Christine Mary Novicio v. ERIC H. HOLDER, JR., Attorney General

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** Eric H. Holder, Jr. is substituted for his predecessor Michael B.
Mukasey as Attorney General. Fed. R. App. P. 43(c)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTINE MARY NOVICIO,
Plaintiff - Appellant,
v.
ERIC H. HOLDER, JR.,** Attorney
General,
Defendant - Appellee.
No. 10-16388
D.C. No. 3:09-cv-00688-RCJ-VPC
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, Chief District Judge, Presiding
Argued and Submitted September 12, 2012
Las Vegas, Nevada
Before: RAWLINSON, BYBEE, and IKUTA, Circuit Judges.
Christine Novicio appeals the district court’s dismissal of her challenge to
the constitutionality of 8 U.S.C. § 1154(c), which prohibits an alien spouse from
FILED
SEP 25 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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becoming a lawful United States resident if the alien spouse had been involved in
marriage fraud. We affirm.
Novicio had standing to challenge the constitutionality of § 1154(c) because
the provision prevents Novicio from residing with her husband in the United
States, an “injury in fact” that would be redressed by a decision invalidating
§ 1154(c) as unconstitutional. See Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000) (citing Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560–61 (1992)).
Even if § 1154(c) burdens Novicio’s constitutional right to marry, because it
imposes no particular procedure for determining whether an alien spouse is eligible
for legal resident status, it is not a procedural statute that must be analyzed under
Mathews v. Eldridge, 424 U.S. 319 (1976). As a substantive provision, § 1154(c)
is subject to limited judicial review under the deferential standard articulated in
Fiallo v. Bell, 430 U.S. 787 (1977). The enactment of § 1154(c) is justified by the
“facially legitimate and bona fide reason” of deterring marriage fraud by aliens.
Id. at 794–95. Therefore, we hold that § 1154(c) is not unconstitutional even if it
burdens Novicio’s constitutional right to marry by preventing her from living with
her alien spouse in the United States.
AFFIRMED.

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