Egan v. Weiss

• Decision Date: 11 July 1997
• Docket Number: D,No. 1426,1426
• Citation: 119 F.3d 106
• Parties: Mary Nell EGAN, Plaintiff-Appellant, v. John WEISS, Officer in Charge, INS, and the Department of Justice Board of Immigration Appeals, Defendants-Appellees. ocket 96-6280.
• Court: U.S. Court of Appeals — Second Circuit

Page 106

119 F.3d 106

Mary Nell EGAN, Plaintiff-Appellant, v. John WEISS, Officer in Charge, INS, and the Department of Justice Board of Immigration Appeals, Defendants-Appellees.

No. 1426, Docket 96-6280.

United States Court of Appeals Second Circuit.

Argued April 28, 1997.

Decided July 11, 1997.

Mary Egan, West Hartford, CT, pro se.

Deborah R. Slater, Assistant United States Attorney, Hartford, CT (Christopher F. Droney, United States Attorney for the District of Connecticut, on the brief), for Defendants-Appellees.

Before: KEARSE and CALABRESI, Circuit Judges, and OBERDORFER, District Judge ^*.

PER CURIAM.

Plaintiff Mary Nell Egan, a United States citizen, appeals from a judgment of the United States District Court for the District of Connecticut, Janet Bond Arterton, Judge, dismissing her complaint seeking review under the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (1994), of a decision of the Immigration and Naturalization Service ("INS") Board of Immigration Appeals ("Board" or "BIA"), affirming the denial of her 1992 petition to classify her husband David Adebimpe, the beneficiary of the petition, as an "immediate relative" of a United States citizen pursuant to 8 U.S.C. § 1151(b)(2)(A)(i) (1994). The district court ruled that, in light of the past history of fraudulent submissions by Egan and Adebimpe in support of the petition, the Board's denial of the petition was not an abuse of discretion. Egan contends that the Board was required to accept the "confirmation" of the Oyo Local Government Grade 'C1' Customary Court in Nigeria ("Oyo court" or "customary court") that, prior to leaving Nigeria, Adebimpe had never been married. For the reasons stated below, we see no basis for overturning the decision of the district court.

A United States citizen who petitions to have an alien classified as her spouse is required to "provide evidence of the claimed relationship," including "a certificate of marriage issued by civil authorities, and proof of the legal termination of all previous marriages of both the petitioner and the beneficiary." 8 C.F.R. § 204.2(a)(2) (1997) (emphasis added). The burden of proving the claimed relationship is on the petitioner. See, e.g., 8 U.S.C. § 1361 (1994); Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305, 1308 (9th Cir.1984); Elatos Restaurant Corp. v. Sava, 632 F.Supp. 1049, 1053 (S.D.N.Y.1986); Matter of Brantigan, 11 I & N Dec. 493 (BIA 1966). The Board's denial of a classification petition may be overturned only if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. See 5 U.S.C. § 706; North American Industries, Inc. v. Feldman, 722 F.2d 893, 898 (1st Cir.1983); Mila v. District Director of the Denver, Colorado District of the Immigration & Naturalization Service, 678 F.2d 123, 125 (10th Cir.1982), cert. denied, 459 U.S. 1104, 103 S.Ct. 726, 74 L.Ed.2d 952 (1983); Kaliski v. District Director of Immigration & Naturalization Service, 620 F.2d 214, 216 n. 1 (9th Cir.1980). "Appropriate deference must be accorded [the INS's] decisions" in light of the widespread fraud associated with immediate-relative petitions. INS v. Miranda, 459 U.S. 14, 18-19 & n. 4, 103 S.Ct. 281, 283-84 & n. 4, 74 L.Ed.2d 12 (1982) (per curiam).

As found by the district court and not disputed by Egan, when Adebimpe applied for a visitor's visa to enter the United States in 1989, he represented that he was married In September 1993, INS formally notified Egan that it intended to deny her petition on the ground that the purported divorce decree she had submitted was fraudulent and that she therefore had not established that her marriage to Adebimpe was "valid for immigration purposes." After retaining new counsel, Egan and Adebimpe conceded that the purported divorce decree was indeed fraudulent.

to a Nigerian, Folashade Adebimpe, and had a child. In 1992, while in the United States, he married Egan. Their Connecticut marriage license contained the representation by both Egan and Adebimpe that Adebimpe had previously been married and that that marriage had been terminated on February 14, 1991. In August 1992, Egan brought the present petition to have Adebimpe classified as an immediate relative. The petition stated that Adebimpe had previously been married; attached to the petition was, inter alia, a Biographic Form for Adebimpe stating that he had a prior marriage that had been terminated on February 14, 1991. In February 1993, Adebimpe filed an application for Permanent Residence which indicated that he had a prior marriage that had been terminated on February 14, 1991; Adebimpe signed an attestation clause affirming that the information he provided in the application form was true. The INS examiner informed Egan that her petition to have Adebimpe classified as an immediate relative on the basis that he was her spouse would not be granted unless she submitted a divorce decree proving that Adebimpe's earlier marriage to Folashade Adebimpe had been legally terminated, i.e., proof required by the INS regulation. In response, Egan submitted a divorce decree dated February 14, 1991, that purportedly had been issued by the Ikeja Customary Court in Nigeria. Because the document submitted by Egan was not accompanied by a Foreign Service Officer's certification of genuineness as required by 8 C.F.R. § 287.6 (1997), the INS examiner forwarded the document to the American Consulate in Nigeria for review. The Consulate thereafter notified INS of its belief that the document was fraudulent.

Egan and Adebimpe then took the position that the statement in Adebimpe's initial visa application that Adebimpe was married was itself untrue. If that statement was indeed false, and Adebimpe therefore had never been married, there would be no requirement that Egan show the dissolution of a prior marriage. Adebimpe thus submitted an affidavit stating that he had misrepresented his marital status to the American Consul in 1989, believing that married status would facilitate his obtaining a visa to enter the United States. Thereafter, he...