NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 19 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JESSICA LYNN TKACZ, AKA Alayne C. No. 18-15771 Ferreira, D.C. No. Plaintiff-Appellant, 2:14-cv-00092-RFB-CWH v. MEMORANDUM* DANIEL G. BOGDEN, U.S. Attorney Nevada; JEH JOHNSON, Secretary of Department of Homeland Security; JEANE KENT, Field Director USCIS, Las Vegas, Defendants-Appellees. Appeal from the United States District Court for the District of Nevada Richard F. Boulware II, District Judge, Presiding Submitted December 6, 2019** San Francisco, California Before: GOULD and CALLAHAN, Circuit Judges, and BOUGH,*** District Judge. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Stephen R. Bough, United States District Judge for the Western District of Missouri, sitting by designation. Plaintiff-Appellant, Jessica Tkacz, appeals the district court grant of summary judgment in favor of Defendants-Appellees (collectively, the “agency”). Tkacz, a United States citizen, filed a Form I-130 visa petition with the United States Citizenship and Immigration Services (USCIS) for immediate relative status on behalf of her alien husband, Alayne Ferreira, a native of Brazil. USCIS denied the petition on the basis that Ferreira had previously entered a fraudulent marriage with another United States citizen for the sole purpose of obtaining immigration benefits. See 8 U.S.C. § 1154(c) (stating, in part, that “no petition shall be approved” if the alien has previously sought immediate relative status as the spouse of a United States citizen “by reason of a marriage determined . . . to have been entered into for the purpose of evading the immigration laws”). After a remand and a second hearing on the matter, USCIS again denied the application. The Board of Immigration Appeals (BIA) agreed with USCIS and dismissed Tkacz’s second appeal. Tkacz filed this action in district court, alleging that the agency violated her due process rights and the Administrative Procedure Act (APA).1 We have jurisdiction under 28 U.S.C. § 1291, and we affirm the district court’s summary judgment order. 1. Tkacz first argues that her due process rights were violated because the 1 Because the parties are familiar with the facts of this case, we do not recount them in detail here. 2 agency failed to follow Ching v. Mayorkas, 725 F.3d 1149 (9th Cir. 2013). In Ching, we found a due process violation by the agency’s denial of Ching’s request for the opportunity to cross-examine her husband’s ex-spouse at her I-130 interview. Id. at 1159. Unlike Ching, however, Tkacz provides no evidence, nor makes any claim, that she asked the agency to produce Ferreira’s ex-spouse or the USCIS officers for cross-examination, or that the agency denied such a request. Even after the BIA remanded Tkacz’s first appeal for a second hearing, there is no indication in the record that Tkacz demanded the opportunity to cross-examine these witnesses at the ...
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