NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID LEE YOCOM; DUC HUA 

YOCOM, 

Plaintiffs-Appellants, 

 v. 

UNITED STATES CITIZENSHIP AND 

IMMIGRATION SERVICES; et al., 

Defendants-Appellees.

No. 23-55430 

D.C. No. 

3:22-cv-00839-BEN-BLM 

MEMORANDUM*

Appeal from the United States District Court

for the Southern District of California

Roger T. Benitez, District Judge, Presiding

Argued and Submitted April 10, 2024

Pasadena, California

Before: SILER,** GOULD, and BEA, Circuit Judges.

Plaintiffs-Appellants David Yocom, a United States citizen, and Duc Yocom, 

a Vietnamese citizen, appeal the district court order which granted DefendantsAppellees’ (“the government”) Federal Rule of Civil Procedure 12(b)(6) motion to 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Eugene E. Siler, United States Circuit Judge for the 

U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

FILED

MAY 16 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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dismiss Plaintiffs’ procedural due process claim, dismissed sua sponte Plaintiffs’ 

Administrative Procedure Act (“APA”) claim, and denied Plaintiffs’ request for 

leave to amend their complaint. Plaintiffs’ complaint challenges the Board of 

Immigration Appeals’ (“BIA”) dismissal of Plaintiffs’ appeal of the United States 

Citizenship and Immigration Services (“USCIS”) Director’s decision, which denied 

David Yocom’s Form I-130 visa petition to classify his husband, Duc Yocom, as an 

immediate relative and thus eligible for lawful permanent resident status. The BIA 

dismissed David’s appeal because it determined that Duc had previously entered into 

a fraudulent marriage with a woman referred to as T.L., a United States citizen, to 

evade immigration laws.

After the BIA dismissed Plaintiffs’ appeal of the USCIS decision, Plaintiffs 

brought suit in the U.S. District Court for the Southern District of California. 

Plaintiffs alleged violations of the Fifth Amendment’s Due Process Clause and the 

APA and requested declaratory and injunctive relief. Plaintiffs argue that the 

government’s evidence of marriage fraud was unreliable because T.L. and Duc 

signed statements, which admitted the couple had entered into a fraudulent marriage, 

under duress. Plaintiffs also argue they submitted substantial evidence to the agency 

that Duc entered into his marriage with T.L. in good faith. This evidence included 

a declaration by Duc that he married T.L. to hide his homosexuality from his family 

and to appear “normal” for his family and society. Plaintiffs’ primary argument is 
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that under these conditions, they had a procedural due process right to a hearing at 

which they could cross-examine critical witnesses, namely T.L.

We have jurisdiction to review the district court’s order pursuant to 28 U.S.C. 

§ 1291, and we affirm in part, reverse in part, and remand for further proceedings.

We review de novo a district court’s dismissal of an action pursuant to 

Rule 12(b)(6). Cervantes v. United States, 330 F.3d 1186, 1187 (9th Cir. 2003). We 

also review de novo a district court’s sua sponte dismissal of a complaint “as if raised 

in a motion to dismiss.” See Bernhardt v. Cnty. of Los Angeles, 279 F.3d 862, 867 

(9th Cir. 2002). To determine whether a complaint states a claim to relief that is 

plausible and non-conclusory, the panel must accept the factual allegations of the 

complaint as true and construe the pleadings in the light most favorable to the 

plaintiff. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Benavidez v. Cnty. of San 

Diego, 993 F.3d 1134, 1144–45 (9th Cir. 2021).

A United States citizen may file an I-130 petition with USCIS to obtain lawful 

permanent resident status for his noncitizen spouse, the “beneficiary” of the petition. 

See 8 U.S.C. § 1154(a)(1)(A)(i). If USCIS grants an I-130 petition, then the 

beneficiary is classified as an “immediate relative” who may seek adjustment of 

status to permanent residence by filing an I-485 application. See 8 U.S.C. 

§§ 1151(b)(2)(A)(i), 1255(a). “[G]rant of an I-130 petition for immediate relative 

status is a nondiscretionary decision. Immediate relative status for an alien spouse 
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is a right to which citizen applicants are entitled as long as the petitioner and spouse 

beneficiary meet the statutory and regulatory requirements for eligibility.” Ching v. 

Mayorkas, 725 F.3d 1149, 1156 (9th Cir. 2013).

One bar to the grant of an I-130 petition is the so-called “marriage fraud bar,” 

which prohibits the grant of a petition if “the alien has previously been accorded, or 

has sought to be accorded, an immediate relative or preference status as the spouse 

of a citizen of the United States . . . by reason of a marriage determined by the 

[Director of the Bureau of Citizenship and Immigration Services]1to have been 

entered into for the purpose of evading the immigration laws.” 8 U.S.C. § 1154(c). 

The government has the initial burden of proof to provide “substantial and probative 

evidence” of marriage fraud. 8 C.F.R. § 204.2(a)(1)(ii); Zerezghi v. USCIS, 955 F.3d 

802, 805 (9th Cir. 2020). The “substantial-and-probative-evidence standard is a 

standard of proof, which is at least as high as a preponderance of the evidence.” 

Zerezghi, 955 F.3d at 816. “In making its initial determination, the government often 

uses documents in its possession, interviews with the couple, and observations made 

during site visits to the couple’s marital residence.” Id. at 805. If the government 

satisfies its burden, then “it issues a Notice of Intent to Deny the immigration 

petition. The burden then shifts to the petitioner to rebut that finding.” Id.

1 This responsibility has been delegated from the Attorney General to the Director 

of the Bureau of Citizenship and Immigration Services. See 6 U.S.C. § 271(b)(1).
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To determine whether a marriage was bona fide, the sole inquiry is “whether 

the parties intended to establish a life together at the time of marriage.” Damon v. 

Ashcroft, 360 F.3d 1084, 1089 (9th Cir. 2004). “In determining whether such an 

intent exists, judges must look to objective evidence and refrain from imposing their 

own norms and subjective standards on the determination.” Id. “An intent to obtain 

something other than or in addition to love and companionship from that life does 

not make a marriage a sham. Rather, the sham arises from the intent not ‘to establish 

a life together.’” United States v. Orellana-Blanco, 294 F.3d 1143, 1151 (9th Cir. 

2002) (quoting Bark v. INS, 511 F.2d 1200, 1201 (9th Cir. 1975)).

1. The district court did not err when it granted the government’s 

Rule 12(b)(6) motion to dismiss Plaintiffs’ procedural due process claim. Plaintiffs 

failed to plead a violation of their procedural due process rights because they did not 

allege facts that made plausible that T.L. would have signed an untrue admission of 

marriage fraud, on which admission the BIA relied. Because due process “is flexible 

and calls for such procedural protections as the particular situation demands,” the 

Supreme Court has provided three factors to consider when determining whether 

additional process was due in a particular case: first, the private interest affected by 

the official action; second, the risk of an erroneous deprivation and the probable 

value of additional procedural safeguards; and third, the government’s interest. 

Mathews v. Eldridge, 424 U.S. 319, 334–35 (1976) (quoting Morrissey v. Brewer, 
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408 U.S. 471, 481 (1972)).

Here, the first factor favors Plaintiffs because being separated from one’s 

spouse implicates strong private interests. See Ching, 725 F.3d at 1157. The third 

factor, the government’s burden of holding a hearing, would be relatively slight, as 

we held in Ching. See id. at 1159.

Turning to the second Mathews factor, Plaintiffs’ procedural due process 

allegations do not currently state a plausible claim to relief under our precedent. In 

Ching, USCIS obtained a written statement from the I-130 beneficiary’s ex-husband 

that admitted his previous marriage to the beneficiary had been fraudulent. Id. at 

1153. The BIA concluded, on the basis of the ex-husband’s written statement alone, 

that the beneficiary’s previous marriage was fraudulent. Id. at 1158. The plaintiffs, 

the beneficiary and her present husband, tried to dispute the written statement with 

a sworn declaration, which described “in vivid detail how the [beneficiary and her 

ex-husband] would sleep in on weekends, have sex, and share intimate 

conversations.” Id. at 1153. The beneficiary also “furnished photographs of the 

couple, joint utility bills, an apartment lease, and a letter [her ex-husband] had 

previously written to USCIS stating that he and [the beneficiary] ‘truly loved each 

other.’” Id. Considering the Mathews factors, “the extreme weight of the first two 

factors [led us] to conclude that the process by which [the] I-130 petition was denied 

was inadequate.” Id. at 1159. We held that, because the government relied on the 
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written statement signed by the beneficiary’s ex-husband, procedural due process 

required the agency to provide plaintiffs the opportunity to confront and crossexamine the ex-husband. Id. at 1158–59.

Here, however, Plaintiffs’ complaint does not allege facts to support that 

T.L.’s statement was unreliable on account of coercion or duress, so Plaintiffs have 

not alleged a risk of an erroneous deprivation or probable value of additional 

procedural safeguards per the second Mathews factor. Though the complaint 

contains detailed factual allegations explaining why Duc felt coerced to sign the 

statement after the USCIS officer threatened to expose his homosexuality to T.L., 

the same cannot be said as to T.L.’s motivation for signing her statement. Further, 

unlike in Ching, where USCIS went to the ex-husband’s house after the couple had 

divorced, Duc was present when T.L. signed the statement at their USCIS interview, 

so Duc should be able to allege what facts, if any, support that T.L. also felt coerced. 

These facts could include the volume or tone of the officer’s voice, whether T.L. had 

a physical response to the officer’s actions as Duc did, or any other facts to support 

the plausibility that T.L. would have signed an untrue statement on that day. If the 

complaint were to include such allegations or other allegations that would show a 

risk of an erroneous deprivation or probable value of additional procedural 

safeguards, then Plaintiffs’ due process claim would move beyond the motion-todismiss stage for a factual record to be developed. As in Ching, the parties could 
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move for summary judgment based on a factual record, and the district court could 

adjudicate the Mathews factors in earnest at that stage. See 725 F.3d at 1154. 

Because the complaint does not sufficiently allege facts to make plausible that T.L.’s 

signed statement was unreliable, the risk of erroneous deprivation was low, as was 

the probable value of an opportunity to cross-examine T.L. Hence, the district court 

did not err when it granted the government’s Rule 12(b)(6) motion to dismiss 

Plaintiffs’ procedural due process claims.

2. We review a denial of a request to amend a complaint for an abuse of 

discretion. Branch Banking & Tr. Co. v. D.M.S.I., LLC, 871 F.3d 751, 760 (9th Cir. 

2017). The district court concluded that amendment of Plaintiffs’ complaint would 

be futile. “When the district court denies leave to amend because of futility of 

amendment, we will uphold such denial if ‘it is clear, upon de novo review, that the 

complaint would not be saved by any amendment.’” Carvalho v. Equifax Info. 

Servs., LLC, 629 F.3d 876, 893 (9th Cir. 2010) (quoting Leadsinger, Inc. v. BMG 

Music Publ’g, 512 F.3d 522, 532 (9th Cir. 2008)).

Here, the district court abused its discretion when it dismissed Plaintiffs’

procedural due process claim without leave to amend their complaint even once. 

Though we agree with the district court’s conclusion regarding the adequacy of 

Plaintiffs’ current complaint, Plaintiffs may be able to allege a plausible claim by 

adding allegations of coercive behavior directed toward T.L., if any occurred. Thus, 
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we cannot conclude that Plaintiffs’ procedural due process claim could not be saved 

by amendment of the complaint, so we reverse and remand. See Lee v. City of Los 

Angeles, 250 F.3d 668, 692 (9th Cir. 2001) (“Because it is not clear that plaintiffs’

ADA claim cannot be saved by amendment, we remand this matter to the district 

court so that plaintiffs may have the opportunity to amend their ADA claim.”).

3. Though the government did not move to dismiss Plaintiffs’ APA claim, the 

district court dismissed it sua sponte. First, the district court determined it lacked 

jurisdiction to hear the APA claim. We have “identified only two circumstances in 

which a district court may dismiss for lack of subject matter jurisdiction without 

providing notice and an opportunity to respond”: (1) when the parties have 

previously argued the issue of jurisdiction, or (2) where lack of jurisdiction appears 

on the face of the complaint and is obviously not curable. Ho v. Russi, 45 F.4th 

1083, 1086 (9th Cir. 2022).

The parties did not argue the issue of jurisdiction below. And there is no 

obvious jurisdictional defect in the complaint, especially given the similarities to 

cases where we have exercised jurisdiction over APA claims related to I-130 

proceedings, like Ching and Zerezghi. The district court determined that it lacked 

jurisdiction to hear Plaintiffs’ APA claim because “there is no statutory right of 

cross-examination in I-130 visa adjudications.” While that is an accurate description 

of our holding in Ching, the lack of cross-examination is not Plaintiffs’ argument 
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under the APA in this case. It is unclear why the district court concluded it lacked 

jurisdiction to adjudicate Plaintiffs’ challenge of a final agency action. Thus, the 

district court erred when it dismissed Plaintiffs’ APA claim for lack of subject matter 

jurisdiction.

Second, the district court concluded that Plaintiffs failed to state a plausible 

claim under the APA. “Although [a] trial court may dismiss a claim sua sponte

under Fed. R. Civ. P. 12(b)(6), the court must give notice of its intention to dismiss 

and afford plaintiffs an opportunity to at least submit a written memorandum in 

opposition to such motion.” Lee, 250 F.3d at 683 n.7 (internal quotation marks and 

citations omitted). Failure to provide notice before dismissing a claim sua sponte 

without leave to amend is a ground for reversal. See Reed v. Lieurance, 863 F.3d 

1196, 1208 (9th Cir. 2017) (“[T]he district court did not first provide Reed notice 

and an opportunity to respond before dismissing the . . . claim for failure to satisfy 

Rule 12(b)(6). Therefore, we reverse the dismissal of this claim.”). Further, “[e]ven 

if a court does first provide proper notice, we will uphold a sua sponte [Rule 

12(b)(6)] dismissal without leave to amend only where the plaintiff cannot possibly 

win relief.” Id. at 1207–08 (internal quotation marks omitted).

The district court’s failure to provide notice before dismissing sua sponte 

Plaintiffs’ APA claim is a ground for reversal.

Moreover, we cannot say that Plaintiffs could not possibly win relief on their 
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APA claim. One theory Plaintiffs raise in their complaint is that the BIA unlawfully 

shifted the burden of proving Duc’s marriage to T.L. was bona fide without first 

requiring the government to prove by a preponderance of the evidence that the 

previous marriage was fraudulent, as required under Zerezghi. See 955 F.3d at 816. 

In the BIA’s order, it stated, “Where there is evidence that a visa petition was 

previously filed seeking an immigration benefit based on a fraudulent marriage, the 

burden shifts to the petitioner to establish that the beneficiary did not seek to 

circumvent the immigration laws based on the prior marriage.” The BIA concluded 

that “the statements given by [Duc] and T.L. at the interview raised questions about 

whether their marriage was fraudulent.” The BIA misstated the law because 

“evidence” and “raising questions” are not the same as “substantial and probative 

evidence” that would support a determination by a “preponderance of the evidence.” 

Because of this error, Plaintiffs may have stated a plausible APA claim. See MontesLopez v. Holder, 694 F.3d 1085, 1092 (9th Cir. 2012) (“When this court concludes 

that an agency has not correctly applied controlling law, it must typically remand, 

even if we think the error was likely harmless.”).

To be sure, this error may have been harmless based on T.L.’s signed 

admission of marriage fraud, which could satisfy the government’s burden of 

providing “substantial and probative evidence” of marriage fraud. But for the same 

reasons discussed above, Plaintiffs may be able to amend their complaint to allege 
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facts that would render T.L.’s statement unreliable. If Plaintiffs can do so, then 

Plaintiffs may be able to plead a plausible APA claim. For these reasons, the district 

court erred when it dismissed sua sponte Plaintiffs’ APA claim without notice and 

without leave to amend the complaint.

AFFIRMED in part, REVERSED in part, and REMANDED.

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2 Each party shall bear its own costs related to this appeal.