Zoltan Grim v. Merrick B. Garland, U.S. Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Zoltan Grim,
Petitioner,
v.
Merrick B. Garland, U.S. Attorney
General,
Respondent.
No. 22-709
Agency No. A088-947-757
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 19, 2023**
San Francisco, California
Before: SCHROEDER, CALLAHAN, and BUMATAY, Circuit Judges.
Zoltan Grim (“Grim”), a native and citizen of Romania, petitions for
review of the Board of Immigration Appeals’ (the “BIA”) dismissal of his
appeal of the Immigration Judge’s (“IJ”) decision following remand finding him
removable as charged for committing marriage fraud. Where, as here, the BIA
adopts the IJ’s decision and adds some of its own reasoning, we review both
* 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).
FILED
APR 21 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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decisions. Gonzalez-Caraveo v. Sessions, 882 F.3d 885, 889 (9th Cir. 2018).
Our jurisdiction is governed by 8 U.S.C. § 1252 and we deny Grim’s petition.
Grim advances two arguments in support of his petition.
First, Grim argues that the BIA committed “clear error” by finding there
was substantial evidence to support the IJs conclusion that the Department of
Homeland Security (“DHS”) had met its burden in proving marriage fraud. We
review for substantial evidence the conclusion that an individual is removable
for marriage fraud, as it involves factual findings. Nakamoto v. Ashcroft, 363
F.3d 874, 881 (9th Cir. 2004).
As a preliminary matter, contrary to Grim’s contention, we need only
determine whether substantial evidence supports a finding “by clear and
convincing evidence” that the individual committed marriage fraud. Id. at 882;
see also Mondaca-Vega v. Lynch, 808 F.3d 413, 420–22 (9th Cir. 2015) (en
banc) (holding that the word “unequivocal,” as used in “clear, unequivocal, and
convincing” standard of proof, did not signify any higher burden than “clear and
convincing” standard).
In reaching its conclusion on marriage fraud, the IJ relied on the evidence
in the record of (1) Grim and Mioara Felecan’s (“Felecan”) long-term
relationship (beginning in 1998) predating and continuing during their
marriages to American citizens, (2) Grim and Felecan’s repeated international
travel together both before and during their respective marriages to American
citizens, and (3) Grim and Felecan living together both before and throughout

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their marriages to American citizens, among other things. The documentary
evidence included the Form I-213 prepared by Special Agent Cross, documents
attached to the applications filed by Grim and Felecan, numerous photographs
of Grim and Felecan, the statements of landlord John Bachar, dorm records
from Grim and Felecan’s employer Sun Valley Company, a report of the search
warrant executed at the residence of Grim, the investigation summary and
interview records prepared by Special Agent Cross, and various court records.
The IJ noted that Grim failed to provide any evidence that he entered into a
bona fide marriage with an American citizen.
Grim asks us to reweigh the evidence to come to a different conclusion
than that of the IJ and BIA, which the court cannot do under the substantial
evidence standard. See Don v. Gonzales, 476 F.3d 738, 743 (9th Cir. 2007). To
grant the petition for review, the record must compel the conclusion that no
reasonable fact finder could find as the agency did. Id. Grim fails to show that
the evidence in the record was so compelling that no reasonable factfinder could
conclude as the BIA did here.
Second, Grim raises a due process claim, arguing that the removal
proceedings were “fundamentally unfair” such that he was prevented from
reasonably presenting his case. “We review de novo … claims of due process
violations in immigration proceedings.” Gonzalez-Caraveo, 882 F.3d at 889.
Grim argues that the IJ improperly admitted documentary evidence.
While Grim acknowledges that the rules of evidence do not apply in

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immigration hearings, he nevertheless argues that DHS’s documentary evidence
was not properly authenticated, contained hearsay in some instances, and in at
least one case, “contained statements that the interviewee subsequently denied
making.” Unfortunately, Grim provides no specific citation to the record
identifying the documents to which these arguments refer. But even if he had,
the BIA correctly rejected these arguments. See Vatyan v. Mukasey, 508 F.3d
1179, 1185 (9th Cir. 2007) (“Immigration judges retain broad discretion to
accept a document as authentic or not based on the particular factual showing
presented.”); see also Rojas-Garcia v. Ashcroft, 339 F.3d 814, 823 (9th Cir.
2003) (stating that “hearsay is admissible in immigration proceedings”); see
also Sanchez v. Holder, 704 F.3d 1107, 1109 (9th Cir. 2012) (outlining that
“[t]he sole test for admission of evidence is whether the evidence is probative
and its admission is fundamentally fair” (citation omitted)). The IJ carefully
considered Grim’s objections to the admission of DHS’s documentary evidence
and exercised his discretion in weighing the admitted evidence’s reliability and
probative force in light of these objections, as is appropriate in immigration
proceedings. See Vatyan, 508 F.3d at 1185 n.4.
Grim also argues that the IJ failed to require DHS to call other witnesses
or explain what reasonable efforts it made to secure their presence. Grim
complains that DHS did not call as a witness his former wife Allyson Heazle or
an unnamed “third witness on DHS’s proposed list.” Unlike the facts presented
in Saidane v. INS, 129 F.3d 1063 (9th Cir. 1997), where the government

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purposefully chose to rely on the hearsay affidavit of the central adverse witness
who was admittedly otherwise available to testify in person, the failure to
require DHS to call these witnesses does not create a due process violation.
Special Agent Cross testified that he tried unsuccessfully on numerous
occasions to interview Heazle. As for the “third witness” on the proposed list,
Grim does not identify the witness by name.1 Grim could have called any
witness not offered by DHS but chose not to do so. He also had the opportunity
to cross-examine Special Agent Cross, who was called as a witness by DHS.
In sum, Grim has not shown that the proceedings were so fundamentally
unfair that he was prevented from reasonably presenting his case, nor has he
shown any prejudice suffered as a result of the alleged procedural issues.
Grim’s due process claim is without merit.
The petition for review is DENIED.
1 To the extent Grim is referring to John Bachar, Bachar provided Special Agent
Cross a statement which served to support DHS’s marriage fraud case, but he
later offered a somewhat contradictory affidavit in support of Grim and Felecan.
The IJ admitted both statements and exercised his discretion in weighing them.

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