Decision Date23 April 1990
Docket NumberNo. C-C-88-41-M.,C-C-88-41-M.
Citation736 F. Supp. 1367
CourtU.S. District Court — Western District of North Carolina
PartiesPrakash Gobindram MANWANI and Katherina Constantino Manwani, Plaintiffs, v. U.S. DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, Defendant.


Alan S. Gordan, Law Offices of Alan S. Gordan, P.A., Charlotte, N.C., and Lucas Guttentag and Judy Rabinovitz, American Civ. Liberties Union Foundation, Immigration Task Force, New York City, for plaintiffs.

Charles E. Lyons, Asst. U.S. Atty., and David V. Bernal, Atty., Office of Immigration Litigation, Civ. Div., Dept. of Justice, Washington, D.C., for defendant.


McMILLAN, District Judge.

1. This litigation challenges the constitutionality of Section 5(b) of the Immigration Marriage Fraud Amendments of 1986, Pub.L. No. 99-639, 100 Stat. 3537 ("IMFA")

A. Plaintiffs.

2. Plaintiffs are Katherina Manwani and her husband, Prakash Manwani. Mrs. Manwani is a native-born citizen of the United States. Affidavit of Katherina Manwani at ? 1, Exhibit A to Plaintiffs' Cross-Motion for Summary Judgment and in Opposition to Defendant's Motion for Summary Judgment, filed September 5, 1989.1

3. Mr. Manwani is a citizen of India who legally entered the United States in 1983. Exh. B, P. Manwani Aff. at ? 1; Plaintiffs' Statement of Material Facts No. 10, filed September 5, 1989.2

4. The Manwanis began dating in 1984 and had been dating seriously for more than a year when the Immigration and Naturalization Service (hereafter "Immigration Service" or "INS") initiated deportation proceedings against Mr. Manwani in May 1986. Exh. B, P. Manwani Aff. at ? 2; Pl.Mat.Facts No. 1, 2, 3.

5. The Manwanis continued to date while deportation proceedings were pending and became engaged to be married in January 1987. Exh. A, K. Manwani Aff at ? 2; Exh. B, P. Manwani Aff. at ? 2, 3; Pl.Mat.Facts No. 4.

6. They were married in May 1987. Exh. A, K. Manwani Aff. at ? 2; Exh. B, P. Manwani Aff. at ? 3; Pl. Mat Facts No. 5.

7. A son, Alexander Prakash Manwani, was born to them on November 16, 1988. Alexander is a native-born American citizen and is now over a year old. Exh. A, K. Manwani Aff. at ? 5; Exh. B, P. Manwani Aff. at ? 9; Pl.Mat.Fact No. 7.

8. The unrebutted evidence shows that the Manwanis entered into a bona fide marriage based on their love for each other and their desire to have a family. Exh. A, K. Manwani Aff. at ? 3, 4; Exh. B, P. Manwani Aff. at ? 3; Exh. G, Letter of Daniel C. Biber, Ph.D. ("Biber letter"); Pl.Mat. Fact No. 6.

9. The government does not contend that the Manwanis marriage is fraudulent. Transcript of December 12, 1989 at 14:4-15:5.

10. Based on all of the evidence, the court finds that the Manwanis' marriage is bona fide and that Mr. Manwani qualifies as a spouse of a United States citizen within the requirements of 8 U.S.C. ?? 1151(b) and 1154(b).

11. Prakash Manwani was found deportable by an immigration judge on July 15, 1987, solely on the ground that he had overstayed his tourist visa. Exh. B, P. Manwani Aff. at ? 5; Pl.Mat.Fact No. 11, 12.

12. The evidence as a whole establishes that but for Section 5(b), Mr. Manwani would have qualified for an approved visa petition as the husband of an American citizen. He would have been eligible to apply for immediate legal permanent resident status and would have been, if otherwise eligible, entitled to reside in the United States as a lawful permanent resident. Pl.Mat.Fact No. 6, 11, 12, 13, 14.

13. Mr. Manwani was granted "voluntary departure" status by the immigration judge based on the judge's finding of good moral character and the favorable exercise of discretion. Exh. B, P. Manwani at ? 5; Pl.Mat.Fact No. 13, 14.

14. A departure from the United States by Mr. Manwani will terminate his deportation proceedings. 8 C.F.R. ? 204.1(a)(2)(C)(iii); Exh. K, Defendant's Responses to Plaintiffs' First Request for Admissions ("RFA I") No. 27, 28; Pl.Mat. Facts No. 42, 43.

15. If Mr. Manwani had departed the United States before the Manwanis were married, the two-year residency bar of Section 5(b) would not have been applicable and he would have been eligible for immediate return as the immigrant spouse or fiance of an American citizen. Exh. K, RFA I, No. 21, 27; Exh. J, Weinig Letter; Pl.Mat.Facts No. 41, 42.

16. After Mr. Manwani's departure, the Manwanis could have married in the United States or abroad without being subject to Section 5(b). Exh. K, RFA I, No. 27, 28; Pl.Mat.Fact No. 42. If Mr. Manwani had returned to the United States illegally to marry Mrs. Manwani, he would not have been subject to Section 5(b). Exh. K, RFA I, No. 28; Pl.Mat.Facts No. 43.

17. The Manwanis are innocent victims of Section 5(b) who were unaware of the legal consequences of their decision to marry during the time that administrative proceedings were pending against Mr. Manwani. They entered into their marriage in good faith and without any intent to violate the law. Exh. A, K. Manwani Aff. at ? 3, 4; Exh. B, P. Manwani Aff. at ? 3, 4; Pl. Mat. Facts No. 6, 8.

18. Unless invalidated, Section 5(b) on its face and as applied compels the Manwanis either to move to India for two years or to endure two years of separation. 8 U.S.C. ? 1154(h).

19. If Mr. Manwani is compelled to live in India for two years, the cost of travel will preclude Mrs. Manwani from visiting her husband more than once or twice. Exh. B, P. Manwani Aff. at ? 13.

20. An extended separation from her husband will cause Mrs. Manwani emotional hardship and will adversely affect the development of the Manwanis' baby son. Exh. G, Biber Letter; Pl.Mat. Fact No. 15, 16.

21. Mrs. Manwani is justifiably fearful that she and her son would face extremely difficult, if not dangerous, conditions if they were to move to India. Such a move would be detrimental to both of them. Exh. A, K. Manwani Aff. at ? 7; Exh. B, P. Manwani Aff. at ? 14; Exh. G, Biber letter; Pl.Mat. Fact No. 18, 19, 20, 21, 22, 23.

22. Mrs. Manwani has been under the continuing treatment of a physician since an ovary and fallopian tube were removed. She fears she would be unable to obtain adequate continuing medical care in India. Exh. A, K. Manwani Aff. at ? 5, 7; Exh. B, P. Manwani Aff. at ? 14; Pl.Mat. Fact No. 22, 23.

23. In addition, Mrs. Manwani is fearful of leaving her father, who is ill and was recently diagnosed as suffering from severe diabetes and heart disease. Exh. A, K. Manwani Aff. at ? 6, 8-9; Exh. B, P. Manwani Aff. at ? 12, 13; Pl.Mat. Fact No. 18, 20.

24. Even if the Manwanis were to live together in India for two years, lack of medical care would cause them to postpone having another child due to Mrs. Manwani's medical condition and the risk of another difficult pregnancy. Exh. A, K. Manwani Aff. at ? 7; Pl.Mat. Fact No. 24.

25. The court finds that Section 5(b)'s two-year foreign residency requirement serves no valid purpose as applied to the Manwanis. Compelling Mr. Manwani to reside abroad for two years will interfere with the Manwanis' ability to have a family and will impose enormous and unwarranted hardships on their marriage.

26. The court further finds that delaying an evaluation of the bona fides of the Manwanis' marriage until after Mr. Manwani has resided abroad for two years bears no meaningful relationship to the validity of the marriage at the present time or at the time it was celebrated.

B. The Operation of Section 5(b) of IMFA.

27. The government admits that Section 5(b) causes couples who have entered into valid marital relationships to be subject to the statute's two-year foreign residency requirement. Exh. K, RFA I No. 29, 33; Pl.Mat. Fact No. 31.

28. The pendency of deportation proceedings does not render the detection of fraud more difficult or render the INS' methods for determining marital validity less reliable or effective. Exh. L, Defendants' Responses to Plaintiffs' First Request for Production of Documents ("Doc. Req. I") No. 10, 11; Pl.Mat. Fact No. 28.

29. It is undisputed that many legitimate reasons?€”including financial, social and cultural?€”may cause a citizen and alien to delay their marriage and that the initiation of deportation proceedings may serve as a catalyst for a bona fide marriage. Exh. K, RFA I No 33; Exh. C, Bernsen Aff. at ? 28, 29, 30; Exh. E, Affidavit of David Crosland ("Crosland Aff.") at ? 6; Pl.Mat. Fact No. 29.

30. Administrative and judicial proceedings to determine an alien's right to remain in the United States may last for many months or years, during which time, relationships may form, evolve, mature, and culminate in the decision to marry. Exh. K, RFA I No. 34; Bernsen Aff. at ? 29, 30; Pl.Mat. Fact No. 30.

31. There is no evidence that the government would incur any substantial cost by affording aliens in deportation proceedings a procedure by which they could timely prove the validity of their marriage. The court finds that the fiscal and administrative burden that would result from affording a fair procedure to plaintiffs and others who marry during deportation proceedings is negligible. Exh. C, Bernsen Aff. at ? 30.

32. Section 5(b) does not apply to an alien in deportation proceedings who briefly leaves the United States and then marries an American citizen in the United States or abroad. Exh. K, RFA I No. 27, 28; Pl.Mat. Fact No. 42, 43.

33. An alien in deportation proceedings who departs the United States (however briefly) is not subject to Section 5(b) even if he or she immediately returns to the United States illegally. Exh. K, RFA I No. 28; Pl.Mat. Fact No. 43.

34. Plaintiffs have demonstrated, through the government's admissions, that the operation of Section 5(b), as applied, distinguishes between aliens who briefly depart the United States before they marry and aliens who marry without first departing. Exh. K, RFA I No. 21, 27, 28; Pl. Mat. Fact No. 41, 42, 43. Accordingly, the court finds that Section 5(b)...

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