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Chau v. United States

United States District Court, D. Nevada

July 14, 2014

UNITED STATES OF AMERICA; JEH C. JOHNSON, Secretary of Department of Homeland Security; ERIC H. HOLDER, JR., Attorney General of the United States; ALEJANDRO MAYORKAS, Director of United States Citizenship and Immigration Services; and LEANDER B. HOLSTON, Officer in Charge of United States Citizenship and Immigration Services in Las Vegas, Nevada, Defendants.


ANDREW P. GORDON, District Judge.


This dispute arises from a series of three marriages between plaintiff Vy Nhu Hoang Dinh ("Dinh"), a Vietnamese citizen, and three American citizens: Jason Prince ("Prince"), Joey Duran ("Duran"), and plaintiff Man Van Chau ("Chau"). Dinh is presently married to Chau.[1]

In March 2002, Dinh entered the United States on an F-1 non-immigrant student visa.[2] In May 2004, when Dinh was a student at the College of Southern Nevada in Las Vegas ("CSN"), Dinh's mother, Thi Uyen Hoang ("Hoang"), called Dinh from Vietnam to tell her that the family was in financial trouble and that Hoang would not be able to keep paying Dinh's educational expenses. Hoang told Dinh about a matchmaker Hoang had met in Vietnam, Mr. Hoa ("Hoa"), and that Dinh might have to marry someone of Hoa's and Hoang's choosing in order to keep studying in the United States. Dinh asserts that arranged marriages are quite common in Vietnam, as is obeying one's parents' selection of a spouse.

A. The Prince Marriage

One month later, on June 2, 2004, Dinh met with Hoa in person in Utah. She paid him $12, 000 and he introduced her to Prince. That same day, Dinh and Prince were married. Immediately after the ceremony, Dinh returned to Las Vegas. About ten days later, she received a "divorce paper" from Hoa concerning her marriage to Prince. (AR 126.) Dinh contacted her mother, who told Dinh to do as Hoa said. Dinh's divorce from Prince was final on October 27, 2004. (AR 503-05.)

Sometime between November 2 and 22, 2004, Dinh applied to two colleges in Utah: University of Utah College of Nursing and Westminster College International. (AR 105-09.)

B. The Duran Marriage

Hoang ordered Dinh to go to Utah in late November 2004. Upon arriving in Utah, Hoa introduced her to Duran.[3] They were married on November 26, 2004. Immediately following the ceremony, Dinh signed a Form I-485 Application to Register Permanent Resident or Adjust Status, although she asserts that she did not date that form.

Dinh immediately returned to Las Vegas to finish the academic semester at CSN. She claims that she intended to return to Utah in January 2005 to cohabitate with Duran and establish a married life with him.

By January 2005, however, Dinh asserts that Duran had stopped returning her phone calls and she understood that he did not want to establish a life with her. Dinh called her mother, who gave Dinh permission to divorce Duran. Dinh claims that she instructed her mother to tell Hoa to cancel the arrangement and not to file any of the immigration paperwork associated with Dinh's marriage to Duran. Hoang agrees that she "called if off." (Hoang Aff., AR 130.) It is unclear if Hoa or Duran ever received the message that Dinh did not want the immigration paperwork to be filed.

Later in January 2005, Dinh traveled to Philadelphia, Pennsylvania to visit a friend in dental school. While there, she met Chau. They immediately hit it off and began dating. (Dinh Aff. ¶¶ 12-13, AR 118.)

On March 30, 2005, United States Citizenship and Immigration Services ("USCIS") received the Form I-485 signed by Dinh and a Form I-130 Petition for Alien Relative with Duran as the petitioner and Dinh as the beneficiary. The Form I-130 Petition serves to classify the beneficiary as an immediate family member of the petitioner; the Form I-485 serves to adjust the beneficiary's status to temporary legal permanent resident ("LPR") once the immediate family classification is granted.

On August 30, 2005, the divorce decree for the Dinh-Duran marriage was entered in Utah. (AR 500-01.)

On March 6, 2006, USCIS rejected the immigration forms filed in March 2005 in relation to the Dinh-Duran marriage. (AR 538.)

C. The Chau Marriage

On October 4, 2006, Dinh and Chau married in Las Vegas. After finishing dental school, Chau moved to Las Vegas, where he and Dinh still reside. On October 12, 2006, Chau executed a Form I-130 Petition on Dinh's behalf, and Dinh executed another Form I-485 on her own behalf. On October 23, 2006, they submitted these forms to USCIS. (AR 133-36, 514-15.) On the Form I-485, Dinh indicated that she had never before applied for permanent resident status in the United States. (AR 134.)

On October 10, 2007, the U.S. Attorney in Utah charged Duran with misdemeanor aiding and abetting the attempted entry of an illegal alien under 8 U.S.C. §§ 2 and 1325(a)(3). (AR 282-83.) Duran pled guilty, and, on November 2, 2007, a judgment and conviction was rendered against Duran. (AR 284.) Hoa was separately indicted for a conspiracy to arrange marriages between American men and Vietnamese women in which the men allegedly received a kickback and the women were allegedly unaware of the scam. (AR 315-87.) Dinh was never criminally indicted.

On February 14, 2008, Plaintiffs filed a petition for writ of mandamus in this Court, seeking a mandate that USCIS adjudicate the pending Form I-130 Petition. Dinh v. Mukasey, 2:08-cv-00196-JCM-LRL. The case was dismissed upon a stipulation by the parties to hold the interview necessary to process the Form I-130 Petition.

On June 16, 2008, USCIS interviewed Dinh and Chau. During the interview, Dinh allegedly learned for the first time about Duran's conviction. On July 1, USCIS issued a Notice of Intent to Deny ("NOID") to Chau under 8 U.S.C. § 1154(b) based on Duran's conviction for marriage fraud in relation to the Dinh-Duran marriage. Chau did not respond to the NOID, and, on December 15, USCIS denied the Form I-130.

Dinh's then-counsel, Mr. Albert C. Lum, recommended that she not appeal the ruling, but instead be placed in removal proceedings so she could relitigate the Form I-130 Petition. On May 5, 2009, Dinh was placed in removal proceedings. She was initially charged with immigration fraud under 8 U.S.C. § 1227(a)(1)(B) and overstaying her visa under 8 U.S.C. § 1227(a)(1)(A). On October 5, the Government withdrew the fraud charge.

On November 15, 2009, Chau filed a new Form I-130 Petition. (AR 486-87.) On February 1, 2010, Dinh and Chau interviewed with USCIS. On April 28, 2010, USCIS denied the Form I-130 Petition on the grounds that there was no evidence that the Dinh-Duran marriage was in good faith. (AR 389-92.)

D. The First Appeal to BIA

On May 14, 2010, Chau filed a timely appeal with the Board of Immigration Appeals ("BIA"). On September 30, 2011, the BIA vacated USCIS's decision and remanded with instructions for USCIS to issue a NOID to Chau. On February 6, 2012, USCIS issued the NOID to Chau. (AR 74-79.)

On March 13, 2012, Chau responded to the NOID. (AR 67-137.) Chau's response contained arguments which are substantially similar to the arguments made in Plaintiffs' response to Defendants' motion for summary judgment. Attached to the response were (i) copies of various websites purporting to explain Vietnamese tradition and custom, including arranged marriages; (ii) e-mails substantiating that Dinh applied to two colleges in Utah for the spring of 2005; (iii) Dinh's CSN transcripts; (iv) affidavits by Dinh and Hoang; (v) Dinh's flight itinerary to Philadelphia in January 2005; and (vi) the Form I-485 that Dinh submitted on October 23, 2006. Chau did not submit any documents showing any property or financial arrangements between Dinh and Duran.

E. The Second Appeal to BIA

On March 20, 2012, USCIS again denied the Form I-130 Petition. (AR 38-46.) On April 17, Dinh appealed to the BIA. On September 11, 2012, the BIA adopted USCIS's opinion and dismissed the appeal. (AR 4-6.)

F. The Instant Case

On October 11, 2012, Plaintiffs filed the Complaint. (Dkt. No. 1.) The defendants are (i) the United States of America; (ii) Jeh C. Johnson, in his official capacity as Secretary of the Department of Homeland Security;[4] (iii) Eric H. Holder, Jr., in his official capacity as Attorney General of the United States; (iv) Alejandro Mayorkas, in his official capacity as Director of USCIS; and (v) Leander B. Holston, in his official capacity as Officer in Charge of the USCIS local office in Las Vegas, Nevada.

Plaintiffs assert that this Court has jurisdiction under section 702 of the Administrative Procedure Act ("APA"), 5 U.S.C. § 702, the Mandamus Act, 28 U.S.C. § 1361, and the Immigration and Nationality Act of 1952, as amended ("INA"), 8 U.S.C. §§ 1101-1537. Plaintiffs seek relief pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, the All Writs Act, 28 U.S.C. § 1651, and the Administrative Procedure Act, 5 U.S.C. §§ 704-706. In particular, Plaintiffs seek judicial declarations that (1) 28 U.S.C. § 1154(c) does not bar Dinh from receiving immigration benefits; (2) Dinh entered the marriage with Duran in good faith; and (3) Dinh did not seek to obtain the status of LPR based upon the marriage to Duran. Plaintiffs also request an order that USCIS re-adjudicate the operative Form I-130 Petition (relating to the Dinh-Chau marriage) and that USCIS cannot rely on 28 U.S.C. § 1154(c) to deny that petition. Finally, Plaintiffs request costs and fees under 28 U.S.C. § 2412.


A. Standing

Defendants challenge Dinh's standing because she is the intended beneficiary of a Form I-130 Petition rather than a petitioner. The standing inquiry involves "both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise." Warth v. Seldin, 422 U.S. 490, 498 (1975).

A party has constitutional standing under Article III of the U.S. Constitution if she has suffered an injury-in-fact that is fairly traceable to the challenged action of the defendant and that likely will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). The agency's denial of the I-130 petition certainly injured Dinh as she was thus prevented from adjusting her status to lawful permanent resident on the basis of ...

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