Phung Phan v. Eric Holder, Jr. , 440 F. App'x 579 ( 2011 )

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NOT FOR PUBLICATION JUN 28 2011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
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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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