Mioara Felecan v. Merrick B. Garland, U.S. Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Mioara Felecan,
Petitioner,
v.
Merrick B. Garland, U.S. Attorney
General,
Respondent.
No. 22-711
Agency No. A089-362-467
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.
Mioara Felecan, a native and citizen of Romania, petitions for review of
the Board of Immigration Appeals’ (the “BIA”) dismissal of her appeal of the
Immigration Judge’s (“IJ”) decision following remand finding her 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 decisions.
* 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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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 Felecan’s petition.
Felecan advances two arguments in support of her petition.
First, Felecan 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 Felecan’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) Felecan and Zoltan Grim’s (“Grim”) long-term relationship
(beginning in 1998) predating and continuing during their marriages to
American citizens, (2) Felecan and Grim’s repeated international travel together
both before and during their respective marriages to American citizens, and (3)
Felecan and Grim living together both before and throughout their marriages to

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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 Felecan and Grim, numerous photographs of Felecan and
Grim, the statements of landlord John Bachar, dorm records from Felecan and
Grim’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
Felecan failed to provide any evidence that she entered into a bona fide
marriage with an American citizen.
Felecan 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. Felecan fails to show
that the evidence in the record was so compelling that no reasonable factfinder
could conclude as the BIA did here.
Second, Felecan raises a due process claim, arguing that the removal
proceedings were “fundamentally unfair” such that she was prevented from
reasonably presenting her case. “We review de novo … claims of due process
violations in immigration proceedings.” Gonzalez-Caraveo, 882 F.3d at 889.
Felecan argues that the IJ improperly admitted documentary evidence.
Felecan provides no specific citation to the record identifying the documents to

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which this argument refers. But even if she had, the BIA correctly rejected
these arguments because the rules of evidence do not apply in immigration
hearings. 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 Felecan’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.
Felecan also argues that the IJ failed to require DHS to call other
witnesses or explain what reasonable efforts it made to secure their presence.
Felecan complains that DHS did not call her former husband Patrick Delvaux or
Maxine Veloso, Delvaux’s sister. Unlike the facts presented in Saidane v. INS,
129 F.3d 1063 (9th Cir. 1997), where the government 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

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that he tried unsuccessfully on numerous occasions to interview Delvaux. As
for Maxine Veloso, her statement was just one piece of evidence regarding
Felecan’s residence during her marriage to Delvaux, and it was reasonable for
DHS to choose not to call her as a witness. Felecan could have called any
witness not offered by DHS but chose not to do so. She also had the
opportunity to cross-examine Special Agent Cross, who was called as a witness
by DHS.
In sum, Felecan has not shown that the proceedings were so
fundamentally unfair that she was prevented from reasonably presenting her
case, nor has she shown any prejudice suffered as a result of the alleged
procedural issues. Felecan’s due process claim is without merit.
The petition for review is DENIED.

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