Baria v. Leno, Civ. No. 93-00834 HMF.

• Decision Date: 29 April 1994
• Docket Number: Civ. No. 93-00834 HMF.
• Citation: 849 F. Supp. 750
• Parties: Rodolfo Monroy BARIA, Plaintiff, v. Janet LENO (sic), United States Attorney General, and Donald Radcliffe, District Director, Immigration and Naturalization Service, Defendants.
• Court: U.S. District Court — District of Hawaii

849 F. Supp. 750

Rodolfo Monroy BARIA, Plaintiff, v. Janet LENO (sic), United States Attorney General, and Donald Radcliffe, District Director, Immigration and Naturalization Service, Defendants.

Civ. No. 93-00834 HMF.

United States District Court, D. Hawaii.

April 29, 1994.

George K. Noguchi, Honolulu, HI, for plaintiff.

Michael Chun, Asst. U.S. Atty., U.S. Atty's Office, Mary Reiko Osaka, Dept. of Justice, I.N.S., Honolulu, HI, for defendants.

ORDER GRANTING DEFENDANTS' MOTION TO AMEND MOTION TO CONSIDER SUBMISSION ON THE RECORD AND GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

FONG, District Judge.

INTRODUCTION

On April 18, 1994 the court heard defendants Janet Reno and Donald Radcliffe's (collectively "the government") motion to amend the motion to consider submission on the record and motion for summary judgment. The government filed their motion to consider submission on the record on February 28, 1994. On March 4, 1994, the government filed a motion to amend the motion to consider submission on the record as it appeared that the motion was more appropriately submitted as a motion for summary judgment. Plaintiff Rodolfo Monroy Baria ("Baria") filed an untimely response on April 13, 1994.

Since the court agrees that the motion submitted by the government is properly categorized as a motion for summary judgment, the court GRANTS the government's motion to amend their original submission and the present motion will be considered as a motion for summary judgment.

BACKGROUND

Baria is a native and citizen of the Philippines who entered the United States as a nonimmigrant visitor for pleasure in June 1984 and with extensions was authorized to remain until June 13, 1985. About two months after entering the United States, he filed divorce proceedings in Nevada against his wife of twenty one years, Anita Baria ("Anita"), who resided in the Philippines with the couple's three children. The divorce decree dissolving plaintiff's first marriage was signed on May 31, 1985.

About four months after filing for divorce in Nevada, plaintiff moved to Honolulu and in December of 1984 began residing in a husband and wife relationship with Bibiana Patoc ("Patoc"), an American citizen. Patoc and Baria were married in Honolulu on June 14, 1985, about one month after the divorce from Anita became final and the day after his authorized stay expired.

On July 10, 1985, Patoc petitioned for immediate relative status on behalf of Baria. A visa petition was filed simultaneously. The visa petition was approved, and the respondent's status was adjusted to that of a lawful permanent resident on September 20, 1985. About a year later, during October or November of 1986, Patoc and Baria separated.

In March 1987 Patoc informed the service that Baria had left the residence they shared and had told her he had married her to gain immigration benefits. On January 28, 1988, the Immigration and Naturalization Service ("INS") issued a notice of intent to rescind plaintiff's adjustment status under § 246 of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1256, based on the allegation that plaintiff's marriage to Patoc was a sham marriage and could not be recognized for immigration purposes. Plaintiff contested the proposed rescission, and a hearing was held before an immigration judge on December 12, 1988.

According to Patoc's hearing testimony and affidavit submitted in conjunction with the rescission proceeding, she originally believed that the marriage was genuine, but she later learned that plaintiff was using her in order to obtain United States citizenship. Patoc testified that after Baria obtained his green card, his behavior towards her changed. She reported that she discovered that respondent continued to correspond with his first wife, Anita, in the Philippines by using a private post office box. Patoc produced a letter that purportedly had been written by Anita in which she thanked Baria for the money he had provided her family, expressed her love for him, informed him that she looked forward to an upcoming visit, and related family gossip. The letter also mentioned that despite Anita's initial concern that Baria's marriage to Patoc was genuine, she had become convinced that such was not the case.

Patoc testified that when she confronted Baria about his relationship with his former wife and accused him of marrying her for immigration benefits, he stated that it did not matter if she divorced him, because he would merely marry someone else to acquire citizenship. Patoc also testified that Baria told her that if she ended their marriage he would represent to the INS that he paid Patoc to marry him.

The record of the rescission hearing further indicates that after Baria and Patoc separated, Baria became involved with a third woman with whom he had a child. Patoc was distraught over this relationship and wrote letters to Baria, his girlfriend, and his girlfriend's mother in an effort to have Baria terminate this relationship and reconcile with Patoc. The letters also threaten to have Baria returned to the Philippines if the relationship with his girlfriend did not end. Patoc testified that she wrote these letters when she was "mentally tortured."

Patoc conceded that the marriage had been consummated and that she and Baria lived in the same household for approximately fifteen months after their marriage. Baria also assisted with household charges and made financial contributions to household expenses. She testified that she loved Baria when they married and stated that she was not sure whether she would get back together with Baria if he offered.

Baria testified that his marriage to Patoc was a genuine relationship. He insisted that before he arrived in the United States he had no plans to divorce Anita, although the marriage was strained. When questioned about the letter, he testified that he had never received it, that his former wife sometimes called him by the name used in the letter's salutation, that he would not say whether or not it was written by his ex-wife, and that the letter might have come from her.

The immigration judge concluded that the INS had not met its burden of establishing unequivocally, clearly, and convincingly that the respondent participated in a fraudulent marriage to obtain an immigration benefit and terminated rescission proceedings. See In the Matter of Baria, File No. A 27 257 374 (Rescission Proceedings December 12, 1988) at 6 (ROP document marked "C"). The immigration judge noted that there was circumstantial evidence that the marriage was a sham. Id. at 4. The judge stated that plaintiff's behavior in divorcing his wife of twenty one years and marrying an American citizen immediately upon his arrival in this country might lead a reasonable person to conclude that Baria's immigration was a carefully orchestrated fraud on the United States Government. Id. at 5. The immigration judge also found that the plaintiff's testimony was "scattered and imprecise" and that his credibility was "somewhat impeached" with regard to his testimony that he had no plan to end his first marriage when he arrived in the United States. Id. Nevertheless, the immigration judge concluded that the standard was not what a reasonable person might believe but whether the INS could establish clearly, unequivocally and convincingly that plaintiff had engaged in a sham marriage. Id. at 6. Since Patoc testified that she genuinely loved Baria when they married, that the marriage was consummated, and that she might be willing to resume a marital relationship with him, the immigration judge concluded that the INS had failed to meet their burden of proof. Id.

The INS appealed to the Board of Immigration Appeals ("BIA") arguing, among other things, that Patoc's intent at the time of the marriage is not dispositive, particularly against the weight of the circumstantial evidence and plaintiff's impeached credibility.

The BIA affirmed the immigration judge's findings of credibility and circumstantial evidence. See In Re Baria, BIA File No. A27 257 374 (Aug. 25, 1993) (ROP document "A") at 5. However, the BIA reversed the immigration judge's finding that the evidentiary and credibility findings did not constitute clear, convincing and unequivocal evidence that plaintiff entered into the marriage for the primary purpose of obtaining immigration benefits. Id. at 4. The BIA agreed with the INS that Patoc's intent at the time she entered into the marriage was insufficient against the weight of other evidence to establish that plaintiff entered the marriage in good faith. Id. The BIA found that the circumstantial evidence and credibility findings were sufficient basis for rescission and ordered Baria's adjustment status to be rescinded. Id. at 5.

Following the order of rescission plaintiff was returned to the immigration status he held prior to adjustment of status — that of a nonimmigrant visitor authorized to remain only until June 13, 1985. Accordingly, the INS placed him in deportation proceedings as an alien who remained beyond the time authorized for his stay; those proceedings are pending.

Plaintiff objects to the government's motion on the grounds that the issue is not ripe for summary judgment. Plaintiff, however, cites no support for this position. Because, as discussed below, the court is necessarily limited to the administrative record in its review of the BIA decision, plaintiff's objection is without merit. Plaintiff also objects to the court's consideration of this matter as a summary judgment motion at this time; plaintiff claims that he has had insufficient time to respond to the arguments in the government's motion and asks for an additional ten days within which to submit a brief to the court. The government filed the instant motion on February 28, 1994 giving plaintiff an ample forty nine days within which to respond. Accordingly, plaintiff's plea borders on the frivolous.

STANDARD OF REVIEW

Rule...