                                                                           FILED
                             NOT FOR PUBLICATION                            JUN 28 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



PHUNG DINH PHAN; HUY THE PHAN;                   No. 09-72941
HUY TUONG PHAN; HUY TRUNG
PHAN,                                            Agency Nos. A097-111-803
                                                            A098-176-333
              Petitioners,                                  A098-176-334
                                                            A098-176-335
  v.

ERIC H. HOLDER, Jr., Attorney General,           MEMORANDUM *

              Respondent.



                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                        Argued and Submitted June 10, 2011
                               Seattle, Washington


Before: REINHARDT, W. FLETCHER, and RAWLINSON, Circuit Judges.

       Phung Dinh Phan, a Cambodian native and Vietnamese citizen, petitions for

review of the Board of Immigration Appeals’ decision finding him removable




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
under 8 U.S.C. § 1227(a)(1)(A) and 8 U.S.C. § 1182(a)(6)(C)(i).1 We deny the

petition for review.

      Under § 1182(a)(6)(C)(i), an alien who “by fraud or willfully

misrepresenting a material fact, seeks to procure (or has sought to procure or has

procured) a visa, other documentation, or admission into the United States or other

benefit provided under this Act is inadmissible.” Contrary to Phan’s contentions,

both the immigration judge and the BIA clearly explained that the “material fact”

that Phan had misrepresented was that he was engaged to enter into a bona fide

marriage with a United States citizen.

      Substantial evidence supports the BIA’s finding that Phan’s marriage to

Cam Huynh was not bona fide. Phan was married to Huynh’s sister until shortly

before he married Huynh. Although Phan testified that he did not know his ex-

wife’s whereabouts after their divorce, documentary evidence suggested they

continued to live in the same neighborhood as late as 2004, and Phan submitted a

document that his ex-wife signed in 2004. Moreover, evidence from a site visit

indicated that Phan and Huynh did not share a bedroom, despite their testimony to

the contrary at Phan’s hearing. Taking those facts together, we hold that the record



      1
        Given our disposition of the case, we need not decide whether Phan was
also removable under 8 U.S.C. § 1227(a)(1)(B) & (G).

                                          2
does not compel reversal of the BIA’s conclusion that Phan and Huynh did not

“intend to establish a life together at the time they were married.” Bark v. INS, 511

F.2d 1200, 1201 (9th Cir. 1975).

      We need not decide whether the IJ erred in admitting District Adjudications

Officer Williams’ statements. Several other discrepancies between Phan and

Huynh’s testimony and the record evidence supported the adverse credibility

determination, so any error did not prejudice Phan. See Cinapian v. Holder, 567

F.3d 1067, 1075-76 (9th Cir. 2009); Saidane v. I.N.S., 129 F.3d 1063, 1065 (9th

Cir. 1997).

      Finally, we agree with the BIA that the IJ did not place the burden of proof

on Phan; rather, the IJ properly noted that Phan had not produced any evidence to

rebut the government’s clear and convincing showing that the marriage was not

bona fide.

      PETITION DENIED.




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