Choe v. I.N.S.

• Decision Date: 09 February 1995
• Docket Number: No. 93-70590,93-70590
• Citation: 69 F.3d 543
• Parties: NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Myung Sook CHOE, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 543

69 F.3d 543

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Myung Sook CHOE, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 93-70590.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 9, 1995. ^*

Decided Oct. 31, 1995.

Before: BROWNING, D.W. NELSON and HAWKINS, Circuit Judges.

MEMORANDUM ^**

Myung Sook Choe petitions for review of a decision of the Board of Immigration Appeals finding her deportable under 8 U.S.C. Sec. 1251(a)(1) for having entered the country without a valid unexpired immigrant visa.

The Board concluded that Choe's marriage had not been bona fide and that no injustice would result from relating the annulment back to the date of the marriage so as to find that Choe had been excludable at the time of entry. In so concluding, the Board assumed it had discretion to give the annulment retroactive effect. The Service did not raise, and the Board did not consider, whether Choe was deportable under former 8 U.S.C. Sec. 1251(c), pertaining to marriage fraud. At the time the Service charged Choe under section 1251(a)(1), section 1251(c) specifically proscribed the deportation consequences of sham marriages. We asked for supplemental briefing on the question whether section 1251(c) provided the exclusive avenue for deporting an alien on the basis of an annulment or the failure to fulfill a marriage agreement. Because we conclude that any charging error was harmless, we do not decide the question. See Pena-Urrutia, 640 F.2d 242 (9th Cir.1981) (holding alien deportable under provision relating to fraud where record established such fraud, even though deportability had been charged under an unrelated and possibly inapplicable provision). ¹

Even if the Service had charged Choe under the proper statute, she could not have rebutted the statutory presumption that a marriage entered into within two years prior to entry and annulled within two years after entry is fraudulent. See Vasquez-Mondragon v. INS, 560 F.2d 1225, 1226 (5th Cir.1977) (alien has the " 'heavy burden' to establish that [her] marriage was not for the purpose of evading immigration laws."). The Board found the marriage was not bona fide. See Bark v. INS, 511 F.2d 1200, 1201-02 (9th Cir.1975) (equating a marriage lacking bona fides with a "sham" marriage). This conclusion was supported by the record, which revealed, among other things, that Choe's marriage had been arranged, she met her husband only two weeks prior to the marriage, the marriage was never "consummated" by sexual relations, Choe and her husband never lived together, and Choe made only minimal...