Nakamoto v. Ashcroft

• Decision Date: 01 April 2004
• Docket Number: No. 03-70421.,03-70421.
• Citation: 363 F.3d 874
• Parties: Jocelyn Agonoy NAKAMOTO, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

363 F.3d 874

Jocelyn Agonoy NAKAMOTO, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 03-70421.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 3, 2003.

Filed April 1, 2004.

COPYRIGHT MATERIAL OMITTED

Scott T. Strack, Honolulu, HI, for the petitioner.

Anthony C. Payne, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Before: PAEZ, BERZON, and BEA, Circuit Judges.

PAEZ, Circuit Judge:

Petitioner Jocelyn Agonoy Nakamoto ("Nakamoto"), a native and citizen of the Philippines, married Jeremias Del Rosario ("Del Rosario"), a United States citizen, on December 18, 1992. Nakamoto obtained an immediate relative status visa on the basis of her marriage to Del Rosario and was admitted to the United States on March 27, 1995. After the Hawaii Family Court for the Third Circuit ("Hawaii family court") annulled Nakamoto's marriage to Del Rosario, the Immigration and Naturalization Service ("INS")¹ charged Nakamoto under § 237(a)(1)(G)(ii) of the Immigration and Nationality Act ("INA") for fraudulently entering into her marriage for purposes of evading the United States' immigration laws. 8 U.S.C. § 1227(a)(1)(G)(ii) (2000). Subsequently, the INS placed Nakamoto in removal proceedings and an Immigration Judge ("IJ") ordered her removed to the Philippines on September 10, 1999. The Board of Immigration Appeals ("BIA") affirmed the IJ's ruling and Nakamoto filed a petition for review on January 27, 2003.

This case raises a preliminary question of whether we have jurisdiction to review the BIA's decision. We conclude that because the determination under § 1227(a)(1)(G)(ii) is not committed entirely to the Attorney General's discretion, we have jurisdiction to review the BIA's decision in this case. We further conclude that the BIA's decision was supported by substantial evidence and therefore deny Nakamoto's petition for review.

I.

A.

Jocelyn Nakamoto, a native and citizen of the Philippines, was twenty-two when she began corresponding with her future husband, Jeremias Del Rosario, a United States citizen and resident of Hawaii. The couple exchanged letters for nearly five years. These letters reveal that during this time, a long, and somewhat tumultuous, relationship developed between Nakamoto and Del Rosario. After several years of long-distance romance, Del Rosario proposed marriage and in December 1992, flew to the Philippines and married Nakamoto. Del Rosario stayed in the Philippines for four days after the marriage ceremony before returning to Hawaii.

After Del Rosario returned to Hawaii, the relationship between Nakamoto and her husband deteriorated substantially. Shortly after Del Rosario left, Nakamoto discovered that Del Rosario had a girlfriend in Hawaii. Nakamoto refused to go to Hawaii and, in a series of letters, pleaded for a divorce.

The couple did not dissolve their marriage, however, and Nakamoto continued to write to Del Rosario over the next two years. In March, 1995, Nakamoto agreed to join her husband in Hawaii. According to Nakamoto, Del Rosario met her at the airport and drove her straight to her aunt's house, explaining that he had only a studio, which he shared with his mother and which would not be large enough for the three of them. Del Rosario disputed this version of Nakamoto's arrival in Hawaii, claiming that he met Nakamoto at the airport but that she refused to return to his apartment with him. Del Rosario stayed the next two nights with Nakamoto in her aunt's house, but the couple did not live together after that.

Sometime in 1995, Nakamoto met and became friends with her current husband, Daryl Nakamoto, a United States citizen. The friendship eventually evolved into a romantic relationship and Nakamoto gave birth to their son on December 14, 1996. In 1997, Nakamoto brought suit to dissolve her marriage to Del Rosario and Del Rosario counterclaimed for an annulment of the marriage. On April 9, 1997, the Hawaii family court entered a decree of annulment on the basis that Nakamoto had fraudulently obtained Del Rosario's consent to the marriage.

Nakamoto and her present husband, Daryl, were married in June 1997. At the time of her removal hearing, the Nakamotos lived together in Hawaii with their son, Daryl, Jr., and Daryl Nakamoto's two parents.

B.

On March 16, 1998, the Immigration and Naturalization Service ("INS") commenced removal proceedings against Nakamoto, alleging that, under INA § 237(a)(1)(G)(ii), 8 U.S.C. § 1227(a)(1)(G)(ii), Nakamoto had procured her visa by fraud. Nakamoto appeared before an IJ and sought relief from removal on the ground that she entered into her marriage with Del Rosario in good faith and not for the purpose of obtaining an immigration benefit. Nakamoto also sought a continuance of the hearing pending the adjudication of a visa petition filed by her second and current husband, Daryl Nakamoto. The IJ ultimately denied the continuance request and heard testimony regarding Nakamoto's eligibility for relief from removal on several dates between December 30, 1998 and September 10, 1999. During the course of the proceedings, Nakamoto and the INS presented documentary evidence regarding Nakamoto's marriage and immigration status, including a 1997 judgment from the Hawaii family court annulling Nakamoto's marriage to Del Rosario, and letters from Nakamoto to Del Rosario sent during their courtship and after their marriage.

On September 10, 1999, the IJ determined that the INS had met its initial burden of proof and that the Hawaii family court's annulment order and the letters submitted as evidence "prove[d] that the marriage was a sham from the start."² The IJ also denied Nakamoto's request for voluntary departure pursuant to INA § 240B, 8 U.S.C. § 1229c (2000).³ Finally, the immigration judge denied Nakamoto's request for a continuance pending the resolution of her application for adjustment of status.

In denying Nakamoto relief from removal, the IJ concluded that even though Nakamoto had "exceptional and outstanding equities of family ties in the United States and a good work history" and that her removal would "cause terrible harm to [her] United States citizen son," "she could not show by a preponderance of the evidence that she did not enter into the marriage for purpose of evading immigration laws." The IJ reasoned that Nakamoto had not shown that she entered into her marriage to Del Rosario in good faith because "[t]here [was] little or no conduct before or after the marriage to show commitment. The time they spent together is negligible and there are no joint assets."

On appeal to the BIA, Nakamoto argued that the IJ erred in finding that she was deportable and in denying her motion for a continuance. The BIA affirmed the IJ's ruling that Nakamoto entered into her marriage to Del Rosario only to secure immigration benefits and not for the purpose of establishing a life with him.

II.

The INS raises an initial challenge to our jurisdiction to review the BIA's determination that Nakamoto is deportable pursuant to INA § 237(a)(1)(G)(ii), 8 U.S.C. § 1227(a)(1)(G)(ii). The question we must decide is whether we have jurisdiction to review the BIA's determination that Nakamoto entered into her marriage for the purpose of evading the United States' immigration laws.⁴ For the reasons explained below, we hold that the determination of whether a petitioner committed marriage fraud is not a decision the authority for which is specified under the INA to be entirely discretionary. We conclude that 8 U.S.C. § 1252(a)(2)(B)(ii) does not limit our jurisdiction to review orders of removal entered under INA § 237(a)(1)(G)(ii), 8 U.S.C. § 1227(a)(1)(G)(ii), and therefore, we may properly review the BIA's determination of this issue.

In 1996, Congress added § 1252(a)(2)(B)(ii) to Title 8 of the United States Code as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). See IIRIRA, Pub.L. No. 104-208 (Division C, § 306(a), 110 Stat. 3009-546, 3009-607 (1996)). This section replaces an affirmative grant of jurisdiction under former 8 U.S.C. § 1105a and restricted jurisdiction of federal courts to review certain INS decisions.

Section 1252(a)(2)(B) is not a general denial of jurisdiction. It does, however, limit our jurisdiction to review "(i) any judgment regarding the granting of relief under section 212(h) [8 U.S.C. § 1182(h)], 212(i) [8 U.S.C. § 1182(i)], 240A [8 U.S.C. § 1229b], 240B [8 U.S.C. § 1229c], or 245 [8 U.S.C. § 1255], or (ii) any other decision or action of the Attorney General the authority for which is specified under this subchapter to be in the discretion of the Attorney General, other than the granting of relief under section 208(a)[8 U.S.C. § 1158(a)]." The Attorney General contends that, because the determination of whether an alien has committed marriage fraud is discretionary, we do not have jurisdiction under § 1252(a)(2)(B) to review Nakamoto's petition here.

The marriage fraud provision under which Nakamoto was charged provides:

An alien shall be considered to be deportable as having procured a visa or other documentation by fraud (within the meaning of section 212(a)(6)(C)(i)) and to be in the United States in violation of this Act ... if —

(ii) it appears to the satisfaction of the Attorney General that the alien has failed or refused to fulfill the alien's marital agreement which in the opinion of the Attorney General was made for the purpose of procuring the alien's admission as an immigrant.

8 U.S.C. § 1227(a)(1)(G). So, the question under 8 U.S.C. § 1252(a)(2)(B)(ii) is whether authority for a decision under § 1227(a)(1)(G) is "specified" to be in the Attorney General's discretion.

No court has yet decided this question. In evaluating whether a decision under § 237(a)(1)(G)(ii) is a decision the authority for...