Vladimirov v. Lynch, 13–9595.

805 F.3d 955

Vladimir Borisov VLADIMIROV, Petitioner

v.Loretta E. LYNCH, United States Attorney General^* Respondent.

No. 13–9595.

United States Court of Appeals, Tenth Circuit.

Nov. 10, 2015.

Submitted on the briefs:^**

Nicolette Glazer, Law Offices of Larry R. Glazer, Century City, CA, for Petitioner.

Stuart F. Delery, Assistant Attorney General, Paul Fiorino, Senior Litigation Counsel, Rebekah Nahas, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for Respondent.

Before McHUGH, BALDOCK, and O'BRIEN, Circuit Judges.

Opinion

O'BRIEN, Circuit Judge.

Vladimir Vladimirov, a native of Bulgaria, seeks review of a Board of Immigration Appeals' (BIA) order of removal based on marriage fraud. The BIA determined Vladimirov had sought to procure immigration benefits by fraud or willful misrepresentation of a material fact, i.e., his sham marriage. See 8 U.S.C. §§ 1182(a)(6)(C)(i), 1227(a)(1)(A). Much of the government's evidence came from written reports prepared by immigration officers and other written materials contained in the agency's files. Vladimirov claims the BIA's reliance on such materials denied him due process of law and without the disputed evidence the government failed to make its case. Our resolution of this matter requires us to examine the process due in immigration cases, particularly as it applies to the consideration of evidence that might be excluded in other contexts. We deny the petition for review.

I. BACKGROUND

Vladimirov entered the United States in February of 1996 as a nonimmigrant visitor authorized to stay until August of 1996, but he did not depart. In July of 2005, he married Valentina Bakhrakh, a United States citizen. Bakhrakh filed an I–130 petition for alien relative to assist her husband Vladimirov to adjust his immigration status. Based on the I–130 petition, Vladimirov filed an I–485 application to adjust status.

Shelly Randall, an officer with the United States Citizenship and Immigration Services (USCIS) interviewed Vladimirov and Bakhrakh on March 6, 2006, and May 17, 2006, to ascertain the bona fides of the marriage. During the May 17 interview, Vladimirov and Bakhrakh gave conflicting statements under oath regarding their address, how long they had lived at the address, the number of bedrooms and bathrooms it contained, how Vladimirov had proposed marriage to Bakhrakh, what type of ring he presented, how and when they celebrated the wedding, when they moved in together, their morning routine on the day of the interview, and what they did the previous Sunday.

Based on those discrepancies, Officer Randall requested a site visit, which was conducted on April 16, 2008, by USCIS Officer Janet Gibson. While at Vladimirov's home, Officer Gibson inquired about various personal items she observed in the home. Vladimirov admitted they belonged to his former wife, rather than to Bakhrakh. He also admitted he and Bakhrakh did not have a valid marriage and he had lied to make it appear they did.

The next day, Officer Gibson met with Bakhrakh and her son to discuss the evidence indicating the marriage was a sham and to explain the consequences of filing a fraudulent I–130 petition for alien relative. At the conclusion of the meeting, Bakhrakh withdrew the I–130 petition. Based on the withdrawal and the evidence contradicting a bona fide marriage, Officer Randall denied Vladimirov's I–485 application to adjust status. A Notice to Appear (NTA) was then issued to Vladimirov, alleging he had “entered into a sham marriage with Valentina Bakhrakh in order to obtain lawful permanent resident status.”

Admin. R. at 425. According to the NTA Vladimirov had sought to procure immigration benefits “by fraud or by willfully misrepresenting a material fact, to wit: You filed an Application to Register Permanent Residence or Adjust Status (Form I–485) based upon a Petition for Alien Relative (Form I–130) filed on your behalf by Valentina Bakhrakh, based upon your sham marriage.” Id.

Vladimirov requested a hearing before an immigration judge (IJ). At the hearing, the government presented the testimony of Officer Randall, who read from the agency file and provided information from Officer Gibson's official reports. Bakhrakh also testified, claiming she was threatened and coerced into withdrawing the I–130 petition for alien relative. Vladimirov did not testify.

The IJ determined the government had met its burden to establish removability based on marriage fraud and entered an order removing Vladimirov to Bulgaria.¹ Vladimirov's appeal to the BIA was dismissed.

Vladimirov now appeals for relief from this court arguing he was not given notice of the conduct forming the basis of the charges of fraud or material misrepresentation, and the government's evidence was insufficient to prove those charges. He further claims to have been denied due process in the administrative proceedings.

II. STANDARDS OF REVIEW

We conduct a de novo review of purely legal questions. Fernandez–Vargas v. Ashcroft, 394 F.3d 881, 884 (10th Cir.2005), aff'd, 548 U.S. 30, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006). The government “has the burden of establishing by clear and convincing evidence that, in the case of an alien who has been admitted to the United States, the alien is [removable].” 8 U.S.C. § 1229a(c)(3)(A).

When reviewing a challenge to the quality and substantiality of the evidence, “[a] court ‘does not ask itself whether it believes that the evidence’ establishes removability by clear and convincing evidence, but rather whether the agency's ‘judgment is supported by substantial evidence.’ ” Jimenez–Guzman v. Holder, 642 F.3d 1294, 1298 (10th Cir.2011) (quoting Woodby v. INS, 385 U.S. 276, 282, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966) ). In other words, we look for substantial evidence indicating the government met its affirmative burden to establish through clear and convincing evidence the alien was removable. Jimenez–Guzman, 642 F.3d at 1299. If the record reveals such evidence our review is concluded. “Agency findings of fact are conclusive unless the record demonstrates that any reasonable adjudicator would be compelled to conclude to the contrary.” Sarr v. Gonzales, 474 F.3d 783, 788–89 (10th Cir.2007) (internal quotation marks omitted). We neither reweigh the evidence nor assess witness credibility. Id. at 789.

The BIA issued a single-member decision. Therefore, “although we will not affirm on grounds raised in the IJ decision unless they are relied upon by the BIA, we are not precluded from consulting the IJ's more complete explanation of those same grounds.” Maatougui v. Holder, 738 F.3d 1230, 1237 n. 2 (10th Cir.2013) (internal quotation marks, brackets and ellipsis omitted).

III. DISCUSSION

A. Notice

Vladimirov claims he was not informed of the basis for the charges of fraud or willful misrepresentation and therefore did not have fair notice of them.

The NTA clearly charged him with entering into a sham marriage with Bakhrakh, and further charged him with fraud and willful misrepresentation for filing an I–485 application to adjust status based on the sham marriage. The charge of marriage fraud was based on the fraudulent and willful misrepresentation Vladimirov was in a bona fide marriage with a United States citizen, a material fact. This provided a basis for removability. See Surganova v. Holder, 612 F.3d 901, 902, 904 (7th Cir.2010) (affirming removal order on the ground alien “had procured the adjustment in her immigration status through marriage fraud” (citing 8 U.S.C. §§ 1182(a)(6)(C)(i) & 1227(a)(1)(A) )); Abdulahad v. Holder, 581 F.3d 290, 295 (6th Cir.2009) (stating aliens removable for marriage fraud under § 1227(a)(1)(A) include those who committed fraud or willful misrepresentation referred to in § 1182(a)(6)(C)(i) ). The NTA gave Vladimirov adequate notice of the “acts or conduct alleged to be in violation of law” and the charges against him. 8 U.S.C. § 1229(a)(1) ; 8 C.F.R. § 1003.15(b).

B. Substantial Evidence

We also reject Vladimirov's challenges based on the sufficiency of the evidence. The fundamental question in assessing whether a couple entered into a good-faith marriage in this context is whether they “intended to establish a life together at the time they were married.” Ibrahimi v. Holder, 566 F.3d 758, 764–65 (8th Cir.2009) (internal quotation marks omitted) (collecting cases). Evidence of the parties' commitment to the marriage may include documentation of their finances and cohabitation, as well as birth certificates of any children born to the marriage and other evidence considered pertinent. See id. at 765 ; 8 C.F.R. § 1216.5(e)(2).

Vladimirov wants our independent assessment of the evidence. He claims it was insufficient to support a finding of marriage fraud because the couple's statements about their life together did not conflict.² But “it is not our prerogative to reweigh the evidence.” Neri–Garcia v. Holder, 696 F.3d 1003, 1009 (10th Cir.2012) (internal quotation marks omitted). Substantial evidence in the record supports the BIA's finding that the couple's discrepant testimony about their life together indicated they were not in a valid marriage. This evidence, together with Vladimirov's admission to the invalidity of the marriage and Bakhrakh's withdrawal of the I–130 petition for alien relative, was sufficient to meet the government's burden.

He also argues the government failed to show the marriage was a sham at its inception, rather than later, relying on statements he and Bakhrakh made claiming the marriage “was real,” Admin. R. at 221. But in light of the evidence to the contrary, the trier of fact did not err in discounting those statements, and we will not reassess credibility determinations, see Sarr, 474 F.3d at 789.

Finally he tells us the evidence was insufficient to prove fraud or willful misrepresentation. But by signing the I–485 application to adjust status based on his sham marriage to a United States citizen, he attested to...