Ruta Marie Kahn v. Immigration and Naturalization Service

20 F.3d 960, 94 Daily Journal DAR 3902, 94 Cal. Daily Op. Serv. 2071, 1994 U.S. App. LEXIS 5515, 1994 WL 94159

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 25, 1994
• Docket: 91-70544
• Status: Published

Opinions

PER CURIAM:

Ruta Marie Kahn, a native and citizen of Canada, was admitted to the United States as a permanent resident alien in 1978 and has lived in California since. Kahn was convicted of money laundering and conspiracy to manufacture methamphetamine. The Immigration and Naturalization Service (INS) found Kahn deportable under 8 U.S.C. §§ 1251(a)(11) and 1251(a)(4)(B) because of her drug conviction, and she petitioned for a waiver of deportation-under § 212(c) of the Immigration and Naturalization Act (INA). 8 U.S.C. § 1182(c). Her petition was granted by an Immigration Judge (IJ), but denied on review by the Board of Immigration Appeals (Board). Kahn appeals.

I

The INS requires an alien who has been convicted of a serious drug offense to demonstrate outstanding equities in her favor to be considered for a waiver of deportation under § 212(c). Ayala-Chavez v. INS, 944 F.2d 638, 641 (9th Cir.1991). In determining whether to grant relief under § 212(c), the Board has refused to adopt an inflexible test, preferring instead a test that looks to the individual merits of each case. The IJ must balance the social and humane considerations presented on the alien’s behalf against the adverse factors including the alien’s undesirability as a permanent resident. Yepes-Prado v. INS, 10 F.3d 1363, 1365-66 (9th Cir.1993); Matter of Marin, 16 I. & N. Dec. 581, 584-85 (1978). Among the factors to be weighed in a petitioner’s favor is the existence of family ties within the United States.¹

The IJ heard testimony from Kahn and others about her long-standing relationship with a Mr. Caldwell, with whom she had been living for several years. Caldwell characterized the relationship as “like [a] common-law” marriage and stated the couple intended to marry if Kahn were not deported. Members of Caldwell’s extended family testified to the existence and strength of Kahn’s relationship with Caldwell and with them. The IJ found Kahn’s family ties in the United ■ States were strong, and on the basis of this and other equities granted Kahn’s request for a waiver under § 212(c). The Board reversed.

The Board recognized that the existence of substantial family ties in the United States is a weighty factor in the support of the favorable exercise of discretion under § 212(c). In evaluating Kahn’s family ties in this country, however, the Board found conclusive the fact that California, her state of residence, did not recognize common law marriages. The Board said:

We ... do not find the respondent’s relationship to Mr. Caldwell to be a substantial equity. During the hearing, Mr. Caldwell testified that he considered the respondent to be akin to a common law wife. However, common law marriages are not recognized in California. See Malhiot v. Southern California Retail Clerks Union, 735 F.2d 1133 (9th Cir.1984), cert. denied, 469 , 105 S.Ct. 959, 83 L.Ed.2d 965 (1985).

The government asks this court to adopt the Board’s analysis and make state law determinative of family ties for purposes of discretionary relief under § 212(c): “[B]ecause California law does not recognize common law marriage, the petitioner’s relationship ... was not a substantial equity.” (Gov. Brief p. 16).

II

The Board, acting on behalf of the Attorney General, may establish standards to guide the exercise of discretion in granting waivers of deportation under § 212(c) “as long as [they] are rationally related to the statutory scheme.” Ayala-Chavez, 944 F.2d at 641. A standard must be based on a permissible interpretation of the statute, although it need not be “the only one [the agency] could permissibly have adopted ... or even the reading the court would have reached if the question had arisen in a judicial proceeding.” Chevron v. Natural Res. Def. Council, 467 U.S. 837, 843 n. 11, 104 S.Ct. 2778, 2782 n. 11, 81 L.Ed.2d 694 (1984).

The Board erred as a matter of law in adopting state law as the conclusive measure of family ties in the United States for purposes of § 212(c) relief. The Supreme Court has held on numerous occasions that “in the absence of a plain indication to the contrary, ... Congress when it enacts a statute is not making the application of the federal act dependent on state law.” Jerome v. United States, 318 U.S. 101, 104, 63 S.Ct. 483, 485, 87 L.Ed. 640 (1943); see Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 43, 109 S.Ct. 1597, 1605, 104 L.Ed.2d 29 (1989); Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 119, 103 S.Ct. 986, 995, 74 L.Ed.2d 845 (1983); NLRB v. Natural Gas Utility Dist. of Hawkins County, 402 U.S. 600, 603, 91 S.Ct. 1746, 1748, 29 L.Ed.2d 206 (1971); United States v. Turley, 352 U.S. 407, 411, 77 S.Ct. 397, 399, 1 L.Ed.2d 430 (1957). This presumption is especially appropriate where the federal statute is generally intended to have uniform nationwide application and where the federal program would be impaired if state law were to control.² Mississippi Band of Choctaw Indians, 490 U.S. at 43-44, 109 S.Ct. at 1605-06.

These principles are applicable here. The INA “was designed to implement a uniform federal policy,” and the meaning of concepts important to its application are “not to be determined according to the law of the forum, but rather require[ ] a uniform federal definition.” Rosario v. INS, 962 F.2d 220, 223 (2nd Cir.1992) (applying by analogy Mississippi Band of Choctaw Indians). Common law marriages are accorded legal status under the laws of thirteen states and the District of Columbia, but are denied such status under the laws of twenty-seven states, including California. See Ellen Kandoian, Cohabitation, Common Law Marriage, and the Possibility of a Shared Moral Life, 75 Geo.L.Rev. 1829, 1831 n. 11 (1987). Under the Board’s standard whether an alien is granted a waiver of deportation may depend on that alien’s state of residence. Nothing in § 212(c) justifies such disparate treatment of otherwise similarly situated aliens. In the absence of an express or implied Congressional intention to the contrary, the Board’s adoption of a standard that conclusively defines family ties under § 212(c) by reference to legal classifications that vary from state to state is not rationally related to the INA’s purpose and is not a permissible interpretation of the Act.³

III

The Board’s evaluation of Kahn’s family ties in this country was only one of several factors the Board weighed in casting the balance against Kahn’s request for a § 212(c) waiver. Nonetheless, it was clearly a significant one. Since the Board adopted a definition of family ties that was unauthorized by the statute, the judgment of the Board must be vacated and the matter remanded for reconsideration, and it is so ordered.⁴

1 . Other positive factors include residence of long duration in this country, hardship to the alien and family if deported, history of employment, property or business ties, community service,' and, when there is a criminal record, genuine rehabilitation. Negative factors include the nature of the ground for deportation, the presence of other violations of the immigration laws, the nature, recency, and seriousness of any criminal record, and the presence of any other evidence of the applicant's bad character or undesirability as a legal permanent resident of the United States. Mann, 16 I. & N.Dec. at 584-85.

2 . The federal statutes cited by the dissent either expressly state or strongly imply that state law is to be applied.

3 . See Moon Ho Kim v. INS, 514 F.2d 179, 180-81 (D.C.Cir.1975) ("The legislative history of the [INA] and the plethora of definitions incorporated in it, Title 8 U.S.C.A. § 1101(a), leave little doubt that Congress was seeking uniformity. To adopt a rule [that relied on the law of the state to define 'adultery'] would be to destroy any meaningful uniformity as to the definition of 'adultery' as used in the Congressional enactment. The divergencies in meaning are expandable to utter diversification once recourse to the law of the state of the alleged offense is resorted to.”); Wadman v. INS, 329 F.2d 812 (9th Cir.1964) (applying federal definition of "adultery” under § 101(f)(2) of the pre-1981 INA); but see Bera-Garcia v. INS, 531 F.2d 693 (3rd Cir.1976) (applying state law definition of "adultery”).

4 . Yepes-Prado, 10 F.3d at 1366 ("[A]n error of law ... constitutes an abuse of discretion."); Jen Hung Ng v. INS, 804 F.2d 534, 539 (9th Cir.1986) ("The inclusion of an improper factor in reaching a discretionary decision is grounds for remand.”). Kahn also argues the Board erred in reassessing the balance between favorable and unfavorable factors on appeal. However, the Board has "the power to review the record de novo and make its own findings of fact.” Cardoza-Fonseca v. INS, 767 F.2d 1448, 1455 (9th Cir.1985).