Ali v. INS

• Decision Date: 13 June 1986
• Docket Number: Civ. A. No. 85-4403-MA.
• Citation: 661 F. Supp. 1234
• Parties: Yolanda ALI and Mohamed Ali, on behalf of themselves and all other persons similarly situated, Plaintiffs, v. IMMIGRATION AND NATURALIZATION SERVICE, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

661 F. Supp. 1234

Yolanda ALI and Mohamed Ali, on behalf of themselves and all other persons similarly situated, Plaintiffs, v. IMMIGRATION AND NATURALIZATION SERVICE, et al., Defendants.

Civ. A. No. 85-4403-MA.

United States District Court, D. Massachusetts.

June 13, 1986.

COPYRIGHT MATERIAL OMITTED

William G. Southard, Bingham, Dana & Gould, Marjorie Heins, Mass. Civil Liberties Union Foundation, Boston, Mass., for plaintiffs.

Susan Winkler, Asst. U.S. Atty., Boston, Mass., for defendants.

MEMORANDUM AND ORDER

MAZZONE, District Judge.

This action challenges the constitutionality of the Immigration and Naturalization Service's (INS) marriage petition process. An alien married to an American citizen is entitled to immediate relative status and is exempt from the usual quota restrictions on immigration. Because such marriages can also be mere devices to circumvent immigration restrictions, the INS scrutinizes marriage petitions filed on behalf of alien spouses. Plaintiffs Yolanda Ali, an American citizen, and Mohamed Ali, her alien spouse, believe that the INS' skepticism leads it to handle marriage petitions in an unfairly abrupt manner and to apply undue pressure on the couple to admit their marriage is a sham. Accordingly, plaintiffs seek an injunction requiring the INS to adopt new procedures for verifying marriages such as theirs. They also want deportation proceedings against Mohamed Ali postponed and they seek to recover money damages for violations of their constitutional rights.

Defendants are Allen W. Provencal and Robert Molvar, two INS criminal investigators; Charles T. Cobb, director of INS District 2 (which includes Massachusetts, Rhode Island, Connecticut and most of New Hampshire); Alan C. Nelson, Commissioner of the INS; and, Edwin Meese III, Attorney General of the United States, who is charged with administering the federal immigration and naturalization laws. Only defendants Provencal and Molvar are sued for money damages.

Plaintiffs seek also to represent a class of persons made up of American citizens, permanent residents and their alien spouses residing in the United States who have filed marriage petitions with the INS' District 2 office. Plaintiff, however, have not moved to certify a class and the difficult questions of whether their complaint states a claim which is appropriate for a class action and, if so, whether the Alis are properly representative plaintiffs are not before me today.

The INS has moved to dismiss the Alis' complaint for lack of subject-matter jurisdiction; failure to exhaust administrative remedies; ripeness; failure to state a claim on which relief can be granted; and official immunity. The parties briefed the legal questions raised by the INS' motion to dismiss the Alis' complaint with vigor and at great length. The INS filed a forty-nine page memorandum of law. In opposition, the Alis filed an eighty-five page memorandum of law, with appendices. Following oral argument, the Alis filed a ten-page supplemental memorandum which prompted an INS reply brief. While in the main helpful, much of this argumentation is unnecessarily prolix and serves to obscure the important issues involved. Unfortunately, this type of presentation requires this lengthy memorandum in kind. As this litigation proceeds the parties must sift and refine their arguments.

After carefully considering the pleadings and oral argument, and a particularly close reading of the decision in Stokes v. INS, 393 F.Supp. 24 (S.D.N.Y.1975), I am persuaded by some of the INS' contentions, but the principal claims survive, at least at this point, and this case will proceed on those claims.

I.

A.

To clarify the complaint, I begin with a brief sketch of the Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101-1503 (1982), and its governing regulations.

Immediate relatives of United States citizens are exempt from the numerical quota restrictions on immigration set by the INA. 8 U.S.C. § 1151(a), (b).¹ Immediate relatives of permanent resident aliens, although subject to quotas, receive preference over all immigrants except the unmarried children of American citizens, and can usually secure an immigrant visa within a year. 8 U.S.C. § 1152(e)(1), (2). Other immigrants who are in lower preference categories, may have to wait as long as fifteen years to obtain an immigrant visa. See Note, The Constitutionality of the INS Sham Marriage Investigation Policy, 99 Harv.L.Rev. 1238, 1240 n. 13 (1986).

Section 204 of the INA, 8 U.S.C. § 1154, does not prescribe procedures to be followed in determining whether an alien is married to an American citizen or permanent resident. Rather, it delegates this authority to the Attorney General, who must decide "after an investigation of the facts in each case," whether preferential immediate relative status should be granted. 8 U.S.C. § 1154(b).² The Attorney General has, in turn, delegated this task to the INS.

The INS has adopted broad investigatory procedures to ferret out sham marriages, entered into solely for the purpose of circumventing the immigration law. 8 C.F.R. §§ 103.2, 204.1(a), 204.2(a) (1985). These procedures require the citizen or resident spouse to obtain approval from the INS of a petition, known as Form I-130, on behalf of the alien spouse. Marriages are scrutinized to determine a couple's intent at the time of their marriage, see Lutwak v. U.S., 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed.2d 593 (1953), which is evaluated based on their testimony at a marriage interview and on their conduct as a couple after their marriage. Often the husband and wife are interviewed separately to check for discrepancies between their answers. U.S. Immigration & Naturalization Service, Examinations Handbook, III-13. The INS "often inquires whether the alien spouse's name appears on insurance policies, leases, income tax forms, or bank accounts." 1 C. Gordon & H. Rosenfeld, Immigration Law and Procedure, § 2.18a, at 2-153 (rev. ed. 1985). The INS may "ask questions about the couple's courtship, their wedding ceremony, the decor of their residence, the division of household chores, or what they had for breakfast on the morning of the interview." Note, 99 Harv.L.Rev. at 1242. Questions about a couple's sex life before and after their marriage are not uncommon. Id. at 1242-43. Neither the INA nor its regulations, however, provide for an evidentiary hearing prior to the INS' determination of whether a marriage is genuine.

If the marriage petition is approved, the alien spouse must apply for "adjustment of status" to "alien lawfully admitted for permanent residence." 8 U.S.C. § 1255.³ A couple typically files the marriage petition and the application for adjustment simultaneously.

B.

Turning next to the Alis' complaint, it is accepted that the facts alleged there must be construed in the light most favorable to the Alis and taken as admitted for purposes of this motion to dismiss, Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Demars v. General Dynamics Corp., 779 F.2d 95, 100 (1st Cir.1985), and also that the Alis' complaint will not be dismissed for failure to state a claim "unless it appears beyond doubt that the Alis can prove no set of facts in support of their claim which would entitle them to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).

Mohamed Abdi Ali, a twenty-eight year old Somalian citizen, was admitted to the United States in November, 1980, as a non-immigrant student, authorized to stay until June 15, 1982. On June 25, 1982, Ali married a natural born American citizen, Yolanda Odessa Cunningham, in a civil ceremony held in Boston.

The Alis filed a marriage petition and an application for adjustment of status on September 10, 1982. An INS examiner who spoke with the Alis was skeptical of their marriage. In the investigation which followed, INS officials spoke to the manager of an apartment building listed by the Alis' as their residence; to a neighbor; to Mohamed Alis; and, to two of his roommates. The investigators concluded that the Alis' marriage was a sham.

After several postponements, the Alis appeared at the District 2 INS office in Boston on September 16, 1984, accompanied by their attorney, Harvey Kaplan, for a marriage interview.

The INS examiner first proposed a visit to the Alis' residence, and the Alis agreed. Two INS investigators, Provencal and Molvar, took the Alis in an INS car. The Alis say that as a ploy to separate them, their attorney was not allowed to ride with them. Kaplan told the investigators not to speak to the Alis.

Once alone with the Alis, however, Yolanda Ali stated that the INS investigators yelled at her, warning her she faced jail if she did not admit that her marriage was a sham. Frightened, Yolanda Ali admitted that she lived at her mother's house several days each week; her mother has custody of Yolanda Ali's six year old daughter. Mohamed Ali was immediately arrested, handcuffed and returned to the INS office. Questioning of Yolanda Ali continued and she was told to avoid Kaplan. She signed an affidavit which stated that Mohamed Ali offered her $1,000.00 to marry him and that she had never lived with him. She also signed an INS form withdrawing her marriage petition on behalf of Mohamed Ali. When Kaplan arrived, she refused to speak to him.

Three months later, in December, 1984, Yolanda Ali filed a second marriage petition on behalf of Mohamed Ali, and an affidavit explaining that she was confused and nervous when she withdrew her first petition. At the same time, Mohamed Ali filed a renewed application for adjustment of status. Deportation proceedings against Mohamed Ali were continued pending a decision on Yolanda Ali's marriage petition.

A marriage interview was scheduled for June 25, 1985. Kaplan tried unsuccessfully before the hearing to get copies of all documents the INS examiner would use in judging the marriage petition....