Elias Eid v. John Thompson , 740 F.3d 118 ( 2014 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 12-4271
________________
ELIAS HALIM EID;
GWEN PACKARD-EID,
Appellants
v.
JOHN THOMPSON, District Director, Newark District;
US CITIZENSHIP AND IMMIGRATION SERVICES
________________
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 2-11-cv-03945)
District Judge: Honorable William J. Martini
________________
Argued September 25, 2013
Before: AMBRO, FISHER, and HARDIMAN, Circuit Judges
(Opinion filed: January 10, 2014)
Thomas E. Moseley, Esquire (Argued)
One Gateway Center, Suite 2600
Newark, NJ 07102
Counsel for Appellants
Stuart F. Delery
Acting Assistant Attorney General
David J. Kline
Director
Jeffrey S. Robins
Assistant Director
Kirsten L. Daeubler, Esquire (Argued)
United States Department of Justice
Civil Division
Office of Immigration Litigation
District Court Section
P.O. Box 868, Ben Franklin Station
Washington, DC 20044
Counsel for Appellees
________________
OPINION OF THE COURT
________________
AMBRO, Circuit Judge
Elias Eid and Gwen Packard-Eid filed a complaint
challenging the denial by the Board of Immigration Appeals
(“BIA”) of the I-130 Petition for Alien Relative filed by
Packard-Eid, a United States citizen, that would accord Eid,
2
her husband and a non-citizen, preference status as the spouse
of a citizen. The BIA denied the Petition under 8 U.S.C.
§ 1154(c), which requires denying the petitions of aliens who
had previously received or attempted to receive immigration
benefits based on a marriage “entered into for the purpose of
evading the immigration laws.” Eid and Packard-Eid
contended that, because Eid did not intend to break the law
through his first marriage, § 1154(c) should not apply to him.
The District Court disagreed, granting summary judgment for
the Government on one count of the complaint and dismissed
the remaining counts for failure to state a claim. Despite facts
favoring a better result, the statute’s text leads us to conclude
that neither the District Court nor the BIA erred, as, among
other things, the intent to enter into a marriage solely to gain
immigration benefits is sufficient to establish intent to evade
the immigration laws.
I. Background
A. Factual and Administrative Background
Eid is a Lebanese national who entered the U.S. as a
non-immigrant under an H1-B visa issued based on a petition
by Eid’s employer Carolyn Pickett,1 a U.S. citizen. In October
1999, Eid married Pickett and they began living together as
roommates. Pickett filed an I-130 Petition the next month to
have Eid legally established as her husband for immigration
purposes. It was granted in December 1999.
Obtaining permanent residence based on marriage to
an American citizen or legal permanent resident is a multi-
step process. First, the citizen or permanent resident spouse
1
Pickett is referred to in parts of the administrative record as
Carolyn Rumsey, the name she used during a previous
marriage.
3
must sponsor the alien by filing an I-130 Petition (if granted,
it legally classifies the alien as the spouse of the sponsor).
Once (or at the same time as) the sponsor files an I-130
Petition, the alien must file an I-485 Application to Register
Permanent Residence or Adjust Status.
On the basis of his classification as Pickett’s husband,
per the granting of the I-130 Petition, Eid filed an I-485
Application. During his interview with the Immigration and
Naturalization Service (“INS”) in February 2001 as part of
the application for permanent residence, and presumably in
response to immigration officers questioning the legitimacy
of the marriage, Eid withdrew his I-485 Application. At the
same time, Pickett requested the withdrawal of her I-130
Petition already granted in 1999, a request the CIS granted.
Accompanying the withdrawal of the I-485 application, both
Eid and Pickett gave sworn affidavits to the INS officer. In
his sworn statement, Eid said that he married Pickett in order
to stay in the U.S., the marriage was never consummated, and
the two had “no intention on living together as husband and
wife.” Pickett’s sworn statement was to similar effect. Their
marriage was annulled in December 2002.
Removal proceedings began against Eid in December
2001. In November 2003, he married Packard-Eid, an
American citizen, with whom he had a son in 2006. Packard-
Eid filed a new I-130 Petition on Eid’s behalf in September
2004. Citizenship and Immigration Services (the “CIS”)
determined the marriage of Eid and Packard-Eid (collectively
the “Eids”) to be genuine, but denied the I-130 Petition in
December 2006. It concluded that it must deny Packard-Eid’s
Petition under § 1154(c) because of Pickett’s “sham” Petition
on Eid’s behalf and their respective statements to the INS.
Packard-Eid appealed to the BIA, which remanded to
the CIS with instructions to issue a Notice of Intent to Deny
4
(“NOID”) and to allow the Eids to present evidence in
support of the I-130 Petition. The CIS issued the NOID in
July 2009. In response, Packard-Eid provided declarations
from Pickett and Eid that they married out of a “naïve” belief
that formal marriage and shared residence were sufficient to
obtain permanent residence, along with a statement of
Packard-Eid’s legal arguments against the denial. The CIS
denied the I-130 Petition in September 2009, and Packard-Eid
appealed to the BIA. It affirmed the CIS’s conclusion that §
1154(c) barred the I-130 Petition, termed Pickett and Eid’s
marriage “fraudulent,” and dismissed the appeal.
B. Legal Background
The Eids filed a complaint with the District Court
challenging the denial of the I-130 Petition in July 2011 and
an amended complaint five months later. The first count of
the amended complaint sought review of the BIA’s denial of
the I-130 Petition under the Administrative Procedure Act
(“APA”), 5 U.S.C. § 706, while the remaining counts charged
that the decision violated various constitutional provisions
and international law.
Both the Eids and the CIS filed motions for summary
judgment on the first count of the complaint (the “APA
claim”), and the CIS filed a motion to dismiss the
constitutional and international law counts for failure to state
a claim under Federal Rule of Civil Procedure 12(b)(6). The
District Court granted the CIS’s motion for summary
judgment and dismissed the remaining counts for failure to
state a claim. Eid and Packard-Eid filed a notice of appeal,
5
and in their subsequent brief they challenged both the order
for summary judgment and the dismissal of the other counts.2
III. Jurisdiction and Standards of Review
The District Court had jurisdiction under 28 U.S.C. §
1331. See Chehazeh v. Att’y Gen., 666 F.3d 118, 139 (3d Cir.
2012) (holding that district courts have jurisdiction under the
APA to review BIA decisions other than a final order of
removal). We have jurisdiction under 28 U.S.C. § 1291. In
cases reviewing final administrative decisions under the APA,
“we review the district court’s summary judgment decision de
novo, while ‘applying the appropriate standard of review to
the agency’s decision.’” Concerned Citizens Alliance, Inc. v.
Slater, 176 F.3d 686, 693 (3d Cir. 1999) (quoting Sierra Club
v. Slater, 120 F.3d 623, 632 (6th Cir. 1997)). Under the APA,
we review agency actions to determine whether they were
“arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law[.]” 5 U.S.C. § 706(2)(A).3
2
Removal proceedings against Eid continued parallel to this
litigation and an immigration judge ordered Eid removed in
March 2007. After appeal to the BIA, a petition for review,
and remand to the immigration judge, the removal
proceedings have been administratively closed pending the
outcome of this appeal.
3
The District Court erroneously categorized the Eids’ APA
claim as a request for review of the denial of an application
for naturalization, and on that basis reviewed the Eids’ non-
constitutional claims de novo rather than under the more
deferential APA standard. Because we review the District
Court’s legal conclusions de novo and conclude that it
reached the correct outcome, remand is unnecessary. Cf. S.H.
6
Our Court “exercise[s] plenary review over a district
court’s grant of a motion to dismiss pursuant to Rule
12(b)(6).” Fleisher v. Standard Ins. Co., 679 F.3d 116, 120
(3d Cir. 2012). In this review, “courts ‘accept all factual
allegations as true, construe the complaint in the light most
favorable to the plaintiff, and determine whether, under any
reasonable reading of the complaint, the plaintiff may be
entitled to relief.’” Phillips v. Cnty. of Allegheny, 515 F.3d
224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings
Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). In order to defeat
a Rule 12(b)(6) motion, plaintiffs’ “[f]actual allegations must
be enough to raise a right to relief above the speculative level
. . . .” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Thus, “only a complaint that states a plausible claim for relief
survives a motion to dismiss.” Ashcroft v. Iqbal, 556 U.S.
662, 679 (2009).
III. Analysis
A. APA Claim
The Eids assert several reasons why they believe the
BIA’s denial of the I-130 Petition was arbitrary and
capricious. We deal with each in turn.
1. Level of Intent Required for “Purpose of
Evading the Immigration Laws”
v. State-Operated Sch. Dist. of Newark, 336 F.3d 260, 271
(3d Cir. 2003) (“Even if the District Court applied the wrong
standard of review, we may still uphold its decision if correct
under the appropriate standard of review.”).
7
The Eids’ first argument is that the BIA’s rejection of
their I-130 Petition was improper because the statutory bar of
8 U.S.C. § 1154(c)4 did not apply. It states in pertinent part:
[N]o petition shall be approved if (1) the alien
has previously been accorded, or has sought to
be accorded, an immediate relative or preference
status as the spouse of a citizen of the United
States . . . by reason of a marriage determined by
the Attorney General to have been entered into
for the purpose of evading the immigration laws
....
8 U.S.C. § 1154(c) (emphasis added). At base is the level of
intent necessary for a marriage to be “for the purpose of
evading the immigration laws.” The Eids argue specific intent
to break immigration laws is required. The BIA, in contrast,
concluded that Eid and Pickett’s “admissions that their
marriage was entered for the sole purpose of procuring the
beneficiary’s lawful status in the United States are sufficient
basis” to trigger the § 1154(c) bar (emphasis added).
We defer to the BIA’s reasonable interpretation of
ambiguous provisions of the Immigration and Nationality Act
(“INA”) pursuant to Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, 467 U.S. 837 (1984). See INS v.
Aguirre-Aguirre, 526 U.S. 415, 424 (1999); Sarango v. Att’y
Gen., 651 F.3d 380, 383 (3d Cir. 2011). Under the familiar
Chevron analysis, we ask first “whether Congress has directly
spoken to the precise question at issue. If so, courts, as well as
the agency, must give effect to the unambiguously expressed
intent of Congress.” United States v. Geiser, 527 F.3d 288,
4
This provision is also referred to as Section 204(c), based on
its location in the Immigration and Nationality Act. We refer
to it as § 1154(c) throughout.
8
292 (3d Cir. 2008) (quoting Chen v. Ashcroft, 381 F.3d 221,
224 (3d Cir. 2004)) (internal citations and quotation marks
omitted). If, however, the statute is silent or ambiguous with
respect to the question at issue, we give “controlling weight”
to the agency’s interpretation unless it is “arbitrary,
capricious, or manifestly contrary to the statute.” Id. (quoting
Chen, 381 F.3d at 224) (internal quotation marks omitted). In
this case, our first task is to determine whether the statutory
language “for the purpose of evading” is ambiguous on the
question of intent.
Our review for ambiguity “must begin with the text of
the statute.” Swallows Holding, Ltd. v. C.I.R., 515 F.3d 162,
170 (3d Cir. 2008). The INA does not define the terms
“purpose” or “evade.” See 8 U.S.C. § 1101(a). When words
are left undefined, we have turned to “standard reference
works such as legal and general dictionaries in order to
ascertain” their ordinary meaning. Geiser, 527 F.3d at 294. A
person’s “purpose” is “something that [he or she] sets before
himself [or herself] as an object to be attained: an end or aim
to be kept in view” – it is “an object, effect, or result aimed at,
intended, or attained.” Webster’s Third New International
Dictionary, Unabridged 1847 (1981). To “evade” is to “give
someone the slip[,] . . . to manage to avoid the performance of
(an obligation),” or to “circumvent” or “dodge.” Id. at 787.
We could read the visa bar in § 1154(c) to apply only
when the “object, effect, or result aimed at” in getting married
was to violate the immigration laws. This interpretation is
consistent with the Eids’ assertion that § 1154(c) requires a
specific intent to violate the law. But § 1154(c) also supports
a reading under which specific intent is not required, a
reading adopted by the only Court of Appeals to have directly
considered the issue. See Salas-Velasquez v. INS, 34 F.3d
705, 707-08 (8th Cir. 1994). This interpretation is also
reasonable, because the intended result of a faux marriage is
9
not to violate the law per se, but to obtain an immigration
benefit to which a person is not otherwise entitled. Other
circuit courts have suggested that intent to enter into a
marriage solely to obtain immigration benefits is sufficient to
trigger § 1154(c) without specifically distinguishing this
intent from intent to evade the immigration laws. See, e.g.,
United States v. Islam, 418 F.3d 1125, 1128 (10th Cir. 2005)
(“To obtain permanent residency, however, an alien must
verify he entered into the marriage in good faith and not for
the purpose of procuring his admission as an immigrant.”
(citing 8 U.S.C. § 1154(c); 8 U.S.C. § 1186a(b)(1)(A)(i); 8
U.S.C. § 1186(d)(1)(A)(i)(III))); Ferrante v. INS, 399 F.2d
98, 104 (6th Cir. 1968) (“What he did with respect to the
marriage was done with the intent to gain nonquota status and
not for the purpose of entering into a continuing bona fide
marriage.” (interpreting a previous version of § 1154(c))).
Because we believe that the statute is ambiguous with
respect to the question of intent, we defer to the BIA’s
reasonable interpretation and hold that when the Attorney
General determines that an alien was accorded or sought to be
accorded immediate relative or preference status on the basis
of a marriage entered into solely to obtain immigration
benefits, no additional evidence of intent is necessary to
subject an alien to the bar of § 1154(c). This determination
requires “substantial and probative” evidence of an attempt to
receive immigration benefits based on a false marriage. See
Matter of Tawfik, 20 I. & N. Dec. 166, 167 (BIA 1990). The
Eids have never claimed that there is not substantial evidence
that Eid and Pickett married to obtain immigration benefits.
To the contrary, they have repeatedly acknowledged that the
marriage was entirely a means to obtain the immigration
benefit of permanent residency for Eid.
The Eids argue nonetheless that grave consequences
such as removal should not follow from what they describe as
10
a minor violation under the doctrine of de minimis non curat
lex. See, e.g., In re Hammond, 27 F.3d 52, 57 n.7 (3d Cir.
1994) (“The Latin means: ‘The law does not care for, or take
notice of, very small or trifling matters. The law does not
concern itself about trifles.’” (quoting Black’s Law
Dictionary 388 (5th ed. 1979))). However, a marriage entered
into solely to obtain immigration benefits not otherwise
available without the marriage has as its purpose the evasion
of immigration laws, and that triggers the bar of § 1154(c).
While false statements, third-party involvement, and the
exchange of money may be common markers of a sham
marriage, they are not necessary under the statute to make
that conclusion. Their absence does not render de minimis an
unequivocal violation such as that of Eid and Pickett.
Moreover, that Eid did not receive permanent residence, and
that at the time of his I-485 Application he possessed a valid
H1-B visa (a non-immigrant employer-sponsored visa for
foreign workers in specialized occupations), fail to make the
violation de minimis; the statute requires neither actually
receiving immigration benefits nor immediately needing
them. In any event, Eid did receive “an immediate relative or
preference status as the spouse of a citizen of the United
States” when Pickett’s I-130 Petition was granted, the exact
immigration benefit § 1154(c) references. The bottom line is
that, under the inflexible language of § 1154(c), merely
seeking the benefit of immediate relative or preference status
based on a sham marriage results in the automatic rejection of
an I-130 Petition. Hence the BIA’s denial of the Eids’ de
minimis argument was neither arbitrary nor capricious.
2. Timely Retraction
The Eids contend that the District Court should have
granted their timely retraction argument. Under that theory,
Eid’s withdrawal of his application for permanent residency
should “wash away” the attempt to garner benefits,
11
precluding the application of § 1154(c) and making the BIA’s
decision to apply § 1154(c) erroneous.5 We disagree.
The basic principle of timely retraction or recantation
is that where an alien voluntarily retracts a false statement
before its falsehood is exposed (or about to be exposed), the
effect of the false statement is cancelled out. See Matter of
M—, 9 I. & N. Dec. 118 (BIA 1960); see also Valdez-Munoz
v. Holder, 623 F.3d 1304, 1309 (9th Cir. 2010) (“The doctrine
of timely recantation is of long standing and ameliorates what
would otherwise be an unduly harsh result for some
individuals, who, despite a momentary lapse, simply have
humanity’s usual failings, but are being truthful for all
practical purposes.”). Here, Pickett’s “retraction” of her I-130
Petition occurred only after it had been approved and she and
Eid were questioned regarding the purpose of their marriage.
Even if the timely retraction doctrine were extended to
include withdrawals of official forms, it would be most
difficult to show that the withdrawal, after the Petition was
filed (Eid “sought to be accorded” the benefit) and after the
legitimacy of the marriage was called into question by
immigration officials, was timely. Thus the timely retraction
doctrine does not apply.
5
The BIA did not discuss timely retraction in its decision,
likely because it was not raised in Packard-Eid’s BIA brief.
However, because timely retraction was mentioned in the
notice of appeal, it is considered administratively exhausted
under the standards of our Court. See Joseph v. Att’y Gen.,
465 F.3d 123, 126 (3d Cir. 2006) (“Under the liberal
exhaustion policy . . . , an alien need not do much to alert the
Board that he is raising an issue.”).
12
B. Constitutional Claims
1. Procedural Due Process
In their appellate brief, the Eids assert that the
procedures for denying an I-130 Petition under § 1154(c)
violate the Fifth Amendment’s Due Process Clause because
they do not afford an evidentiary hearing on the record before
a neutral adjudicator. Because this claim was not raised
before the District Court,6 it is waived. See In re Diet Drugs,
706 F.3d 217, 226 (3d Cir. 2013) (“It is axiomatic that
arguments asserted for the first time on appeal are deemed to
be waived and consequently are not susceptible to review in
this Court absent exceptional circumstances.” (quoting Tri-M
Grp., L.L.C. v. Sharp, 638 F.3d 406, 416 (3d Cir. 2011))
(internal quotation marks omitted)). This makes unnecessary
any decision as to the merits of the Eids’ procedural due
process claim.
2. Eighth Amendment
The Eids contend that the denial of Packard-Eid’s I-
130 Petition violates their Eighth Amendment rights on the
ground that removal would be an unconstitutionally
disproportionate penalty. See U.S. Const., amend. VIII
(“Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.”).
Even accepting the Eids’ contention that the denial of the
Petition would necessarily result in removal, we are
6
The Eids raised a separate due process claim based on the
right to marry before the District Court, which dismissed this
count of the complaint for failure to statute a claim under
Federal Rule of Civil Procedure 12(b)(6). Because the Eids
did not pursue the right-to-marry claim before us, we do not
address it here.
13
unpersuaded. As removal cannot violate the Eighth
Amendment because it is not a criminal punishment, see
Harisiades v. Shaughnessy, 342 U.S. 580, 594 (1952)
(“Deportation, however severe its consequences, has been
consistently classified as a civil rather than a criminal
procedure.”), the denial of an I-130 Petition no doubt cannot
do so, see Barmo v. Reno, 899 F. Supp. 1375, 1385 (E.D. Pa.
1995) (rejecting a nearly identical Eighth Amendment
challenge to §1154(c)); Stokes v. INS, 393 F. Supp. 24, 32
(S.D.N.Y. 1975). The District Court thus did not err in
dismissing this count of the complaint for failure to state a
claim.
3. Equal Protection
Finally, the Eids assert that § 1154(c) violates the
equal protection component of the Due Process Clause of the
Fifth Amendment by drawing an unconstitutional distinction
between groups of aliens. In particular, they argue that aliens
who successfully complete marriage fraud are eligible for a
discretionary waiver of removal under 8 U.S.C.
§ 1227(a)(1)(H), while those who merely attempt marriage
fraud are not. We discern no such distinction. Section
1227(a)(1)(H) states, in relevant part:
The provisions of this paragraph relating to the
removal of aliens within the United States on
the ground that they were inadmissible at the
time of admission as aliens described in section
1182(a)(6)(C)(i) of this title, whether willful or
innocent, may, in the discretion of the Attorney
General, be waived for any alien (other than an
alien described in paragraph (4)(D)) who--
(i)(I) is the spouse, parent, son, or daughter of a
citizen of the United States or of an alien
14
lawfully admitted to the United States for
permanent residence; and
(II) was in possession of an immigrant visa or
equivalent document and was otherwise
admissible to the United States at the time of
such admission except for those grounds of
inadmissibility specified under paragraphs
(5)(A) and (7)(A) of section 1182(a) of this title
which were a direct result of that fraud or
misrepresentation.
8 U.S.C. § 1227(a)(1)(H). In lay language, § 1227(a)(1)(H)
allows the Attorney General to waive in her/his discretion the
removal of certain aliens who were inadmissible (that is, not
eligible for legal entry into the United States) at the time they
entered the country and are facing removal because they were
not admissible at the time of entry. Only aliens with a United
States citizen or legal permanent resident relative (such as a
spouse) are eligible.
These waivers are available to aliens who were
inadmissible because they committed certain kinds of
immigration fraud as defined by 8 U.S.C. § 1182(a)(6)(C)(i).
An alien is inadmissible under that provision if he or she, “by
fraud or willfully misrepresenting a material fact, seeks to
procure (or has sought to procure or has procured) a visa,
other documentation, or admission into the United States or
other benefit provided under this chapter . . . .” 8 U.S.C.
§ 1182(a)(6)(C)(i) (emphases added). Because of the “sought
to procure” language, attempted fraud and completed fraud
are equally grounds for inadmissibility under
§ 1182(a)(6)(C)(i). Contrary to the Eids’ assertions, nothing
in the text of either § 1227(a)(1)(H) or § 1182(a)(6)(C)(i)
suggests that attempted and completed frauds or willful
misrepresentations are not equally subject to waiver. Nor is
15
there any reason to believe that the BIA or the CIS in practice
grant waivers only for such completed acts. In support of their
claim, the Eids cite only the bare text of § 1227(a)(1)(H) and
a single case where an alien who entered the United States
based on a fraudulent marriage was granted a waiver, see
Vasquez v. Holder, 602 F.3d 1003, 1010-17 (9th Cir. 2010),
without any evidence of otherwise eligible aliens being
denied waivers because their frauds or willful
misrepresentations were merely attempted rather than
completed. In this context, the District Court did not err in
dismissing this count for failure to state a claim.7
IV. Conclusion
We recognize that, by our holding on § 1154(c), we
subject many aliens who, like Eid, entered a good-faith
second marriage to denial of their spouse’s I-130 Petition.
Regrettably, this effect is the logical consequence of the
absolute language of § 1154(c). Once the Government
determines that it has accorded a mock marriage the benefit
requested in an I-130 Petition, or even that the benefit is
sought by that marriage, further Petitions are foreclosed. We
thus affirm the District Court.
7
Under their APA claim, the Eids similarly argued that the
claimed distinction between groups of aliens was arbitrary
and capricious. We reject that claim for the reasons stated
above.
16