Delmundo v. I.N.S., 93-70780

• Decision Date: 20 December 1994
• Docket Number: No. 93-70780,93-70780
• Citation: 43 F.3d 436
• Parties: Ana Cristina DELMUNDO, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 436

43 F.3d 436

Ana Cristina DELMUNDO, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 93-70780.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 6, 1994.

Decided Dec. 20, 1994.

Robert O. Wells, Jr., Mikkelborg, Broz, Wells & Fryer, Seattle, WA, for petitioner.

Karen Ann Hunold, Office of Immigration Litigation, U.S. Dept. of Justice, Washington, DC, for respondent.

Petition to Review a Decision of the Immigration and Naturalization Service.

Before: LAY, ^* TROTT, and T.G. NELSON, Circuit Judges.

TROTT, Circuit Judge:

Ana Cristina Delmundo was found to have fraudulently entered the United States and was ordered by an immigration judge to be involuntarily deported. Delmundo appealed the decision to the Board of Immigration Appeals ("BIA") and moved to reopen her deportation proceedings to consider her application for waiver of deportation under Sec. 212(i) of the Immigration and Nationality Act. ¹ The BIA denied Delmundo's motion to reopen on the basis that she "did not merit a favorable exercise of discretion." The BIA affirmed the decision of the immigration judge but reversed the order of involuntary deportation and granted Delmundo voluntary deportation.

We hold that the BIA erred by considering improper factors weighing against Delmundo in determining whether she warranted discretionary relief pursuant to Sec. 212(i). In addition, we hold that the BIA failed to adequately consider the hardship Delmundo's children would experience if she were deported. Therefore, we reverse and remand to the BIA for further proceedings consistent with this opinion.

I

Delmundo, a native and citizen of the Philippines, entered the United States as a non-immigrant visitor on November 5, 1982, using a false identity established by the use of a false birth certificate and a false death certificate of an alleged previous spouse. Delmundo later used this false identity to secure permanent resident status, as well as to obtain a social security card, driver's license, and voter's registration card.

On March 15, 1985, Delmundo married Gerardo M. Delmundo, a United States citizen. At the time of this appeal, Ana and Gerardo are still married and have two daughters, eight and two years old. ²

In November, 1988, Delmundo again used her false identity to submit an application to file a petition for naturalization. Apparently as a result of this application, on April 19, 1989, Delmundo received an Order to Show Cause why she should not be deported for using false documents to obtain a non-immigrant visa and permanent resident status. Apparently her true identity had been uncovered. On April 20, Delmundo appeared before the immigration judge and denied any use of false documents or a false identity to obtain a non-immigrant visa, claiming still not to be who she was. On May 19, one month after her appearance before the immigration judge, Delmundo submitted an affidavit to the immigration court admitting the allegations in the Order to Show Cause.

II

On appeal to this Court, Delmundo's sole contention is that the BIA erred in denying her motion to reopen deportation proceedings to consider her application for waiver of excludability pursuant to Sec. 212(i). Section 212(i) provides in pertinent part:

(i) Admission of immigrant excludable for fraud or willful misrepresentation of material fact

The Attorney General may, in his discretion, waive application of clause (i) of subsection (a)(6)(C) of this section--

(1) in the case of an immigrant who is the spouse, parent, or son or daughter of a United States citizen or of an immigrant lawfully admitted for permanent residence....

8 U.S.C. Sec. 1182(i). Subsection (a)(6)(C), to which this section refers, provides for the excludability of aliens who gain entry into the United States by fraud or willful misrepresentation. 8 U.S.C. Sec. 1182(a)(6)(C).

The BIA's denial of a motion to reopen deportation proceedings is reviewed for abuse of discretion. INS v. Doherty, 502 U.S. 314, ----, 112 S.Ct. 719, 725, 116 L.Ed.2d 823 (1992). The BIA's refusal to exercise its discretion to grant a waiver of excludability should not be disturbed unless it acted arbitrarily, irrationally or contrary to law. Braun v. INS, 992 F.2d 1016, 1019 (9th Cir.1993).

III

Delmundo contends the BIA erred in denying the motion to reopen on the grounds that (1) she established a prima facie case that she was eligible for relief under Sec. 212(i), and (2) that she had new evidence which had previously been unavailable. The new evidence consisted of an approved visa petition and an application for adjustment of status. Delmundo's position, however, is not supported by the law.

In INS v. Abudu, the United States Supreme Court discussed both the grounds on which the BIA can deny a motion to reopen and the standard by which that decision can be reviewed. 485 U.S. 94, 104-05, 108 S.Ct. 904, 912, 99 L.Ed.2d 90 (1988). The Court stated:

There are at least three independent grounds on which the BIA may deny a motion to reopen. First, it may hold that the movant has not established a prima facie case for the underlying substantive relief sought.... Second, the BIA may hold that the movant has not introduced previously unavailable, material evidence.... Third, in cases in which the ultimate granted relief is discretionary (asylum, suspension of deportation, and adjustment of status, but not withholding of deportation ³), the BIA may leap ahead, as it were, over the two threshold concerns (prima facie case and new evidence/reasonable expectation), and simply determine that even if they were met, the movant would not be entitled to the discretionary grant of relief. We have consistently held that denials on this third ground are subject to an abuse of discretion standard.

Id. at 104-05, 108 S.Ct. at 912 (citations omitted). See also INS v. Doherty, 502 U.S. 314, ----, 112 S.Ct. 719, 725, 116 L.Ed.2d 823 (1992) ("When denial of a motion to reopen is based on the first two of these three grounds, abuse of discretion is the proper standard of review.")

In the instant case, the BIA clearly based its denial of Delmundo's motion to reopen on the third ground. The BIA stated "[b]ecause we find that the respondent does not merit a favorable exercise of discretion, the motion to reopen will be denied."

It is irrelevant whether or not Delmundo established a prima facie case of eligibility or submitted new material facts. The BIA was within its discretion to "leap ahead ... over those two threshold concerns" and simply determine that, even if they were established, Delmundo would not merit a discretionary grant of relief.

IV

Delmundo next contends the BIA erred by considering improper factors in denying her discretionary relief. The BIA expressly stated the factors weighing against granting Delmundo discretionary relief as follows:

The following actions constitute the basis for the respondent's inadmissibility. After the respondent's application for a nonimmigrant visa was denied, she re-applied using a fraudulent birth certificate and fraudulent death certificate pertaining to a fictitious previous spouse. She also claimed two children from her fictitious previous marriage. These acts will not be considered in the exercise of discretion in accordance with the holdings in Matter of Alonzo and Matter of Da Silva. However, after entering the United States, the respondent maintained her fraudulent identity and perpetrated further fraud upon the government.

The respondent committed fraud with the Social Security Administration in obtaining a social security card. She obtained a driver's license and a voter's identification card using her fictitious identity. She claimed her false identity on two marriage licenses and to the Service in visa petitions based on her current and previous marriages. The respondent also prepared and filed with the Service an unsworn application to file petition for naturalization (Form N-400), listing the fictitious spouse under previous marriages. The interview on this application was cancelled in 1990 when she was placed in deportation proceedings.

In addition, the respondent lied to her attorney about her true identity and continued to misrepresent her identity at the commencement of her deportation proceedings, until finally admitting her true identity and past pattern of deception.

Delmundo argues that each of these instances of fraud or misrepresentation "are interwoven with the initial creation of the false identity for which petitioner requests forgiveness pursuant to Sec. 212(i)," and therefore, are inappropriate factors for consideration in determining whether she should merit discretionary relief.

The law in this area is clear. The BIA has held that when considering Sec. 212(i), fraud and misrepresentation used to obtain a visa should not be held as an adverse factor. Matter of Alonzo, 17 I & N Dec. 292 (Comm'r 1979). See also Braun, 992 F.2d at 1020 (applying the same principle to applications for waiver under Sec. 241(f) ⁴). The rationale for excluding the initial fraud is that "this is the action for which they seek to be forgiven." Matter of Alonzo, 17 I & N Dec. at 294. As we have stated:

If ... immigration officials were permitted to rely on the initial fraud as a basis for denying the waiver in the exercise of discretion, a waiver could theoretically be denied in every case arising under Sec. 241(f); the condition that made the alien eligible for relief would be the very condition which would serve as the justification for denying relief. Such a result was surely not contemplated by Congress.

Braun, 992 F.2d at 1020.

We must determine whether the factors relied on by the BIA were part of the initial fraud perpetrated by Delmundo to gain entry into the country. The BIA abuses its discretion when it considers an irrelevant factor when determining whether to grant a discretionary waiver of excludability. Braun, 992 F.2d at 1019. On...