Azizi v. Thornburgh

• Decision Date: 05 July 1990
• Docket Number: D,No. 832,832
• Citation: 908 F.2d 1130
• Parties: Saboet Elmazi AZIZI and Feim Azizi, Plaintiffs-Appellants, v. Richard L. THORNBURGH, Attorney General of the United States, Defendant-Appellee. ocket 89-6222.
• Court: U.S. Court of Appeals — Second Circuit

Page 1130

908 F.2d 1130

59 USLW 2041

Saboet Elmazi AZIZI and Feim Azizi, Plaintiffs-Appellants, v. Richard L. THORNBURGH, Attorney General of the United States, Defendant-Appellee.

No. 832, Docket 89-6222.

United States Court of Appeals Second Circuit.

Argued Feb. 21, 1990.

Decided July 5, 1990.

Lucas Guttentag, New York City (Judy Rabinovitz, American Civil Liberties Union Immigration Task Force, New York City, Martha Stone, Philip D. Tegeler, Connecticut Civil Liberties Union Foundation, Ryszard S. Mrotek, William J. Anastasi, Hartford, Conn., of counsel), for plaintiffs-appellants.

Peter Schuck, New Haven, Conn., for amici curiae.

David V. Bernal, Washington, D.C. (Stuart M. Gerson, Asst. Atty. Gen., David J. Kline, Asst. Director, Office of Immigration Litigation, Civil Div., U.S. Dept. of Justice, Washington, D.C., Stanley A. Twardy, Jr., U.S. Atty., D. Conn., Nancy Griffin, Asst. U.S. Atty., Hartford, Conn., of counsel), for defendant-appellee.

Before FEINBERG, CARDAMONE and MINER, Circuit Judges.

MINER, Circuit Judge:

Plaintiff-appellant Saboet Azizi ("Mrs. Azizi"), a naturalized citizen of the United States, and her husband, plaintiff-appellant Feim Azizi ("Mr. Azizi"), a citizen of Yugoslavia, appeal from a summary judgment entered in the United States District Court for the District of Connecticut (Nevas, J.) on August 4, 1989 rejecting their constitutional challenges to section 5 of the Immigration Marriage Fraud Amendments of 1986 ("IMFA"), 8 U.S.C. Secs. 1154(h), 1255(e) (1988). On appeal, the Azizis maintain that the two-year foreign residency requirement imposed by section 5 on an alien spouse who marries a United States citizen during the pendency of a deportation or exclusion proceeding violates their rights to equal protection and due process. While we are cognizant of the hardships imposed by this legislation upon aliens and their spouses who enter into legitimate marriages during deportation proceedings, we conclude that section 5 is a valid exercise of Congress' plenary power to regulate immigration and naturalization.

BACKGROUND

Mr. Azizi, a citizen of Yugoslavia, illegally entered the United States on or about February 24, 1986. Thereafter, the Immigration and Naturalization Service ("INS") instituted a deportation proceeding against him by issuing an order to show cause and notice of hearing. On June 10, 1986, Mr. Azizi conceded that his entry was unlawful but applied for political asylum. Prior to a determination on his application for political asylum, Mr. Azizi married Saboet Elmazi, a Yugoslavian native and naturalized citizen of the United States. A hearing was held in January 1987, after which the Immigration Judge denied Mr. Azizi's application for asylum but granted him until July the privilege of departing voluntarily. According to the Azizis, the Immigration Judge advised Mrs. Azizi that her husband's departure could be prevented by filing a petition for "immediate relative" status in his behalf. See 8 U.S.C. Sec. 1151(b).

Immediately following the deportation hearing, Mrs. Azizi filed an immigrant visa petition seeking to have Mr. Azizi qualified as an immediate relative. Pursuant to section 5 of the IMFA, an alien who marries a United States citizen during the pendency of deportation proceedings must reside outside the United States for two years before a petition predicated on immediate relative status will be considered by the INS. Id. Secs. 1154(h), 1255(e). In violation of section 5, the INS accepted the immigrant visa petition and approved it on June 23, 1987. Mr. Azizi did not file an appeal from the January deportation order, believing he was no longer subject to the order. He did not depart from the United States, and the period for voluntary departure expired.

Mr. Azizi was arrested in November 1987 for failure to comply with the deportation order. He moved immediately to reopen his case before the Immigration Judge, but the motion was denied. On December 9, 1987, the Azizis commenced this action in the district court for the purpose of obtaining relief from the deportation order. On the following day, the INS revoked its approval of Mr. Azizi's visa petition on the ground that it was granted in violation of section 5 of the IMFA. The Azizis amended their complaint to challenge the revocation on constitutional grounds. After pre-trial proceedings were concluded, plaintiffs moved for summary judgment, and defendant cross-moved for the same relief. The district court granted defendant's cross-motion for summary judgment, Azizi v. Thornburgh, 719 F.Supp. 86 (D.Conn.1989), and this appeal ensued.

DISCUSSION

Every year, thousands of aliens seek immigrant visas to enter the United States. The Immigration and Nationality Act ("INA") imposes numerical quotas on the number of aliens permitted to immigrate to this country. 8 U.S.C. Sec. 1151(a). Immigrant visas are allocated in accordance with a preference system, which limits eligibility to categories prescribed by the INA. Id. Sec. 1153(a). However, aliens who fit within the "immediate relative" class are exempt from the numerical quotas. Id. Sec. 1151(a), (b). A spouse, child or parent of a United States citizen is considered an immediate relative and may qualify for permanent resident status. Id. Sec. 1151(b).

An alien who marries a United States citizen and obtains permanent resident status while no deportation proceeding is pending is permitted to remain in this country on a conditional basis for two years. Id. Sec. 1186a(a)(1), (b). If, at the end of the second anniversary of the marriage, the Attorney General determines that the marriage is bona fide, the conditional status is removed. Id. Sec. 1186a(c)(1). In contrast, pursuant to section 5 of the IMFA, an alien who marries a United States citizen during the pendency of a deportation proceeding must reside outside the United States for two years after the marriage. Id. Sec. 1154(h). Upon expiration of this two-year period, the alien spouse may seek permanent resident status. See id. Secs. 1154(h), 1255(e). ¹

I. Equal Protection

The Azizis contend that section 5 of the IMFA denies them their fourteenth amendment right to equal protection of the laws because it classifies citizens and aliens in a manner that violates the fundamental right to marry. They maintain that, because section 5 infringes on their right to marry, a strict scrutiny analysis must be employed in reviewing the statute. Specifically, the Azizis point to the fact that the two-year foreign residency requirement places an onerous burden on citizen/alien marriages without prior consideration of the validity of those marriages.

While we recognize the fundamental nature of the right to marry, we also must consider that "control over matters of immigration is a sovereign prerogative, largely within the control of the executive and the legislature." Landon v. Plasencia, 459 U.S. 21, 34, 103 S.Ct. 321, 330, 74 L.Ed.2d 21 (1982). Perhaps in no area is the legislative power "more complete." Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320, 339, 29 S.Ct. 671, 676, 53 L.Ed. 1013 (1909). Because of Congress' plenary authority, our review of legislation involving matters of immigration and naturalization is limited. Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1478, 52 L.Ed.2d 50 (1977). Congressional authority in this area extends to the establishment of alien classifications as a basis for determining immigration eligibility. See id. at 794, 97 S.Ct. at 1479; Kleindienst v. Mandel, 408 U.S. 753, 766, 92 S.Ct. 2576, 2583, 33 L.Ed.2d 683 (1972). Such classifications will be upheld against a constitutional challenge if a rational basis exists for their adoption. ² See Guan Chow Tok v. INS, 538 F.2d 36, 38-39 (2d Cir.1976) (per curiam); accord Anetekhai v. INS, 876 F.2d 1218, 1224 (5th Cir.1989).

Recognizing Congress' broad power to classify aliens for immigration purposes, the Azizis maintain that section 5 infringes upon the exercise of their fundamental right to marry. In Fiallo, the Supreme Court upheld the constitutionality of a section of the INA that excluded illegitimate children and their natural fathers from the preferential status granted the "child" or "parent" of a United States citizen. 430 U.S. at 799-800, 97 S.Ct. at 1481-82. The Court was not persuaded by the appellants' contention that a strict level of scrutiny must be adopted because the classification impinged on fundamental familial relationship rights of citizens and aliens. Id. at 794, 97 S.Ct. at 1479. In the same vein, we reject the Azizis' contention that a strict level of scrutiny must be adopted here because section 5 affects their right to marry.

The classes created by section 5 derive from the distinction between citizen/alien marriages that occur before and those that occur after commencement of a deportation or exclusion proceeding. While great deference must be accorded Congress' decision to classify aliens in such a manner, the government must demonstrate some legitimate reason for adoption of the classification. Francis v. INS, 532 F.2d 268, 272-73 (2d Cir.1976).

Section 5 is aimed at preventing an alien from circumventing a potential deportation or exclusion order by entering into a sham marriage after receiving notice of the commencement of a deportation or exclusion proceeding. H.R.Rep. No. 906, 99th Cong., 2d Sess. 6, reprinted in 1986 U.S.Code Cong. & Admin.News 5978, 5978. In enacting this legislation as a preventive measure, Congress recognized that " 'aliens who are engaged in deportation proceedings are more likely than other aliens to enter into fraudulent marriages in order to avoid being expelled from the country.' " Almario v. Attorney General, 872 F.2d 147, 152 (6th Cir.1989) (quoting Smith v. INS, 684 F.Supp. 1113, 1117 (D.Mass.1988)); Anetekhai, 876 F.2d at 1222; cf. Guan Chow Tok, 538 F.2d at 38-39. Having identified a potential for fraudulent marriages during the pendency...