                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        NOV 3 2016
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT



    VY NHU HOANG DINH; MAN VAN                   No.    14-16737
    CHAU,
                                                 D.C. No.
                 Plaintiffs-Appellees,           2:12-cv-01795-APG-CWH

     v.
                                                 MEMORANDUM*
    UNITED STATES OF AMERICA; JEH
    JOHNSON, Secretary of Department of
    Homeland Security; LORETTA E.
    LYNCH, Attorney General; ALEJANDRO
    MAYORKAS, Director of United States
    Citizenship and Immigration Services;
    LEANDER HOLSTON, Officer in Charge
    of United States Citizenship and
    Immigration Services in Las Vegas,
    Nevada,

                 Defendants-Appellants.

                   Appeal from the United States District Court
                            for the District of Nevada
                   Andrew P. Gordon, District Judge, Presiding

                     Argued and Submitted October 19, 2016
                              Stanford, California

Before: CALLAHAN, HURWITZ, and OWENS, Circuit Judges.


*
      This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
      Vy Dinh, a native of Vietnam, entered this country on an F-1 student visa in

2002. In 2006, Dinh filed a petition seeking to adjust her status to legal permanent

resident, citing a marriage to Man Van Chau. The United States Citizenship and

Immigration Services (“USCIS”) found that Dinh had previously sought

immigration benefits on the basis of a fraudulent marriage to Joey Duran, and that

her current application was therefore subject to the marriage fraud bar in 8 U.S.C.

§ 1154(c).1 The Board of Immigration Appeals (“BIA”) affirmed, adopting the

USCIS decision. Dinh then filed this action in the district court seeking relief under

the Administrative Procedure Act, 5 U.S.C. § 702. That court ordered the BIA to

decide Dinh’s petition without reference to the marriage fraud bar. The government

appealed, and we reverse.

      1. We review the agency decision from the “same position” as the district

court. Sierra Club v. Babbitt, 65 F.3d 1502, 1507 (9th Cir. 1995). Under the

Administrative Procedure Act, an agency decision may be set aside only if it is

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

law.” 5 U.S.C. § 706(2)(A). The court “is not to substitute its judgment for that of



1
        Section 1154(c) provides in relevant part that “no petition shall be approved
if . . . 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.”

                                          2
the agency.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.

Co., 463 U.S. 29, 43 (1983). We review the agency’s factual finding that a marriage

was fraudulent for substantial and probative evidence. Damon v. Ashcroft, 360 F.3d

1084, 1088 (9th Cir. 2004).      Agency findings must be affirmed under this

“‘extremely deferential’ standard . . . ‘unless the evidence presented would compel

a reasonable finder of fact to reach a contrary result.’” Monjaraz-Munoz v. INS, 327

F.3d 892, 895–96 (9th Cir. 2003) (quoting Singh-Kaur v. INS, 183 F.3d 1147, 1149–

50 (9th Cir. 1999)), amended by 339 F.3d 1012 (9th Cir. 2003).

      2. “[T]he central question” before the USCIS was whether Dinh and Duran

“intended to establish a life together at the time they were married.” Damon, 360

F.3d at 1088.    The agency determination that Dinh’s marriage to Duran was

fraudulent was supported by substantial and probative evidence. Dinh married

Duran only one month after an arranged marriage to Jason Prince and a prompt

divorce. Dinh first met Duran on the day of the wedding; the marriage was arranged

by a broker; and neither Dinh nor anyone in her family had any prior contact with

Duran. Dinh left Utah on the day of the wedding, never returned, and never saw

Duran again. Dinh was not mentioned on any of Duran’s bank accounts, insurance,




                                         3
or leases; nor was there joint property. There was thus ample probative evidence

that Dinh intentionally entered into a sham marriage.2

      3. Dinh argues that the USCIS erred by rejecting her contention that she was

a victim of a fraud by the marriage broker and Duran. But, although the evidence

arguably could support such a conclusion, it does not compel it. See Monjaraz-

Munoz, 327 F.3d at 895.

      4. The agency finding that Dinh sought immigration benefits on the basis of

the fraudulent marriage was also supported by substantial and probative evidence.

On the day of the Duran wedding, Dinh signed I-130 and I-485 forms, seeking

permanent resident status. When these forms were filed, Dinh sought to be accorded

immigration benefits as a result of her fraudulent marriage to Duran. In re Kahy, 19

I. & N. Dec. 803, 806 (B.I.A. 1988) (holding that submission of an I-485 form

establishes that the applicant sought immigration benefits).3




2
       Duran pleaded guilty to aiding and abetting Dinh’s attempt to enter or obtain
entry to the United States by a willfully false or misleading representation in
violation of 8 U.S.C. § 1325(a)(3) and 18 U.S.C. § 2, thus admitting that the marriage
was fraudulent. Although Duran’s admission does not bind Dinh, it is at least
somewhat probative that she had a similar intent.
3
      Dinh claimed that she later told the marriage broker not to file the forms, but
the USCIS was not required to accept that contention.

                                          4
      5. Because the agency decision is supported by substantial and probative

evidence, we reverse the judgment of the district court and remand with instructions

to enter summary judgment for the government.

      REVERSED AND REMANDED.




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