FILED                            NOT FOR PUBLICATION                                SEP 25 2012                           ...
becoming a lawful United States resident if the alien spouse had been involved inmarriage fraud. We affirm.      Novicio h...
Case 3:09-cv-00688-RCJ -VPC Document 14             Filed 06/09/10 Page 1 of 7 1 2 3 4 5 6                                ...
Case 3:09-cv-00688-RCJ -VPC Document 14                   Filed 06/09/10 Page 2 of 7 1 United States. During the petition ...
Case 3:09-cv-00688-RCJ -VPC Document 14                Filed 06/09/10 Page 3 of 7                                         ...
Case 3:09-cv-00688-RCJ -VPC Document 14                  Filed 06/09/10 Page 4 of 7             Marriage to a United State...
Case 3:09-cv-00688-RCJ -VPC Document 14                    Filed 06/09/10 Page 5 of 7      L.Ed.2d 1010 (1967)). According...
Case 3:09-cv-00688-RCJ -VPC Document 14                     Filed 06/09/10 Page 6 of 7      671, 53 L.Ed. 1013 (1909)). Th...
Case 3:09-cv-00688-RCJ -VPC Document 14               Filed 06/09/10 Page 7 of 7      such, Plaintiff has failed to show t...
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Novicio v. Holder, No. 10-16388 (9th Cir. 9-25-12) (unpub and D.C. order) sham marriage bar constitutional


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Novicio v. Holder, No. 10-16388 (9th Cir. 9-25-12) (unpub and D.C. order) sham marriage bar constitutional

  1. 1. FILED NOT FOR PUBLICATION SEP 25 2012 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUITCHRISTINE MARY NOVICIO, No. 10-16388 Plaintiff - Appellant, D.C. No. 3:09-cv-00688-RCJ-VPC District Court Order Appended Below v. MEMORANDUM*ERIC H. HOLDER, JR.,** AttorneyGeneral, Defendant - Appellee. Appeal from the United States District Court for the District of Nevada Robert Clive Jones, Chief District Judge, Presiding Argued and Submitted September 12, 2012 Las Vegas, NevadaBefore: RAWLINSON, BYBEE, and IKUTA, Circuit Judges. Christine Novicio appeals the district court’s dismissal of her challenge tothe constitutionality of 8 U.S.C. § 1154(c), which prohibits an alien spouse from * This disposition is not appropriate for publication and is not precedentexcept as provided by 9th Cir. R. 36-3. ** Eric H. Holder, Jr. is substituted for his predecessor Michael B.Mukasey as Attorney General. Fed. R. App. P. 43(c)(2).
  2. 2. becoming a lawful United States resident if the alien spouse had been involved inmarriage fraud. We affirm. Novicio had standing to challenge the constitutionality of § 1154(c) becausethe provision prevents Novicio from residing with her husband in the UnitedStates, an “injury in fact” that would be redressed by a decision invalidating§ 1154(c) as unconstitutional. See Friends of the Earth, Inc. v. Laidlaw Envtl.Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000) (citing Lujan v. Defenders ofWildlife, 504 U.S. 555, 560–61 (1992)). Multiple links to multiple websites for these case cites! Even if § 1154(c) burdens Novicio’s constitutional right to marry, because itimposes no particular procedure for determining whether an alien spouse is eligiblefor legal resident status, it is not a procedural statute that must be analyzed underMathews v. Eldridge, 424 U.S. 319 (1976). As a substantive provision, § 1154(c)is subject to limited judicial review under the deferential standard articulated inFiallo v. Bell, 430 U.S. 787 (1977). The enactment of § 1154(c) is justified by the“facially legitimate and bona fide reason” of deterring marriage fraud by aliens.Id. at 794–95. Therefore, we hold that § 1154(c) is not unconstitutional even if itburdens Novicio’s constitutional right to marry by preventing her from living withher alien spouse in the United States. AFFIRMED. 2
  3. 3. Case 3:09-cv-00688-RCJ -VPC Document 14 Filed 06/09/10 Page 1 of 7 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 CHRISTINE MARY NOVICIO, 9 Plaintiff, l1011 v. ERIC H. HOLDER, JR., ATTORNEY GENERAL, I l 3:09-CV-00688-RCJ-VPC ORDER121314 Defendant. l Currently before the Court is a Motion to Dismiss (#7) filed by Defendant the Attorney15 General of the United States of America ("Defendant") on January 25, 2010. Plaintiff Christine16 Mary Novicio ("Plaintiff) filed an Opposition to Motion to Dismiss (#8) on February 1, 2010,17 and Defendant filed a Reply (#9) on February 12, 2010.18 The Court heard oral argument on the matter on May 21, 2010.19 BACKGROUND20 This case involves a constitutional challenge to § 204(c) of the Immigration and21 Nationality Act, codified at 8 U.S.C. § 1154(c). The relevant facts are undisputed. Plaintiff22 is a United States citizen and married to Arnulfo Novicio ("Mr. Novicio"), a national of the23 Philippines. Plaintiff and Mr. Novicio were married on August 29, 2003. The legitimacy of24 Plaintiffs and Mr. Novicios marriage is not contested at this time. Mr. Novicio, however, had25 been previously married to a woman, who, like Plaintiff, is also a United States citizen. Mr.26 Novicios previous marriage occurred in 1996. On the basis of that marriage, Mr. Novicio27 sought an adjustment to his immigration status to that of lawful permanent resident of the28
  4. 4. Case 3:09-cv-00688-RCJ -VPC Document 14 Filed 06/09/10 Page 2 of 7 1 United States. During the petition process, Mr. Novicio participated in interviews with the U.S. 2 Citizenship and Immigration Services ("USC IS") to determine the bona fides of the marriage. 3 During an interview on February 8, 2000, Mr. Novicio admitted that the marriage was 4 fraudulent and was entered into for the sole purpose of obtaining an immigration benefit. On 5 June 23, 2000, Mr. Novicio appeared for a third interview and submitted a sworn statement 6 formally withdrawing his application for adjustment of status for permanent residence due to 7 immigration fraud. On August 30, 2000, the application submitted by Mr. Novicio was denied. 8 In 2003, shortly after Plaintiffs marriage to Mr. Novicio, Mr. Novicio entered removal 9 proceedings under the jurisdiction of the Executive Office of Immigration Review ("EOIR").10 On September26, 2003, Plaintiff filed an 1-130 visa petition on behalf of Mr. Novicio in support11 of his adjustment of status to permanent resident based on Plaintiffs marriage to Mr. Novicio.12 On May 10, 2004, Plaintiff and Mr. Novicio appeared for an interview before a USCIS officer.13 At the time of the interview, the USCIS officer did not have access to Mr. Novicios full case14 file. As such, the USCIS officer was not aware that Mr. Novicio had previously admitted to15 committing marriage fraud in order to obtain an immigration benefit. As a result, the visa16 petition was approved by the USC IS on May 10, 2004. However, upon receiving information17 concerning Mr. Novicios prior admission to the commission of marriage fraud, USC IS notified18 Plaintiff that it intended to revoke its approval of the petition pursuant to 8 U.S.C. § 1154(c).19 On January 5, 2006, the USC IS formally revoked its approval of the petition.20 On November 24, 2009, Plaintiff filed the Complaint in this action for declaratory and21 injunctive relief. According to Plaintiff, 8 U.S.C. § 1154(c) "infringes on the fundamental right22 of the Plaintiff to marry and be with the husband of her choosing." (Complaint (#1) at 1).23 Further, Plaintiff asserts that this section "is not narrowly tailored to achieve a compelling24 governmental interest, which it must be for the infringement on the Plaintiffs fundamental right25 to marry to pass constitutional muster." !9..o at 2. As a result, Plaintiff requests that the Court26 declare section 1154(c) unconstitutional and enjoin the Defendant from enforcing any order27 of deportation against Mr. Novicio pending resolution of the Complaint.28 2
  5. 5. Case 3:09-cv-00688-RCJ -VPC Document 14 Filed 06/09/10 Page 3 of 7 DISCUSSION 2 Now before the Court is a motion to dismiss filed by Defendant. Defendant moves the 3 Court to dismiss Plaintiffs Complaint on the grounds of failure to state a claim for relief and 4 lack of subject matter jurisdiction. (Motion to Dismiss (#7)). According to Defendant, Plaintiff 5 has failed to state a claim that section 1154(c) is unconstitutional. Defendant states that 6 substantive immigration statutes are given a deferential standard of review. Under that 7 deferential standard, Defendant argues that Plaintiff failed to allege that section 1154(c) is 8 unconstitutional because the statute clearly upholds the legitimate governmental interest of 9 preventing aliens from engaging in immigration fraud. As such, Plaintiffs claim is withoutIo merit and must be dismissed. Defendant also argues that Plaintiff lacks standing to assert thisII claim because she failed to show that she has suffered any injury, and Plaintiff failed to allege12 a causal connection between any alleged injury and the constitutionality of section 1154(c).13 Because Plaintiff lacks standing, Defendant argues that the case should be dismissed for lack14 of subject matter jurisdiction.15 In response, Plaintiff states that she has a fundamental right to marry and that section16 1154(c) "improperly and unconstitutionally infringes" on that fundamental right and is not17 "narrowly tailored to achieve a compelling governmental interest." (Opposition to Motion to18 Dismiss (#8) at 4). According to Plaintiff, parents and children have a well-elaborated19 constitutional right to live together without governmental inference and section 1154(c)20 violates that right. In addition, Plaintiff claims that the unconstitutionality of section 1154(c)21 caused her husband to be ordered removed from the country and that this has caused her22 injury.23 The Immigration and Nationality Act ("INA") exempts "immediate relatives" from24 statutorily imposed numerical immigration quotas. 8 U.S.C. § 1151 (a). Thus, an alien who25 qualifies as an "immediate relative" is granted permanent resident status ahead of thousands26 of other aliens who seek to immigrate to the United States each year. Barmo v. Reno, 89927 F.Supp. 1375, 1380 (E. D. Pa. 1995). A spouse of a United States citizen is by definition an28 "immediate relative." 8 U.S.C. § 1151 (b). 3
  6. 6. Case 3:09-cv-00688-RCJ -VPC Document 14 Filed 06/09/10 Page 4 of 7 Marriage to a United States citizen is not difficult to orchestrate. Thus, because 2 marriage to a citizen permits such a significant shortcut to the highly prized immigration visa 3 through its conferral of "immediate relative" status, Congress anticipated that many would-be 4 immigrants might be tempted to engage in marriage fraud. Barmo, 899 F.Supp. at 1380. To 5 address this problem, Congress imposed through the INA and other statutes substantial 6 criminal and civil penalties on those who evade or attempt to evade immigration restrictions 7 through fraudulent marriages and on those who conspire with others to do so. !2.:. (citing 8 8 u.s.c. § 1325(b)). 9 One of the penalties is codified at 8 U.S.C. § 1154(c), which has been a part of the INA10 since 1965 and provides:II [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 the12 spouse of a citizen of the United States or the spouse of an alien lawfully admitted for permanent residence, by reason of a marriage determined by the13 Attorney General to have been entered into for the purpose of evading immigration laws, or (2) the Attorney General has determined that the alien has14 attempted or conspired to enter into a marriage for the purpose of evading the immigration laws.15 8 U.S.C. § 1154(c). "This provision forecloses any means of immigrating legally to the United16 States once the alien is deemed to have engaged in prior marriage fraud." Barmo, 89917 F.Supp. at 1380-81. "The bar imposed by section 1154(c) is both permanent and not18 waivable." !2.:. (quoting Marriage Fraud Amendments Regulations, 53 Fed. Reg. 30011,3001219 (1988)).20 As noted, Plaintiff argues that section 1154(c) is unconstitutional because it infringes21 on Plaintiffs fundamental right to marry.22 The right to marry is part of the fundamental "right of privacy" implicit in the Fourteenth23 Amendments Due Process Clause. Zablocki v. Redhail, 434 U.S. 374, 384, 98 S.Ct. 673, 5424 L.Ed.2d 618 (1978). According to the United States Supreme Court, the freedom to marry25 "has long been recognized as one of the vital personal rights essential to the orderly pursuit26 of happiness of free men," and is "one of the basic civil rights of man, fundamental to our very27 existence and survival." !2.:. (quoting Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1828 4
  7. 7. Case 3:09-cv-00688-RCJ -VPC Document 14 Filed 06/09/10 Page 5 of 7 L.Ed.2d 1010 (1967)). According to Supreme Court jurisprudence, the decision to marry is 2 "placed on the same level of importance as decisions relating to procreation, childbirth, child 3 rearing, and family relationships." l_sL at 386, 98 S.Ct. 673, 54 L.Ed.2d 618. In general, 4 because the right to marry and to raise a family is regarded as "fundamental," courts subject 5 legislation burdening such rights to the "strict-scrutiny" test. l_sL at 388, 98 S.Ct. 673, 54 6 L.Ed.2d 618. Under the strict-scrutiny test, "[w]hen a statutory classification significantly 7 interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported 8 by sufficiently important state interests and is closely tailored to effectuate only those 9 interests." l_sL10 Although the rightto marry is generally subjected to the strict-scrutiny test, the Supreme11 Court has articulated a considerably more deferential standard of review of substantive12 immigration statutes, even for those affecting "fundamental"rights such as marriage. Fiallo13 v. Bell, 430 U.S. 787, 97 S.Ct. 14 73, 52 L.Ed.2d 50 (1977). Under the Fiallo standard, a court14 is prohibited from testing or probing beneath asserted justifications for any statute amounting15 to a substantive immigration classification as long as the statute is supported by a "facially16 legitimate and bona fide reason." Fiallo, 430 U.S. at 794, 97 S.Ct. 1473, 52 L.Ed.2d 50.17 In Fiallo, the Supreme Court upheld immigration provisions denying "immediate18 relative" status to illegitimate children whose natural fathers were United States citizens but19 granting that status to similarly situated children whose natural mothers were United States20 citizens. 430 U.S. at 798-800, 97 S.Ct. 1473, 52 L.Ed.2d 50. The Supreme Court began by21 reaffirming the uniquely sovereign character of substantive immigration legislation and the22 commensurately limited role of the judiciary in reviewing such statutes. 430 U.S. at 792, 9723 S.Ct. 1473, 52 L.Ed.2d 50. ("This Court has repeatedly emphasized that over no conceivable24 subject is the legislative power of Congress more complete than it is over the admission of25 aliens.")( quoting Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320, 339, 29 S.Ct.2627 1 One of the arguments asserted in Fiallo was, in essence, the very claim advanced here: the28 challenged statutes implicated the "fundamental" right ofUnited States citizens in a "familial relationship" and thus should be subjected to the strict-scrutiny test. The Court rejected that argument. 5
  8. 8. Case 3:09-cv-00688-RCJ -VPC Document 14 Filed 06/09/10 Page 6 of 7 671, 53 L.Ed. 1013 (1909)). The limited role of courts in reviewing the substantive policy 2 embodied in immigration statutes derives from the Constitutions grant of plenary power to 3 exclude aliens to Congress. See Landon v. Plasencia, 459 U.S. 21, 32, 103 S.Ct. 321,74 4 L.Ed.2d 21 (1982)(noting that the power to admit or exclude aliens is a sovereign prerogative); 5 Fiallo, 430 U.S. at 792, 97 S.Ct. 1473, 52 L.Ed.2d 50. The Supreme Court has "long 6 recognized the power to expel or exclude aliens as a fundamental sovereign attribute 7 exercised by the Governments political departments largely immune from judicial control .. 8 .. [T]he power over aliens is of a political character and therefore subject to only narrow 9 judicial review." Fiallo, 430 U.S. at 792, 97 S.Ct. 1473, 52 L.Ed.2d 50 (citations omitted).10 In this case, Plaintiff argues that 8 U.S.C. § 1154(c) violates her fundamental right to11 marry and must be considered unconstitutional unless it is narrowly tailored to achieve a12 compelling governmental interest. Further, Plaintiff argues that the deferential standard13 applied to immigration statutes does not apply here because she is a United States citizen14 challenging the statute and not an alien. (Opposition to Motion to Dismiss (#8) at 5).15 In this case, although Plaintiff challenges the constitutionality of section 1154(c), the16 Court finds that this case must be dismissed on the grounds that Plaintiff failed to assert17 sufficient facts to state a claim for relief that her constitutional right to marry has been violated.18 In her Complaint, Plaintiff asserts that section 1154(c) infringes on her fundamental right "to19 marry and live with the husband of her choosing." (Complaint (#1) at 3). However, Plaintiff20 concedes that she is legally married to Mr. Novicio and has been for several years. Plaintiff21 has provided no facts that her right to marry has been infringed on in anyway at this point in22 time by that statute. Rather, Plaintiff has only asserted that her husband, Mr. Novicio, has a23 potential legal impairment from becoming a citizen or legal resident of the United States. As24 225 Although the Court is not determining this case on the constitutional issue, the Court notes that the Ninth Circuit has actually applied the deferential standard established in Fiallo to challenges by United26 States citizens to inunigration statutes. See Adams v. Howerton, 673 F.2d 1036, 1041 (9th Cir. 1982). In Adams, the Ninth Circuit refused to apply the strict-scrutiny test when a United States citizen and alien27 challenged a provision of the INA as unconstitutional because it abridged their fundamental right to marry. 673 F.2d at I 041. According to the Ninth Circuit, the strict-scrutiny test did not apply because28 "Congress has almost plenary power to admit or exclude aliens ... and the decisions of Congress are subject only to limited judicial review." !d. (citations omitted). 6
  9. 9. Case 3:09-cv-00688-RCJ -VPC Document 14 Filed 06/09/10 Page 7 of 7 such, Plaintiff has failed to show that she has suffered any injury at this time and her claims 2 must be dismissed. 3 CONCLUSION 4 For the foregoing reasons, IT IS ORDERED that Defendants Motion to Dismiss (#7) 5 is GRANTED. 6 DATm m g• doy of Jooo, 2010.;; 7 8 ~ucn~ite~d~s~ta~t~es~~.ht7 ric~t~J"u~d~g~e---------- 910II1213141516171819202122232425262728 7