Braun v. I.N.S.

• Decision Date: 12 May 1993
• Docket Number: No. 91-70720,91-70720
• Citation: 992 F.2d 1016
• Parties: Victor E. BRAUN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1016

992 F.2d 1016

Victor E. BRAUN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 91-70720.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 16, 1993.

Decided May 12, 1993.

Roger C. Wolf, Tucson, AZ, for petitioner.

Stewart Deutsch, Office of Immigration Litigation, Dept. of Justice, Washington, DC, for respondent.

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

Before SCHROEDER, PREGERSON, and D.W. NELSON, Circuit Judges.

D.W. NELSON, Circuit Judge:

Victor E. Braun ("Braun") appeals the decision of the Board of Immigration Appeals ("BIA") finding him statutorily ineligible for a waiver of deportation under Section 241(f) of the Immigration and Nationality Act, 8 U.S.C. § 1251(f) ("the Act"). Braun also appeals the BIA's alternative ruling that, even if it had found him to be statutorily eligible, it still would exercise its discretion to deny a waiver in his case. We reverse, holding that Braun was statutorily eligible for a waiver, and that the BIA abused its discretion in denying the waiver.

I. FACTUAL AND PROCEDURAL BACKGROUND

Braun is a native and citizen of Mexico who entered the United States as a lawful permanent resident in 1974 as the spouse of a United States citizen, Romelia Cruz Duarte ("Duarte"). Braun had married Duarte in Mexico on February 27, 1974, admittedly for the sole purpose of obtaining an immigrant visa. Approximately one year later, he divorced Duarte and married Bertha Rosalva Hernandez-Martinez ("Hernandez-Martinez"), a Mexican citizen who had entered the United States on a border crossing card. Braun and Hernandez-Martinez had a United States citizen child in 1975. With the exception of short visits to Mexico, the family has resided continuously in the United States since 1975.

When Braun applied for citizenship, it was determined that he had previously married Hernandez-Martinez in Mexico in 1973, a marriage which remained in effect when Braun married Duarte in 1974. It was also determined that Braun had a child with Hernandez-Martinez in Mexico before he married Duarte. Braun failed to mention both the marriage and his child on his visa application.

As a result, on April 10, 1985, the Immigration and Naturalization Service ("INS") issued an Order to Show Cause charging Braun with deportability under Section 241(a)(1) of the Act, 8 U.S.C. § 1251(a)(1), as an alien excludable under Sections 212(a)(14) and 212(a)(20), 8 U.S.C. §§ 1182(a)(14) and (20), for having entered the United States without a valid labor permit and without valid immigration documents.

At a hearing before an immigration judge on July 17, 1985, Braun argued for a waiver of deportability under Section 241(f) of the Act, 8 U.S.C. § 1251(f). ¹ This section provides for a discretionary waiver of deportability for an alien who is the spouse, parent, or child of a United States citizen, and who was excludable at the time of entry as an alien who procured a visa by fraud. This section further requires that the alien be "otherwise admissible."

The INS argued that Braun was not statutorily eligible for a waiver of deportation on the grounds that he was not "otherwise admissible" because he had committed bigamy, a crime of moral turpitude which would make him excludable under § 212(a)(9) of the Act, which excludes:

aliens who have been convicted of a crime involving moral turpitude (other than a purely political offense), or aliens who admit having committed such a crime, or aliens who admit committing acts which constitute the essential elements of such a crime.

8 U.S.C. § 1182(a)(9). Braun testified that he did not terminate his first marriage to Hernandez-Martinez because he believed that it was invalid. He stated that before he married Duarte, he consulted a Mexican attorney who erroneously informed him that the first marriage was invalid because Braun was underage at the time of the marriage and had not obtained parental consent.

The immigration judge found Braun eligible for a waiver under § 241(f). She granted the waiver primarily on the hardship it would cause Braun's U.S. citizen child to be returned to Mexico: the child was not fluent in Spanish and had a learning disability for which there are no services in Mexico. The immigration judge also noted the equities in Braun's favor: he had never been convicted of any crimes, he had been steadily employed, he had paid income tax, and he owned a home in the United States.

The INS appealed to the BIA. Reversing, the BIA found that Braun was excludable under § 212(a)(9) as an alien who had admitted committing the essential elements of bigamy, a crime of "moral turpitude." The BIA further noted that even if Braun had been statutorily eligible, it would have denied him relief in an exercise of discretion under § 241(f). Though it noted Braun's "significant equities," the BIA determined that Braun had pursued an "elaborate plan" to defraud the United States by which he eventually brought his first wife to the United States after his own fraudulent entry. Braun timely appealed.

II. ANALYSIS

A. Eligibility for waiver of deportation under § 241(f).

We review de novo an agency's interpretation of a statute. Purba v. I.N.S., 884 F.2d 516, 517 (9th Cir.1989). We review the BIA's factual finding of statutory ineligibility for substantial evidence. Berroteran-Melendez v. I.N.S., 955 F.2d 1251, 1255 (9th Cir.1992). "The substantial evidence standard does not permit the Court to reverse the BIA solely because the Court disagrees with the BIA's evaluation of the facts, but requires that the BIA's conclusion, based on the evidence presented, be substantially reasonable." Id. (internal quotations omitted).

Congress enacted the § 241(f) waiver of deportation as a humanitarian gesture to preserve families comprised in part of United States citizens or lawful permanent residents. I.N.S. v. Errico, 385 U.S. 214, 225, 87 S.Ct. 473, 480, 17 L.Ed.2d 318 (1966). The effect of § 241(f) is to transform an individual who enters the United States with an invalid immigrant visa to the status of one who entered as a nonpreference immigrant, despite the fact that a valid immigrant visa would never have been available to the individual at the time of entry. See Matter of Anabo, 18 I & N Dec. 87 (1981). Because Braun entered with a fraudulent visa, procured via his sham marriage, and because he is the father of a U.S. citizen, Braun would be eligible for relief if he is determined to be "otherwise admissible" aside from his initial fraudulent entry.

The BIA stated that Braun maintained throughout the deportation proceedings that he did not intentionally commit bigamy because he believed his first marriage to be invalid. Paradoxically, however, the BIA concluded that Braun had "admitted to having committed the offense of bigamy in that he admits that he knowingly entered into a second marriage while [he] was already married to another individual" (emphasis added). Because the BIA determined that "bigamy is an offense which involves moral turpitude within the meaning of the immigration laws," it found that Braun was not "otherwise admissible" and, therefore, statutorily ineligible for relief under § 241(f).

The BIA erred in finding that Braun had admitted to the essential elements of bigamy. Though he did admit to marrying Duarte while validly married to Hernandez-Martinez, he did not admit that he did so knowingly. Because intent is an element of bigamy in Arizona, Braun did not admit to all of the essential elements of a crime of moral turpitude, as required by § 212(a)(9).

The Arizona bigamy statute in effect at the time of Braun's second marriage to Duarte provided that "[a] person having a spouse who marries any other person is guilty of a class 5 felony." Ariz.Rev.Stat.Ann. § 13-3606. Though not expressly stated in the statute, intent is an element of the crime; to obtain a conviction for bigamy, the state must prove that the defendant intended to marry two spouses. Ford v. State, 192 P. 1117, 1119 (1920).

The INS does not dispute that intent is required to obtain a conviction for bigamy in Arizona. The INS also concedes that Braun has never admitted to marrying a second time knowing he had a spouse living. The main point of disagreement is whether Braun in fact knew that his first marriage to Duarte was valid when he married Hernandez-Martinez. This inquiry, however, is not allowed under § 212(a)(9).

Section 212(a)(9) provides three means of finding an alien excludable for having committed a crime of moral turpitude; the alien must have been convicted of such a crime, must have admitted committing such a crime, or must have admitted committing acts which constitute the essential elements of such a crime. By limiting excludability to these three situations, Congress has precluded immigration officials from determining guilt or innocence. Section 212(a)(9) only contemplates exclusion of aliens who have been convicted or who freely and voluntarily admit their guilt. It does not contemplate exclusion of an alien by transforming a deportation hearing into a criminal trial.

In the instant case, Braun was not convicted of bigamy, nor did he admit to committing the crime or its essential elements. This is where the inquiry must end. Braun was not on trial for bigamy, and the BIA was not empowered to weigh evidence to find him guilty of that crime. Because Braun did not admit to the essential intent element of bigamy, the BIA erred in finding him excludable under § 212(a)(9).

B. Discretionary denial of waiver.

After finding Braun statutorily ineligible for a waiver, the BIA held in the alternative that, even if Braun had been eligible, it would have exercised its discretion to deny the waiver. This was an abuse of discretion, as the BIA improperly considered the initial fraudulent entry as an adverse factor.

We review the BIA's refusal to grant a waiver for an abuse of discretion. Hernandez-Robledo...