UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT JUN 6 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS DRAGOS GAVRILESCU; MELITA No. 23-55036 NINGAL PLUMB,

D.C. No. 8:21-cv-01965-CJC-DFM

Plaintiffs-Appellants, Central District of California,

Santa Ana v. U.S. DEPARTMENT OF HOMELAND ORDER SECURITY; et al.,

Defendants-Appellees. Before: W. FLETCHER, NGUYEN, and LEE, Circuit Judges.

The petition for panel rehearing is granted in part (Dkt. No. 47). The memorandum disposition filed on April 5, 2024, is hereby amended. The amended memorandum disposition will be filed concurrently with this order.

The panel has voted to deny the petition for rehearing en banc, and Judge Fletcher has so recommended. The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. The petition for rehearing en banc is denied.

No further petitions for rehearing or for rehearing en banc may be filed.

FILED

NOT FOR PUBLICATION JUN 6 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT DRAGOS GAVRILESCU; MELITA No. 23-55036 DINGAL PLUMB,

D.C. No. 8:21-cv-01965-CJC-DFM

Plaintiffs-Appellants, v. AMENDED MEMORANDUM* U.S. DEPARTMENT OF HOMELAND SECURITY; et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

Cormac J. Carney, District Judge, Presiding

Argued and Submitted February 13, 2024

Pasadena, California Before: W. FLETCHER, NGUYEN, and LEE, Circuit Judges.

Melita Dingal Plumb (“Plumb”) is a U.S. citizen. Her spouse, Dragos Gavrilescu (“Gavrilescu”), is a foreign national and a citizen of Romania. Plumb filed an I-130 Petition for Alien Relative (“I-130 petition”) on behalf of

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Gavrilescu with the United States Citizenship and Immigration Services (“USCIS”). USCIS denied the petition on the ground that Gavrilescu had previously entered into a fraudulent marriage with another United States citizen for the purpose of obtaining immigration benefits. See 8 U.S.C. § 1154(c). The Board of Immigration Appeals (“BIA”) dismissed the appeal of USCIS’s decision. Plumb and Gavrilescu filed this action in federal district court, alleging that the agency violated the Due Process Clause and the Administrative Procedure Act. The district court denied relief, and Plumb and Gavrilescu appealed.

There are two issues presented in this appeal. First, did the agency deny due process in failing to allow cross-examination of the ex-spouse whose evidence was relied upon by the agency in determining that the marriage was fraudulent? See Ching v. Mayorkas, 725 F.3d 1149 (9th Cir. 2013). Second, was the agency’s finding of fraud arbitrary and capricious? We have jurisdiction under 28 U.S.C. § 1291. We affirm.1

The parties are familiar with the facts in this case, and we recount them only as necessary to explain our decision.

1

We grant the unopposed motion to file supplemental excerpts of record under seal. We also grant the motion for judicial notice of the certified administrative record in Ching v. Mayorkas. A court may take judicial notice of “matters of public record.” Mack v. South Bay Beer Distrib., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986); see also United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (“[A] court may take judicial notice of its own records in other cases. . . .”).

2

1. We hold that Appellants cannot claim a due process violation under Ching v. Mayorkas. 725 F.3d 1149 (9th Cir. 2013).Ching held that there is a due process right to cross-examination of an adverse witness under certain specific circumstances during the I-130 petition process. Id. at 1159. However, Appellants never requested that the agency provide an opportunity for cross-examination.

While we agree with the district court that Appellants were required to request cross-examination, the agency appears to have done nothing to implement our holding in Ching. So far as the record before us shows, the agency neither informs applicants of their right under Ching nor provides a mechanism for a Ching hearing. Neither party before us could name a single time when a Ching hearing has ever been conducted in the decade since the decision. Though applicants ultimately have the burden to request a Ching hearing, we fault the agency for failing to inform applicants of their right under Ching and to provide a mechanism to implement that right.

2. The agency may deny an I-130 petition under 8 C.F.R. § 204.2(a)(1)(ii) when there is “substantial and probative” evidence of marriage fraud. On review of the agency decision in this case, “the appellate court must examine whether there was ‘substantial evidence’ to support the finding.” Zerezghi v. USCIS, 955

3 F.3d 802, 814 n.6 (9th Cir. 2020). We hold that substantial evidence in the record supports the agency’s finding. AFFIRMED.

4