Witter v. I.N.S.

• Decision Date: 30 May 1997
• Docket Number: No. 96-60335,96-60335
• Citation: 113 F.3d 549
• Parties: Marcia M WITTER; Abraham Nee Ntreh, Petitioners, v. IMMIGRATION and NATURALIZATION SERVICE, Respondent. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 549

113 F.3d 549

Marcia M WITTER; Abraham Nee Ntreh, Petitioners, v. IMMIGRATION and NATURALIZATION SERVICE, Respondent.

No. 96-60335

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

May 30, 1997.

Brian K. Bates, Quan, Burdette & Perez, Houston, TX, for Petitioners.

Mark C. Walters, Department of Justice, Immigration Litigation, Washington, DC, Charles Ernst Pazar, United States Department of Justice, Civil Division, Washington, DC, Janet Reno, Office of the United States Attorney General, Civil Division, Appellate Staff, Washington, DC, Robert L. Bombough, Director, Office of Immigration Litigation, Civil Division, Washington, DC, John B.Z. Caplinger, Director, Immigration and Naturalization Service, New Orleans, LA, Arthur Strapp, District Director, Immigration and Naturalization, Dallas, TX, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before DAVIS, EMILIO M. GARZA and STEWART, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Marcia M. Witter and Abraham Nee Ntreh seek review of a final order of the Board of Immigration Appeals ("BIA" or "Board") finding them deportable under § 241(a)(1)(A) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1251(a)(1)(A). We affirm.

I

Witter is a native of Jamaica and citizen of the United Kingdom. Abraham Nee Ntreh is a native and citizen of Ghana. Both entered the United States legally and were married in Dallas, Texas in August 1988. In May 1989, Nee Ntreh filed a petition for annulment alleging that Witter had fraudulently induced him to marry her, that the couple had never lived together, and that they had never consummated the marriage. Witter signed a waiver of notice in which she swore that she read and understood the annulment petition and agreed that the petition could be considered by the court without further notice to her. A transcript of the hearing indicates that Nee Ntreh appeared and testified at the proceeding. The court granted the annulment and sent a copy of the order to Witter at the address provided in the waiver. Witter's apartment number was omitted from the address to which the order was sent.

While in London five months later, Petitioners applied for new immigrant visas with the American embassy, representing that they were married and presenting their 1988 marriage certificate as evidence. Witter received a preference for entry based on her employment as a nurse at Parkland Hospital in Dallas. Nee Ntreh's application was granted because he was Witter's spouse. Petitioners made no mention of the annulment in their visa applications.

In June 1993, the Immigration and Naturalization Service ("INS") issued show cause orders against Witter and Nee Ntreh alleging that they were deportable under INA § 241(a)(1)(A) for having willfully misrepresented a material fact in order to obtain Nee Ntreh's visa under INA § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i). ¹ The INS later filed additional charges against Witter, alleging that she was excludable under INA § 212(a)(6)(E)(i), 8 U.S.C. § 1182(a)(6)(E)(i), for alien smuggling. ² In addition, the INS charged Nee Ntreh with marriage fraud under INA § 241(a)(1)(G)(ii), 8 U.S.C. § 1251(a)(1)(G)(ii). ³

At that time, Petitioners filed a petition in Texas state court seeking to set aside the 1989 annulment order. Petitioners alleged that they never intended to complete the annulment and only recently discovered that an order annulling their marriage had been issued. Nee Ntreh testified that he did not attend the original annulment hearing and that he and Witter had never lived apart. The state court set aside the annulment based on Petitioners' representations. However, the State subsequently charged Nee Ntreh with perjury based on his representations regarding the annulment.

After the deportation proceedings were set for hearing, Nee Ntreh requested a continuance until the state criminal perjury charges against him were resolved. Nee Ntreh explained that he wished to testify in his own defense but did not wish to sacrifice his Fifth Amendment privilege against self-incrimination. The Immigration Judge ("IJ") denied the continuance. However, the IJ did not compel Nee Ntreh to take the stand when the INS called him as a hostile witness.

The IJ found Witter and Nee Ntreh deportable as charged. On appeal, the BIA affirmed the IJ's denial of a continuance and its determination that both Witter and Nee Ntreh were deportable for willful misrepresentation under INA § 212(a)(19). However, the Board dismissed the alien smuggling charge against Witter, finding no evidence that Witter had engaged in smuggling "for gain," an essential element of the offense. The Board also dismissed the marriage fraud charge against Nee Ntreh.

Petitioners timely petitioned for review, arguing that (1) the BIA erred in refusing to relate back the order vacating the annulment to validate their marriage ab initio, thus curing any alleged misrepresentation on their visa petition; (2) the Board erred in finding that there was no common law marriage; (3) the Board erred in finding Petitioners' misrepresentations to be "willful"; (4) Witter's representations of marital status were immaterial to her visa application, thus INA § 212(a)(19) does not apply to her; and (5) the Board abused its discretion in affirming the IJ's denial of Nee Ntreh's motion for continuance.

II

We have jurisdiction to review the Board's decision under INA § 106, 8 U.S.C. § 1252(a). ⁴ We will affirm an order of deportation issued by the BIA if supported by "reasonable, substantial, and probative evidence on the record considered as a whole." Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir.1996) (internal citations omitted). We review findings of fact for substantial evidence. Id. We will affirm the Board's findings of fact unless the alien can show that the evidence in his favor "was so compelling that no reasonable factfinder could conclude against it." Id. We review conclusions of law de novo, but with deference to the BIA's interpretation of ambiguous statutory provisions. Id.

A

The state court order vacating the annulment retroactively validated Petitioners' marriage from its inception under Texas law; thus, Witter and Nee Ntreh are now formally married. Petitioners assert that the order vacating the annulment proves that they were married at the time of entry, and thus their statements concerning marital status on their visa applications were not misrepresentations. The BIA affirmed the IJ's finding that although the order vacating the annulment "may be valid for all concerns of the state, ... it cannot and does not make a lie uttered to a visa officer in 1989 a truthful statement when it was made." Petitioners assert that the BIA erred in refusing to give retroactive effect to the order to cure the misrepresentation.

We have never specifically addressed this issue; however, Petitioners' assertion is contrary to decisions of the Seventh and Ninth Circuits and the BIA. In Hendrix v. INS, 583 F.2d 1102, 1103 (9th Cir.1978), the Ninth Circuit held that a woman admitted to the United States based on her representation that she was unmarried could not retroactively cure the fact that she was married at the time of entry by obtaining a subsequent annulment. The court held that "[u]nless unusual circumstances dictate that in the interest of justice retroactive effect should be given ... it is the marital status at the time of entry that should serve as the basis for one alien's preferment over others." Id. (internal citation omitted).

The Seventh Circuit, in a case factually similar to Hendrix, held that willful misrepresentation under INA § 212(a)(19) focused on the alien's subjective state of mind at the time of the representation, not on technical legal issues involving the validity of the marriage or retroactivity of the annulment under the law of the jurisdiction in which it was granted. Garcia v. INS, 31 F.3d 441, 443 (7th Cir.1994). The court accordingly refused to give retroactive effect to an annulment procured after entry to the United States to sanction a willful misrepresentation made at the time of application for the visa. Id.; see also Matter of Magana, 17 I & N Dec. 111 (BIA 1979) (alien who entered United States based on marriage to American citizen although already married to noncitizen could not overcome charges of fraud by subsequently having first marriage annulled); cf. Matter of Astorga, 17 I & N Dec. 1 (BIA 1979) (holding that annulment related back to original date of marriage where there was no fraud, misrepresentation, or manipulation of immigration law). ⁵

The BIA found that Witter and Nee Ntreh were not legally married under Texas law at the time of their visa applications, regardless of the legal fiction created by the subsequent order vacating the annulment. The record shows that Petitioners sought to vacate their annulment only after they learned that the INS contemplated deportation proceedings against them. The fact that this case involves an order vacating an annulment, rather than an annulment as in the precedents cited, does not alter the application of the basic principle that changes in marital status undertaken after entry into the United States should not be used to manipulate immigration law. See Garcia, 31 F.3d at 444; Hendrix, 583 F.2d at 1104. The BIA properly refused to relate back the order vacating the annulment to cure Petitioners' misrepresentations.

B

Witter and Nee Ntreh next claim that even though their 1988 ceremonial marriage had been annulled, they subsequently entered into a common-law marriage prior to their visa applications. Therefore, they argue, they did not misrepresent their marital status. This argument lacks merit. First, the BIA found that Petitioners relied upon their annulled 1988 ceremonial marriage, not upon a subsequently arising common law marriage, when representing that they were married on their visa...