Almario v. Attorney General, 88-1134

• Decision Date: 07 April 1989
• Docket Number: No. 88-1134,88-1134
• Parties: Martha G. ALMARIO and Romeo G. Almario, Plaintiffs-Appellants, v. ATTORNEY GENERAL; Immigration and Naturalization Service, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 147

872 F.2d 147

57 USLW 2597

Martha G. ALMARIO and Romeo G. Almario, Plaintiffs-Appellants, v. ATTORNEY GENERAL; Immigration and Naturalization Service,

Defendants-Appellees.

No. 88-1134.

United States Court of Appeals,

Sixth Circuit.

Argued Dec. 8, 1988.

Decided April 7, 1989.

David K. Wenger, Detroit, Mich., Lucas Guttentag (argued), New York City, for Martha G. Almario and Romeo G. Almario.

L. Michael Wicks, Asst. U.S. Atty. (argued), Detroit, Mich., for Atty. Gen. and I.N.S.

Before KEITH, KENNEDY and MILBURN, Circuit Judges.

KEITH, Circuit Judge.

Appellants, Martha Goolsby Almario and her husband Romeo Almario, appeal the order of the district court granting summary judgment in favor of appellees, the Attorney General and the Immigration and Naturalization Service ("INS"). For the following reasons, we AFFIRM.

I.

Romeo Almario, a citizen of the Phillipines, entered the United States on a six month visitor's visa on March 17, 1985. When his temporary visa expired, INS extended it for an additional six months; however Mr. Almario failed to leave the United States. On January 26, 1987, INS placed Mr. Almario in deportation proceedings for remaining in the United States beyond the time permitted by his temporary visa. Admitting that he had overstayed, Mr. Almario requested voluntary departure by June 30, 1987. On June 29, 1987, Mr. Almario married a United States citizen, Martha Ann Goolsby. Mr. Almario did not leave on June 30th as scheduled. One week later, Mrs. Almario filed an "immediate relative" petition for her husband. INS denied the petition because the Immigration Marriage Fraud Act of 1986 ("IMFA") made Mr. Almario ineligible for "immediate relative" status, in that according to Section 5 of that act, any alien who marries a United States citizen during deportation or exclusion proceedings must leave the United States and remain abroad for two years before his citizen spouse may petition for him to return as a lawful permanent resident. On August 28, 1987, Mr. and Mrs. Alamario filed this lawsuit challenging the constitutionality of Section 5 of the IMFA and seeking to enjoin its enforcement against them.

On October 22, 1987, appellants filed a motion for summary judgment contending that Section 5 violated their due process and equal protection rights. INS filed a cross motion for summary judgment on November 12, 1987. On November 30, 1987, the Honorable Anna Diggs Taylor, United States District Judge for the Eastern District of Michigan, granted INS' motion for summary judgment. Appellants filed this appeal.

II. The Immigration Marriage Fraud Amendments of 1986

Since 1921, limits have been placed on the number of immigrants eligible for permanent resident status in the United States. At that time, six preference groups were created, the most preferred being "immediate relatives". ¹ Immediate relatives are excused from the numerical quotas imposed by the Immigration and Naturalization Act and are immediately eligible for certain benefits. ² An alien who marries a United States citizen is entitled to immediate relative status and is also eligible for a permanent resident visa.

To apply for "immediate relative" status, the United States citizen had to file an "I-130" petition on behalf of the alien spouse. An INS officer would review the petition and interview the couple to determine whether a bona fide marriage actually existed. If the petition was approved, the alien spouse was eligible for permanent resident status.

In 1986, Congress passed the IMFA in response to a growing concern about marriage fraud. In enacting the IMFA, Congress sought to limit the potential abuse of "immediate relative" status by postponing the receipt of the many benefits afforded an alien married to a citizen. Under the IMFA, an alien spouse is only entitled to a two year conditional status as a lawful permanent resident. At the end of the two year probationary period, the condition is removed after a personal interview with an INS official so long as the marriage is bona fide and has not been terminated. ³ 8 U.S.C. Sec. 1186a. Section 5 of the IMFA specifically applies to aliens who marry while involved in deportation or exclusion proceedings ⁴ and requires that the alien remain outside of the United States for two years after the date of marriage before becoming eligible to petition for "immediate relative" status. ⁵ Thus, if the marriage occurs any time after deportation proceedings have begun, the couple will not be allowed to prove that their marriage is legitimate and INS will not consider the I-130 petition until after the two year foreign residency requirement has been met. ⁶

III

Initially, appellants contend that the district court, by applying the minimum rationality standard, used the wrong standard of review to resolve their constitutional challenge to Section 5 of the IMFA. However, it is well established that judicial review of INS decisions is limited by the authority Congress retains over immigration matters. Fiallo v. Bell, 430 U.S. 787, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977); Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972); Shaughnessy v. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956 (1953); Chae Chan Ping v. United States, 130 U.S. 581, 9 S.Ct. 623, 32 L.Ed. 1068 (1889). The Supreme Court has long acknowledged that Congress' unfettered discretion over the admission or expulsion of aliens "is a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control." Shaughnessy, 345 U.S. at 210, 73 S.Ct. at 628. The Court also recognized that when exercising its power over aliens, "Congress regularly makes rules that would be unacceptable if applied to citizens." Mathews v. Diaz, 426 U.S. 67, 80, 96 S.Ct. 1883, 1891, 48 L.Ed.2d 478 (1976).

In Kleindienst, the Supreme Court affirmed the Attorney General's denial of a visa for a Marxist alien scholar even though this denial infringed on the first amendment rights of the United States citizens that wanted to hear him. The majority held that "when the Executive exercises the power ⁷ negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind, nor test it by balancing its justification against the first amendment interest of those who seek personal communication with the applicant." Kleindienst, 408 U.S. at 770, 92 S.Ct. at 2585.

Similar to the case at bar, Fiallo involved a constitutional challenge to a statute placing restrictions on petitions for "immediate relative" status. The statute in Fiallo denied "immediate relative" status to the illegitimate alien children whose natural fathers are United States citizens but granted petitions to those illegitimate children whose natural mothers are United States citizens. Fiallo, 430 U.S. at 789-90, 97 S.Ct. at 1476-77 (citing 8 U.S.C. Secs. 1101(b)(1)(D), 1101(b)(2)). Appellants in Fiallo raised constitutional claims similar to appellants' constitutional challenge to Section 5. ⁸ The Court upheld the statute by reemphasizing "the limited scope of judicial inquiry into immigration legislation." Id. 430 U.S. at 792, 97 S.Ct. at 1478.

Defending Congress' reasons for creating these classifications, the majority held that the political nature of immigration matters was better left to the province of the Executive or Legislative branches:

'The conditions for entry of every alien, the particular classes of aliens that shall be denied entry altogether, the basis for determining such classification, the right to terminate hospitality to aliens, the grounds on which such determination shall be based, have been recognized as matters solely for the responsibility of the Congress and wholly outside the power of this Court to control.'

Id. at 796, 97 S.Ct. at 1480 (quoting Harisiades v. Shaugnessy, 342 U.S. 580, 596-97, 72 S.Ct. 512, 522, 96 L.Ed. 586 (1952)). Similarly this court is equally limited in its review of Section 5 of the IMFA. The holdings of Kleindienst and Fiallo require that we exercise a very narrow standard of review assuming the classification at issue in this case is supported by a facially legitimate and bona fide reason.

IV.

Appellants challenge the constitutionality of Section 5 of the IMFA on due process and equal protection grounds. Appellants argue that Section 5 places an unreasonable burden on their fundamental right to marry; precludes a couple from proving the legitimacy of their marriage; unconstitutionally classifies among alien/citizen couples and creates an unconstitutional irrebuttable presumption that their marriage is a sham.

A. Procedural Due Process

The Supreme Court has held that appropriate procedural safeguards be provided before any person may be deprived of life, liberty or property. Board of Regents v. Roth, 408 U.S. 564, 569-70, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972). The Supreme Court has also extended the requirements of due process to aliens who have entered the United States. See, Mathews v. Diaz, 426 U.S. 67, 77, 96 S.Ct. 1883, 1890, 48 L.Ed.2d 478 (1976); The Japanese Immigrant Case, 189 U.S. 86, 100-01, 23 S.Ct. 611, 614-15, 47 L.Ed. 721 (1903); Wong Wing v. United States, 163 U.S. 228, 238, 16 S.Ct. 977, 981, 41 L.Ed. 140 (1896). However the individual must show that the interest is one protected by the Constitution or created by statute.

Appellants argue that Section 5 imposes an unreasonable burden on their fundamental right to marry because Mr. Almario must leave the country and his wife for two years before he will be eligible for permanent resident status. Although the separation may be avoided if Mrs. Almario leaves with him, the burden imposed by the statute is not relieved. Mrs. Almario, the citizen will have to choose between separation from her alien spouse during the first two years of their marriage and separation from her work, family, and the other benefits associated with living in the United States. App...