     15-3464
     Chen v. Coven


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT
ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1        At a stated term of the United States Court of Appeals for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   13th day of January, two thousand seventeen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            ROSEMARY S. POOLER,
 9                 Circuit Judges,
10            GEOFFREY W. CRAWFORD,
11                 District Judge.
12   _____________________________________
13
14   An Qi Chen,
15
16                        Plaintiff-Appellant,
17
18                   v.                                    15-3464
19
20   Phyllis Coven,
21
22                        Defendant-Appellee.
23
24   _____________________________________
25
26   FOR PLAINTIFF-APPELLANT:          David J. Rodkin, Law Offices of
27                                     David J. Rodkin, New York, NY.
28

      Judge Geoffrey W. Crawford of the United States District Court
     for the District of Vermont, sitting by designation.
 1   FOR DEFENDANT-APPELLEE:      Kirti Vaidya Reddy, Christopher
 2                                Connolly, Assistant United States
 3                                Attorneys, for Preet Bharara,
 4                                United States Attorney for the
 5                                Southern District of New York, New
 6                                York, NY.
 7
 8        Appeal from a judgment of the United States District Court
 9   for the Southern District of New York (Forrest, J.).

10        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
11   DECREED that the judgment of the district court is AFFIRMED.

12        Appellant An Qi Chen appeals the district court’s judgment
13   dismissing her complaint. We assume the parties’ familiarity
14   with the underlying facts and procedural history of this case.

15        In reviewing the dismissal of a complaint for lack of
16   subject matter jurisdiction, we review legal conclusions de
17   novo and accept “all material facts alleged in the complaint
18   as true and draw[] all reasonable inferences in the plaintiff’s
19   favor.” Liranzo v. United States, 690 F.3d 78, 84 (2d Cir.
20   2012). “The plaintiff bears the burden of proving subject
21   matter jurisdiction by a preponderance of the evidence.” Id.
22   (citation omitted).

23        To be granted adjustment of status, an alien must be
24   eligible and the Attorney General must elect to grant relief
25   as a matter of discretion. 8 U.S.C. § 1255(a). An alien is
26   eligible for adjustment of status if she (1) applies for
27   adjustment; (2) is eligible to receive an immigrant visa and
28   is admissible to the United States for permanent residence, and
29   (3) has an immigrant visa immediately available at the time her
30   application is filed. Id. As to her eligibility, the United
31   States Citizenship and Immigration Services (“USCIS”) denied
32   Chen’s 2014 application for adjustment of status on the ground
33   that she was inadmissible pursuant to 8 U.S.C. §
34   1182(a)(6)(C)(i) because her visa petition and application for
35   adjustment of status contained fraudulent information or a
36   willful misrepresentation.

37        Although we have held that 8 U.S.C. § 1252 “strips
38   jurisdiction over a substantive discretionary decision,”
39   Mantena v. Johnson, 809 F.3d 721, 728 (2d Cir. 2015), the


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 1   district court retains jurisdiction to consider a challenge to
 2   a non-discretionary decision regarding an alien’s eligibility
 3   for adjustment of status, Sharkey v. Quarantillo, 541 F.3d 75,
 4   82 n.7, 85-86 (2d Cir. 2008); Sepulveda v. Gonzales, 407 F.3d
 5   59, 62-63 (2d Cir. 2005).      As Chen does not challenge a
 6   discretionary determination, and instead challenges USCIS’s
 7   determination    that  she    made   fraudulent   or   willful
 8   misrepresentations, the district court had subject matter
 9   jurisdiction to consider Chen’s complaint. See Sepulveda, 407
10   F.3d at 62-63.

11        Although   the  district   court   believed  it   lacked
12   jurisdiction, dismissal of the complaint was nevertheless
13   appropriate. Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d
14   400, 405 (2d Cir. 2006) (stating that “we are free to affirm
15   a decision on any grounds supported in the record, even if it
16   is not one on which the trial court relied”).      Under the
17   Administrative Procedure Act (“APA”), a court must hold
18   unlawful and set aside agency action that is “arbitrary,
19   capricious, an abuse of discretion, or otherwise not in
20   accordance with law.” 5 U.S.C. § 706(2)(A). Agency action is
21   arbitrary and capricious when the agency

22            has relied on factors which Congress has not intended
23            it to consider, entirely failed to consider an
24            important aspect of the problem, offered an
25            explanation for its decision that runs counter to the
26            evidence before the agency, or is so implausible that
27            it could not be ascribed to a difference in view or
28            the product of agency expertise.

29   Karpova v. Snow, 497 F.3d 262, 268 (2d Cir. 2007) (quoting Motor
30   Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto.
31   Ins. Co., 463 U.S. 29, 43 (1983)). The relevant inquiry is
32   whether the agency decision draws “a rational connection
33   between the facts found and the choice made.” Id.

34        USCIS’s 2014 denial of adjustment of status was sound.
35   Although Chen argues that she did not know or understand the
36   contents of her 2002 petition for an immigrant visa and
37   application for adjustment of status, her testimony before an
38   immigration officer in 2014 suggested otherwise.         Chen
39   testified that her friends had informed her that she could
40   remain in the United States if she worked with a particular

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 1   immigration agency to prepare her papers, and that she was aware
 2   that one of the methods used to secure residency was to claim
 3   that she was an opera actress of “extraordinary abilities.”
 4   Thus, the record supports USCIS’s determination that the 2002
 5   misrepresentations were deliberate. See Emokah v. Mukasey,
 6   523 F.3d 110, 116-17 (2d Cir. 2008) (holding that an “act is
 7   done willfully if [it is] done intentionally and deliberately
 8   and if it is not the result of innocent mistake, negligence or
 9   inadvertence.” (quoting United States v. Dixon, 536 F.2d 1388,
10   1397 (2d Cir. 1976)). Furthermore, although Chen argues that
11   she did not understand English well in 2002 and was thus unaware
12   of the contents of her 2002 petition and application, her 2002
13   visa petition contained many images of opera actresses as well
14   as certificates and other materials attesting to Chen’s
15   operatic abilities written in Chinese and accompanied by
16   English translations. Chen’s inability to understand English
17   would not prevent her from observing that her visa petition
18   contained false information.

19        Chen also argues that USCIS placed undue significance on
20   her signature on her 2002 materials; however, the USCIS decision
21   mentioned Chen’s signature in passing; instead, the primary
22   basis for the denial of adjustment of status was Chen’s 2014
23   testimony before an immigration officer.        Finally, Chen’s
24   argument that the Government was required to prove she had a
25   “specific intent to deceive” is erroneous. See In re Tijam,
26   22 I&N Dec. 408, 425 (BIA 1998) (providing that “a specific
27   intent to deceive is not necessary”). The evidence here shows
28   that Chen deliberately pursued a claim that was false.

29       Accordingly, we AFFIRM the judgment of the district court.

30                                FOR THE COURT:
31                                CATHERINE O’HAGAN WOLFE, CLERK




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