Anetekhai v. I.N.S., s. 88-3191

Decision Date12 July 1989
Docket NumberNos. 88-3191,s. 88-3191
Citation876 F.2d 1218
PartiesPaul and Mona ANETEKHAI, Plaintiffs-Appellants, v. IMMIGRATION AND NATURALIZATION SERVICE, Defendant-Appellee. & 88-3450.
CourtU.S. Court of Appeals — Fifth Circuit

Catherine Lampard, Malvern C. Burnett, New Orleans, La., for plaintiffs-appellants.

Lucas Guttentag, ACLU, Immigration Task Force, New York City, William Patrick Quigley, ACLU of La., New Orleans, La., for amicus-ACLU.

Peter D. Williamson, Kelly A. Chaves, Houston, Tex., for amicus-Bright & Marcia.

David V. Bernal, Atty., Office of Imm. Lit., Civ. Div., U.S. Dept. of Justice, Washington, D.C., Renee Clark McGinty, Asst. U.S. Atty., John P. Volz, U.S. Atty., New Orleans, La., for defendant-appellee.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before ALDISERT *, REAVLEY and HIGGINBOTHAM, Circuit Judges.

REAVLEY, Circuit Judge:

Appellants Paul and Mona Anetekhai brought this suit challenging the constitutionality of Section 5(b) of the Immigration Marriage Fraud Amendments of 1986 ("IMFA"), 8 U.S.C. Sec. 1154(h). The district court, holding that Sec. 1154(h) is constitutional, entered judgment in favor of the Immigration and Naturalization Service ("INS") and dismissed the Anetekhais' complaint. We affirm.


The Immigration and Nationality Act, 8 U.S.C. Sec. 1101 et seq., provides that "immediate relatives" of United States citizens are exempt from statutorily imposed numerical immigration quotas. 8 U.S.C. Sec. 1151(a). Accordingly, an alien who qualifies as an "immediate relative" is granted resident status ahead of thousands of other aliens who seek to immigrate to the United States each year. A spouse of a United States citizen is by definition an "immediate relative." 8 U.S.C. Sec. 1151(b). 1

Prior to the enactment of the IMFA in 1986, any United States citizen claiming that his or her alien spouse was entitled to immediate relative status could seek an adjustment in status for the alien spouse simply by "fil[ing] a petition with the Attorney General for such classification." 8 U.S.C. Sec. 1154(a). If, after an investigation, the Attorney General determined that the facts stated in the petition were true--in other words, if the Attorney General concluded that the marriage was bona fide--then the status of the alien spouse was adjusted to that of permanent resident alien. 8 U.S.C. Sec. 1154(b). If, on the other hand, the Attorney General determined that the marriage had been entered into fraudulently for the purpose of obtaining immigration benefits, no adjustment in status was made.

Perceived abuses of this process and the difficulty of ferreting out sham marriages prompted Congress to enact the IMFA. Under the IMFA, an alien who marries a United States citizen while no deportation proceedings are pending against him receives a two-year conditional adjustment of status so long as the investigation into the facts surrounding the marriage reveal that it is bona fide. See generally 8 U.S.C. Sec. 1186a. In order for the conditional status to be removed at the end of the two-year period, the couple must submit a joint petition to the Attorney General in accordance with statutory requirements and must appear for a personal interview. 8 U.S.C. Sec. 1186a(c)(1). If the Attorney General concludes that the facts and information provided by the couple are true, the condition is removed and the alien spouse obtains full permanent resident status. 8 U.S.C. Sec. 1186a(c)(3)(B).

The procedure that a couple must follow in order for the alien spouse to obtain preferential status is different if, at the time of the marriage, the alien is involved in deportation proceedings. In that case the alien spouse is required to reside outside the United States for a two-year period before he or she may obtain an adjustment in status based on the marriage. 8 U.S.C. Sec. 1154(h) 2 and Sec. 1255(e). 3 It is this aspect of the IMFA which is at issue here.

In January 1982, Paul Anetekhai, a Nigerian citizen, entered the United States on a nonimmigrant student visa. In February 1986, the INS, having discovered that Paul was employed without authorization, commenced deportation proceedings against him. Also in early 1986, Paul met and began dating Mona Morris; they married in January 1987. Believing that his marriage to a United States citizen would entitle him to an immediate adjustment in status and thus make the deportation proceedings unnecessary, Paul moved to dismiss the proceedings. The immigration judge denied the motion and, finding Paul deportable, granted him until January 31, 1988, to depart voluntarily from the United States. The INS later extended the date for departure to February 28, 1988.

The Anetekhais filed this lawsuit on February 26, 1988, seeking declaratory and injunctive relief. In the original complaint they alleged that Sec. 1154(h) is unconstitutional in that it violates their rights to equal protection and due process under the Fifth Amendment as well as their "First Amendment rights to privacy and association." In their first amended complaint, the Anetekhais asserted that Sec. 1154(h) also violates the Ninth and Tenth Amendments. The district court, relying on Fiallo v. Bell, 430 U.S. 787, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977) and In re Longstaff, 716 F.2d 1439 (5th Cir.1983), cert. denied, 467 U.S. 1219, 104 S.Ct. 2668, 81 L.Ed.2d 373 (1984), held that Sec. 1154(h) is constitutional and wrote that "[w]e decline to substitute our judgment for that of Congress. It is within Congress' plenary power over immigration matters to impose, for the purpose of deterring fraudulent marriages, a 2-year non-residency requirement for aliens who marry U.S. citizens while subject to deportation proceedings." Anetekhai v. INS, 685 F.Supp. 599, 601 (E.D.La.1988). The Anetekhais appeal from the district court's dismissal of their complaint.


In addressing the constitutionality of an immigration provision, "it is important to underscore the limited scope of judicial inquiry into immigration legislation." Fiallo, 430 U.S. at 792, 97 S.Ct. at 1478. The broad power that Congress possesses to decide not only which classes of aliens may enter the United States but also the terms and conditions of their entry cannot be disputed. See Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320, 339, 29 S.Ct. 671, 676, 53 L.Ed. 1013 (1909) ("But over no conceivable subject is the legislative power of Congress more complete than it is over" the admission of aliens.). In 1895, Justice Harlan wrote that

[t]he power of congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications.

Lem Moon Sing v. United States, 158 U.S. 538, 547, 15 S.Ct. 967, 970, 39 L.Ed. 1082 (1895). The Supreme Court has reaffirmed this principle repeatedly over the years. See Harisiades v. Shaughnessy, 342 U.S. 580, 596-97, 72 S.Ct. 512, 522-23, 96 L.Ed. 586 (1952) (Frankfurter, J., concurring); Shaughnessy v. United States, 345 U.S. 206, 210, 73 S.Ct. 625, 628, 97 L.Ed. 956 (1953); Kleindienst v. Mandel, 408 U.S. 753, 766, 92 S.Ct. 2576, 2583, 33 L.Ed.2d 683 (1972); Fiallo, 430 U.S. at 792, 97 S.Ct. at 1478. The Court also has recognized that, in exercising its broad discretion over immigration, "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).

The Anetekhais do not deny that, ordinarily, courts should be highly deferential in reviewing congressional enactments in the areas of immigration and naturalization. They argue, however, that we should apply strict scrutiny in analyzing the immigration provision at issue here since Sec. 1154(h) "affects Mona's fundamental rights in the domestic area." The Supreme Court rejected this very argument in Fiallo. There, the appellants, who were three sets of unwed natural fathers and their illegitimate offspring, challenged as unconstitutional that part of the INA which granted "immediate relative" status to illegitimate children whose natural mothers were United States citizens but denied that status to those whose natural fathers were United States citizens. 4 The Court conceded that the case before it implicated "the fundamental constitutional interests of United States citizens ... in a familial relationship," Fiallo, 430 U.S. at 794, 97 S.Ct. at 1479, yet ultimately rejected the appellants' suggestion that, based on that fact, a more searching judicial scrutiny was required. Instead, the Court applied only minimum scrutiny in analyzing the statute. Noting that, with respect to each legislative policy distinction drawn in the area of immigration, "it could be argued that the line should have been drawn at a different point," the Court wrote that "these are policy questions entrusted exclusively to the political branches of our Government and we have no judicial authority to substitute our political judgment for that of Congress.... [I]t is not the judicial role in cases of this sort to probe and test the justifications for the legislative decision." Id. at 798-99, 97 S.Ct. at 1481-82.

Of prime importance in the Court's decision to review the INA provisions challenged in Fiallo with such deference was its conclusion that at issue there were the rights of the alien children, not the rights of United States citizens. Indeed, it was this very point which divided the majority from the dissent. Fiallo, 430 U.S. at 795 n. 6, 97 S.Ct. at 1479 n. 6. Similarly, in this case we are concerned with whatever rights Mr. Anetekhai, the alien spouse, may possess--not the rights of Mrs. Anetekhai. 5 That Mrs. Anetekhai asserts her fundamental right to marry here does not alter our analysis. 6 In Fial...

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