hanan also said that he was “told to pay James [sic] $250.00 every month until

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he received his green card.” Id. at 98. He paid her by depositing money “directly into James [sic]

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bank account.” Id. The third party also sent him to an immigration attorney to help him with his

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paperwork. Id. USCIS issued a second NOID in July 2020, citing both Jaimes’s sworn statement

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and excerpts of this BGC report. Id. at 92–98.

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In response, Plaintiffs requested that USCIS produce the entire BGC report for their
review. See id. at 85, 88. Hanan also submitted another statement in which he reiterated that he
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“never paid Margarita Jaimes any amount of money to marry me.” Id. at 90. He repeated that he

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married her “with the intention to build a life together.” Id. Hanan also said that he “was attracted

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to her” and “thought [they] could make a go of it.” Id. He acknowledged that he consulted with

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an immigration attorney, but said he and Jaimes “discussed [his] immigration status as any couple

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does when one of them is not [a] U.S. citizen.” Id.

United States District Court
Northern District of California

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USCIS issued a third NOID in February 2021, attaching the BGC report. Id. at 62–83.

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Parts of the report, including the names of the BGC agents and the alleged co-conspirators in the

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illegal slot machine ring, were redacted by BGC. See id. at 68–79. USCIS said that it “ha[d] not

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relied on any evidence that is redacted in determining that the beneficiary engaged in marriage

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fraud.” Id. at 66. In response, Plaintiffs offered legal arguments that, as they acknowledged,

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“largely reiterate[d] the arguments that they [] repeatedly put forth . . . .” Id. at 55. Plaintiffs

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argued that Hanan had a due process right to cross-examine Jaimes. Id. at 56. They further

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argued that the redacted BGC report made it impossible for them to identify and speak with the

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officers and other individuals named in the report. Id. at 58.

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USCIS ultimately denied the I-130 visa petition in March 2022. See id. at 48–54. USCIS

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explained that Plaintiffs had failed to provide credible and persuasive evidence that Hanan’s

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marriage to Jaimes was bona fide, given Jaimes’s sworn statement and Hanan’s statements in the

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BGC interview. Id. Because it denied the visa petition, USCIS also denied Hanan’s I-485

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adjustment of status application that same day. See CAR2 at 325–26. Plaintiffs appealed the

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denial of the I-130 petition to the BIA. See CAR1 at 8–9. The BIA adopted and affirmed the

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USCIS decision. See id. at 2–4.

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B.

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A United States citizen may file an I-130 petition with USCIS to obtain lawful permanent

Statutory Framework

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resident status for her noncitizen spouse, the “beneficiary” of the petition. See 8 U.S.C.

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§ 1154(a)(1)(A)(i). If USCIS grants an I-130 petition, then the beneficiary is classified as an

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“immediate relative” who may seek adjustment of status to permanent residence by filing an I-485

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application. See 8 U.S.C. §§ 1151(b)(2)(A)(i). The Ninth Circuit has explained that the “grant of

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an I-130 petition for immediate relative status is a nondiscretionary decision.” Ching v. Mayorkas,
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725 F.3d 1149, 1156 (9th Cir. 2013). “Immediate relative status for an alien spouse is a right to

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which citizen applicants are entitled as long as the petitioner and spouse beneficiary meet the

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statutory and regulatory requirements for eligibility.” Id.

United States District Court
Northern District of California

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“One bar to the grant of an I-130 petition is the so-called ‘marriage fraud bar,’ which

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prohibits the grant of a petition if ‘the alien has previously been accorded, or has sought to be

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accorded, an immediate relative or preference status as the spouse of a citizen of the United

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States . . . by reason of a marriage determined by the [Director of the Bureau of Citizenship and

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Immigration Services] to have been entered into for the purpose of evading the immigration

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laws.’” Yocom v. United States Citizenship & Immigr. Servs., No. 23-55430, 2024 WL 2206342,

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at *2 (9th Cir. May 16, 2024) (quoting 8 U.S.C. § 1154(c)). To apply this bar, the government

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must “provide ‘substantial and probative evidence’ of marriage fraud.” Id. (quoting 8 C.F.R.

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§ 204.2(a)(1)(ii)); see also Zerezghi v. USCIS, 955 F.3d 802, 805 (9th Cir. 2020). The

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“substantial-and-probative-evidence standard is a standard of proof, which is at least as high as a

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preponderance of the evidence.” Zerezghi, 955 F.3d at 816. “The burden then shifts to the

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petitioner to rebut that finding.” Id.

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C.

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Plaintiffs filed a complaint in May 2023, claiming that in denying the I-130 petition

Procedural History

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Defendants acted arbitrarily and capriciously in violation of the Administrative Procedure Act

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(“APA”) and the Due Process Clause of the U.S. Constitution. Dkt. No. 1. Plaintiffs argued that

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Defendants improperly applied the marriage fraud bar, 8 U.S.C. § 1154(c)(2), and that their due

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process rights were violated because Jaimes was not made available for cross-examination in an

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evidentiary hearing. See id. at ¶¶ 58–67. As such, they urge that the denial of the I-130 visa

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petition was not supported by substantial and probative evidence that Hanan and Jaimes had

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entered into a fraudulent marriage. See id. at ¶¶ 68–74. They also argue that the corresponding

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denial of the I-485 application was similarly erroneous and in violation of the APA. See id. at

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¶¶ 75–79.

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The parties filed cross-motions for summary judgment. See Dkt. No. 22, 24. In the
months since the parties filed their motions, the Supreme Court decided two landmark cases that
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are relevant to the resolution of the cross-motions: Loper Bright Enterprises v. Raimondo, 144 S.

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Ct. 2244 (2024) and Department of State v. Muñoz, 144 S. Ct. 1812 (2024). The Court gave the

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parties an opportunity to file supplemental briefs addressing the impact of Loper Bright and

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Muñoz on the issues raised in the cross-motions for summary judgment. Dkt. Nos. 32, 33.

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II.

LEGAL STANDARD
Summary judgment is proper when a “movant shows that there is no genuine dispute as to

United States District Court
Northern District of California

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any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

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A fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson

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v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a dispute is “genuine” if there is evidence

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in the record sufficient for a reasonable trier of fact to decide in favor of the nonmoving party. Id.

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But in deciding if a dispute is genuine, the court must view the inferences reasonably drawn from

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the materials in the record in the light most favorable to the nonmoving party, Matsushita Elec.

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Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986), and “may not weigh the evidence

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or make credibility determinations,” Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997),

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overruled on other grounds by Shakur v. Schriro, 514 F.3d 878, 884–85 (9th Cir. 2008). If a court

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finds that there is no genuine dispute of material fact as to only a single claim or defense or as to

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part of a claim or defense, it may enter partial summary judgment. Fed. R. Civ. P. 56(a).

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Summary judgment is the appropriate mechanism to review agency determinations under

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the APA because the Court’s review is limited to the administrative record and it is not resolving

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questions of disputed fact. See Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 F.3d 1468, 1471–

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72 (9th Cir. 1994). Under the APA, the Court “must set aside the BIA’s decision if it is ‘arbitrary,

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capricious, an abuse of discretion, or otherwise not in accordance with law.’” Zerezghi, 955 F.3d

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at 807 (quoting 5 U.S.C. § 706(2)(A)). The Court reviews the agency’s legal determinations de

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novo and its factual findings for substantial evidence. See Meza-Vallejos v. Holder, 669 F.3d 920,

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924 (9th Cir. 2012); Zerezghi, 955 F.3d at 814–15.

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III.

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DISCUSSION
A.

Meaning of § 1154(c)(2)
As an initial matter, the parties dispute whether the marriage fraud bar, 8 U.S.C.
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§ 1154(c)(2), applies here at all. Plaintiffs contend that § 1154(c) is inapplicable because Hanan

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did not seek immigration benefits based on his prior marriage to Jaimes. See Dkt. No. 22 at 7–10.

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Defendants, on the other hand, argue that the statute applies even if a noncitizen only “attempted”

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or “conspired” to enter a marriage for the purpose of evading the immigration laws, whether or not

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he ultimately sought immigration benefits. See Dkt. No. 24 at 8–12 (citing 8 U.S.C. § 1154(c)(2)).

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In short, the parties disagree about the meaning of the marriage fraud bar.

United States District Court
Northern District of California

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In the Supreme Court’s recent opinion, Loper Bright v. Raimondo, the Court overruled

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Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). See

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Loper Bright, 144 S. Ct. at 2254–73. The parties agree that in light of Loper Bright, the BIA’s

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interpretation of § 1154(c) is not entitled to deference under Chevron. See Dkt. No. 32 at 1–2;

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Dkt. No. 33 at 1–2. Although the Court may consider an agency’s interpretation as “guidance,” it

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may not defer to the agency. See Loper Bright, 144 S. Ct. at 2262 (quoting Skidmore v. Swift &

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Co., 323 U.S. 134, 140 (1944)). Instead, the Court “must exercise independent judgment in

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determining the meaning of statutory provisions.” Id. It “need not and under the APA may not

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defer to an agency interpretation of the law simply because a statute is ambiguous.” Id. The Court

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therefore conducts its own independent analysis of the meaning of § 1154(c)(2).

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As with all questions of statutory interpretation, the Court begins with the plain language

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of the statute. See Cheneau v. Garland, 997 F.3d 916, 919–20 (9th Cir. 2021) (en banc) (quoting

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Jimenez v. Quarterman, 555 U.S. 113, 118 (2009)). The Court “read[s] the words ‘in their context

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and with a view to their place in the overall statutory scheme.’” Cheneau, 997 F.3d at 919

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(quoting King v. Burwell, 576 U.S. 473, 486 (2015)). The Court may also consider “‘other

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traditional aids of statutory interpretation’ in order to ascertain congressional intent.” Id. at 920

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(quoting Middlesex Cnty. Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 13 (1981)).

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“The plain meaning of the statute controls, and courts will look no further, unless its application

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leads to unreasonable or impracticable results.” Robinson v. United States, 586 F.3d 683, 687 (9th

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Cir. 2009) (quotation omitted).

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Section 1154(c) provides that no I-130 petition shall be approved if:

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(1) the alien has previously been accorded, or has sought to be
accorded, an immediate relative or preference status as the spouse
of a citizen of the United States or the spouse of an alien lawfully
admitted for permanent residence, by reason of a marriage
determined by the Attorney General to have been entered into for
the purpose of evading the immigration laws, or
(2) the Attorney General has determined that the alien has attempted
or conspired to enter into a marriage for the purpose of evading
the immigration laws.

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United States District Court
Northern District of California

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8 U.S.C. § 1154(c)(1)–(2).

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Section 1154(c)(1) expressly bans noncitizens who have “previously been accorded” or

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who have “sought to be accorded” immigration benefits based on a fraudulent marriage. By its

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terms, § 1154(c)(1) thus only applies where a noncitizen “entered into” a marriage and “sought”

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an immigration benefit based on that marriage (whether or not any benefit was actually obtained).

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See Zerezghi, 955 F.3d at 804–05 (“The [marriage fraud bar] applies regardless of whether the

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past sham marriage resulted in a successful immigration petition.”). Section 1154(c)(2), in

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contrast, does not explicitly require a noncitizen to have sought any immigration benefit based on

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a fraudulent marriage before the ban applies. Rather, the ban applies as long as the noncitizen

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“attempted or conspired to enter into a marriage for the purpose of evading the immigration laws.”

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8 U.S.C. § 1154(c)(2). As one judge has explained, under § 1154(c)(2) “[i]t does not matter

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whether [a noncitizen] used the marriage to obtain a visa . . . . It is enough that he married—or

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even just attempted or conspired to marry—with the forbidden purpose.” Ghaly v. I.N.S., 48 F.3d

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1426, 1436 (7th Cir. 1995) (Posner, J., concurring).

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Plaintiffs suggest that the Court should incorporate a requirement that immigration benefits

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must have been sought into (c)(2) as well. See Dkt. No. 22 at 7–10. As will be discussed further

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below, Plaintiffs contend that Congress created § 1154(c)(2) solely to “close the ‘fiancé loophole’

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where noncitizens would petition for fiancés from abroad and bring them to the United States, and

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then after they arrived here would separate without every marrying.” See Dkt. No. 22 at 1. In

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such circumstances, the noncitizen actually received an immigration benefit in the form of a K-1

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visa. Setting aside the legislative history for now, (c)(2) says nothing about fiancés or K-1 visas

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specifically, or about seeking or being accorded an immigration benefit of any kind. Congress
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clearly chose to structure (c)(1) and (c)(2) differently, and the Court has no reason to believe that it

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did so inadvertently. To the contrary, the Ninth Circuit has cautioned that “[w]here Congress

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includes particular language in one section of a statute but omits it in another section of the same

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Act, it is generally presumed that Congress acts intentionally and purposely in the disparate

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inclusion or exclusion.” Cheneau, 997 F.3d at 920 (quoting I.N.S. v. Cardoza-Fonseca, 480 U.S.

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421, 432 (1987)).

United States District Court
Northern District of California

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This presumption seems particularly apt where, as here, Congress amended (c)(1) and

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created (c)(2) at the same time. See Immigration Marriage Fraud Amendments of 1986 (“IMFA”),

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Pub. L. No. 99-639, 100 Stat. 3537, 3543 (1986). Had Congress intended both (c)(1) and (c)(2) to

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require a noncitizen to seek immigration benefits, it could have drafted each section accordingly.

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See Lopez v. Garland, -- F.4th--, No. 23-870, 2024 WL 4140626, at *8 (9th Cir. Sept. 11, 2024)

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(“As the Supreme Court observed long ago, ‘[w]hen the language is plain, we have no right to

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insert words and phrases, so as to incorporate in the statute a new and distinct provision.’”)

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(quoting United States v. Temple, 105 U.S. 97, 99 (1881)). Plaintiffs’ interpretation would require

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the Court to ignore the plain language of § 1154(c) and essentially rewrite the statute.

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Plaintiffs respond that such a rewrite is nevertheless appropriate because if (c)(2) applies

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where the noncitizen never sought immigration benefits, this would render (c)(1) superfluous. See

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Dkt. No. 26 at 2; see also Dkt. No. 32 at 2–3 (expanding this argument in their supplemental brief

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about the implication of Loper Bright). Plaintiffs contend that “[i]f § 1154(c)(2) applies where

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there is no marriage and no immigration benefit sought, then § 1154(c)(1) has no meaning at all.”

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Dkt. No. 26 at 2 (emphasis in original). In their view, “an attempt or conspiracy ‘to enter into a

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marriage for the purpose of evading the immigration laws’ would subsume every act listed in

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subsection (c)(1).” Dkt. No. 32 at 2. Although Plaintiffs do not flesh out this argument further,

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the Court assumes that Plaintiffs are concerned, at least in part, that anyone who actually entered

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into a marriage for the purpose of evading the immigration laws also necessarily conspired to do

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so. However, this overlap would exist whether or not the Court assumes that (c)(2) requires a

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noncitizen to seek immigration benefits. Plaintiffs’ suggestion that both (c)(1) and (c)(2) require

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that the noncitizen actually seek immigration benefits simply compounds this problem further.
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In any event, the Court agrees with Defendants that if Congress had only intended to

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expand the marriage fraud bar to cover the “fiancé loophole,” it could have done so far more

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straightforwardly. See Dkt. No. 24 at 11. There would have been no reason to add a second

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clause at all. Instead, Congress could have extended the prior statute to cover engaged, as well as

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married couples, by providing that: “[N]o petition shall be approved if the [noncitizen] has

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previously been accorded, or has sought to be accorded, an immediate relative preference status or

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nonimmigrant visa as the spouse or fiancé of a citizen of the United States or the spouse of a[]

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[noncitizen] lawfully admitted for permanent residence, by reason of a marriage or engagement

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determined by the Attorney General to have been entered into for the purpose of evading the

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United States District Court
Northern District of California

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immigration laws.”
Defendants also point out that even as currently drafted, (c)(1) is not entirely subsumed by

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(c)(2). See Dkt. No. 27 at 2–3. Section 1154(c)(1) does not require that the U.S. citizen and

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noncitizen conspired or agreed to enter into a fraudulent marriage. It is therefore possible that

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under (c)(1) only a noncitizen—and not their spouse—could enter into a marriage for the purpose

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of evading the immigration laws. See Dkt. No. 27 at 2–3; cf. Matter of R. I. Ortega, 28 I&N Dec.

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9, 13 (BIA 2020) (holding that a conspiracy under § 1154(c)(2) requires “an agreement to enter

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into a marriage for the purpose of evading the immigration laws and an overt act in furtherance of

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that agreement”); Bark v. Immigr. & Naturalization Serv., 511 F.2d 1200, 1201 (9th Cir. 1975)

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(defining a sham marriage as one in which “the bride and groom did not intend to establish a life

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together at the time they were married”). The Ninth Circuit has explained that “marriage fraud

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may be committed by one party to the marriage, or a person who arranged the marriage, yet the

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other spouse may genuinely intend to marry.” United States v. Orellana-Blanco, 294 F.3d 1143,

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1151 (9th Cir. 2002) (quotation omitted).

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And ultimately, the Court does not need to find an interpretation of the statute that

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eliminates all overlap between (c)(1) and (c)(2). As the Ninth Circuit has explained, “canons of

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statutory interpretation are not absolute and can be ‘overcome by other indicia of meaning.’”

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United States v. Paulson, 68 F.4th 528, 539 (9th Cir. 2023) (quoting Lockhart v. United States,

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577 U.S. 347, 352 (2016)). The canon against surplusage, although important, does not justify
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United States District Court
Northern District of California

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completely rewriting the statute. Cf. In re Pangang Grp. Co., LTD., 901 F.3d 1046, 1056 (9th Cir.

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2018) (“[W]e disfavor efforts to use canons of construction to introduce ambiguity into

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straightforward text.”). “The first and most important canon of statutory construction is the

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presumption that a legislature says in a statute what it means and means in a statute what it says

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there.” Id. (quotation omitted). “[R]edundancies are common in statutory drafting—sometimes in

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a congressional effort to be doubly sure, sometimes because of congressional inadvertence or lack

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of foresight, or sometimes simply because of the shortcomings of human communication.” Pugin

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v. Garland, 599 U.S. 600, 609 (2023) (quoting Barton v. Barr, 590 U.S. 222, 239 (2020)). The

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Supreme Court “has often recognized” that “[s]ometimes the better overall reading of the statute

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contains some redundancy.” Barton, 590 U.S. at 239 (quotation omitted). The Court finds that

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this is such a case. A straightforward reading of the statute indicates that Congress intended to

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ban both those who sought an immigration benefit based on a fraudulent marriage and also those

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who only conspired to do so. Because the Court finds that the statute is unambiguous on its face,

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the Court need not consider the legislative history. See, e.g., CVS Health Corp. v. Vividus, LLC,

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878 F.3d 703, 706 (9th Cir. 2017) (“If the language has a plain meaning or is unambiguous, the

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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,

28

678 (BIA 1993) (explaining that prior bar had a “loophole” such that the bar did not apply if “the
11

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
8
9
10

United States District Court
Northern District of California

11
12
13

Historically, U.S. immigration policy has recognized the importance
of protecting nuclear families from separation by permitting
immediate family members of U.S. citizens to immigrate to the
United States without numerical limitation. Similarly, the law has
long set aside a significant number of immigrant visas for immediate
relatives of permanent resident aliens. Because of this special status
accorded such alien relatives, aliens who either cannot otherwise
qualify for immigration to the United States or who, though qualified,
are not willing to wait until an immigrant visa becomes available,
frequently find it expedient to engage in a fraudulent marriage in
order to side-step the immigration law.

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
22

Plaintiffs point out that the Department of Justice, in supporting the enactment of the
legislation, stated that the amendments would:

23
24
25
26

D[o] away with the distinction between fiancés and other aliens
whose benefits are based on marriage. Commonly, a fiancée who
does marry the petitioning spouse will immediately terminate the
marriage, remarry, and file a preference petition for another alien.
This significant loophole must be closed, and the bill would do that.

27

Id. at *10. Plaintiffs do not explain how the Department of Justice’s position on the legislation is

28

relevant to Congress’s intent when enacting the legislation. Moreover, that the IMFA eliminated
12

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.

United States District Court
Northern District of California

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.

13

Next, Plaintiffs argue that even if § 1154(c)(2) could apply here, their due process rights

Due Process

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

28

which citizen applicants are entitled as long as the petitioner and spouse beneficiary meet the
13

United States District Court
Northern District of California

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
22

When determining whether additional process is due in any given case, the Court must
consider the three Mathews factors:

23
24
25
26
27
28

First, the private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest through
the procedures used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the Government’s
interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural
requirement would entail.
Mathews, 424 U.S. at 335.
14

i.

United States District Court
Northern District of California

1

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.
However, Plaintiffs’ argument turns on an overly narrow view of what the BIA

17
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.

28

//
15

1

United States District Court
Northern District of California

2

ii.

Prejudice

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.

27
28

Mathews Factors
a. First Factor

In evaluating the Mathews factors, the Court first considers the private interests that are at
16

United States District Court
Northern District of California

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

28

officer had violated her right to due process by declining to disclose the reason for finding her
17

1
2

husband inadmissible. Id.
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
9
10

United States District Court
Northern District of California

11
12
13
14

Congress’s generosity with respect to spousal immigration has always
been subject to restrictions, including bars on admissibility. This is
an area in which more than family unity is at play: Other issues,
including national security and foreign policy, matter too. Thus,
while Congress may show special solicitude to noncitizen spouses,
such solicitude is a matter of legislative grace rather than fundamental
right.
Id. (quotation omitted).
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

28

“desire” to live together in the United States. See Dkt. No. 33 at 6.
18

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

United States District Court
Northern District of California

9

The Court acknowledges that in Ching, the Ninth Circuit held that the petitioners had a
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 []

28

entitled to the protections of due process.” Ching, 725 F.3d at 1156.
19

But this does not end the inquiry. The Court in Ching went on to evaluate what if any

United States District Court
Northern District of California

1
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
24

b. Second Factor
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

28

upon for evidence that the previous marriage was fraudulent.” Id. An ex-spouse may, for
20

United States District Court
Northern District of California

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

28

previously written to USCIS stating that he and his ex-wife “truly loved each other.” Id. The
21

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.

United States District Court
Northern District of California

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-

28

examining the agent who prepared it would reveal anything to undermine the substance of the
22

1

United States District Court
Northern District of California

2

report.
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

28

that Plaintiffs were erroneously deprived of their rights far lower here than it was in Ching. And
23

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

United States District Court
Northern District of California

7

c. Third Factor
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.

25

Even putting aside their due process concerns, Plaintiffs argue that the BIA’s

Substantial Evidence

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

28

reviews Defendants’ determination that Hanan and Jaimes’s marriage was fraudulent under the
24

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).
As explained above, Defendants relied both on Jaimes’s statement and the BGC report.

United States District Court
Northern District of California

11
12

Plaintiffs offer a scattershot list of critiques of Defendants’ evidence. See Dkt. No. 22 at 15–17.
In her statement, Jaimes admitted that she was approached by a friend to marry Hanan for

13
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
27
28

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);
Zerezghi, 955 F.3d at 816. Once the government has found substantial and probative evidence of
marriage fraud, the burden then shifts to the petitioners to rebut that finding. See Zerezghi, 955
F.3d at 805. This standard of proof is distinct from the Court’s standard of review. Id. at 813–16.
25
2

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
5
6

as part of an investigation, lacks indicia of reliability. Plaintiffs argue:
•

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

United States District Court
Northern District of California

As to the BGC report, Plaintiffs state that the report, although created by law enforcement

•

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

28

opportunity to cross-examine the agent who prepared the report too, see Dkt. No.
26

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.

Plaintiffs nevertheless assert that the BIA did not properly identify and apply the burden-

United States District Court
Northern District of California

10
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
26
27
28

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
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
to subject the declarant to cross-examination under Ching.” Id. at 18. To the extent Plaintiffs
intended to raise a due process argument as to the BGC report, it should not have been buried in
an entirely different section of their brief without meaningful discussion.
27

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.
Finally, to the extent Plaintiffs suggest that the BIA failed to consider their contrary

United States District Court
Northern District of California

5
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.

24

Courts generally apply a “compelling reasons” standard when considering motions to seal

Legal Standard

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

28

and documents.’” Id. (quoting Kamakana, 447 F.3d at 1178). “[A] strong presumption in favor of
28

United States District Court
Northern District of California

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.,

28

307 F.3d 1206, 1210–11 (9th Cir. 2002); see also Fed. R. Civ. P. 26(c). “Broad allegations of
29

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.

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.
The parties state that the administrative record contains “third party confidential

7

United States District Court
Northern District of California

Discussion

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 ¶ 3. 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

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

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

17

compelling reasons require the certified administrative record to be sealed in its entirety, and the

18

Court therefore DENIES the motion. Dkt. No. 19.

19

V.

CONCLUSION
Accordingly, the Court DENIES Plaintiffs’ motion for summary judgment, Dkt. No. 22,

20
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.
IT IS SO ORDERED.

25
26
27
28

Dated:

9/25/2024
______________________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge
30