Whetstone v. Immigration and Naturalization Service

• Decision Date: 28 September 1977
• Docket Number: No. 75-2468,75-2468
• Citation: 561 F.2d 1303
• Parties: Gisela Irene WHETSTONE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Edward Levi, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1303

561 F.2d 1303

43 A.L.R.Fed. 892

Gisela Irene WHETSTONE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Edward Levi, Attorney General of the United States, Respondent.

No. 75-2468.

United States Court of Appeals, Ninth Circuit.

Sept. 28, 1977.

Lauren S. Kahn, Atty., U. S. Dept. of Justice, Washington, D. C., argued for respondent.

Peter A. Schey, Legal Aid Foundation, San Diego, Cal., for petitioner.

Petition to Review a Decision of the U. S. Immigration & Naturalization Service.

Before BARNES and SNEED, Circuit Judges, and HAUK, ^* District Judge.

BARNES, Senior Circuit Judge:

Petitioner, a 26 year old citizen of Germany, was admitted to the United States on June 10, 1971, as a non-immigrant fiancee until September 9, 1971. Petitioner was in possession of a visa issued pursuant to Sec. 101(a)(15)(K) of the Immigration Nationality Act (8 U.S.C. § 1101(a)(15)(K)) (herein "the Act") as the fiancee of Mr. Hamilton Larry Whetstone, an American citizen, 51 years of age. Petitioner married Whetstone on July 2, 1971 (but left him within 30 days and within three months of entry), and hence the Attorney General was required, unless (she) was found otherwise inadmissible, to record the lawful admission (of Mrs. Whetstone) for permanent residence. 8 U.S.C. § 1184(d). The record before us fails to disclose whether any such recordation took place. We presume it did not, for otherwise there would be no purpose in petitioner's filing an application for adjustment of status to permanent resident.

We need not concern ourselves with the six-year delay since the District Director's order of deportation issued on November 23, 1971. A deportation order does not become invalid or unenforceable through the mere lapse of time, whether caused by intentional acts of a petitioner or laches on the part of immigration officers, in the absence of prejudice to the alien affected. See Spector v. Landon, 209 F.2d 481, 482 (9th Cir. 1954); also United States v. Dekermenjian, 508 F.2d 812, 814 (9th Cir. 1974).

On October 20, 1971, petitioner filed an application for adjustment of status to permanent resident. This was denied by the District Director, and petitioner was ordered to depart before December 8, 1971. When she did not, an order to show cause was issued on December 15, 1971, charging that she was in the United States in violation of Sec. 241(a)(2) of the Act, 8 U.S.C. § 1251(a) (2), ¹ "because she has remained in this country beyond the authorized time."

Among the exhibits introduced by the Government (Ex. 2) at the second hearing was a letter dated November 23, 1971, from the Kansas District Director of the Immigration and Naturalization Service (herein "INS") stating reasons for the Government's first denial of her application, as follows:

"Your application has been denied as a matter of discretion because it has not been established that a bona fide and lasting marital relationship now exists." (Emphasis added.)

A "Bona fide and lasting marital relationship" is not defined in this 1971 order in this case, nor in the June 5, 1974 decision of the Immigration Judge.

At the second hearing before an Immigration Judge at San Ysidro, California, on June 5, 1974, petitioner admitted the facts contained in the six allegations of the Order to Show Cause, but denied the charge she had remained in the United States for a longer time than permitted.

She explained that she left her husband because he had no job, and had insisted on using her savings brought from Germany to support them both. Petitioner also admitted her marriage had not been consummated "in the usual way," admitted that she and her husband did not live together as man and wife sexually, but "we had satisfactory sex relations . . . in another way"; "the French way."

The Immigration Judge entered an order of deportation against petitioner on June 5, 1974. An appeal to the Board of Immigration Appeals was had. The order of the Immigration Judge was sustained, and the appeal dismissed on June 17, 1975. This Petition for Review to this court followed. We have jurisdiction. 8 U.S.C. § 1105a.

I. ISSUES.

Petitioner makes six arguments on appeal: the first, fourth and sixth essentially claim that she was denied due process; the second and third relate to an alleged "insufficiency of the evidence"; and the fifth contends that Title 8 U.S.C. § 1184(d) (see 214(d) of the Act) is mandatory, ² requiring the admission for permanent residence of an individual on "an intent to marry a United States citizen" visa, if the alien is otherwise admissible.

The INS states there are two issues: (1) is the petitioner deportable and not eligible to have her status adjusted; and (2) has petitioner received due process of law?

The INS urges that the alien "must prove he has entered into a bona fide marriage." Sec. 1184(d) does not use the term "bona fide marriage," but does state the Attorney General must approve a visa such as petitioner had

"only after satisfactory evidence is submitted by the petitioner to establish that the parties have a bona fide intention to marry and are legally able and actually willing to conclude a valid marriage in the United States within a period of ninety days after the alien's arrival." (Emphasis added.)

That the petitioner married Whetstone in Cecil County, Maryland, on July 2, 1971, within ninety days after her arrival, is undisputed. No attack is made on the validity of this marriage. The Government's concern is with the occurrences thereafter.

We turn to a consideration of the legal standards governing this court's obligation to review the administrative proceedings which have heretofore taken place. The administrative proceedings are based on civil process and thus the full panoply of safeguards applicable to a review of criminal proceedings are not required. Nai Cheng Chen v. I.N.S., 537 F.2d 566, 568 (1st Cir. 1976); Trias-Hernandez v. I.N.S., 528 F.2d 366, 368-369 (9th Cir. 1975). Yet, the decisions by the various INS hearing officers must rest upon reasonable, substantial, evidence having sufficient probative value to establish on the record, considered as a whole, a correct basis for deportation. 8 U.S.C. § 1105a(4), see also United States v. Gasca-Kraft,522 F.2d 149, 152 (9th Cir. 1975). Deportation on a charge not presented in the order to show cause, or at the hearing, would offend due process. Hirsch v. Immigration and Naturalization Service, 308 F.2d 562, 566 (9th Cir. 1962). ³

We note, and think it important to repeat, that no charge or finding of a sham or fraudulent marriage has been made against petitioner in the charges filed against her. Thus, no such issue was before the various hearing officers. Hirsch, supra, 308 F.2d at 566; Matter of Rios-Carillo, 10 IN 291 (1963).

II. THE DISTRICT DIRECTOR'S ORDER OF NOVEMBER 23, 1971.

The first adverse determination received by petitioner was based, by its terms, on the District Director's conclusion "it has not been established that a bona fide and lasting relationship now exists." We find no requirement in the statute that this test be met, or that a marriage, once lawfully performed according to state law, is to be deemed insufficient proof of "a valid marriage" merely because at some later time the marriage is either terminated, or the parties separate. The only proof in this case establishes that petitioner's marriage is not terminated. So far as the record discloses the facts, she is today married to Whetstone although they are not living together. There is no requirement that a marriage, entered into in good faith, must last any certain number of days, months or years. Much less is there any requirement that a bona fide and lasting marital relationship (whatever that may mean) exists as of the time the INS questions the validity of the marriage.

A full panoply of the various states' pride and integrity stands behind a validly performed ceremonial marriage. Many forms of marriage may occur. This is not a federal problem, but one for the individual states to regulate. It is for each to determine what marriages are valid. It might be argued that perhaps if an "arboreal marriage" occurs where no actual vows are exchanged, where no permit is issued by a state, where no record is made or kept of the marriage, where no respective solemn promises of any kind are made, where no pronouncement that a marriage has taken place is made by one of the particular functionaries designated by the particular state to perform marriages under any one of such unusual circumstances, a claimed "valid marriage" could be proved to be "non-valid."

But those are not the facts of the case before us. Mr. and Mrs. Whetstone were married and thereafter lived together in New York State as husband and wife. They were "united in marriage" in Cecil County, Maryland, by one E. Day Moore, Deputy Clerk of the Court in Elktown, Maryland, (License No. 6112) on July 2, 1971. That document is entitled to full faith and credit in determining whether a valid marriage has occurred.

III. THE IMMIGRATION JUDGE'S DECISION.

We next consider the Immigration Judge's decision of June 5, 1974. That decision initially considers the mandatory provisions of § 214(d) of the Act (as raised by petitioner), citing the Matter of Hays, I.D. 2162 (1972); ⁴ the Matter of Blair, I.D. 2154 (1972); ⁵ and the Matter of Zampetis, I.D. 2144 (1972). ⁶ Despite the holdings of those cases, the Judge's decision, incredibly, finds "it unnecessary to reach that question." He then decides the problem by stating:

"What little evidence there is persuades me that a bona fide marriage, entitling an alien to benefits under the immigration laws, has not been established. Although respondent testified that the marriage was satisfactory, I find her testimony, standing alone, not credible. As pointed out by the Acting Trial Attorney in his argument, respondent's spouse is more than 27 years her senior. While this by itself may not be significant,...