Adams v. Howerton

• Decision Date: 25 February 1982
• Docket Number: No. 80-5209,80-5209
• Citation: 673 F.2d 1036
• Parties: Richard Frank ADAMS and Anthony Corbett Sullivan, Plaintiffs-Appellants, v. Joseph D. HOWERTON, Acting District Director of the Immigration and Naturalization Service of the United States Department of Justice, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1036

673 F.2d 1036

Richard Frank ADAMS and Anthony Corbett Sullivan, Plaintiffs-Appellants, v. Joseph D. HOWERTON, Acting District Director of the

Immigration and Naturalization Service of the

United States Department of Justice,

Defendant-Appellee.

No. 80-5209.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 7, 1981.

Decided Feb. 25, 1982.

David M. Brown, Robert A. DePiano, Brown, Weston & Sarno, Beverly Hills, Cal., for plaintiffs-appellants.

Dzintra I. Janavs, Asst. U. S. Atty., Los Angeles, Cal., argued, for defendant-appellee; Andrea Sheridan Ordin, U. S. Atty., Eva S. Halbreich, Asst. U. S. Atty., Los Angeles, Cal., on brief.

Appeal from the United States District Court for the Central District of California.

Before WALLACE and TANG, Circuit Judges, and TURRENTINE, ^* District Judge.

WALLACE, Circuit Judge:

Adams, a male American citizen, and Sullivan, a male alien, appeal from the district court's entry of summary judgment for Howerton, Acting District Director of the Immigration and Naturalization Service (INS). The district court held that their homosexual marriage did not qualify Sullivan as Adams's spouse pursuant to section 201(b) of the Immigration and Nationality Act of 1952, as amended (the Act), 8 U.S.C. § 1151(b). We affirm.

I

Following the expiration of Sullivan's visitor's visa, Adams and Sullivan obtained a marriage license from the county clerk in Boulder, Colorado, and were "married" by a minister. Adams then petitioned the INS for classification of Sullivan as an immediate relative of an American citizen, based upon Sullivan's alleged status as Adams's spouse. The petition was denied, and the denial was affirmed on appeal by the Board of Immigration Appeals. Adams and Sullivan then filed an action in district court challenging this final administrative decision on both statutory and constitutional grounds. The parties agreed that there was no genuine issue as to any material fact and that the only issues presented were issues of law. On cross-motions for summary judgment, the district court entered judgment for the INS. Adams v. Howerton, 486 F.Supp. 1119 (C.D.Cal.1980). This appeal followed.

II

Two questions are presented in this appeal: first, whether a citizen's spouse within the meaning of section 201(b) of the Act must be an individual of the opposite sex; and second, whether the statute, if so interpreted, is constitutional.

Section 201(a) of the Act establishes immigration quotas and a system of preferential admissions based upon the existence of close family relationships. The section excludes immediate relatives of United States citizens from the quota limitations, which have been periodically revised by Congress. 8 U.S.C. § 1151(a). Section 201(b) defines "immediate relatives" to include the spouses of United States citizens. 8 U.S.C. § 1151(b). ¹ Section 201(b) was added to the Act in its present form by the Immigration and Nationality Act Amendments of 1965, Pub.L. No. 89-236, § 1, 79 Stat. 911. Neither that section nor any subsequent amendments further define the term "spouse" directly.

Cases interpreting the Act indicate that a two-step analysis is necessary to determine whether a marriage will be recognized for immigration purposes. The first is whether the marriage is valid under state law. The second is whether that state-approved marriage qualifies under the Act. Both steps are required. E.g., United States v. Sacco, 428 F.2d 264, 270 (9th Cir.) (construing 8 U.S.C. §§ 1302, 1306(a), 1451(a), (e)), cert. denied, 400 U.S. 903, 91 S.Ct. 141, 27 L.Ed.2d 140 (1970). This same two-step analysis is appropriate under section 201(b). We first consider the validity of the marriage under state law.

In visa petition proceedings addressing this question, the Board of Immigration Appeals has held that the validity of a marriage is governed by the law of the place of celebration. See In re Gamero, 14 I. & N. Dec. 674 (B.I.A.1974). See also Gee Chee On v. Brownell, 253 F.2d 814, 817 (5th Cir. 1958). Because a valid marriage is necessary for spouse status under the immigration laws, In re P., 4 I. & N. Dec. 610, 613 (B.I.A.1952), we look to Colorado law to determine whether the Adams-Sullivan marriage is valid.

Adams and Sullivan argue, in effect, that we need not reach this question because each is a putative spouse under Colorado law. They claim that they held a good faith belief that they were married. The district judge rejected this claim as without merit, observing that Adams and Sullivan could not have been without doubts concerning the validity of their marriage. 486 F.Supp. at 1123. We need not reach the issue. Even if Adams and Sullivan held a good faith belief that they were legally married, it is clear that the provisions of Colorado law they cite were enacted not to confer validity on the marriage of a putative spouse, but rather to protect property rights and insure support for children when the invalidity of such a marriage is discovered. See Colo.Rev.Stat. § 14-2-111 (1973).

It is not clear, however, whether Colorado would recognize a homosexual marriage. There are no reported Colorado cases on the subject. The Colorado Attorney General in an informal, unpublished opinion addressed to a member of the Colorado legislature three days after the alleged marriage in question occurred, stated that purported marriages between persons of the same sex are of no legal effect in Colorado. Colorado statutory law, however, neither expressly permits nor prohibits homosexual marriages. Some statutes appear to contemplate marriage only as a relationship between a male and a female. See Colo.Rev.Stat. § 14-2-104 (1973) ("Formalities. Marriage between a man and a woman, licensed, solemnized, and registered ... is valid in this state.").

While we might well make an educated guess as to how the Colorado courts would decide this issue, it is unnecessary for us to do so. ² We decide this case solely upon construction of section 201(b), the second step in our two-step analysis.

III

Even if the Adams-Sullivan marriage were valid under Colorado law, the marriage might still be insufficient to confer spouse status for purposes of federal immigration law. So long as Congress acts within constitutional constraints, it may determine the conditions under which immigration visas are issued. Therefore, the intent of Congress governs the conferral of spouse status under section 201(b), and a valid marriage is determinative only if Congress so intends.

It is clear to us that Congress did not intend the mere validity of a marriage under state law to be controlling. Although the 1965 amendments do not define the term "spouse," the Act itself limits the persons who may be deemed spouses. Section 101(a)(35) of the Act specifically provides that the term "spouse" does not include

a spouse, wife, or husband by reason of any marriage ceremony where the contracting parties thereto are not physically present in the presence of each other, unless the marriage shall have been consummated.

8 U.S.C. § 1101(a)(35). Furthermore, valid marriages entered into by parties not intending to live together as husband and wife are not recognized for immigration purposes. Garcia-Jaramillo v. INS, 604 F.2d 1236, 1238 (9th Cir. 1979), cert. denied, 449 U.S. 828, 101 S.Ct. 94, 66 L.Ed.2d 32 (1980); Voliantis v. INS, 352 F.2d 766 (9th Cir. 1965). See also Lutwak v. United States, 344 U.S. 604, 611, 73 S.Ct. 481, 486, 97 L.Ed. 593 (1953); United States v. Sacco, supra, 428 F.2d at 269-71. Therefore, even though two persons contract a marriage valid under state law and are recognized as spouses by that state, they are not necessarily spouses for purposes of section 201(b).

We thus turn to the question of whether Congress intended that homosexual marriages confer spouse status under section 201(b). Where a statute has been interpreted by the agency charged with its enforcement, we are ordinarily required to accord substantial deference to that construction, and should follow it "unless there are compelling indications that it is wrong." New York Dept. of Social Services v. Dublino, 413 U.S. 405, 421, 93 S.Ct. 2507, 2517, 37 L.Ed.2d 688 (1973); Faulkner v. Watt, 661 F.2d 809, 812 (9th Cir. 1981); United States v. Standard Oil Co. of California, 618 F.2d 511, 518 (9th Cir. 1980). Thus, we must be mindful that the INS, in carrying out its broad responsibilities, has interpreted the term "spouse" to exclude a person entering a homosexual marriage.

While we do accord this construction proper weight, we base our decision primarily on the Act itself. See Southeastern Community College v. Davis, 442 U.S. 397, 411, 99 S.Ct. 2361, 2369, 60 L.Ed.2d 980 (1979); Usery v. First Nat'l Bank of Arizona, 586 F.2d 107, 111 (9th Cir. 1978). Nothing in the Act, the 1965 amendments or the legislative history suggests that the reference to "spouse" in section 201(b) was intended to include a person of the same sex as the citizen in question. It is "a fundamental canon of statutory construction" that, "unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning." Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 314, 62 L.Ed.2d 199 (1979). See Rhodes v. Republic Nat'l Life Ins. Co., 501 F.2d 1213, 1217 (9th Cir. 1974), cert. denied, 420 U.S. 928, 95 S.Ct. 1126, 43 L.Ed.2d 298 (1975). The term "marriage" ordinarily contemplates a relationship between a man and a woman. See Webster's Third New International Dictionary 1384 (1971); Black's Law Dictionary 876 (5th ed. 1979). The term "spouse" commonly refers to one of the parties in a marital relationship so defined. Congress has not indicated an intent to enlarge the ordinary meaning of those words. In the absence of such a congressional directive, it would be inappropriate for us to expand the meaning of the term "spouse" for immigration purposes. Consumer Prods. Safety Comm'n v. GTE Sylvania, Inc., ...