Bu Roe v. I.N.S.

• Decision Date: 20 September 1985
• Docket Number: No. 84-7461,84-7461
• Citation: 771 F.2d 1328
• Parties: Hurn Bu ROE, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1328

771 F.2d 1328

Hurn Bu ROE, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 84-7461.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 3, 1985.

Decided Sept. 20, 1985.

Gary Manulkin, William B. Bennett, Manulkin & Glaser, Los Angeles, Cal., for petitioner.

Ian Fan, Asst. U.S. Atty., Los Angeles, Cal., for respondent.

Petition for Review of a Decision of the Board of Immigration Appeals.

Before WALLACE, TANG and WIGGINS, Circuit Judges.

OPINION

WIGGINS, Circuit Judge:

Hurn Bu Roe invokes our jurisdiction under 8 U.S.C. Sec. 1105a(a) to review a decision of the Board of Immigration Appeals (BIA). The BIA found him deportable for failure to fulfill his marital agreement and as an alien who was excludable at the time of entry for lack of a valid labor certification and a valid visa. The BIA also denied Roe's application for suspension of deportation. We affirm.

BACKGROUND

Hurn Bu Roe is a native and citizen of South Korea who entered the United States in April 1971 as the spouse of a fifth preference immigrant, Yong Cha Kang. Shortly before his entry into the United States, Roe divorced his first wife Sook Hee Song and married Yong. Within a few weeks after his entry into the United States, Roe divorced Yong. Roe returned to Korea and reentered the United States in October 1971 along with his first wife and their child. In December 1971, Roe remarried his first wife. In March 1972, Roe filed a second preference visa petition on behalf of his first wife.

On August 23, 1974, the INS initiated deportation proceedings against Roe. He was charged as deportable under 8 U.S.C. Sec. 1251(a)(2) and (c), for entry into the United States with an immigrant visa procured by fraud on the basis of a marriage which was judicially annulled or terminated within two years of entry. Subsequently, the INS amended its original charge. Roe was also charged as deportable under 8 U.S.C. Sec. 1251(c)(2), for failure or refusal to fulfill his marital agreement with Yong, and under 8 U.S.C. Sec. 1251(a)(1) as an alien who was excludable at the time of entry for lack of a valid labor certification [8 U.S.C. Sec. 1182(a)(14) ] and for lack of a valid visa [8 U.S.C. Sec. 1182(a)(20) ]. Roe denied the allegations of a sham marriage but admitted that he entered the United States with the purpose of performing skilled or unskilled labor and lacked a valid labor certification at the time of his entry. Roe also applied for suspension of deportation under 8 U.S.C. Sec. 1254(a)(1).

In January 1982, the IJ held that the INS met its burden of demonstrating that Roe failed to fulfill his marital agreement which he made solely for the purpose of procuring his entry as an immigrant--i.e. that Roe's marriage was a sham entered into soley for immigration purposes. Accordingly, the IJ found Roe deportable as charged under 8 U.S.C. Secs. 1251(c)(2). The IJ also concluded that Roe was deportable as charged under 8 U.S.C. Sec. 1251(a)(1) because he was excludable at the time of entry under 8 U.S.C. Sec. 1182(a)(14) and (20). The IJ rejected Roe's application for suspension of deportation on the ground that Roe failed to establish extreme hardship.

On appeal, the BIA affirmed the IJ's decision. Roe timely filed the present petition for review.

DISCUSSION

Roe contends that: (1) the BIA's finding of a sham marriage is not supported by substantial evidence; (2) the INS violated its own regulation and denied him due process by preventing him from rebutting adverse evidence and presenting evidence on his behalf; (3) he was inadequately represented by counsel at his deportation hearing; (4) the BIA abused its discretion in denying his request for suspension of deportation; and (5) the immigration judge violated 8 C.F.R. Sec. 242.17 (1985) by failing to notify him of his alleged eligibility for relief from deportation under 8 U.S.C. Sec. 1251(f). We address each contention in turn.

1. Sham Marriage

Roe contends that the BIA's determination that his marriage to Yong was a sham is not supported by substantial evidence. We disagree.

We must sustain the BIA's finding of a sham marriage if it is supported by substantial and probative evidence. Garcia-Jaramillo v. INS, 604 F.2d 1236, 1238 (9th Cir.1979), cert. denied, 449 U.S. 828, 101 S.Ct. 94, 66 L.Ed.2d 32 (1980). Although a marriage may be legally valid under the laws of the country where the marriage took place, the INS is free to conduct an inquiry to determine whether the marriage was entered into for the purpose of circumventing the immigration laws. Id. "A marriage is a sham if the bride and groom did not intend to establish a life together at the time they were married." Id. (quoting Bark v. INS, 511 F.2d 1200, 1201 (9th Cir.1975) ).

Based on the record before us, we are satisfied that substantial evidence supports the determination that Roe's marriage to Yong was a sham. We agree with the IJ that the sequence of events demonstrates that Roe married Yong solely for the purpose of securing an immigrant visa for himself and eventually for his first wife and their child.

The record reveals that on December 30, 1966, Roe married Sook Hee Song. The following year Sook gave birth to their oldest daughter.

In 1970, Roe was introduced to Yong Cha Kang and met with her on several occasions. Shortly after Yong informed Roe that she would soon be immigrating to the United States as the beneficiary of a fifth preference visa, Roe proposed to Yong. Roe and Yong were married on December 7, 1970. That same day Roe divorced his first wife.

Yong testified that she learned of Roe's previous marriage only after submitting a visa petition on his behalf. Yong also testified that she and Roe did not live together in Korea or in the United States after their marriage.

Yong immigrated to the United States on December 19, 1970, as a permanent resident. She settled in Columbus, Georgia, to live with her sister and brother-in-law.

On the basis of his marriage to Yong, Roe was issued an "Immigrant Visa and Alien Registration" on March 16, 1971. Although, the visa indicated that Roe's final address in the United States was the home of Yong in Columbus, Georgia and that Roe's intended port of entry was Los Angeles, California, Roe entered the United States on April 3, 1971, through Honolulu, Hawaii. Upon his arrival in Honolulu, Roe was greeted by a long-time friend, Barney Kim, whom he had contacted prior to leaving Korea. Roe stayed with Mr. Kim and secured employment from him. Within a few days after his arrival, Roe obtained a business license in Hawaii.

After ascertaining that Yong had received his "green card," Roe flew to Georgia on a round-trip ticket. In Georgia, Roe did not stay with Yong; he registered at the YMCA for the duration of his sojourn.

Yong testified that she asked Roe to stay with her in Georgia but he refused. She also testified that Roe never sought employment in Georgia. After obtaining his green card from Yong, and before returning to Hawaii, Roe initiated divorce proceedings through the Korean Consulate's office in Houston, Texas. Roe's divorce from Yong was finalized on May 11, 1971.

Roe returned to Honolulu and on May 9, 1971, departed for Korea. He returned to the United States on October 9, 1971, again through Honolulu, Hawaii. Roe's first wife and his daughter also arrived in Honolulu that same day. Roe's first wife entered the United States as a non-immigrant student. Roe and his first family proceeded to settle in southern California where Roe and his first wife remarried on December 22, 1971. Although Roe testified that he found employment opportunities and good living conditions in Hawaii and for that reason did not want to live in Columbus with Yong, he relinquished these opportunities to settle in southern California with his first wife. As the BIA noted, "the resourcefulness with which [Roe] established himself in California is notably missing with regard to his intentions and efforts to live with [Yong] in Columbus."

Roe and his defense witnesses disputed Yong's testimony. Roe claimed that he sought employment in Georgia but could not find any and that he wanted Yong to return to Hawaii with him where he had a job and could provide for their needs. Roe also testified that he divorced Yong because she would "not obey." Roe's defense witnesses claimed that Yong was aware of Roe's first marriage when she married him. The IJ found them not credible. The immigration judge is in a better position to assess the credibility of a witness than are we. See Espinoza Ojeda v. INS, 419 F.2d 183, 186 (9th Cir.1969). Because the IJ's credibility determinations are grounded upon reasonable, substantial and probative evidence, we will not disturb them. Id.; Garcia-Jaramillo v. INS, 604 F.2d at 1238.

Based on our review of the record as a whole, we conclude that the BIA's determination that Roe's marriage to Yong was a sham is amply supported by substantial evidence.

2. Opportunity to Present Evidence

Roe further contends that reversal is required on the grounds that the IJ violated 8 C.F.R. Sec. 103.2(b)(2) (1985) by preventing him from rebutting adverse evidence and denied him due process by barring him from fully presenting his evidence regarding his marriage to Yong. We find no merit in this contention.

8 C.F.R. Sec. 103.2(b)(2) addresses an alien's right to inspect evidence considered by the INS in ruling on petitions and applications. The section provides in relevant part:

An applicant or petitioner shall be permitted to inspect the record of proceeding which constitutes the basis for the decision, except as hereinafter provided. If the decision will be adverse to the applicant or petitioner on the basis of derogatory evidence considered by the Service and of which the applicant or petitioner is unaware, he [or she] shall be advised thereof and offered an opportunity to rebut it and present evidence in his [or her] behalf before...