Saboet Elmazi Azizi and Feim Azizi v. Richard L. Thornburgh, Attorney General of the United States

908 F.2d 1130, 1990 U.S. App. LEXIS 11333

• Court: Court of Appeals for the Second Circuit
• Decided: July 5, 1990
• Docket: 832, Docket 89-6222
• Status: Published

Opinions

MINER, Circuit Judge:

Plaintiff-appellant Saboet Azizi (“Mrs. Azizi”), a naturalized citizen of the United States, and her husband, plaintiff-appellant Feim Azizi (“Mr. Azizi”), a citizen of Yugoslavia, appeal from a summary judgment entered in the United States District Court for the District of Connecticut (Nevas, J.) on August 4, 1989 rejecting their constitutional challenges to section 5 of the Immigration Marriage Fraud Amendments of 1986 (“IMFA”), 8 U.S.C. §§ 1154(h), 1255(e) (1988). On appeal, the Azizis maintain that the two-year foreign residency requirement imposed by section 5 on an alien spouse who marries a United States citizen during the pendency of a deportation or exclusion proceeding violates their rights to equal protection and due process. While we are cognizant of the hardships imposed by this legislation upon aliens and their spouses who enter into legitimate marriages during deportation proceedings, we conclude that section 5 is a valid exercise of Congress’ plenary power to regulate immigration and naturalization.

BACKGROUND

Mr. Azizi, a citizen of Yugoslavia, illegally entered the United States on or about February 24, 1986. Thereafter, the Immigration and Naturalization Service (“INS”) instituted a deportation proceeding against him by issuing an order to show cause and notice of hearing. On June 10, 1986, Mr. Azizi conceded that his entry was unlawful but applied for political asylum. Prior to a determination on his application for political asylum, Mr. Azizi married Saboet Elma-zi, a Yugoslavian native and naturalized citizen of the United States. A hearing was held in January 1987, after which the Immigration Judge denied Mr. Azizi’s application for asylum but granted him until July the privilege of departing voluntarily. According to the Azizis, the Immigration Judge advised Mrs. Azizi that her husband’s departure could be prevented by filing a petition for “immediate relative” status in his behalf. See 8 U.S.C. § 1151(b).

Immediately following the deportation hearing, Mrs. Azizi filed an immigrant visa petition seeking to have Mr. Azizi qualified as an immediate relative. Pursuant to section 5 of the IMFA, an alien who marries a United States citizen during the pendency of deportation proceedings must reside outside the United States for two years before a petition predicated on immediate relative status will be considered by the INS. Id. §§ 1154(h), 1255(e). In violation of section 5, the INS accepted the immigrant visa petition and approved it on June 23, 1987. Mr. Azizi did not file an appeal from the January deportation order, believing he was no longer subject to the order. He did not depart from the United States, and the period for voluntary departure expired.

Mr. Azizi was arrested in November 1987 for failure to comply with the deportation order. He moved immediately to reopen his case before the Immigration Judge, but the motion was denied. On December 9, 1987, the Azizis commenced this action in the district court for the purpose of obtaining relief from the deportation order. On the following day, the INS revoked its approval of Mr. Azizi’s visa petition on the ground that it was granted in violation of section 5 of the IMFA. The Azizis amended their complaint to challenge the revocation on constitutional grounds. After pretrial proceedings were concluded, plaintiffs moved for summary judgment, and defendant cross-moved for the same relief. The district court granted defendant’s cross-motion for summary judgment, Azizi v. Thornburgh, 719 F.Supp. 86 (D.Conn.1989), and this appeal ensued.

DISCUSSION

Every year, thousands of aliens seek immigrant visas to enter the United States. The Immigration and Nationality Act (“INA”) imposes numerical quotas on the number of aliens permitted to immigrate to this country. 8 U.S.C. § 1151(a). Immigrant visas are allocated in accordance with a preference system, which limits eligibility to categories prescribed by the INA. Id. § 1153(a). However, aliens who fit within the “immediate relative” class are exempt from the numerical quotas. Id. § 1151(a), (b). A spouse, child or parent of a United States citizen is considered an immediate relative and may qualify for permanent resident status. Id. § 1151(b).

An alien who marries a United States citizen and obtains permanent resident status while no deportation proceeding is pending is permitted to remain in this country on a conditional basis for two years. Id. § 1186a(a)(1), (b). If, at the end of the second anniversary of the marriage, the Attorney General determines that the marriage is bona fide, the conditional status is removed. Id. § 1186a(c)(1). In contrast, pursuant to section 5 of the IMFA, an alien who marries a United States citizen during the pendency of a deportation proceeding must reside outside the United States for two years after the marriage. Id. § 1154(h). Upon expiration of this two-year period, the alien spouse may seek permanent resident status. See id. §§ 1154(h), 1255(e).¹

I. Equal Protection

The Azizis contend that section 5 of the IMFA denies them their fourteenth amendment right to equal protection of the laws because it classifies citizens and aliens in a manner that violates the fundamental right to marry. They maintain that, because section 5 infringes on their right to marry, a strict scrutiny analysis must be employed in reviewing the statute. Specifically, the Azizis point to the fact that the two-year foreign residency requirement places an onerous burden on citizen/alien marriages without prior consideration of the validity of those marriages.

While we recognize the fundamental nature of the right to marry, we also must consider that “control over matters of immigration is a sovereign prerogative, largely within the control of the executive and the legislature.” Landon v. Plasencia, 459 U.S. 21, 34, 103 S.Ct. 321, 330, 74 L.Ed.2d 21 (1982). Perhaps in no area is the legislative power “more complete.” Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320, 339, 29 S.Ct. 671, 676, 53 L.Ed. 1013 (1909). Because of Congress’ plenary authority, our review of legislation involving matters of immigration and naturalization is limited. Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1478, 52 L.Ed.2d 50 (1977). Congressional authority in this area extends to the establishment of alien classifications as a basis for determining immigration eligibility. See id. at 794, 97 S.Ct. at 1479; Kleindienst v. Mandel, 408 U.S. 753, 766, 92 S.Ct. 2576, 2583, 33 L.Ed.2d 683 (1972). Such classifications will be upheld against a constitutional challenge if a rational basis exists for their adoption.² See Guan Chow Tok v. INS, 538 F.2d 36, 38-39 (2d Cir.1976) (per curiam); accord Anetekhai v. INS, 876 F.2d 1218, 1224 (5th Cir.1989).

Recognizing Congress’ broad power to classify aliens for immigration purposes, the Azizis maintain that section 5 infringes upon the exercise of their fundamental right to marry. In Fiallo, the Supreme Court upheld the constitutionality of a section of the INA that excluded illegitimate children and their natural fathers from the preferential status granted the “child” or “parent” of a United States citizen. 430 U.S. at 799-800, 97 S.Ct. at 1481-82. The Court was not persuaded by the appellants’ contention that a strict level of scrutiny must be adopted because the classification impinged on fundamental familial relationship rights of citizens and aliens. Id. at 794, 97 S.Ct. at 1479. In the same vein, we reject the Azizis’ contention that a strict level of scrutiny must be adopted here because section 5 affects their right to marry.

The classes created by section 5 derive from the distinction between citizen/alien marriages that occur before and those that occur after commencement of a deportation or exclusion proceeding. While great deference must be accorded Congress’ decision to classify aliens in such a manner, the government must demonstrate some legitimate reason for adoption of the classification. Francis v. INS, 532 F.2d 268, 272-73 (2d Cir.1976).

Section 5 is aimed at preventing an alien from circumventing a potential deportation or exclusion order by entering into a sham marriage after receiving notice of the commencement of a deportation or exclusion proceeding. H.R.Rep. No. 906, 99th Cong., 2d Sess. 6, reprinted in 1986 U.S.Code Cong. & Admin.News 5978, 5978. In enacting this legislation as a preventive measure, Congress recognized that “ ‘aliens who are engaged in deportation proceedings are more likely than other aliens to enter into fraudulent marriages in order to avoid being expelled from the country.’ ” Almario v. Attorney General, 872 F.2d 147, 152 (6th Cir.1989) (quoting Smith v. INS, 684 F.Supp. 1113, 1117 (D.Mass.1988)); Anetekhai, 876 F.2d at 1222; cf. Guan Chow Tok, 538 F.2d at 38-39. Having identified a potential for fraudulent marriages during the pendency of a deportation proceeding, Congress had a rational basis for prescribing a two-year foreign residency period as a prerequisite to permanent resident status. Accordingly, we find that section 5 of the IMFA does not run afoul of the equal protection clause of the fourteenth amendment.

II. Due Process

The Azizis advance several arguments in support of their contention that section 5 violates their due process rights. They assert that section 5 places an unconstitutional burden on their fundamental right to marry, without affording them the opportunity to substantiate the legitimacy of their marriage. As previously noted, section 5 is a legitimate preventive measure designed to deter fraudulent citizen/alien marriages during the pendency of deportation proceedings. Almario, 872 F.2d at 151-52. Obviously, any statute aimed at eradicating fraudulent marriages could not avoid affecting marital relationships. In light of our limited scope of review, we find the Azizis’ contention unavailing.

Next, the Azizis contend that the absence of a hearing deprives Mrs. Azizi of her property interest in an approved visa for Mr. Azizi. It is not disputed that, when Congress grants property rights to illegal aliens, the fifth amendment protects against the deprivation of those rights without due process of law. See Mathews v. Diaz, 426 U.S. 67, 77, 96 S.Ct. 1883, 1890, 48 L.Ed.2d 478 (1976); see also Board of Regents v. Roth, 408 U.S. 564, 569-70, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972). However, the Azizis cannot succeed on their due process challenge, because they do not have an inherent property right in an immigrant visa, and section 5 does not grant them any such property interest. Through the enactment of section 5, Congress conferred immediate relative status only on the class of alien spouses who marry when no deportation or exclusion proceedings are pending. See Anetekhai, 876 F.2d at 1223; Almario, 872 F.2d at 151-52; see also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 1492, 84 L.Ed.2d 494 (1985); Diaz, 426 U.S. at 80, 83, 96 S.Ct. at 1891, 1892. The power to define the class of alien spouses who qualify for immediate relative status is within the plenary authority vested in Congress over matters of immigration and naturalization. Since the Azizis married after commencement of the deportation proceeding, they cannot demonstrate the right to an immigrant visa and therefore they do not have the requisite property interest necessary to prevail on their procedural due process challenge.

In addition, the Azizis contend that section 5 creates an irrebuttable presumption that all citizen/alien marriages entered into during the pendency of deportation proceedings are fraudulent and, if the marriage fails within the two-year foreign residency period, that the marriage is deemed to be void ab initio for immigration purposes. In rejecting this contention, we agree with the reasoning adopted by the other circuits that have addressed this challenge to section 5 and conclude that there is no irrebuttable presumption, because aliens who enter into marriages during the pendency of deportation proceedings “are not absolutely precluded from obtaining the ‘immediate relative’ status available to other aliens,” but are only denied consideration of a petition for immediate relative status for two years. See Escobar v. INS, No. 89-5037, slip op. at 5-6 (D.C.Cir. Feb. 2, 1990), withdrawn pending reh’g en banc, No. 89-5037 [896 F.2d 564] (D.C.Cir. April 25, 1990); Anetekhai, 876 F.2d at 1223; Almario, 872 F.2d at 152-53. The enactment of section 5 does not represent a congressional determination that all marriages entered into during deportation proceedings are fraudulent. Congress simply implemented a decision to remove any incentive for aliens facing deportation or expulsion to enter into a fraudulent marriage. See Escobar, No. 89-5037, slip op. at 5-6; Anetekhai, 876 F.2d at 1223; Almario, 872 F.2d at 152-53; cf. Weinberger v. Salfi, 422 U.S. 749, 777, 95 S.Ct. 2457, 2472, 45 L.Ed.2d 522 (1975) (social security provision denying death benefits to widow or stepchild based on duration of relationship upheld in face of challenge that it created irrebuttable presumption that marriage was fraudulent); Michael H. v. Gerald D., — U.S.-, 109 S.Ct. 2333, 2340-41, 105 L.Ed.2d 91 (1989) (state law presumption that husband of child’s mother is child’s father does not violate putative father’s due process rights).

The Azizis’ final due process challenge is grounded on the contention that section 5 does not create a substantive classification but rather an unconstitutional procedure adopted to stem the influx of illegal aliens. By characterizing the IMFA as procedural rather than substantive, they urge us to scrutinize the statute under procedural due process standards. Further, the Azizis reject the position that the deferential Fiallo standard is applicable to the due process challenge, contending that the standard applies only to Congress’ power to classify aliens and not to an alien’s right to a fair procedure when attempting to prove immediate relative status.

A finding that section 5 is a procedural rather than a substantive legislative enactment would require us to determine “whether the procedures meet the essential standard of fairness under the Due Process Clause.” Plasencia, 459 U.S. at 35, 103 S.Ct. at 330. The Azizis’ attempt to invoke the holding of Plasencia as support for their position is misplaced. In Plasencia, an exclusion hearing was mandated by statute. The Supreme Court’s discussion focused on a permanent resident alien’s due process challenge to the adequacy of the exclusion hearing. Id. at 32-37, 103 S.Ct. at 329-32. Reliance on Plasencia is inapposite because section 5 does not grant a statutory entitlement to a hearing.

We are not persuaded by attempts to characterize the statute as procedural. Through the enactment of the IMFA, Congress attempted to achieve a reduction in the incidence of “marriage fraud.” H.R. Rep. No. 99-906, 99th Cong., 2d Sess. 6, reprinted in 1986 Code Cong. & Admin. News at 5978. Congress determined that “[although in theory participating in a fraudulent marriage makes an individual liable to both criminal and administrative sanctions, in practice it is very difficult to revoke or rescind an alien’s status, deport him, or even locate him or his spouse.” Id. Section 5 addresses this perceived abuse by creating two distinct classes of alien spouses, those who marry prior to and those who marry after the commencement of deportation proceedings.

According to the Azizis, a manifest problem with section 5 is that resourceful individuals may circumvent the two-year foreign residency period in a number of ways. While loopholes may exist in the statutory scheme, the statute is not irrational simply because it is an imperfect solution to the problems Congress intended to eradicate. See Salfi, 422 U.S. at 780, 95 S.Ct. at 2474.

Prior to the enactment of the IMFA, aliens qualifying for immediate relative status included all alien spouses. Motivated by the perceived need to deter marriage fraud, section 5 amended the INA to refine the qualifications of those claiming immediate relative status. The definition of “spouse” for purposes of immigration is now limited to those who have married prior to the commencement of a deportation hearing and precludes, for a period of two years, consideration of any alien who marries during the pendency of a proceeding. 8 U.S.C. §§ 1154(h), 1255(e). The position advanced by the Azizis is merely an invitation to expand the substantive categories created by the IMFA. We reject this entreaty. See Anetekhai, 876 F.2d at 1223; Escobar, No. 89-5037, slip op. at 1 (Wald, Ch.J., dissenting); see also Almario, 872 F.2d at 151-52. Contra Escobar, No. 89-5037, slip op. at 6. Accordingly, we hold that section 5 is an exercise of Congress’ broad power to enact substantive legislation, classifying the groups of aliens who qualify for immediate relative status.³

III. Estoppel

The Azizis contend that the government should be estopped from denying immediate relative status to Mr. Azizi, because the Immigration Judge allegedly told them that Mr. Azizi could apply for immediate relative status, and the INS approved the immigrant visa petition. The government avers that we lack jurisdiction to hear this claim because Mr. Azizi failed to exhaust available administrative remedies. We find it unnecessary to pass on the government’s contention, because the Azizis’ estoppel claim fails as a matter of law. “[T]he government can be estopped where the traditional elements of estoppel and ‘affirmative misconduct’ are present.” Scime v. Bowen, 822 F.2d 7, 9 n. 2 (2d Cir.1987) (quoting Corniel-Rodriguez v. INS, 532 F.2d 301, 302 (2d Cir.1976)); see INS v. Miranda, 459 U.S. 14, 19, 103 S.Ct. 281, 283-84, 74 L.Ed.2d 12 (1982) (per curiam). We agree with the district court that the Azizis have alleged only negligent conduct on the part of the INS. In the absence of affirmative misconduct, estoppel may not be invoked against the government.

CONCLUSION

The district court properly granted summary judgment dismissing appellants’ equal protection and due process challenges. As well, it correctly concluded that the government may not be estopped in the absence of an allegation of affirmative misconduct. Accordingly, we affirm.

1 . The Azizis now are divorced, according to a letter submitted approximately one month after submission of this appeal. We do not consider that the subsequent divorce has rendered this controversy moot. The challenge here is addressed to the two-year foreign residency period. See 8 U.S.C. § 1154(h), 1255(e). If the constitutional challenge to the two-year foreign residency period were sustained, Mr. Azizi would be subject only to the two-year conditional period imposed on aliens who marry prior to the commencement of a deportation proceeding. Faced with termination of his resident status on the basis of the divorce, Mr. Azizi seemingly could apply for a hardship waiver despite the divorce. 8 U.S.C. § 1186a(c)(4).

2 . Noting the "facially legitimate and bona fide reason” language used by the Supreme Court in Mandel, 408 U.S. at 770, 92 S.Ct. at 2585, the government suggests that this mandates a lower level of scrutiny than is required by the rational basis test. We find that no distinction is intended by the descriptive language and therefore conclude that the rational basis test is applicable.

3 . Atnici, several church-affiliated relief agencies for aliens and immigrants and two United States Representatives, assert that we can avoid the challenge to the constitutionality of section 5 by interpreting it to include an immediate hearing for deportable, as opposed to excluda-ble, aliens to prove the validity of their marriage. Because we conclude that section 5 is a substantive legislative enactment, we find their argument unavailing.