Dulai v. I.N.S.
| Citation | 42 F.3d 1399 |
| Decision Date | 14 July 1994 |
| Docket Number | No. 93-70036,93-70036 |
| Parties | NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Gurchuran Singh DULAI Plaintiff-Appellant, v. IMMIGRATION & NATURALIZATION SERVICE, Defendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Before: GOODWIN, D.W. NELSON, and HALL, Circuit Judges.
This case hinges on the validity of a 1981 divorce between petitioner Gurcharan Singh Dulai ("Dulai") and his first wife, Joginder Kaur. Both the Board of Immigration Appeals ("BIA") and the Immigration Judge ("IJ") found that the divorce was invalid. Substantial evidence supports that conclusion, therefore, the ruling below must be affirmed.
Dulai was born in the Village of Sangatpur, Jalandhar District, India in 1942 and married Joginder Kaur ("Kaur") in 1959. In 1981, after Dulai had illegally entered this country, he learned that his wife, Kaur, was seeking a divorce and sent a power of attorney to his father so that his father could represent him in village divorce proceedings. Dulai claims that the Gram Panchayat ("Village Committee") granted the divorce according to local custom. In February 1983, Dulai married a U.S. citizen named Virginia Laure Neslin. That marriage was annulled on August 11, 1983, apparently because Neslin was already married to someone else. Days later, on August 20, 1983, Dulai married another American woman, Linda Lee ("Lee"). Soon after, Lee requested visas for Dulai and his five children who remained in India. The INS approved the petitions and forwarded the case to the U.S. Consul in New Delhi to process the visas for the five children.
While conducting routine interviews of the children, a consular officer in New Delhi became suspicious of the alleged 1981 divorce. In the months the followed, authorities traveled to Dulai's home village of Sangatpur to investigate the 1981 divorce. Apparently in response to this investigation, Dulai's first wife obtained a judicial decree from a Sub-Judge in 1985 confirming their divorce. Application for this declaratory judgment was made through the "Sondhi Travel Agent," an agency known to the Department of State to fabricate documents.
Around the same time, petitioner Dulai and his new wife Linda Lee were arrested and charged with participating in a sham marriage ring. Authorities alleged that Dulai had been involved in a scheme to assist others in entering into fraudulent marriages for immigration purposes. Dulai pleaded guilty in June 1986 to a charge of concealing information from a federal agency and possession of false papers to defraud the United States under 18 U.S.C. Sec. 1001 and Sec. 1002.
By this time, Department of State investigators had concluded that Dulai's 1981 divorce, and therefore his remarriage and previously issued immigrant visa, were invalid. In INS deportation proceedings, both the IJ and BIA found that Dulai's 1981 divorce was invalid. This BIA decision is the subject of the present appeal.
The scope of our review of BIA decisions is limited. On petition for review, we must affirm if there is reasonable, substantial, and probative evidence to support the BIA's decision that the INS carried its burden of proving deportability. 8 U.S.C. 1105a(a)(4) (1970); Hernandez-Robledo v. INS, 777 F.2d 536, 539 (9th Cir.1985). We may not reverse simply because the evidence admits of more than one conclusion or because we disagree with the BIA's evaluation of the facts. See INS v. Elias-Zacarias, 112 S.Ct. 812, 815 (1992) ( Sec. 1105a(a)(4)). Rather, an alien who seeks review of the BIA's determination "must show that the evidence presented was so compelling that no reasonable fact-finder could fail" to rule in his favor. Id. at 817. Dulai's evidence clearly does not meet this stringent standard.
Dulai argues that his alleged 1981 divorce was a valid customary dissolution of marriage under the Hindu Marriage Act of 1955 ("Marriage Act"). 1 The Marriage Act permits married couples to divorce in accordance with local custom and without judicial intervention. See Marriage Act Sec. 29(2).
Under the Marriage Act, the threshold question is whether local custom in Dulai's home village of Sangatpur recognized extrajudicial divorce by mutual consent. Marriage Act at Sec. 3(a) (). The INS presented substantial evidence that no such local custom exists.
Specifically, the IJ and the BIA relied upon two Library of Congress memoranda in finding that the claimed customary divorce was invalid. The 1986 Library of Congress memorandum prepared by Krishan Nehra, Senior Legal Specialist, American-British Law Division, outlined the requirements that must be met to establish a valid customary divorce under Indian law and concluded that Dulai's Indian divorce did not meet these requirements. In its 1987 memorandum, also prepared by Nehra, the Library of Congress confirmed its 1986 determination that Dulai's customary Indian divorce was invalid, specifically explaining that the 1985 declaratory judgment obtained by Kaur from the Sub-Judge First Class did not substantiate the validity of Dulai's customary divorce.
The Library of Congress memoranda were particularized to this case both in law and fact, and specifically addressed whether Dulai complied with the requirements for establishing the validity of a customary divorce under Indian law. The content of the memoranda indicates that Mr. Nehra researched the matter thoroughly before concluding that Dulai's customary divorce was invalid. At a minimum, one can safely say that the Library of Congress memoranda presented enough evidence to permit a reasonable fact-finder to find for the INS.
Moreover, in cases such as this one in which American tribunals must apply unfamiliar, foreign law, particularly unwritten, customary law, Library of Congress research deserves considerable evidentiary weight. In the present case, the BIA was entitled to rely on the memoranda for guidance on this difficult question, as it has relied on Library of Congress research in the past. See Matter of Nwangwu, 16 I. & N.Dec. 61, 62 (BIA1976) (); Matter of Akinola, 15 I. & N.Dec. 359, 360 (BIA1975) (same); see also Cheung Tai Poon v. INS, 707 F.2d 258, 259 (6th Cir.1983) ().
Dulai has presented a substantial body of evidence tending to show that his 1981 divorce was a valid customary divorce, including an affidavit from a local government official, affidavits from his family, and a 1985 declaration by a Sub-Judge First class. 2 Dulai has arguably presented substantial enough evidence to support a BIA finding in his favor. The BIA, however, did not find in Dulai's favor, so Dulai must meet the Elias-Zacharias standard for this court to reverse.
Given the strength of the Library of Congress memoranda and the reasoned holdings of both the IJ and BIA, it is absurd to argue that Dulai's evidence was "so compelling that no reasonable factfinder could fail to find" in his favor. INS v. Elias-Zacarias, 112 S.Ct. at 817 (1992). This is particularly true when Dulai's evidence is viewed in the light of his prior conviction for marriage fraud and his gamesmanship with travel agents and available American brides.
Because no compelling basis appears in the record for us to substitute our evaluation of the weight and credibility of the evidence for that of the agency chosen by Congress to make those decisions, the judgment is AFFIRMED.
The majority appears to have allowed its disapproval of Dulai's current marriage and prior peripheral involvement in a marriage fraud ring to color its assessment of the evidence in this case. As a result, the majority shows extraordinary deference to the BIA and allows a mere simulacrum of evidence to suffice. I respectfully dissent.
The only question in this case is whether Dulai's customary divorce, witnessed and recorded by the Village Committee in the records that the Committee keeps according to statutory mandate, is valid. The Marriage Act specifically acknowledges the validity of extra-judicial customary divorce. Deol, an Indian government Secretary who was responsible for many years for the block of Village Committees including Sangatpur, provided a sworn affidavit that the Village Committee was empowered to grant Dulai's customary divorce. The BIA erroneously refused to credit Deol's affidavit, even though Indian case law gives significant weight to such an official's testimony regarding the existence of customs. See, e.g., Prasad v. Devi, 1972 A.I.R. (Punjab and Haryana) 119, 121 (recognizing a custom of divorce by mutual consent upon key testimony by the Secretary supporting the custom); Madhavrao v. Raghavendrarao, 1946 A.I.R. (Bombay) 377, 380 ( that the "general opinion of members of the community or elders, who are likely to know the existence of the custom, is entitled to great weight even though they may not be able to give specific instances").
The majority relies on an untrustworthy U.S. Embassy investigative report to suggest that Dulai indulged in "gamesmanship" by having a travel agency fabricate documents connected with the 1985 declaratory judgment. The Embassy report is unreliable for several reasons. The investigator did not interview Dulai's former wife, the Sub-Judge, or members of the Village Committee. There is no indication that the investigator examined...
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