Hang Dinh v. Jefferson B. Sessions

United States Court of Appeals For the Eighth Circuit ___________________________ No. 16-3901 ___________________________ Hang Dinh lllllllllllllllllllllPetitioner v. Jefferson B. Sessions, III, Attorney General1 lllllllllllllllllllllRespondent ____________ Petition for Review of an Order of the Board of Immigration Appeals ____________ Submitted: October 16, 2017 Filed: December 1, 2017 [Unpublished] ____________ Before LOKEN, MURPHY, and COLLOTON, Circuit Judges. ____________ PER CURIAM. Hang Dinh, a citizen of Vietnam, petitions for review from a final order of the Board of Immigration Appeals ("BIA") affirming an immigration judge's ("IJ") order 1 Jefferson B. Sessions, III has been appointed to serve as Attorney General, and is substituted as respondent pursuant to Federal Rule of Appellate Procedure 43(c). of removal for entering into a fraudulent marriage and willfully misrepresenting a material fact. We deny the petition. I. An American couple, Xuan Nguyen and Trang Pham, divorced on May 13, 2002. Over the course of the next two years, they each became engaged to one of a pair of Vietnamese siblings, Hang and Tai Dinh. Only Hang Dinh's immigration status is at issue in this case. On June 20, 2002, Nguyen filed the Form I-129F, K-1 Fiancée petition on Hang Dinh's behalf. Shortly thereafter, Pham filed the same petition for Dinh's brother, Tai Dinh. Hang Dinh entered the United States on November 15, 2003 and married Nguyen ten days later. Pham and Tai Dinh married in the United States on May 24, 2004. In 2008, petitioner Dinh filed an application for naturalization in which she listed her home address as 3231 19th Street South, Saint Cloud, Minnesota. During her naturalization interview with the Department of Homeland Security ("DHS"), Dinh claimed her husband owned two houses: one in Saint Cloud at the address listed on her application and another in Alexandria, Minnesota. The interviewing officer came to believe Dinh resided at the Alexandria house while her husband and his ex- wife, Trang Pham, continued to live together at the Saint Cloud house. The officer referred Dinh's case to DHS's fraud detection unit. On August 24, 2010, fraud detection officer Cynthia Holmvik visited the Saint Cloud address and concluded that Nguyen was indeed living with his ex-wife and their children. DHS commenced removal proceedings in February 2011, charging that Hang Dinh willfully misrepresented a material fact to procure an immigration benefit. See 8 U.S.C. §§ 1182(a)(6)(C)(i), 1227(a)(1)(A). Dinh and Nguyen divorced the next -2- month.2 That August, DHS lodged an additional charge of removability for entering into a marriage for the purpose of procuring admission to the United States. See § 1227(a)(1)(G)(ii). Dinh contested both charges before the IJ. After an evidentiary hearing, the IJ found petitioner removable as charged. The BIA affirmed both charges because it determined the evidence was sufficient to demonstrate that Dinh entered into a fraudulent marriage to circumvent the immigration laws. Dinh petitions this court for review, arguing that the government did not meet its evidentiary burden to support either charge. II. In a removal proceeding, DHS must prove by “clear and convincing evidence” that an ...

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