Liwanag v. I.N.S.

• Decision Date: 15 May 1989
• Docket Number: No. 88-4489,88-4489
• Citation: 872 F.2d 685
• Parties: Jesus Paras LIWANAG, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 685

872 F.2d 685

Jesus Paras LIWANAG, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 88-4489.

United States Court of Appeals, Fifth Circuit.

May 15, 1989.

Rehearing and Rehearing En Banc Denied June 28, 1989.

Eugenio Cazorla, Dallas, Tex., for petitioner.

Edwin Meese, III, Atty. Gen., Charles E. Pazar, Jill E. Zengler, Robert L. Bombough, David J. Kline, Alice M. Smith, Robert Kendall, Jr., Civ. Div., U.S. Dept. of Justice, Washington, D.C., for respondent.

Ronald Chandler, Deputy Director, Dallas, Tex., John B.Z. Caplinger, Deputy Director, I.N.S., New Orleans, La., for other interested parties.

Petition for Review of an Order of the Immigration and Naturalization Service.

Before REAVLEY, WILLIAMS, and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

FACTS

Jesus Paras Liwanag appeals the decision of the Board of Immigration Appeals (BIA) denying the withholding of deportation under 8 U.S.C. Sec. 1251(f)(1) and denying voluntary departure under 8 U.S.C. Sec. 1254(e). For the reasons set forth below, we AFFIRM.

In April 1980 Petitioner Liwanag, a Filipino, entered the United States claiming to be an unmarried son of a lawful permanent resident under Sec. 203(a)(2) of the Immigration and Naturalization Act (INA), 8 U.S.C.A. Sec. 1153(a)(2) (1988). ¹ Liwanag was accordingly admitted as a second preference immigrant. At the time of his entry, however, Liwanag was actually married to Lucilia M. Canilao. After spending approximately two years in the United States, Liwanag returned to the Philippines in January 1982 and married Canilao a second time to obtain immigrant visas for both his wife and children.

Liwanag filed for divorce from Canilao just two months later in March 1982. While still legally married to Canilao, Liwanag subsequently fathered a son with Helen Plorgo, with whom he had been living since October 1983. This child was born in Dallas, Texas on October 13, 1984.

Liwanag was investigated by the Immigration and Naturalization Service (INS) in November 1984. Under oath, Liwanag gave false testimony regarding his marriage(s) to Canilao, concealing the fact that he was married at the time of his original entry into the United States. At his deportation hearing in early 1985, Liwanag conceded deportability and applied for relief under Sec. 241(f)(1) of the INA, 8 U.S.C. Sec. 1251(f)(1) (1982). Alternatively, Liwanag requested that he be allowed voluntary departure under 8 U.S.C. Sec. 1254(e) (1982). The IJ denied relief, denied voluntary departure, and ordered Liwanag deported. Petitioner appealed to the BIA. Before the

Board considered his case, Liwanag married Helen Plogro, thereby legitimating their child born in the United States. The BIA determined that Petitioner was statutorily eligible for the relief of waiver of deportation. The Board then had discretion to grant such a waiver. It considered the factors favorable to Petitioner: deportation would separate him from his (new) wife and citizen son; his claim to be a good provider; absence of a criminal record and good character references. It then weighed the opposing factors: misrepresenting his marital status to obtain an immigrant visa in 1980; participating in a second, fraudulent marriage ceremony and attempting to use that fraudulent marriage to bring his first wife and family into the United States. The BIA affirmed Liwanag's deportation.

ANALYSIS

In examining the decision by the BIA, we consider whether the Board abused its discretion and thereby acted arbitrarily or capriciously. Jarecha v. I.N.S., 417 F.2d 220, 224 (5th Cir.1969).

I.

Petitioner first asserts that the BIA should not have included his original fraudulent act of misrepresenting his marital status at the time of entry in balancing the favorable against the unfavorable factors present in his case. In arguing the inappropriateness of this methodology, Liwanag correctly notes that 8 U.S.C. Sec. 1254(a)(2) presupposes that the petitioner has committed an act justifying deportation. In its brief, the INS concedes that the original fraudulent act should not be considered as an adverse factor in the balancing equation. Since the INS has conceded this point, we need not address the issue further. Cf. Start v. I.N.S., 803 F.2d 539, 542 (9th Cir.1986), withdrawn, 862 F.2d 787 (9th Cir.1988) (INS conceding same point in similar circumstances).

II.

Despite the erroneous weighing of Liwanag's original fraudulent act, the INS argues--and we agree--that the BIA's denial of the waiver of deportability was nonetheless proper because of additional misrepresentations wrought by Liwanag. ²

Petitioner responds to this argument by claiming that the Board improperly "split" his fraudulent act of misrepresenting his marital status into several discrete acts. In essence, Liwanag contends that his fraudulent second marriage to Canilao for purposes of bringing her and their children to the United States; his filing of a petition for an immigrant visa on her behalf; and his lying to the INS officer regarding his marriage to Canilao must all be considered as part of his original misdeed. We cannot agree with this characterization of his behavior. Despite his contention, Petitioner's subsequent fraudulent actions were unnecessary to perpetuate his original act of misrepresenting his true marital status to obtain an immigrant visa. Liwanag committed one fraudulent act by gaining entry into the United States for himself. He committed a separate fraud in attempting to bring his wife into the United States through a second, sham marriage.

Liwanag's argument raises a question of first impression in our Circuit, but one already addressed by the Ninth Circuit in a strikingly similar case. Start v. I.N.S., 803 F.2d 539 (9th Cir.1986), withdrawn, 862 F.2d 787 (9th Cir.1988) (subsequent events rendered original appeal moot). There, the court found that Start's second, sham marriage performed to allow his first wife and their children to immigrate into the United States constituted a second misrepresentation which could be weighed against his request for a waiver of deportation. Like Liwanag, Start fraudulently entered the United States under the pretense of being an unmarried son of a lawful permanent resident, when, in fact, he was married. We find Start persuasive.

In rendering this decision, we are mindful that Congress's primary objective in enacting Sec. 241(f)(1) was to unite families. See generally, INS v. Errico, 385 U.S. 214, 224-25, 87 S.Ct. 473, 480, 17 L.Ed.2d 318, 326 (1966) (Congress's "fundamental purpose" in adopting this legislation was to unite families comprised, in part, of American citizens or lawful permanent residents, thereby achieving a "humanitarian result"). The relevant family in this case now consists of Liwanag, Plorgo, a lawful permanent resident, and their son, a United States citizen. Despite the humanitarian concerns underlying Sec. 241(f), Congress has entrusted the BIA to perform a balancing operation. Although proof of United States family connections is a "necessary element in the determination of whether to grant waiver," it "is not solely dispositive of the issue." Start, 803 F.2d at 541. The record shows that the BIA thoughtfully considered the objective underlying Sec. 241(f)(1). Our review is limited to correcting abuses of discretion. There may be instances in which several misrepresentations would constitute a single, indivisible fraud, but in this case we cannot say that the BIA abused its discretion in considering Liwanag's several misrepresentations as separate acts in the balancing process for withholding deportation.

III.

Liwanag alternatively contests the BIA decision to refuse voluntary departure. Under 8 U.S.C. Sec. 1254(e), the INS, in its discretion, may grant an alien permission to depart voluntarily if "such alien shall establish ... that he is, and has been, a person of good moral character for at least five years immediately preceding his application for voluntary departure." Section 1101(f)(6) of title 8 provides that no person shall be found to be a person of good moral character who, during the time for which good moral character is required to be established, is, or was "one who has given false testimony for the purpose of obtaining any benefits under this chapter." The BIA concluded that Liwanag's November 1984 misrepresentation of his marital status, under oath, was false testimony included within Sec. 1101(f)(6), as a result of which he became statutorily ineligible for voluntary departure. Although the Board's interpretation of governing immigration law is subject to de novo review, our circuit accords deference to the BIA's interpretation unless there are compelling indications that it is wrong. Campos-Guardado v. I.N.S., 809 F.2d 285, 289 (5th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 92, 98 L.Ed.2d 53 (1987).

In challenging the Board's denial of his request for voluntary departure, Liwanag contends that the false testimony given to the INS officer in 1984 should not have been segregated from his original fraudulent act (i.e., lying about his marital status to obtain his initial visa) because it was done in furtherance, or to preserve, his original fraud. ³ This argument essentially recapitulates the "one fraud" contention by which Liwanag sought to achieve a withholding of deportation. We find it even less persuasive for purposes of the good moral character provision because his perjury falls within the literal terms of that statute. Section 1101(f)(6) denominates, rather narrowly, "a person to be of bad moral character on account of having given false testimony if he has told even the most immaterial of lies with the subjective intent of obtaining immigration or naturalization benefits." Kungys v. U.S., 485 U.S. 759, 108 S.Ct. 1537, 1551, 99 L.Ed.2d 839 (1988). The court in Kungys articulated both the limitations on Sec. 1101(f)(6) and the basis for its literal interpretation. ...