Blackwell v. Thornburgh

• Decision Date: 10 December 1989
• Docket Number: No. CV 89-1650-WMB.,CV 89-1650-WMB.
• Court: U.S. District Court — Central District of California
• Parties: Jon BLACKWELL, Plaintiff, v. Richard THORNBURGH, et al., Defendants.

745 F. Supp. 1529

Jon BLACKWELL, Plaintiff, v. Richard THORNBURGH, et al., Defendants.

No. CV 89-1650-WMB.

United States District Court, C.D. California.

December 10, 1989.

Carl Shusterman, Barst & Mukamal, Los Angeles, Cal., for plaintiff.

George H. Wu, Asst. U.S. Atty., Los Angeles, Cal., for defendants.

ORDER

WM. MATTHEW BYRNE, Jr., District Judge.

I. INTRODUCTION

Plaintiff Jon Blackwell has filed this action for injunctive and declaratory relief challenging a regulation of the Immigration and Naturalization Service (INS), 8 C.F.R. § 204.1(a)(2)(C)(iii), and the constitutionality of certain portions of Section 5 of the Immigration Marriage Fraud Amendments of 1986, codified at 8 U.S.C. §§ 1154(h) and 1255(e). Defendants are the Attorney General, the Commissioner of the INS, and the INS District Director for Los Angeles. This matter is before the Court on defendants' motion to dismiss and plaintiff's cross-motion for summary judgment.

Plaintiff, a United States citizen, married Alegria Florendo, a native and citizen of the Philippines, on January 14, 1987. Prior to that date, on July 28, 1986, the INS had issued an Order to Show Cause against Alegria Florendo for remaining in the United States longer than permitted by her non-immigrant visa. On December 11, 1986, an immigration judge issued a final order of deportation against Alegria Florendo. In lieu of deportation, the immigration judge granted Alegria Florendo a voluntary departure, permitting her to depart the United States on or before June 11, 1987. Both the government and Alegria Florendo waived appeal of the immigration judge's order.

After marrying Alegria Florendo in January, 1987 the plaintiff submitted a visa petition to the Los Angeles INS office on March 20, 1987. This was for the purpose of classifying his wife as an "immediate relative" under 8 U.S.C. § 1151(b). As an immediate relative, Alegria Blackwell would be eligible to apply for an immigrant visa. Defendant Ernest Gustafson, the Los Angeles District Director, approved the visa petition on June 15, 1987. However, on September 15, 1987, Gustafson subsequently notified plaintiff of his intention to revoke the visa petition. The notice stated that pursuant to 8 U.S.C. §§ 1154(h) and 1255(e) of the Immigration Marriage and Fraud Amendments of 1986, the visa petition should not have been granted because Alegria Blackwell had not resided outside of the United States for two years before applying for an adjustment in status based on a marriage which was entered into while deportation proceedings were pending regarding her right to remain in the United States.

On January 27, 1988 the INS published proposed regulations corresponding to provisions of the Immigration Marriage Fraud Amendments of 1986. These regulations became final on August 10, 1988. Specifically, 8 C.F.R. § 204.1(a)(2)(C)(iii) provides that deportation proceedings are still pending, as that term is used in 8 U.S.C. § 1255(e)(2), until the alien actually departs from the United States. On April 27, 1988 the INS revoked plaintiff's visa petition. Plaintiff appealed the revocation decision to the Board of Immigration Appeals (BIA) on May 13, 1988 but the BIA dismissed the appeal on November 21, 1988. Plaintiff then filed this action.

II. IMMIGRATION MARRIAGE AND FRAUD AMENDMENTS OF 1986

Before addressing the particulars of the issues in this case, a brief overview of the immigration system and the enactment of the Immigration Marriage and Fraud Amendments of 1986 maybe helpful. The immigration system places a ceiling on the number of immigrants who may obtain permanent residence each year and establishes numerical quotas for immigrant visas. However, the system also creates preferences for certain classes of would-be immigrants. Among those entitled to a preference are spouses of United States citizens. If an alien marries a citizen, the alien may be classified as an "immediate relative" and can be admitted for permanent residence free of any quotas. 8 U.S.C. § 1151(b). In addition, marriage to a citizen reduces the normal five year residence requirement to three years. 8 U.S.C. § 1430(a). This preferential treatment thus provides some incentive for aliens to enter into marriages with citizens in order to gain immigration benefits.

Prior to the enactment of the Immigration Marriage Fraud Amendments, 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 filing a petition with the Attorney General. 8 U.S.C. § 1154(a). The INS then conducted an inquiry into each petition to determine whether the marriage was bona fide or merely a sham entered into for the purpose of obtaining immigration benefits. If the INS concluded that the marriage was sincere, it granted the alien spouse permanent resident status. No adjustment was granted if the marriage was determined to be a fraud.

In 1986, Congress passed the Immigration Marriage Fraud Amendments in response to perceived abuses of this process and a growing concern about marriage fraud. While recognizing "the importance of protecting nuclear families from separation by permitting immediate family members of citizens to immigrate to the United States without numerical limitation," Congress nonetheless found that aliens "frequently find it expedient to engage in a fraudulent marriage in order to side-step the immigration law." INS surveys had revealed that "approximately 30% of all petitions for immigrant visas involve suspect marital relationships." Furthermore, Congress concluded, a need for such legislation existed because "although in theory participating in a fraudulent marriage makes an individual liable to both criminal and administrative sanctions, in practice it is very difficult to revoke or rescind an alien's status, deport him, or even locate him or his spouse." H.R.Rep. No. 99-906, 99th Cong., 2d Sess. 6 (1986), reprinted in 1986 U.S.Code Cong. and Admin.News 5978.

Thus, in enacting the Immigration Marriage Fraud Amendments, Congress sought to limit the potential abuse of the immigration system by postponing some of the benefits afforded an alien married to a citizen. Under the amendments, an alien who marries a citizen while no deportation proceedings are pending against the alien receives a conditional adjustment of status based on the fact of the marriage, which is granted only after the INS conducts an inquiry into the sincerity of the marriage. 8 U.S.C. § 1186a(a)(1). The alien's immigration status remains conditional for a two-year period, after which, if the marriage is in fact bona fide, the condition is removed and the alien spouse obtains permanent resident status. 8 U.S.C. § 1186a(c)(3)(B).

However, if at the time of the marriage, the alien is involved in pending deportation proceedings, the procedures prescribed by the amendments are different. When an alien who is involved in deportation proceedings marries a citizen, 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. § 1154(h) and 1255(e).¹ This two-year requirement is applied whether or not the marriage is in fact bona fide or a sham, and the INS conducts no inquiry into the validity of the marriage until the two-year period is completed.

The INS subsequently promulgated regulations which correspond to various provisions of the Immigration Marriage Fraud Amendments. Specifically, the regulation at issue in this case clarifies that the period in which the alien is in deportation proceedings begins with the issuance of the Order to Show Cause and ends "when the alien departs from the United States while an order of deportation is outstanding or before the expiration of the voluntary departure time granted in connection with an alternate order of deportation." 8 C.F.R. § 204.1(a)(2)(C)(iii).

III. DISCUSSION

Plaintiff has alleged three causes of action. First, plaintiff argues that 8 C.F.R. § 204.1(a)(2)(C)(iii) is invalid in its interpretation of "the period during which administrative or judicial proceedings are pending regarding the alien's right to enter or remain in the United States" under 8 U.S.C. § 1255(e)(2). Second, plaintiff alleges that even if C.F.R. § 204.1(a)(2)(C)(iii) is found to be consistent with its underlying statutory authority, 8 U.S.C. §§ 1154(h) and 1255(e) unconstitutionally violate plaintiff's right to due process under the Fifth Amendment by intruding into plaintiff's right to marry, creating an improper presumption that plaintiff's marriage is fraudulent and forcing plaintiff to make an untenable choice of leaving his spouse or his country. Third, plaintiff alleges that 8 U.S.C. §§ 1154(h) and 1255(e) unconstitutionally violate his right to equal protection under the Fifth and Fourteenth Amendments by imposing a far greater burden on citizens who marry aliens in deportation proceedings than upon citizens who marry aliens who are not in such proceedings.

A. Validity of 8 C.F.R. § 204.1(a)(2)(C)(iii)

The first issue in this case involves the permissible meaning of the phrase "the period during which administrative or judicial proceedings are pending regarding the alien's right to enter or remain in the United States" in 8 U.S.C. § 1255(e)(2). The INS promulgated 8 C.F.R. 2.04(a)(2)(C)(iii), which provides that the period of time in which proceedings are pending ends when the alien departs from the United States. Plaintiff argues that the agency's regulation is an impermissible construction of 8 U.S.C. § 1255(e)(2), since the period in which proceedings are pending ends when a final order of deportation is issued and no appeal is taken.

The standards a court must apply when a reviewing agency interpretation of a statute are embodied in the Administrative Procedure Act. The final word on interpretation of law and its applicability,...