Hlavinka v. U.S. Citizenship and Immigration Services et al, No. 3:2009cv00003 - Document 29 (D. Or. 2009)
Court Description: OPINION AND ORDER: Respondents' Motion to Dismiss 11 is GRANTED; Finding as Moot Petitioner's Motion for Summary Judgment 21 . Signed on 8/6/09 by Magistrate Judge Dennis J. Hubel. (see formal 12-page opinion) (kb)
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1 2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE DISTRICT OF OREGON 11 12 13 14 15 16 17 18 19 20 21 NICHOLAS FLOYD HLAVINKA, ) ) Petitioner, ) ) v. ) ) WILLIAM McNAMEE, Field ) Director of United States ) Citizenship and Immigration ) Services, Portland, Oregon; ) UNITED STATES CITIZENSHIP AND ) IMMIGRATION SERVICES, ) ) Respondents. ) ) No. CV-09-3-HU OPINION & ORDER Jesse Maanao Tilman Hasche Parker, Bush & Lane 1336 E. Burnside, Suite 200 Portland, Oregon 97214 Attorneys for Petitioner 22 23 24 25 26 27 28 Michael F. Hertz J. Max Weintraub Stacey I. Young Office of Immigration Litigation, District Court Section United States Department of Justice P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Kent Robinson Acting United States Attorney District of Oregon James E. Cox, Jr. Assistant United States Attorney 1 - OPINION & ORDER 1 2 United States Attorney s Office, District of Oregon 1000 S.W. Third Avenue, Suite 600 Portland, Oregon 97204 Attorneys for Respondents 3 HUBEL, Magistrate Judge: 4 The matter before the court is respondents motion to dismiss 5 the petition. 6 Factual Background 7 Petitioner Nicholas Hlavinka, a United States citizen, brings 8 this action challenging the denial by the United States Citizenship 9 and Immigration Service ( USCIS ) of his Petition for Alien his wife, 10 Relative ( I-130 Petition ), filed on behalf of 11 Luzviminda Hlavinka. In an I-130 Petition, a citizen or lawful 12 permanent resident of the United States seeks to establish a 13 relationship to alien family members who wish to immigrate to the 14 United States. 15 Mrs. Hlavinka is a citizen of the Philippines. She has been 16 married three times. Petition ¶ 12. She married her first husband, 17 Alejandro Donato, in the Philippines in 1982. Id. at ¶ 18; USCIS 18 Denial of Petitioner s Form I-130, Respondent s Memorandum, Exhibit 19 C. She states in her affidavit that Donato abandoned her when she 20 was seven months pregnant with their child. Id. 21 She married her second husband, Wendell Leon Floyd, 22 approximately 13 years later, in July 1995 (the Floyd marriage). 23 Mrs. Hlavinka acknowledged to USCIS that she and Mr. Floyd 24 submitted a fraudulent Filipino death certificate for Donato to the 25 former Immigration and Naturalization Service ( INS ), along with 26 a certificate for their marriage stating she was a widow, because 27 divorce is not permitted in the Philippines and annulments are very 28 2 - OPINION & ORDER 1 expensive and time-consuming. Petition ¶¶ 15, 16; Affidavit of L. 2 Hlavinka in Support of Form I-485, Respondent s Memorandum, Exhibit 3 B ( L. Hlavinka Affidavit ), p. 1. Mrs. Hlavinka was admitted to 4 the United States on February 11, 1997 as the conditional permanent 5 resident spouse of a United States citizen. 6 Mrs. Hlavinka separated from Mr. Floyd on May 31, 1997; she 7 states in her affidavit that she left him because he beat her, 8 psychologically abused her, and threatened to kill her with a gun 9 he kept in the house. Id. The Columbia County Circuit Court entered 10 a final decree of dissolution for the Floyd marriage in July 1998. 11 Id. The USCIS terminated Mrs. Hlavinka s conditional permanent 12 resident status, based on its finding that Mrs. Hlavinka married 13 Mr. Floyd in order to obtain an immigration benefit. Petition ¶¶ 14 15, 16. 15 Mrs. Hlavinka married Nicholas Hlavinka on December 30, 1998, 16 a marriage that Mrs. Hlavinka admits was invalid because she was 17 still legally married to Donato. L. Hlavinka Affidavit, p. 3. The 18 Hlavinkas married a second time in June 2002, and a third time on 19 May 12, 2003. Id. 20 In June 2003, Nicholas Hlavinka filed the I-130 Petition on 21 behalf of his wife. Petition ¶ 16. The I-130 Petition was denied on 22 the ground that Mrs. Hlavinka violated 8 U.S.C. § 1154(c) by 23 entering into the Floyd marriage for the purpose of obtaining an 24 immigration benefit. Petition ¶ 16. The decision was appealed to 25 the 26 insufficient evidence to conclude that Mrs. Hlavinka violated 8 27 U.S.C. § 1154(c), and remanded the case to USCIS. Petition ¶ 17. 28 /// Board of Immigration 3 - OPINION & ORDER Appeals ( BIA ). The BIA found 1 On remand, USCIS, through Acting Field Office Director Barbara 2 Kveton, again denied the I-130 Petition (the FO decision). The FO 3 decision cited to Mrs. Hlavinka s Application to Register Permanent 4 Residence or Adjust Status ( I-485 Petition ) in which she stated: 5 I engaged in misrepresentation when my first US citizen husband, Wendell Leon Floyd, and I submitted [fraudulent] [sic] death certificates for my first husband, Alejandro Donato, to convince the US Embassy that Mr. Floyd and I were validly married in order for me to obtain my immigrant visa to enter the United States. 6 7 8 Respondent s Memorandum at Exhibit C, p. 3 (quoting Exhibit A, p. 9 5). USCIS concluded that by Mrs. Hlavinka s own admissions in her 10 affidavits and on her I-485 Petition, and upon review of the entire 11 record of proceeding it is clear that [Mrs.] Hlavinka attempted to 12 enter into a marriage to evade immigration law. Id. at p. 4. 13 On October 25, 2007, the BIA affirmed the FO decision denying 14 Hlavinka s I-130 Petition. Respondent s Memorandum, Exhibit D. Mr. 15 Hlavinka petitions for review in this court. 16 Standard 17 The Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., 18 contains several anti-fraud provisions that bar entry to the United 19 States. The most expansive is the general fraud bar provided at 8 20 U.S.C. § 1182(a)(6)(C)(i), which bars an alien who, by fraud or 21 willfully misrepresenting a material fact, seeks to procure (or has 22 sought to procure or has procured) a visa, other documentation, or 23 admission into the United States or other benefit provided under 24 this Act... The marriage fraud bar, codified at 8 U.S.C. § 25 1154(c), applies when the Attorney General has determined that the 26 alien has attempted ... to enter into a marriage for the purpose of 27 evading the immigration laws. Petitioner concedes that it is 28 4 - OPINION & ORDER 1 nearly certain, given his wife s admissions, that Mrs. Hlavinka 2 will be subject to the general fraud bar, but nonetheless asserts 3 that the marriage bar is inapplicable. 4 Judicial review of the BIA s determination that an alien 5 committed marriage 6 question that is reviewed under a substantial evidence standard, 7 with the agency having the burden of producing substantial evidence 8 in support of its determination. Nakamoto v. Ashcroft, 363 F.3d 9 874, (9th 881 Cir. fraud is 2004). an The intrinsically court must fact-specific determine whether 10 substantial evidence supports a finding by clear and convincing 11 evidence that Mrs. Hlavinka committed marriage fraud. Id. at 882, 12 citing Khodagholian v. Ashcroft, 335 F.3d 1003, 1006 (9th Cir. 13 2003). Discussion 14 15 The Petition document that fraud respondents alone erred conclusively when they 16 concluded 17 marriage fraud for purposes of [8 U.S.C. § 1154(c)]. Petition ¶ 18 20. 19 petition for immigrant status shall be granted if: 20 that alleges establishes The marriage fraud bar, 8 U.S.C. § 1154 (c), provides that no (1) the alien [sought] 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, or (2) the Attorney General has determined that the alien has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws. 21 22 23 24 See also 8 C.F.R. § 204.2(a)(1)(ii)(USCIS may not approve a visa 25 petition for an alien who has attempted or conspired to enter into 26 a marriage for the purpose of evading the immigration laws. ) 27 /// 28 5 - OPINION & ORDER 1 Respondents argue that the agency did not conclude that Mrs. 2 Hlavinka s document fraud alone established marriage fraud; rather, 3 they argue that in its denial of the I-130 petition, the agency 4 found 5 conspiracy to enter into a marriage for the purpose of evading the 6 immigration laws. See Respondents Memorandum, Exhibit C, p. 3. 7 Likewise, respondents argue, the BIA did not, in its October 25, 8 2007 9 standing alone, constituted marriage fraud, but rather that her 10 bigamous marriage to Mr. Floyd was an attempt to enter into a 11 marriage for purposes of evading the immigration laws. Id. at 12 Exhibit D. Therefore, the government argues, both USCIS and the BIA 13 determined that it was Mrs. Hlavinka s bigamous marriage, not just 14 the falsified death certificate and marriage certificate, that 15 constituted marriage fraud for purposes of 8 U.S.C. § 1154(c). that the decision, entire conclude record that of Mrs. proceeding Hlavinka s established document a fraud, 16 Petitioner argues that the standard for determining, under § 17 1154(c), whether marriage fraud has been committed is not whether 18 the marriage in question was legally valid, but rather whether the 19 marriage was entered into without the intent to establish a life 20 together. Petitioner cites several cases from this jurisdiction to 21 this effect.1 22 23 1 Lutwak v. United States, 344 U.S. 604 (1953)(marriage is 24 25 bona fide when parties have undertaken to establish a life 26 together); Bark v. INS, 511 F.2d 1200, 1238 (9th Cir. 27 1975)(marriage a sham if bride and groom did not intend to 28 establish a life together at the time they were married); Garcia6 - OPINION & ORDER 1 Petitioner particularly relies on Johl v. United States, 370 2 F.2d 174, 177 (9th Cir. 1966) and Nakamoto. In Johl, the court held, 3 The immigration law, in granting advantages to those who have married American citizens, is not talking about 4 5 Jaramillo v. INS, 604 F.2d 1236, 1237 (9th Cir. 1979)( It is 6 within the authority of the INS to make inquiry into the marriage 7 8 to the extent necessary to determine if it was entered for the 9 purpose of evading the immigration laws. A marriage is a sham if 10 the bride and groom did not intend to establish a life together 11 at the time they were married. Conduct and lifestyle before and 12 after marriage is relevant to the extent it aids in determining 13 the intent of the parties at the time they were married. ); Pena- 14 Urrutia v. INS, 640 F.2d 242 (9th Cir. 1980)( It is entirely 15 16 appropriate for the INS to [inquire] into the marriage to the 17 extent necessary to determine whether it was entered into for the 18 purpose of evading the immigration laws. A marriage is a sham if 19 the bride and groom did not intend to establish a life together 20 at the time they were married. ); United States v. Tagalicud, 84 21 F.3d 1180, 1185 (9th Cir. 1996)( a marriage [is] a sham if the 22 bride and groom did not intend to establish a life together at 23 the time they were married ); Oropeza-Wong v. Gonzales, 406 F.3d 24 25 1135 (9th Cir. 2005)( To determine the bona fides of the 26 marriage, the proper inquiry is whether [the parties] intended to 27 establish a life together at the time they were 28 married. )(applying 8 U.S.C. § 1186a(c). 7 - OPINION & ORDER 1 3 ceremony or legality -the taking of those steps which enable a couple lawfully to live together in a marital relationship. It is talking about the marital relationship itself -an actual joining together as husband and wife. 4 In Nakamoto, the immigrant lived with her second husband and 5 their son in Hawaii. The INS commenced removal proceedings against 6 Nakamoto, alleging that under 8 U.S.C. §227(a)(1)(G)(ii), Nakamoto 7 had procured her visa by fraud. Nakamoto had initially entered the 8 country after marrying her first husband, Del Rosario, who was a 9 United States citizen. Nakamoto and Del Rosario s courtship had 10 commenced with five years of letters. Del Rosario then proposed and 11 flew to the Philippines to marry Nakamoto in 1992. Del Rosario 12 stayed in the Philippines for four days after the marriage ceremony 13 before returning to Hawaii. After Del Rosario returned to Hawaii, 14 the relationship began to deteriorate. Shortly after Del Rosario 15 left, Nakamoto discovered that Del Rosario had a girlfriend in 16 Hawaii. Nakamoto refused to go to Hawaii and wrote to Del Rosario 17 requesting a divorce. 2 18 The marriage was not dissolved, and Nakamoto continued to 19 write to Del Rosario for the next two years. In 1995, three years 20 after the marriage, Nakamoto agreed to join Del Rosario in Hawaii. 21 They spent two nights together in Hawaii, but did not live together 22 after that. Nakamoto subsequently met Daryl Nakamoto and gave birth 23 to their son. In 1997, Nakamoto brought suit to dissolve her 24 marriage 25 annulment of the marriage. In April 1997, the Hawaii family court 26 entered a decree of annulment on the ground that Nakamoto had to Del Rosario; 27 28 8 - OPINION & ORDER Del Rosario counterclaimed for an 1 fraudulently obtained Del Rosario s consent to the marriage.2 2 The issue in Nakamoto was whether she was subject to removal 3 on the ground that she had entered into the marriage with Del 4 Rosario for the purpose of obtaining an immigration benefit. 363 5 F.3d at 877. The Immigration Judge (IJ) determined on September 10, 6 1999, that the INS had met its initial burden of proof and that the 7 Hawaii family court s annulment order and the letters submitted as 8 evidence prove[d] that the marriage was a sham from the start. 9 Id. at 878. In denying Nakamoto relief from removal, the IJ 10 acknowledged that Nakamoto had exceptional and outstanding 11 equities of family ties and a good work history, and that her 12 removal would cause terrible harm to [her] United States citizen 13 son. Id. Nevertheless, the IJ wrote that she could not show by a 14 preponderance of the evidence that she did not enter into the 15 marriage for purpose of evading immigration laws, because [t]here 16 [was] little or no conduct before or after the marriage to show 17 commitment. The time they spent together is negligible and there 18 are no joint assets. Id. 19 The Ninth Circuit affirmed, stating that the focus of our 20 inquiry is whether Nakamoto and Del Rosario intended to establish 21 22 2 The Hawaii family court s conclusion was based on evidence 23 that Nakamoto made misrepresentations with the intent to induce 24 25 Del Rosario to marry her and that Del Rosario relied on 26 Nakamoto s representations to his detriment. 363 F.3d at 883. 27 This is all the detail that can be gleaned from the Ninth Circuit 28 opinion. 9 - OPINION & ORDER 1 a life together at the time they were married. Id. at 882, citing 2 Bark, 511 F.2d at 1201. The court noted that although evidence that 3 the 4 ascertaining whether they intended to establish a life together at 5 the time of marriage, evidence of separation cannot, by itself, 6 support a finding that the marriage was not bona fide. Id. parties separated after the marriage was relevant to 7 The court examined the objective evidence that supported a 8 finding that the couple entered into the marriage with an intent to 9 establish a life together, and the evidence suggesting that 10 Nakamoto married Del Rosario for immigration purposes, and that 11 the marital agreement was not fulfilled. Id. But the evidence the 12 court found to be the most daunting hurdle for Nakamoto was the 13 Hawaii family court s judgment of annulment. Id. at 883. Although 14 the annulment itself was not dispositive, the Hawaii court s 15 finding that 16 obtained by fraud was entitled to full faith and credit. Id. The 17 court concluded that substantial evidence supported a finding by 18 clear and convincing evidence that Nakamoto committed marriage 19 fraud. Id. at 882. Del Rosario s consent to the marriage had been 20 Petitioner argues that document fraud cannot conclusively 21 establish marriage fraud under 8 U.S.C. § 1154(c) because document 22 fraud says little or nothing about the defining question: the 23 intent of the parties to make a life together. 24 The FO decision found that under the Family Code of the 25 Philippines (quoted in the decision) Mrs. Hlavinka could have filed 26 a Declaration of Presumptive Death prior to the Floyd marriage. 27 Under the Family Code, such a declaration makes a subsequent 28 marriage valid if the previous spouse has been absent for four 10 - OPINION & ORDER 1 consecutive years and the declarant has a well-founded belief that 2 the absent spouse was already dead. In case of disappearance where 3 there is danger of death, an absence of two years is sufficient. 4 The FO decision concludes: 5 the beneficiary could have filed for a Declaration of Presumptive Death prior to her marriage to Wendell Floyd in order to be legally free to marry. ... Instead, the beneficiary chose to claim the status as a widow on her marriage license, and the beneficiary and petitioner chose to submit a fraudulent death certificate ... in support of the beneficiary s visa petition. 6 7 8 9 Exhibit C p. 2-3. An implication of this discussion is that failure 10 to take this simple step reflects a lack of intent to make a life 11 together. 12 The decision also states that the Petition for Dissolution and 13 Annulment filed in Columbia County Circuit Court, dissolving the 14 Floyd marriage, was submitted to the USCIS by Mr. Floyd, and was 15 accompanied by an affidavit signed by Mr. Floyd stating that his 16 marriage to Mrs. Hlavinka was fraudulent. The decision concludes: 17 [A] review of the entire record of proceeding indicates that the beneficiary conspired to enter into a bigamous marriage with Wendell Floyd for the purpose of evading immigration law and entering the United States. She knew she was not legally free to marry Wendell Floyd as she was already married at the time. If the beneficiary had the intention of pursuing a true spousal relationship with Wendell Floyd, she would have taken the necessary legal steps to dissolve her first marriage. 18 19 20 21 22 23 Id. at p. 3-4. The respondents assert that the petition must be 24 dismissed because Mrs. Hlavinka explicitly admitted on her I-485 25 that she submitted fra[u]dulent death certificates for [her] first 26 husband in order to convince the United States that she was 27 validly married in order for [her] to obtain [her] immigrant visa 28 to enter the United 11 - OPINION & ORDER States. Petition ¶ 18; Respondent s 1 Memorandum, Exhibit A p. 5. 2 Considering the record as a whole, I conclude that USCIS has 3 met its burden of showing that Mrs. Hlavinka and Mr. Floyd did not 4 have the intent to make a life together. Besides the fraudulent 5 death certificate, there is the affidavit from Mr. Floyd stating 6 that he was tricked into marrying Mrs. Hlavinka, and that the 7 marriage was fraudulent, the fact that Mrs. Hlavinka resided with 8 Mr. Floyd for only about three months; and the fact that Mrs. 9 Hlavinka remained in the United States after the Floyd marriage was 10 dissolved and then married Mr. Hlavinka a few months after the 11 final 12 permanent resident status. decree was entered and USCIS revoked her conditional Conclusion 13 14 Respondents have carried their burden of demonstrating that 15 substantial evidence supports a finding, by clear and convincing 16 evidence, that Mrs. Hlavinka and Mr. Floyd did not have the intent 17 to make a life together, and therefore that Mrs. Hlavinka committed 18 marriage fraud. 19 20 Respondents motion to dismiss (doc. # 11) is GRANTED. 21 Petitioner s motion for summary judgment (doc. # 21) is DENIED AS 22 MOOT. 23 IT IS SO ORDERED. 24 Dated this 6th 25 day of August, 2009. 26 27 28 /s/ Dennis James Hubel 12 - OPINION & ORDER 1 Dennis James Hubel United States Magistrate Judge 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 - OPINION & ORDER
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