                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 19 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

JESSICA LYNN TKACZ, AKA Alayne C.               No.    18-15771
Ferreira,
                                                D.C. No.
                Plaintiff-Appellant,            2:14-cv-00092-RFB-CWH

 v.
                                                MEMORANDUM*
DANIEL G. BOGDEN, U.S. Attorney
Nevada; JEH JOHNSON, Secretary of
Department of Homeland Security; JEANE
KENT, Field Director USCIS, Las Vegas,

                Defendants-Appellees.

                   Appeal from the United States District Court
                            for the District of Nevada
                 Richard F. Boulware II, District Judge, Presiding

                          Submitted December 6, 2019**
                            San Francisco, California

Before: GOULD and CALLAHAN, Circuit Judges, and BOUGH,*** District
Judge.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri, sitting by designation.
      Plaintiff-Appellant, Jessica Tkacz, appeals the district court grant of

summary judgment in favor of Defendants-Appellees (collectively, the “agency”).

Tkacz, a United States citizen, filed a Form I-130 visa petition with the United

States Citizenship and Immigration Services (USCIS) for immediate relative status

on behalf of her alien husband, Alayne Ferreira, a native of Brazil. USCIS denied

the petition on the basis that Ferreira had previously entered a fraudulent marriage

with another United States citizen for the sole purpose of obtaining immigration

benefits. See 8 U.S.C. § 1154(c) (stating, in part, that “no petition shall be

approved” if the alien has previously sought immediate relative status as the

spouse of a United States citizen “by reason of a marriage determined . . . to have

been entered into for the purpose of evading the immigration laws”). After a

remand and a second hearing on the matter, USCIS again denied the application.

The Board of Immigration Appeals (BIA) agreed with USCIS and dismissed

Tkacz’s second appeal. Tkacz filed this action in district court, alleging that the

agency violated her due process rights and the Administrative Procedure Act

(APA).1 We have jurisdiction under 28 U.S.C. § 1291, and we affirm the district

court’s summary judgment order.

      1. Tkacz first argues that her due process rights were violated because the



      1
        Because the parties are familiar with the facts of this case, we do not
recount them in detail here.

                                           2
agency failed to follow Ching v. Mayorkas, 725 F.3d 1149 (9th Cir. 2013). In

Ching, we found a due process violation by the agency’s denial of Ching’s request

for the opportunity to cross-examine her husband’s ex-spouse at her I-130

interview. Id. at 1159. Unlike Ching, however, Tkacz provides no evidence, nor

makes any claim, that she asked the agency to produce Ferreira’s ex-spouse or the

USCIS officers for cross-examination, or that the agency denied such a request.

Even after the BIA remanded Tkacz’s first appeal for a second hearing, there is no

indication in the record that Tkacz demanded the opportunity to cross-examine

these witnesses at the second hearing. Furthermore, Tkacz fails to demonstrate any

prejudice as she does not show how an opportunity for cross-examination of either

Ferreira’s ex-spouse or the USCIS officers would have had any effect on the

ultimate denial of her I-130 petition. Accordingly, we agree with the district court

that Tkacz fails to present any genuine dispute of material fact as to the alleged

violation of her due process rights.

      2. We also agree with the district court that the agency, in denying Tkacz’s

I-130 petition, did not act arbitrarily or capriciously in violation of the APA. In

reviewing a challenge to agency action at the summary judgment stage, the

reviewing court’s “function . . . is to determine whether or not as a matter of law

the evidence in the administrative record permitted the agency to make the

decision it did.” Occidental Engineering Co. v. Immigr. & Naturalization Serv.,


                                          3
753 F.2d 766, 769 (9th Cir. 1985). The agency’s finding that Ferreira and his ex-

spouse’s marriage was fraudulent is supported by substantial evidence in the

record, even if the evidence may also lend support to Tkacz and Ferreira’s

alternative interpretation. See Bear Lake Watch, Inc. v. FERC, 324 F.3d 1071,

1076 (9th Cir. 2003) (“Substantial evidence . . . means such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion. If the evidence

is susceptible of more than one rational interpretation, we must uphold [the

agency’s] findings.” (internal citations omitted)). Tkacz’s arguments essentially

ask us to reweigh the evidence and make our own credibility determinations, which

we may not do in reviewing the agency’s findings under the APA. See Citizens to

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971) (“[T]he ultimate

standard of review is a narrow one. The court is not empowered to substitute its

judgment for that of the agency.”). Because substantial evidence supports the

agency’s findings, and Tkacz otherwise has not shown how its denial of the I-130

petition was arbitrary and capricious, we affirm the district court’s grant of

summary judgment.

      3. Tkacz also filed two motions pending this appeal. We dismiss Tkacz’s

motion to stay removal [ECF Dkt. No. 39] as moot, given our resolution of this

case. We deny Tkacz’s motion for judicial notice [ECF Dkt. No. 43] of an

affidavit that was not part of the administrative record before the agency.


                                          4
AFFIRMED.




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