FILED NOT FOR PUBLICATION OCT 13 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MICHELLE MANOR; OREN MANOR, No. 20-35720 Plaintiffs-Appellants, D.C. No. 3:18-cv-00522-AC v. MEMORANDUM* ALEJANDRO N. MAYORKAS, Secretary, Department of Homeland Security; MERRICK B. GARLAND, Attorney General; UR MENDOZA JADDOU, Director, U.S. Citizenship and Immigration Services; ANNE ARRIES CORSANA, District Director, U.S. Citizenship and Immigration Services; ANYA RONSHAUGEN, Portland Field Office Director, U.S. Citizenship and Immigration Services, Defendants-Appellees. Appeal from the United States District Court for the District of Oregon Michael W. Mosman, District Judge, Presiding * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Submitted October 8, 2021** Portland, Oregon Before: W. FLETCHER, IKUTA, and BRESS, Circuit Judges. Plaintiffs Michelle and Oren Manor sue under the Administrative Procedure Act, challenging the Board of Immigration Appeals’ (“BIA”) determination that Oren was ineligible to be the beneficiary of a Form I-130 Petition for an Alien Relative, as a prelude to adjustment of status, on the ground that he had previously entered into a fraudulent marriage for the purpose of gaining immigration benefits. They appeal the district court’s grant of summary judgment against Plaintiffs. We have jurisdiction under 28 U.S.C. § 1291 and affirm. We review de novo the district court’s grant of summary judgment. Wang v. Rodriguez, 830 F.3d 958, 960 (9th Cir. 2016). “Our review of the BIA’s decision to impose a marriage-fraud penalty is governed by the Administrative Procedure Act. We must set aside the BIA’s decision if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” Zerezghi v. USCIS, 955 F.3d 802, 807 (9th Cir. 2020) (quoting 5 U.S.C. § 706(2)(A)). “We review de novo whether the BIA violated procedural due process in adjudicating an I-130 ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 petition[.]” Id. at 807 (citing Ching v. Mayorkas, 725 F.3d 1149, 1155!59 (9th Cir. 2013)). First, the BIA’s denial of the I-130 petition was not arbitrary and capricious. While the agency’s finding of marriage fraud must be based on “‘substantial and probative evidence’ . . . , on review, [we] must examine whether there was ‘substantial evidence’ to support the finding.” Id. at 814 n.6. “Under this standard, we must affirm unless the evidence is so compelling that no reasonable fact-finder could fail to find the facts were as [Plaintiffs] alleged.” Damon v. Ashcroft, 360 F.3d 1084, 1088 (9th Cir. 2004). The record does not compel the conclusion that Oren’s previous marriage to Casey Brice was bona fide—that is, that they “intend[ed] to establish a life together at the time they were married.” Bark v. INS, 511 F.2d 1200, 1201 (9th Cir. 1975). Oren, Brace, and Brace’s daughter were the only people present at their wedding in October 2006. The record contains scant and conflicting evidence of Oren and Brace’s courtship and …
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