Akopyan v. Barr

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 27, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
VACHAGAN AKOPYAN; ARMENUHI
SIMONYAN,
Plaintiffs - Appellants,
v. No. 19-1009
(D.C. No. 1:17-CV-01724-RBJ)
WILLIAM P. BARR, United States (D. Colo.)
Attorney General; KEVIN K.
McALEENAN, Acting Secretary of
Homeland Security; LEE CISSNA,
Director for United States Citizenship and
Immigration Services (USCIS); KRISTI
BARROWS, District Director for the
Denver District Office of USCIS; UNITED
STATES DEPARTMENT OF
HOMELAND SECURITY; USCIS;
CHRISTOPHER A. WRAY, Director of
the Federal Bureau of Investigation,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT**

In accordance with Rule 43(c)(2) of the Federal Rules of Appellate
Procedure, Kevin K. McAleenan is substituted for Kirstjen M. Nielsen as
Defendant-Appellee in this action.
**
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
_________________________________
Before HOLMES, O’BRIEN, and MATHESON, Circuit Judges.
_________________________________
This case arises out of the denial of an I-130 visa petition—a requirement for
an alien relative seeking permanent residence or adjustment of status. Armenuhi
Simonyan filed an I-130 petition on behalf of her non-citizen husband, Vachagan
Akopyan. The United States Citizenship and Immigration Services (USCIS) denied
the petition on the grounds that Akopyan had previously entered into a fraudulent
marriage to evade the immigration laws. The Board of Immigration Appeals (BIA)
affirmed the decision, and the district court affirmed the BIA after Akopyan and
Simonyan (Plaintiffs) sought review under the Administrative Procedure Act (APA).
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
BACKGROUND
Akopyan entered the United States on a non-immigrant J-1 visa in 2007. On
February 25, 2008, Akopyan married United States citizen Chelsea Taylor, who filed
an I-130 petition on his behalf on June 22, 2008. Several months later, Taylor and
Akopyan appeared for an interview with the USCIS in connection with the
processing of their petition. But they divorced on November 9, 2011, before the
USCIS issued a decision. On December 29, 2011, Akopyan married Simonyan, and
less than three months later, she gave birth to their daughter. On December 18, 2012,
Simonyan filed an I-130 petition on Akopyan’s behalf.
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In May 2013, while both I-130 petitions were still pending, the USCIS
interviewed Taylor, who stated, inter alia: (1) she married Akopyan for the sole
purpose of him obtaining legal permanent resident status; (2) she was dating someone
else at the time of their first USCIS interview; and (3) Akopyan coached her in
preparation for that interview. On December 24, 2013, the USCIS denied Taylor’s
I-130 petition based on: (1) their intervening divorce, as Akopyan was no longer an
immediate relative of Taylor, see 8 U.S.C. § 1154(a)(1)(A)(i); and (2) a finding that
their marriage was “entered into for the purpose of evading the immigration laws,”
id. § 1154(c). That same day, the USCIS issued a Notice of Intent to Deny (NOID)
Simonyan’s I-130 petition, citing evidence tending to show Akopyan’s marriage to
Taylor was fraudulent and allowing Simonyan thirty days to submit any evidence in
response. Simonyan then offered documents and photographs to show Akopyan’s
marriage to Taylor was genuine. On September 25, 2014, the USCIS interviewed
Taylor for a second time, and Taylor provided additional details showing her
marriage to Akopyan was fraudulent.
On December 8, 2014, the USCIS issued a second NOID to Simonyan, citing
Taylor’s second interview as well as an investigation by Immigration and Customs
Enforcement (ICE) into a marriage fraud scheme orchestrated by Bozhidar Bakalov,
which revealed several documents showing Akopyan and Taylor were “customers” of
the scheme. Aplt. App. at 9 (internal quotation marks omitted). The USCIS also
noted the supplemental documentation Simonyan submitted in response to the first
NOID failed to establish Akopyan had lived with Taylor and that USCIS’s
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independent investigation tended to show Taylor had not resided at the Colorado
apartment Akopyan claimed to have shared with her. The USCIS allowed Simonyan
another thirty days to provide additional evidence. But instead of providing
additional evidence, Simonyan waited until the end of that deadline and requested a
ninety-day extension through counsel.
On February 9, 2015, the USCIS (1) denied the request for an extension as
such is not permitted under 8 C.F.R. § 103.2(b)(8)(iv); and (2) denied Simonyan’s
I-130 petition under 8 U.S.C. § 1154(c) on the grounds that Akopyan’s marriage to
Taylor was fraudulent. In denying Simonyan’s petition, the USCIS did not rely on
the 2013 denial of Taylor’s petition and the finding of marriage fraud therein.
Rather, in a thorough decision, the USCIS described and “considered all the evidence
on record.” Aplee. Suppl. App. at 19. Indeed, Plaintiffs acknowledged in district
court that the USCIS denied Simonyan’s petition not simply “based on a finding of
fraud stated in [Taylor’s] Petition Decision,” but also on “evidence gathered in 2014,
as well as an ICE investigation.” Aplt. App. at 16 (internal quotation marks omitted).
In particular, the USCIS gave “[s]ignificant weight” to the evidence uncovered in
that ICE investigation, which implicated Akopyan and Taylor in “a well-documented
marriage fraud scheme that resulted in identifying over 400 fraudulent marriages,
65 indictments, 58 arrests, and 55 convictions.” Aplee. Suppl. App. at 19.
Simonyan appealed to the BIA, which affirmed the USCIS. Like the USCIS,
the BIA did not rely on the denial of Taylor’s petition or the finding of fraud therein,
but based its decision “on the record, which includes a paucity of documentation
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relating to the bona fides of [Akopyan’s] former marriage to Ms. Taylor, conflicts in
the evidence, and adverse information uncovered during a criminal marriage fraud
investigation.” Id. at 24.
Plaintiffs then brought an action in federal district court under the APA. The
district court affirmed the BIA, and Plaintiffs timely appealed.
DISCUSSION
I. Standard of Review
Because this case was brought under the APA, we review the district court’s
decision de novo. See Citizens’ Comm. to Save Our Canyons v. Krueger, 513 F.3d
1169, 1176 (10th Cir. 2008). In so doing, “we review the BIA’s decision as the final
agency determination,” Diallo v. Gonzales, 447 F.3d 1274, 1279 (10th Cir. 2006), but
we may consult the USCIS’s decision for the grounds in the BIA’s decision. See
Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006) (noting this court may
consult an immigration judge’s decision for a “more complete explanation” when
reviewing a brief order issued by the BIA affirming the immigration judge).
“Our review is highly deferential.” Citizens’ Comm., 513 F.3d at 1176
(internal quotation marks omitted). Ordinarily, we review an agency’s decision to
determine if it was “arbitrary, capricious, otherwise not in accordance with law, or
not supported by substantial evidence.” Pennaco Energy, Inc. v. U.S. Dep’t of
Interior, 377 F.3d 1147, 1156 (10th Cir. 2004) (internal quotation marks omitted).
Yet Plaintiffs have not argued the BIA’s decision falls into any of these categories.
Instead, they argue: (1) the district court erred in concluding they lacked standing to
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challenge the denial of Taylor’s I-130 petition; and (2) the denial of an opportunity to
cross-examine Taylor violated due process. We review both issues de novo. See
Luevano v. Holder, 660 F.3d 1207, 1212 (10th Cir. 2011) (due process); Nova Health
Sys. v. Gandy, 416 F.3d 1149, 1154 (10th Cir. 2005) (standing).1
II. Standing
Plaintiffs first contend the district court erred in finding they lacked standing
to contest the denial of Taylor’s I-130 petition. We disagree.
“[A] plaintiff must satisfy three criteria” to establish Article III standing:
(1) “the plaintiff must have suffered an injury in fact—an invasion of a legally
protected interest that is both (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical”; (2) “there must be a causal connection
between that injury and the challenged action of the defendant—the injury must be
fairly traceable to the defendant, and not the result of the independent action of some
third party”; and (3) “it must be likely, not merely speculative, that a favorable
1
In their brief, Plaintiffs failed to provide the standard of review, see
Fed. R. App. P. 28(a)(8)(B), and failed to include a copy of the BIA’s decision, see
10th Cir. R. 28.2(A)(4). Additionally, it was Plaintiffs’ duty, as appellants, to “file
an appendix sufficient for considering and deciding the issues on appeal.” 10th Cir.
R. 30.1(B)(1). Plaintiffs included the district court’s decision in their Appendix but
failed to include the administrative record, despite citing a portion of it in their brief.
In addition to the evidence before the USCIS and BIA, the administrative record
included the decisions of the USCIS and BIA—documents which the government
provided in its brief and Supplemental Appendix. As we have cautioned, “an
appellant who provides an inadequate record does so at his peril.” Burnett v. Sw. Bell
Tel., L.P., 555 F.3d 906, 908 (10th Cir. 2009) (internal quotation marks omitted). In
the interest of justice, however, we have reviewed the filings in the district court to
ensure Plaintiffs’ arguments were adequately preserved for appellate review.
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judgment will redress the plaintiff’s injury.” Nova Health Sys., 416 F.3d at 1154
(internal quotation marks omitted).
The district court found Simonyan could not establish an injury in fact because
she was neither the petitioner nor the beneficiary with respect to that petition. On
appeal, Plaintiffs offer no argument for how Simonyan suffered any “invasion of a
legally protected interest,” id., as a result of the USCIS’s finding of marriage fraud in
its denial of Taylor’s I-130 petition. We agree with the district court that she lacked
an injury in fact and, therefore, lacked standing.
The district court found Akopyan could not establish redressability because an
alternative basis for the denial of Taylor’s petition was divorce, so setting aside the
finding of fraud would not affect the denial. This is correct. However, on appeal,
Plaintiffs insist (1) Akopyan’s injury was not the denial itself but the finding of fraud
therein because it “would subject [him] to a lifetime bar,” Aplt. Opening Br. at 10;
and (2) setting aside the finding of fraud would redress the injury. Viewed through
this lens, Akopyan’s injury-in-fact claim fails because, contrary to his assertion, the
prior finding of fraud would not result in a lifetime bar. When determining whether
an I-130 petition should be denied based on a prior fraudulent marriage, the USCIS
ordinarily does “not give conclusive effect to determinations made in a prior
proceeding” but, instead, renders an “independent conclusion based on the evidence
before [it].” In re Tawfik, 20 I. & N. Dec. 166, 168 (BIA 1990). In other words, it is
the evidence of marriage fraud, not a prior finding of fraud, that would result in a
lifetime bar. Any injury sustained by Akopyan, therefore, stems from the ample
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evidence supporting the USCIS’s finding of fraud, not the finding itself.
Accordingly, we agree with the district court that Akopyan lacked standing.
III. Due Process
Plaintiffs next contend “Akopyan’s due process rights were violated in
denying him an opportunity to cross-examine Ms. Taylor.” Aplt. Opening Br. at 12.2
Here, too, Plaintiffs’ argument is without merit.
In Mathews v. Eldridge, 424 U.S. 319, 335 (1976), the Supreme Court set out
three factors relevant to a procedural due process claim: (1) “the private interest that
will be affected by the official action”; (2) “the risk of an erroneous deprivation of
such interest through the procedures used, and the probable value, if any, of
additional or substitute procedural safeguards; and (3) “the Government’s interest,
including the function involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement would entail.” “To prevail on a due
process claim, an alien must establish not only error, but prejudice.” Alzainati v.
Holder, 568 F.3d 844, 851 (10th Cir. 2009).
Here, Plaintiffs argue only prejudice and offer no explanation, under the
Mathews test or otherwise, as to how the BIA erred. It is not this court’s
responsibility to “manufacture” an argument for an appellant. United States v.
Powell, 767 F.3d 1026, 1037 (10th Cir 2014). By failing to raise the issue in their
brief, Plaintiffs have abandoned any claim of error. See Coleman v. B-G Maint.
2
Plaintiffs do not argue Simonyan’s due process rights were violated by the
lack of an opportunity to cross-examine Taylor.
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Mgmt. of Colo., Inc., 108 F.3d 1199, 1205 (10th Cir. 1997) (“Issues not raised in the
opening brief are deemed abandoned or waived.”). Without a showing of error,
Plaintiffs’ due process argument necessarily fails.
CONCLUSION
For the reasons stated above, the district court is hereby affirmed.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
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