Smith v. INS

• Citation: 684 F. Supp. 1113
• Decision Date: 11 April 1988
• Docket Number: Civ. A. No. 87-1988-C.
• Parties: Kelly SMITH and Osagie Latif Ighile, Plaintiffs, v. IMMIGRATION AND NATURALIZATION SERVICE et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

684 F. Supp. 1113

Kelly SMITH and Osagie Latif Ighile, Plaintiffs, v. IMMIGRATION AND NATURALIZATION SERVICE et al., Defendants.

Civ. A. No. 87-1988-C.

United States District Court, D. Massachusetts.

April 11, 1988.

William Southard, Neal Rosen, Bingham, Dana & Gould, Marjorie Heins, Massachusetts Civ. Liberties, Nelson Brill, Boston, Mass., for plaintiffs.

Martha Sosman, Asst. U.S. Atty., Boston, Mass., for defendants.

MEMORANDUM

CAFFREY, Senior District Judge.

The controversy before the Court involves the constitutional validity of Section 5 of the Immigration Marriage Fraud Amendments of 1986, Pub.L. 99-639, now codified as 8 U.S.C. §§ 1154(h) and 1255(e). Both parties have moved for summary judgment. For the reasons stated below, the Court holds that the amendments do not offend the due process clause of the Fifth Amendment. Summary judgment is therefore granted in favor of the defendants.

I. Background

Under federal law, "immediate relatives" of United States citizens are exempt from the quota restrictions set by the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., and thereby granted permanent resident status ahead of the thousands of immigrants who seek to make their homes in the United States. 8 U.S.C. § 1151(b). The statutory definition of "immediate relative" includes the spouse of a United States citizen. Accordingly, marriage to a citizen allows an alien to avoid the lengthy wait imposed on other immigrants seeking entrance into this country. Understandably, this preferential treatment provides a strong incentive for aliens to enter into marriages with citizens for no other purpose than to gain immigration benefits.

To alleviate the incentive to enter into sham marriages, Congress enacted the Marriage Fraud Amendments of 1986. Prior to the amendments, when a citizen petitioned for an adjustment of status for an alien spouse, the Immigration and Naturalization Service ("INS") conducted an inquiry into each petition to determine whether the marriage was bona fide or merely a sham entered into for the purpose of obtaining immigration benefits. If the INS concluded that the marriage was sincere, it granted the alien spouse permanent resident status. Obviously, no adjustment was granted if the marriage was determined to be a fraud.

The Marriage Fraud Amendments were designed to tighten the statutory scheme in order to prevent marriage fraud. Under the amendments, an alien who marries a citizen receives only a conditional adjustment of status based on the fact of the marriage. 8 U.S.C. § 1186a(a)(1). Conditional status is granted only after the INS conducts an inquiry into the sincerity of the marriage. The alien's immigration status remains conditional for a two year period, after which, if the marriage is in fact bona fide, the condition is removed and the alien spouse obtains permanent resident status. 8 U.S.C. § 1186a(c)(3)(B).

If, at the time of the marriage, the alien is involved in deportation or exclusion proceedings, the procedures prescribed by the amendments are very different. When an alien who is involved in such proceedings marries a citizen, the alien spouse is required to leave the United States for a two year period before he or she may obtain an adjustment of status based on the marriage. 8 U.S.C. §§ 1154(h) and 1255(e). The two year non-residency requirement is applied whether or not the alien/citizen marriage is in fact bona fide or a sham. The INS conducts no individual inquiry into the bona fides of the marriage until the two year non-residency period is completed. It is these latter provisions of the amendments which are at issue in the present action.¹

The plaintiffs are a married couple currently residing in Boston. Plaintiff Kelly Smith is a United States citizen. Her husband, Osagie Latif Ighile, is a citizen of Nigeria who, although lawfully admitted to the United States as an initial matter, has been residing here continuously and illegally since 1982. The plaintiffs' marriage took place in 1986, at a time when Mr. Ighile was already involved in deportation proceedings. Consistent with the statutory requirements described above, Mr. Ighile was informed he would have to leave the country for two years before a petition for permanent resident status based on the marriage would be considered. He was also granted a date for voluntary departure from the United States. Prior to that date, the plaintiffs filed this action claiming that the two year non-residency requirement violates their rights to due process and equal protection under the Fifth Amendment.

II. The Equal Protection Claim

The plaintiffs claim that the statutory distinction between aliens who marry citizens while involved in deportation proceedings and other aliens who marry citizens denies them the equal protection of the laws guaranteed by the Constitution. Although the plaintiffs argue that Section 5 fails to pass muster under even the most minimal standard of equal protection analysis, the parties are in dispute over the appropriate standard of review for this legislation. The plaintiffs contend that because the statute burdens their fundamental right to marry, it should be closely scrutinized to determine whether the burden imposed on the plaintiffs, and not other alien/citizen couples, is justified by an important governmental interest and whether the means chosen to achieve the government's interest bear a substantial relationship to that end.

There can be no doubt that the statutory scheme at issue here imposes a substantial burden on the marital relationship between the plaintiffs, a burden not imposed on citizen/alien couples who marry before commencement of deportation proceedings against the alien spouse. Before Mr. Ighile can obtain lawful residency in this country, he is required to leave his home and his spouse for a period of two years. That this separation may be avoided by Ms. Smith simply accompanying her husband out of the country does not alleviate the burdens imposed by this statute. Ms. Smith is caught between the proverbial "rock and a hard place"—she must either give up her husband for two years or take leave of her work, her family and her culture.

Ordinarily, a statute which imposes such a heavy burden on the marital relationship would be subject to searching judicial review in order to determine whether it is carefully crafted to achieve important governmental goals. Zablocki v. Redhail, 434 U.S. 374, 383, 98 S.Ct. 673, 679, 54 L.Ed.2d 618 (1978). The right to marry has been deemed of fundamental importance in our country and matters relating to marriage and family are accorded special protection under our constitutional scheme. Id. at 383-385, 98 S.Ct. at 679-680. See also Griswold v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 1682, 14 L.Ed.2d 510 (1965); Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-40, 94 S.Ct. 791, 796, 39 L.Ed.2d 52 (1974).

Although marriage is recognized as one of the fundamental rights protected by the Constitution, the statute at issue here involves an exercise of congressional power in the area of immigration and naturalization. The extraordinarily broad power of Congress over immigration matters is well established. It has long been recognized that the power to expel or exclude aliens is a "fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control." Shaughnessy v. Mezei, 345 U.S. 206, 210, 73 S.Ct. 625, 628, 97 L.Ed. 956 (1953). In the area of immigration, Congress has the power to make substantive policy choices that would be totally unacceptable under the Constitution if imposed by the states or if imposed on citizens. Mathews v. Diaz, 426 U.S. 67, 79-80, 96 S.Ct. 1883, 1891, 48 L.Ed.2d 478 (1976).

To be sure, an exercise of Congressional power in the area of immigration is not completely immune from judicial scrutiny. When Congress creates distinctions between classes of aliens, those distinctions must be supported by a rational basis. Sadegh-Nobari v. INS, 676 F.2d 1348, 1351 (10th Cir.1982); Narenji v. Civiletti, 617 F.2d 745, 747 (D.C.Cir.1979); Guan Chow Tok v. INS, 538 F.2d 36, 38 (2d Cir.1976); Newton v. INS, 736 F.2d 336, 339 (6th Cir.1984). However, the role of the courts in analyzing an equal protection challenge to a federal immigration statute is limited to determining whether the statute at issue is conceivably related to the achievement of a legitimate federal interest. "It is not the judicial role in cases of this sort to probe and test the justifications for the legislative decision." Fiallo v. Bell, 430 U.S. 787, 799, 97 S.Ct. 1473, 1481, 52 L.Ed. 2d 50 (1977).

The plaintiffs contend that congressional power in the immigration field is more circumscribed when a challenged regulation involves deportation of a lawfully admitted alien rather than exclusion of an alien who has not yet been admitted. According to the plaintiffs' view, an alien who successfully gains admission to this country obtains greater constitutional protection than an alien who is never lawfully admitted to the United States. For that reason, the plaintiffs would have the Court employ a more exacting standard to review the challenged legislation.

Although it is true that lawfully admitted aliens obtain some rights not accorded to aliens who have never been admitted, none of the authorities cited by the plaintiffs persuade the Court that the appropriate standard of review for this statute is affected by the fact that Mr. Ighile was lawfully admitted to this country as an initial matter. The principal case relied on by the plaintiffs, Landon v. Plasencia, 459 U.S. 21, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982), does not authorize greater judicial review of congressional policy choices in the field of immigration solely because the aliens affected by the choices are deportable rather than excludable. To the contrary, Landon simply recognizes that a resident alien is...