Azizi v. Thornburgh

• Decision Date: 02 August 1989
• Docket Number: Civ. No. H-87-957(AHN).
• Citation: 719 F. Supp. 86
• Court: U.S. District Court — District of Connecticut
• Parties: Saboet Elmazi AZIZI and Feim Azizi v. Richard L. THORNBURGH, Attorney General of the United States.

719 F. Supp. 86

Saboet Elmazi AZIZI and Feim Azizi v. Richard L. THORNBURGH, Attorney General of the United States.

Civ. No. H-87-957(AHN).

United States District Court, D. Connecticut.

August 2, 1989.

Ryszard S. Mrotek, and William J. Anastasi, Martha Stone, and Philip D. Tegeler, Conn. Civ. Liberties Union Foundation, Hartford, Conn., Lucas Guttentag, and Judy Rabinovitz, American Civ. Liberties Union, Immigration Task Force, New York City, for plaintiff.

David V. Bernal, Office of Immigration Litigation U.S. Dept. of Justice, Washington, D.C., for defendant.

RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

NEVAS, District Judge.

Plaintiff Feim Azizi, a Yugoslav national, illegally entered the United States on February 24, 1986 at Brownsville, Texas and was apprehended shortly thereafter. Two days later the government began deportation proceedings against him. On December 29 of that same year, he married plaintiff Saboet Elmazi Azizi, a naturalized American citizen known to Feim Azizi since their childhoods in Yugoslavia. The marriage triggered Section 5 of the Immigration Marriage Fraud Amendments of 1986 ("IMFA"), codified at 8 U.S.C. Sections 1154(h) & 1255(e), which mandates that an alien who marries an American citizen during deportation or exclusion proceedings reside outside the United States for two years before the Immigration and Naturalization Service ("INS") will consider adjustment in the alien's immigration status.¹ Conversely, under Section 2 of the IMFA, 8 U.S.C. Section 1186a, an alien who marries before such proceedings begin can demonstrate the validity of his or her marriage without having to leave the United States for the two-year waiting period. Section 5 creates the irrebutable presumption that an alien who marries during deportation or exclusion proceedings has entered into a fraudulent marriage.

The plaintiffs have launched a multi-faceted constitutional challenge to section 5; the government has filed a dispositive motion of its own. When distilled to their essence the pending cross-motions for summary judgment require the court to balance the plaintiffs' fundamental constitutional right to marry against the discretion traditionally enjoyed by Congress in the immigration and naturalization area. The half dozen or so federal courts — including two courts of appeal — which have considered constitutional attacks on section 5 have all deferred to Congress.² The Azizis also press an estoppel claim against the government, arguing that they relied to their detriment on misrepresentations given them by various INS officials.

I.

A.

The Immigration and Naturalization Act ("INA") exempts "immediate relatives"— including spouses — of American citizens from the numerical quotas placed on immigrant visas. 8 U.S.C. Section 1151(b). In most instances immediate relatives automatically qualify for permanent residency, and eventually citizenship, in the United States. Because marriage to an American citizen greatly facilitates entry into and residency in this country, for some aliens it has undoubtedly proven an irresistible avenue for bypassing the more cumbersome and uncertain administrative procedures prescribed for those who are not immediate relatives. To investigate what it perceived as the growing incidence of marriage fraud between aliens and American citizens, Congress in 1985 created a subcommittee to focus on the size and scope of the problem. See generally Fraudulent Marriage and Fiance Arrangements to Obtain Permanent Resident Status: Hearings Before the Subcomm. on Immigration and Refugee Policy of the Senate Comm. on the Judiciary, 99th Cong., 1st Sess. (1985). The subcommittee concluded that such marriage fraud was a prevalent problem. Id. at 23 (statement of the Deputy Assistant Secretary of State for Visa Services). The INS itself has theorized that fraud plays a role in some 30% of all immigration visa petitions grounded on marriage to an American citizen. H.R.Rep. No. 906, 99th Cong., 2d Sess. 6, reprinted in 1986 U.S. Code Cong. & Admin.News 5978, 5978. "Of the three relationships which qualify for the preferential `immediate relative' status — parental, filial, and spousal — the latter is the easiest to fraudulently engineer: it is largely self-created and can be accomplished with a minimum of traditional, civil, or religious trappings." Note, Alienating Sham Marriages For Tougher Immigration Penalties: Congress Enacts The Marriage Fraud Act, 15 Pepperdine L.Rev. 181, 187 (1988).

As a response to these concerns, Congress promulgated the IMFA as a supplement to the INA. Under the INA an alien with immediate relative status could, in most instances, easily acquire permanent residency.³ Purportedly fashioned as a deterrent to marriage fraud, the IMFA makes such residency a more difficult perquisite to obtain. Now, under section 2 of the new legislation, an alien who marries a citizen before deportation proceedings begin is granted "conditional" permanent resident status after the INS conducts an inquiry into the bona fides of the marriage. Two wedding anniversaries must pass before the contingent status is upgraded — after a second determination that the marriage is bona fide — to `permanent' permanent resident status. 8 U.S.C. Section 1186a(c)(3)(B). During the two year probationary period, the alien spouse may remain in the United States.⁴

Conversely, section 5 of the IFMA creates the presumption of invalidity for any marriage entered into by an alien engaged in deportation proceedings. For two years the alien spouse must remain outside the United States before the citizen spouse can petition the INS for an adjustment in the non-resident's status. Id. Section 1154(h). The INS does not conduct inquiry into the validity of such marriages until the nonresidency period has elapsed.

II.

To a great extent, resolution of the constitutional aspects of this case turns on the standard of review to which section 5 is subjected. The parties draw their most formidable battle lines around this issue.⁵ The plaintiffs argue that section 5 impinges on a fundamental right — the right to marry — and should thus undergo strict scrutiny to determine whether it has been carefully tailored to achieve important governmental interests. There is no denying that section 5 places a harsh burden on the marriages falling within its scope. While true that the legislation does not restrict the citizen spouse from joining the alien spouse in foreign residency, in many instances the married couple may be forced to live apart for the two year interval. There seems something Orwellian about a litmus test that in effect requires a married couple to authenticate their marriage by residing in separate locales. According to the plaintiffs,

the purpose of section 5 is to create a two-year trial-by-ordeal that will ferret out fraudulent marriages and deny admission to those aliens who cannot survive this `test.' Only a couple that can survive two years of separation or exile will be permitted to immigrate. Any marriage that disintegrates under the burden of the law's cruel choice will be deemed never to have existed.

Plaintiffs' Memorandum in Response to Defendant's Third Set of Supplemental Authorities at 8.

The government does not dispute that the decision to marry is recognized as a fundamental right protected by our Constitution, see Zablocki v. Redhail, 434 U.S. 374, 383-84, 98 S.Ct. 673, 679, 54 L.Ed.2d 618 (1978); Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967), but it contends that judicial review of immigration legislation may proceed only within a narrowly drawn field of inquiry. Congress has traditionally retained broad authority over immigration and naturalization matters. The power to expel or exclude aliens is recognized as a "fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control." Shaughnessy v. Mezei, 345 U.S. 206, 210, 73 S.Ct. 625, 628, 97 L.Ed. 956 (1953). Moreover, when flexing its powers in matters involving aliens, "Congress regularly makes rules that would be unacceptable if applied to citizens. The exclusion of aliens and the reservation of the power to deport have no permissible counterpart in the Federal Government's power to regulate the conduct of its own citizenry." Mathews v. Diaz, 426 U.S. 67, 79-80, 96 S.Ct. 1883, 1891, 48 L.Ed.2d 478 (1976). According to the government, section 5 can be reviewed only in the light cast by the rational basis test; a court is limited to deciding whether the legislation is supported by "a facially legitimate and bona fide reason." Kleindienst v. Mandel, 408 U.S. 753, 770, 92 S.Ct. 2576, 2585, 33 L.Ed.2d 683 (1972).

The government relies to a great degree on Fiallo v. Bell, 430 U.S. 787, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977), where the Court upheld immigration statutes denying immediate relative status to illegitimate alien children whose natural fathers are American citizens but granting special preference to similarly situated children whose natural mothers are American citizens. Id. at 799-800, 97 S.Ct. at 1481-1482 (citing 8 U.S.C. Sections 1101(b)(1)(D) & (b)(2)). The plaintiffs — three sets of unwed natural fathers and their illegitimate offspring — brought first, fifth, and ninth amendment challenges to the statutes, arguing that the provisions (1) denied them equal protection by creating a discriminatory classification grounded on the father's marital status, the sex of the parent, and the illegitimacy of the child; (2) denied them due process because there was established the irrebutable presumption that strong psychological and economic ties do not exist between natural fathers and their illegitimate children; and (3) infringed upon the plaintiffs' rights to mutual association and privacy. 430 U.S. at 791, 97 S.Ct. at 1477. The plaintiffs urged strict scrutiny of the statutes. The equal protection, due process, and familial rights...