Fang Huang v. Mukasey
| Decision Date | 25 April 2008 |
| Docket Number | No. 07-3127.,07-3127. |
| Citation | 523 F.3d 640 |
| Parties | FANG HUANG, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before: MOORE and McKEAGUE, Circuit Judges; SCHWARZER, District Judge.*
An Immigration Judge ("IJ") found that Fang Huang ("Huang") entered a fraudulent marriage in 1996 for the purpose of securing admission to the United States, denied Huang's application for asylum as untimely filed, and denied her applications for withholding of removal under the Immigration and Nationality Act ("INA") and under the Convention Against Torture ("CAT"). While her case was pending before the BIA, Huang moved to remand her case to the Immigration Court and reopen the record so that she could submit additional evidence and apply for an adjustment of status. The BIA dismissed Huang's appeal from the IJ's decision and denied her motions to remand. In March 2008 while her case was pending before this court, Huang filed with us a Motion to Remand to the Board of Immigration Appeals and to Supplement the Record. For the reasons discussed below, we DISMISS Huang's petition for review insofar as it seeks review of the denial of her application for asylum. In all other respects, we DENY Huang's petition for review and her motion to remand to the BIA and supplement the record.
Huang, now a thirty-four-year-old native and citizen of China, entered the United States on July 9, 1997, as a conditional permanent resident on the basis of her marriage to John Higgins ("Higgins"), a United States citizen. More than a year earlier, in March 1996, when Higgins took a two-week trip to China accompanied by Huang's brother-in-law, Huang had married Higgins in China.
On April 27, 1999, Huang and Higgins submitted a joint petition to remove the conditions on residence. On November 16, 2000, Frank Ledda ("Ledda"), an adjudications officer of the former Immigration and Naturalization Service ("INS"), interviewed Huang and Higgins in Michigan regarding their joint petition. That same day, after questioning, Higgins submitted a sworn statement to Ledda, stating that he was paid $4,000 to marry Huang, that he did not know that marriage for the purpose of evading the U.S. immigration laws was illegal, that he and Huang had never lived together or consummated the marriage, and that Huang lived in New York while he lived in Michigan.
On November 24, 2000, the INS issued a Notice to Appear to Huang, charging her with being subject to removal from the United States because her status as a conditional permanent resident had terminated pursuant to INA § 237(a)(1)(D)(i), 8 U.S.C. § 1227(a)(1)(D)(i). The INS also charged that Huang was subject to removal under INA § 237(a)(1)(G)(ii), 8 U.S.C. § 1227(a)(1)(G)(ii), for gaining admission to the United States on the basis of a fraudulent marriage.
On June 12, 2001, Huang and Higgins were divorced by a judgment issued in Grand Rapids, Michigan.
On April 16, 2002, at a scheduling hearing, Huang's attorney stated that Huang intended to seek the removal of her conditional permanent-resident status on the basis of a good-faith marriage but that she did not intend to seek asylum or any other relief. Nonetheless, at Huang's merits hearing on May 12, 2005, Huang submitted an application for asylum and for withholding of removal pursuant to the INA and the CAT.
Huang based her application for asylum on the following claims: (1) that on October 15, 2004, she married Yifei Fong,1 a naturalized U.S. citizen, in New York; (2) that she cared for Fong's son, who was born in 1989; and (3) that on November 24, 2004, she and Fong had a child together named Oscar Fong. The merits hearing on May 12, 2005 thus proceeded in two steps. First, the IJ considered the nature of Huang's marriage to Higgins, with the government contending that Huang was removable from the country on the basis of fraudulently entering the marriage with Higgins and with Huang arguing that this marriage was in good faith and that the IJ should grant her application for the removal of the conditions on residence on the basis of a good-faith marriage. Second, the hearing then concerned Huang's application for asylum and withholding of removal under the INA and the CAT. On the issue of the nature of Huang's marriage to Higgins, the government presented testimony from Ledda, Higgins, and Huang. Huang's testimony also pertained to her applications for asylum and withholding of removal, and following her testimony, Huang's purported new husband Fong testified.
On June 16, 2005, the IJ issued an oral decision finding that Huang had fraudulently entered marriage with Higgins for the purpose of circumventing the immigration laws and that she was therefore removable. The IJ also denied Huang's applications for asylum and withholding of removal and ordered that she be removed from the United States. Huang timely appealed to the BIA from the IJ's decision.
In August 2005, Huang filed with the BIA a motion to reopen and remand based on changed circumstances, claiming that Huang was pregnant with a second child with Fong. In her brief to the BIA filed in July 2006, Huang also moved to remand for adjustment of status based on her marriage to Fong in October 2004. In August 2006, and again in October 2006, Huang filed additional materials with the BIA in support of her motions to remand, claiming that "newly discovered evidence" indicated that Chinese nationals with children born in the United States would be treated the same as Chinese nationals with children born in China. Pet'r Br. at 22-23.
On January 25, 2007, the BIA dismissed Huang's appeal and denied Huang's motions to remand. Huang timely filed a petition for review of the BIA's decision with this court. On March 11, 2008, Huang filed with us a motion to remand her case to the BIA and to supplement the record, and on March 18, 2008, Huang filed a motion with the BIA to reopen and remand her case to the IJ.
At the start of the May 2005 hearing, the IJ observed that Huang's application for asylum and withholding of removal under the INA and the CAT lacked information and documentation in several crucial areas. In particular, the IJ noted that, although the birth of a child in November 2004 was a predicate for her changed-circumstances claim, Huang had failed to file a birth certificate for the child, nor was the child present at the hearing. Joint Appendix ("J.A."). at 401 (Hr'g Tr. at 26); see also J.A. at 319 (Oral Decision at 39).
After discussion of Huang's application, the government presented evidence that Huang's marriage to Higgins was fraudulent. Ledda, the adjudications officer who interviewed Huang and Higgins in November 2000, was the government's first witness. Ledda testified about his recollections of that interview, during which he became suspicious about the nature of Huang and Higgins's marriage because "they submitted minimal evidence in support of their petition [to remove the conditions on her residence] and there was no[t] what I consider real convincing evidence to place her in Michigan or to establish she had a life in Michigan." J.A. at 426 (Ledda, Hr'g Tr. at 51). Huang had described a trip to New York to visit her sister, and when Ledda asked for the address of Huang's sister in New York, Higgins produced what appeared to be a business card and began reading information from it. Ledda asked to see the card and found that the card contained Huang's name and what appeared to be contact information for Huang in New York. The card also contained a social security number for Huang, and the three-digit prefix showed that it had been issued in New York.
Ledda testified that he then separated the couple, and at that point Higgins admitted that his prior statements about the marriage were false and stated that the marriage was a "fraud" that "had been arranged by his brother-in-law, that he had been paid money to [go to] China and marry, they had never lived together, she had never lived in Michigan." J.A. at 429 (Ledda, Hr'g Tr. at 54). Ledda stated that Higgins further admitted that "the evidence they submitted, such as the bank account was opened at the request of his brother-in-law, but only Mr. Higgins had access to that account." J.A. at 429-30 (Ledda, Hr'g Tr. at 54-55). Higgins gave a sworn written statement and his answers to Ledda's questions were memorialized in a typed statement.
Higgins testified next at the hearing. Higgins testified that he was "paid to marry" Huang by her family, J.A. at 485 (Higgins, Hr'g Tr. at 110), that he and Huang never had sexual relations, that he understood the situation as "a marriage for her to get a green card," J.A. at 490 (Higgins, Hr'g Tr. at 115), that he had few "sober moments" on his trip to China and could not definitively remember any marriage ceremony, J.A. at 506-08 (Higgins, Hr'g Tr. at 131-33), that he was not even sure when Huang ultimately entered the United States, having lost contact with Huang and her family in the period following his brief two-week visit to China, and that he bought a Camaro with money that he received from Huang's family. Higgins also testified that he and Huang opened a joint bank account the day before filing the joint petition to remove the conditions on residence in April 1999. Higgins stated that he and Huang divorced in 2001.
Huang then testified that her marriage to Higgins was bona fide, that her mother is a U.S. citizen, that her father has a green card, and that her parents live in New York and have been living in the United States for more than ten years. Huang also stated that she has two sisters...
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