Tonghai He v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TONGHAI HE,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-1276
Agency No.
A203-189-993
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 20, 2023**
San Francisco, California
Before: SILER, WARDLAW, and M. SMITH, Circuit Judges.***
Tonghai He, a native and citizen of China, petitions for review of a Board
of Immigration Appeals (BIA) decision dismissing his appeal of an Immigration
Judge’s (IJ’s) removability determination. As the parties are familiar with the
facts, we do not recount them here. We deny the petition.
* 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 Eugene E. Siler, United States Circuit Judge for the
Court of Appeals, 6th Circuit, sitting by designation.
FILED
JUL 25 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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1. The agency did not violate He’s due process rights by accepting
Jennifer Khov’s withdrawal of support for the couple’s Form I-751, filed on
January 28, 2014. The petitioner alleges that United States Citizenship and
Immigration Service (USCIS) officers engaged in inappropriate questioning at
Khov’s interview by reminding her that she was “on probation for DUI and that
marriage fraud would jeopardize her future career.” He also claims that the
interview was unusually long. The petitioner contends that this questioning
violated Khov’s due process rights and, by extension, his own due process
rights because the agency relied on evidence obtained through coercion to
assess the latter’s removability.
The petitioner fails to substantiate the alleged due process violations. He
fails to explain how informing Khov about the legal consequences of
committing marriage fraud amounts to coercion. Cf. Gonzaga-Ortega v.
Holder, 736 F.3d 795, 800, 804 (9th Cir. 2013) (affirming agency’s
determination that petitioner’s confession was not coerced where petitioner was
not mistreated, acknowledged he made such statements “voluntarily,” was not
physically abused, and held for approximately 28 hours). Moreover, the
interview’s relatively modest length does not establish coercion; officers
interviewed Khov for some unspecified portion of the five hours total that they
sequentially interviewed Khov and the petitioner after identifying discrepancies
in their statements. Accordingly, the petitioner fails to show that “the
proceeding was so fundamentally unfair that [he] was prevented from

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reasonably presenting his case,” and that the alleged violation “prejudiced
his . . . interests.” Mendez-Garcia v. Lynch, 840 F.3d 655, 665 (9th Cir. 2016)
(citation and internal quotation marks omitted).1
2. Substantial evidence supports the agency’s removability determination.
See Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017). The
parties agree that, on September 12, 2014, Khov “signed a written affidavit
which stated that her marriage to [He] was to help him stay in the United
States” and that she “withdrew her support” for the Form I-751. “[W]hen one
party makes a written withdrawal of support from a [Form I-751], the petition is
considered not to have been filed.” Singh v. Garland, 591 F.3d 1190, 1198 (9th
Cir. 2010) (citing Matter of Mendes, 20 I. & N. Dec. 833, 838 (BIA 1994)). If a
Form I-751 is not filed, a noncitizen spouse’s conditional permanent resident
status expires on the second anniversary of the date on which such status was
initially granted. 8 U.S.C. § 1186a(c)(2)(A).
Khov’s withdrawal of support is dispositive. He’s two-year conditional
permanent resident status has long expired. No other record evidence compels a
contrary conclusion. See Bringas-Rodriguez, 850 F.3d at 1059. Accordingly,
1 Nor did the BIA violate due process by failing to consider evidence of
coercion. See Cole v. Holder, 659 F.3d 762, 771–72 (9th Cir. 2011) (holding
that “misstating the record and failing to mention highly probative or potentially
dispositive evidence” indicates that the agency failed to consider all the
evidence). Here, the uncited testimony He identifies regarding the length of
Khov’s interview, is inconclusive—not “highly probative or potentially
dispositive.” Moreover, the BIA did not “misstat[e] the record” by accurately
quoting He’s counsel’s statements regarding the lack of evidence of coercion.

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the IJ properly determined that He was removable. See 8 U.S.C. §
1127(d)(1)(D)(i)
3. The BIA did not abuse its discretion in denying He’s motion to hold
his appeal in abeyance pending adjudication of his newly-filed Form I-751 and
intent to seek a hardship waiver. The petitioner argues that BIA precedent
compels the agency to grant the motion. However, that precedent applies only
where a noncitizen makes a showing of prima facie eligibility for such waiver.
See In re Stowers, 22 I. & N. Dec. 605, 613–14 (BIA 1999) (holding that
“where a[] [noncitizen] is prima facie eligible for a [hardship] waiver . . . and
wishes to have his or her waiver application adjudicated by [USCIS], the
proceedings should be continued in order to allow [USCIS] to adjudicate the
waiver application”); Mendes, 20 I. & N. Dec. at 840 (noting “that when a
respondent in [removal] proceedings has not filed an application for a
[hardship] waiver . . . and is prima facie eligible for such relief, the proceedings
should be continued”). He fails to show that he qualifies for any of the statutory
grounds of a hardship waiver. See 8 U.S.C. § 1186a(c)(4)(A)–(D). He makes a
bare assertion that he is “prima facie eligible for a waiver . . . because he entered
into the marriage in good faith but the marriage was terminated due to divorce.”
But this assertion is directly contradicted by Khov’s statement that the marriage
was entered into to obtain marriage benefits, and He offers no persuasive reason
to disregard that evidence. Accordingly, the BIA’s determination is consistent
with its precedent; the agency did not abuse its discretion in applying its own

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standards. See Salgado v. Sessions, 889 F.3d 982, 987 (9th Cir. 2018).
PETITION DENIED.

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