Ghaly v. I.N.S.

• Decision Date: 10 February 1995
• Docket Number: No. 94-2261,94-2261
• Citation: 48 F.3d 1426
• Parties: Ramsis GHALY, Dr., Plaintiff-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1426

48 F.3d 1426

Ramsis GHALY, Dr., Plaintiff-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Defendant-Appellee.

No. 94-2261.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 1, 1994.

Decided Feb. 10, 1995.

David Rubman (argued), Chicago, IL, Donald B. Kempster, Kempster & Associates, Chicago, IL, for plaintiff-appellant.

James G. Hoofnagle, Jr., Asst. U.S. Atty. (argued), Office of the U.S. Atty., Civ. Div., Chicago, IL, for defendant-appellee.

Before POSNER, Chief Judge, COFFEY and MANION, Circuit Judges.

COFFEY, Circuit Judge.

Dr. Ramsis Farid Ghaly appeals a decision of the district court upholding a finding by the Immigration and Naturalization Service ("INS") that Dr. Ghaly was ineligible for an immigrant visa pursuant to Section 204(c)(2) of the Immigration and Naturalization Act, 8 U.S.C. Sec. 1154(c)(2). The INS district director revoked an immigrant visa petition filed on behalf of Dr. Ghaly by the University of Illinois at Chicago upon learning that his marriage to a United States citizen was fraudulent. The INS Administrative Appeals Unit and the district court affirmed the revocation of the visa petition, and Dr. Ghaly appealed. We affirm.

I. BACKGROUND

Dr. Ghaly is an Egyptian neuroanesthesiologist allegedly of some renown. On July 30, 1985, he married Ann Marie Wagner, a United States citizen, in a civil ceremony in Cleveland, Ohio. Shortly thereafter, Ms. Wagner filed a petition for immediate relative visa status on Dr. Ghaly's behalf. Ms. Wagner withdrew this petition on October 24, 1985. The reason she provided for the withdrawal was that she refused to go through the adjustment of status process because the marriage was fraudulent. During an interview with INS agents on January 3, 1986, Ms. Wagner signed an affidavit stating that she married Dr. Ghaly for a fee so that he could be granted permanent residency in the United States. Her affidavit stated in pertinent part that:

[a]bout May of 1984 a man I know as Thomas Fix asked me if I wanted to make some money. He told me I could marry an alien so he could get a green card and stay in the United States. He told me I wouldn't have to live with the person and I would get some papers at my house relating to his green card. He told me I wouldn't have to have sexual relations with the person.

He told me I would be paid $1500 for the scheme. I first met Ramsis the day we were married, July 30, 1985. I drove the two of us to get the marriage license, since he lived in Chicago we got a waiver of the waiting period. We went across the street to the Justice Center and got married. We then went to the Immigration office and picked up the papers, then he went to get a social security card. We had stopped earlier at the bank and Ramsis took out some money. Later that day we went to Tom's place of business and Ramsis gave Tom an envelope with money. Tom gave me $400. I later heard from Ramsis that there was $2,000 in the envelope and I understand Tom took $500. He gave me the other $1100 the next day.

I never resided with Ramsis. We never consummated the marriage. I want to withdraw the petition I filed in his behalf at this time.

On July 31, 1985 we took the papers down to Immigration and filed them. I saw him one more time to take pictures for the interview. I then decided I didn't want to go through with the scheme and I refused to go to the interview.

The marriage ended in divorce on January 28, 1986. ¹

In February 1992, the University of Illinois at Chicago (the "University") filed a visa petition with the INS seeking to employ Dr. Ghaly as a senior research specialist pursuant to Section 203(b)(2) of the Immigration and Naturalization Act (the "Act"), 8 U.S.C. Sec. 1153(b)(2). ² On March 16, 1992, the INS approved the University's visa petition. Some eight months later, on November 30, 1992, the INS issued a notice to the University ("Notice of Intent to Revoke"), stating that it intended to revoke the visa petition and advising the University that Dr. Ghaly's immigration file contained a sworn statement from his former wife, Ann Marie Wagner, that he married her in order to obtain permanent residence in the United States. The Notice of Intent to Revoke also advised the school that Dr. Ghaly was ineligible to receive a visa because the marriage had been entered into for the purpose of evading the immigration laws, in violation of Section 204(c)(2) of the Act, 8 U.S.C. Sec. 1154(c)(2). Section 204(c)(2) prohibits the approval of a visa petition when "the Attorney General has determined that the alien has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws." Id.

On January 20, 1993, the University filed a response to the Notice of Intent to Revoke, which included a cover letter along with several affidavits and statements attesting to the validity of Dr. Ghaly's marriage to Ms. Wagner. The University contended that the INS had no basis to revoke the visa petition. The University asked the INS to provide it with a copy of Ms. Wagner's sworn statement and requested an additional thirty days to respond to that statement.

The rebuttal evidence submitted by the University in its response to the Notice of Intent to Revoke included a notarized letter written by Ms. Wagner, and dated October 8, 1992, which stated in pertinent part:

I met, dated, and shortly there after [sic] married Ramsis on July 30, 1985 in a civil ceremony in Cleveland, Ohio. We married because we honestly thought we cared about each other and could over come [sic] all obstacles.

Because we married too soon after meeting and because of our tremendous cultural differences, I could see he was not the kind of man I really wanted to spend the rest of my life with. It was better to divorce quickly; better for the both of us.

He was and is a fine, honest person. A person of great intelligence and good character. Although we had a bad start, I support him totally for residency in the U.S.A. He will be an asset to this country as a doctor and a human being.

The rebuttal evidence also included an affidavit signed by Dr. Ghaly which explained that he and Ms. Wagner met through a mutual friend, Thomas Fix, in Cleveland, Ohio, where Dr. Ghaly was studying for his medical licensing exam. He stated that he and Ms. Wagner became good friends and they decided to marry. Dr. Ghaly admitted his immigration status was one of the considerations involved in their decision to marry but averred: "Ann and I were both young and we cared for each other. At the time it seemed as if we would make a good team together." Dr. Ghaly denied the charge that he had arranged the marriage to evade the immigration laws, stating that:

My marriage to Ann was not fraudulent and it was not entered into as the result of my promise to pay any amount of money.... Although we may have been foolish to marry without first spending more time together, we did not get married for any fraudulent or illegal purpose.

The rebuttal evidence also included an affidavit from Thomas Fix. Mr. Fix asserted that Dr. Ghaly's marriage to Ms. Wagner was "based on mutual love and affection," and he had no reason to believe the marriage was fraudulent. The University submitted statements from other people as well. A letter from Barbara Dorsey, former coordinator of the residency training program at University Hospitals of Cleveland where Dr. Ghaly served his residency, stated that Dr. Ghaly and Ms. Wagner cared about each other "but the extreme differences in culture plus Ann's chronic illnesses were to [sic] much to deal with all at one time." In a sworn statement in which she repeated that the marriage was not fraudulent, however, Ms. Dorsey admitted that she never actually met Ms. Wagner and thus had never even spoken with her. A letter from Craig Sumers stated that he was friendly with Dr. Ghaly and Ms. Wagner and believed "theirs' was a marriage based on mutual love and affection." Finally, the University submitted a letter from Sister Mary Nicholas, which stated that Dr. Ghaly is "a Christian, generous person, serious about his religious and professional commitments;" however, the letter made no mention of Dr. Ghaly's marriage to Ms. Wagner.

On June 10, 1993, the INS district director revoked the visa petition filed by the University on behalf of Dr. Ghaly because Dr. Ghaly "had previously entered into a marriage for the purpose of evading [the] immigration laws of the United States." Regarding the rebuttal evidence submitted on behalf of Dr. Ghaly, the district director held that: "[t]he notarized statement from the beneficiary's ex-wife [Ms. Wagner] and the other supporting documents are not sufficient to overcome the evidence in the Service's records." The district director did not respond to either the University's request for a copy of Ms. Wagner's statement or to its request for time to provide further rebuttal evidence upon receipt of the statement.

The University appealed this decision to the INS Administrative Appeals Unit ("AAU"), ³ arguing that the INS's decision was not supported by the administrative record; that the finding of marriage fraud was not supported by the findings of any judicial or administrative hearing officer or by the evidence in the record; that the decision did not give adequate weight to the new evidence submitted by the University; and that the INS should not have relied on unsubstantiated investigation reports and other hearsay evidence. Since the INS had not provided the University with a copy of the administrative record or Ms. Wagner's statement, the University asked the AAU for a copy of the administrative record, and requested an additional thirty days to submit a brief and/or rebuttal evidence to the AAU after receipt of the record.

On October 7, 1993, the AAU upheld the district director's decision to revoke the visa petition filed on Dr. Ghaly's behalf by the University. The AAU found that the record contained...