Filipinas Lucero Casem v. Immigration and Naturalization Service
8 F.3d 700
9th Cir.
1993
Check Treatment

*1 700 Force, 1477, 1480-81

tary Air Cir.1991). Thus, (9th question CASEM, Petitioner, the crucial Filipinas Lucero injuries sus Green’s were here whether is to service.” tained “incident AND IMMIGRATION whether “the Feres de novo review SERVICE, NATURALIZATION applicable to the facts reflected doctrine is Respondent. Scoggins, 890 McGowan record.” Cir.1989). parties 129 No. 92-70039. magistrate judge stipulated decide Appeals, Court of according to issue the standards Feres Circuit. Accordingly, Ninth summary judgment. justifiable factual in favor

draw all inferences July 13, Argued and Submitted Liberty Lobby, Anderson of the estate. Inc., 2505, 2513, 106 417 S.Ct. U.S. 1, 1993. Decided Nov. (1986). L.Ed.2d

B injured Green was not

We conclude meaning of to service” within the

“incident injured was doctrine. Green while Feres morning

off he was due at base and before injuries were relat His therefore

formation. military “in

ed to status the sense his depend upon what has

that all human events transpired,” which insufficient.

already States,

Brooks v. United (1949);

S.Ct. 93 L.Ed. 1200 see also McAllister

Estate of (9th Cir.1991) (question injuries related

whether are to “individual’s (internal military”) a member of the

status as omitted).

quotations trip Green’s was also a aet[],” nonmilitary it was

“distinctly since orders,

not intended to done under military, and did not occur on

benefit the Lutz,

military property. F.2d at Neneman,

(citing Durant v. (10th Cir.1989)).

AFFIRMED. *2 (John Levant, previously M. with Casem admitted that she had L. Marshak Russell Golan, brief), Popkin, 12, 1983, & Shamir him on the married her husband on December CA, petitioner. for Angeles, petition. Los and she withdrew her (Anthony Nor- M. McConnell W. David 18, 1985, July On the INS issued an Order brief), wood, Dept, him the on (“OSC”) to Show Cause to Casern. The OSC Justice, DC, respondent. Washington, for charged deportable Casern was under 8 1251(a)(1). §

U.S.C. That statute classifies being “deportable” an alien as if the alien by entry at the time was “excludable law” WOOD,* Judge, Before: Senior Circuit to the United States. An alien be “ex- RYMER, Judges. Circuit REINHARDT reasons; for cludable” dozens of OSC for stated Casern was excludable the follow- WOOD, Jr., HARLINGTON Senior (1) committing ing three: for fraud or mis- Judge: Circuit representation procure entry a visa into or deportation Filipinas Lucero faces Casern unmarried, country by claiming to be marriage. Finding lying her for about 1182(a)(19) (now § codified at Immigration and Naturalization Service did (2) 1182(a)(6)(C)(i)); entering § for the coun- making all factors in its not consider try perform skilled or unskilled labor with- decision, proceed- we reverse and remand for Labor, Secretary out certification from the following opinion. ings with the consistent 1182(a)(14) (now § id. codified at (3) 1182(a)(5)(A)); applying § for for ad- I. BACKGROUND entry possessing mission without a valid doc- Filipinas Lucero Ca- In November 1983 (now 1182(a)(20) ument, § id. codified at sern, Philippines, applied citizen of the for a a 1182(a)(7)(A)). § as an unmarried visa to United States hearing Immigration Judge At a an before child of a United States resident 30, 1986, April 1153(a)(2) (now on Casern admitted she was § pursuant to codi- 8 U.S.C. 1182(a)(19) 1153(a)(2)(A)). deportable by vir- under section Shortly fied at 8 U.S.C. having discovered that she was tue of obtained her visa fraud or thereafter Casern 12, 1983, pregnant. On December Casern misrepresentation willful of material fact. child, married the father of her unborn admission, government return for this Valera, Philip- Eduardo also a citizen of the dropped charges against other Casern. pines, days in their land. later native Six remaining was whether The sole issue then entered the States as a “sec- Casern United deporta- was entitled to a waiver of Casern preference immigrant,” i.e. as an unmar- ond 1251(f) (now codified at tion under section resident, ried child of a her father. 1251(a)(1)(H)). That section allows the At- 25,1984, torney waive General at' her discretion to May son was born in

On country. gained or a deportation this On November Casern of an alien who Philippines to visit her hus- misrepresentation returned to the if through fraud or visa couple in a band. The remarried church son, daugh- “spouse, parent, a or that alien is ceremony January 1985. Casern then perma- of a citizen or alien admitted for ter” on March came back the United States nent residence. Id. 1985. On March she submitted argued equities favor waiv- Casern petition on behalf of her husband and visa ing her Casern has extensive wedding January listed their date as 1985. here, job family in has a the United and Naturalization Service asserted (“INS”) and has no criminal record. Casern regarding pe- interviewed Casern interview, marrying hus- July At the that the sole reason tition on * Wood, Jr., cuit, sitting by designation. Harlington The Honorable Judge the Seventh Cir- States Senior Circuit result from the to Casern’s son would leaving the before band statutory pro- out of of his mother. A child born wedlock. avoid 1261(a)(1)(H), the vision similar to section deport- if argued that she were also Casern here, Attorney provision at issue allows citizen, son, would ed, *3 suspend depor- a her discretion General at to old, son, years had The now nine suffer. if, among things, “deporta- tation other order virtually life in entire the United spent his hardship in tion ... result extreme to would States, accompany to likely Casern would child, spouse, parent, or the alien or to his deportation. Philippines Ca- upon the the or an who a citizen of States is United if her son returned to the argued that sern lawfully alien admitted for resi- reaching maturity, he States 1264(a)(1). Al- 8 U.S.C. dence....” education, language in be deficient

would 1254(a)(1)encompasses aliens though section contacts, ability, and cultural acclimati- social entry to at the time of due fraud excludable compared spend who their to citizens zation (as many other misrepresentation or well as country. in pre-adult life this entire aliens), categories requires of that section Judge equi- Immigration balanced the The in years presence the seven of continuous in this case and on June denied ties immediately preceding the United States a one Casern waiver of On deporta- application suspension date of of hand, judge Casern now the noted that was tion, requirement could not have a Casern citizen, of States had a the mother a United time. satisfied at the See id. family in the United large extended father, including stepmother, and broth- 1254(a)(1), section section Unlike ers, good person a of moral charac- has been 1251(a)(1)(H), which is to aliens ex- limited ter, is in fact be- employed. and was “She fraud at the time of due to or cludable having,” judge, “as we would wish stated the misrepresentation, contains no “extreme to who wishes seek the someone behave to hardship” provision or limitations on other privileges a resident of coun- this Attorney the of the discretion General. 8 hand, judge try....” On the the other 1251(a)(1)(H) (placing the waiver marital found Casern had not disclosed her Attorney “in the of the decision discretion period to the for a considerable status INS General”). judicially cannot combine two time, country come this that her had to so separate statutory provisions into one. Be child could be born here become a Unit- 1251(a)(1)(H) cause the matter section leaves citizen, planned bring to ed later States General, Attorney to the discretion of the country. judge The her husband to this using review the BIA’s determination the as “a characterized her conduct deliberate abuse of discretion standard. Hernandez deception” and refused to exercise his discre- I.N.S., (9th 536, -Robledo v. grant judge a The to tion to waiver. failed Cir.1985). The abuse of standard discretion hardship deportation the have consider would requires the BIA account take into all son. to exit Casern’s Casern allowed acting in an relevant without arbi factors country voluntarily, in of deportation, the lieu trary, illegal, or Braun irrational fashion. 1, provided August she left before I.N.S., 1016, (9th Cir.1993). 992 F.2d appealed Immigration Judge’s Casern We shall not assume BIA considered Department decision Justice’s that it failed to in its deci factors mention (“BIA”). Appeals Immigration Board of sion. Id. later, years explanation Four and without lengthy delay, the BIA issued its its decision Immigration Judge Both the and the BIA dismissing appeal. Casern’s BIA also completely failed to the effect address Ca- hardship failed to address the to Casern’s son, sern’s will have on son. nine-year-old citizen for whom land, foreign obviously is

II. DISCUSSION many one considerations. Al- though appealed The central issue in this case Casern 1986, hardship Judge’s whether the in BIA must examine the decision June and filed her 1987, important light BIA did not render a in this in in case of the BIA’s brief lengthy delays, during until October 1991. began decision which time Casern’s son interval, aged son from two- to sev attending Casern’s in country. school this See Ramos tell, en-years delay can I.N.S., (5th old. As best we n. Cir. appeal squarely 1983) addressing in rests (noting “great difference between delay excep with the INS —a as adjustment required” going of infants Rodriguez- tional as could be desired. See parent’s age homeland and school (7th I.N.S., Barajas v. Cir. fate); I.N.S., facing Prapavat same 1993) (noting seven-year “unconscionable” Cir.1981) (discussing delay petitioner’s appeal and between BIA’s potential hardship six-year-old American General, decision); Saywack Attorney No. accompanying parents foreign country); *1 1993 WL at 91 Civ. *4 I.N.S., see also Jara-Navarrete v. 813 F.2d (S.D.N.Y. 1993) 9, (discussing June BIA’s (9th Cir.1986) 1340, (directing 1342 INS to “lengthy unexplained delays”). of series give United States citizen children individual I.N.S., consideration); ized Ravancho v. 658 in We have admonished the section INS (3d 169, Cir.1981) (instructing 1254(a)(1) appraise carefully the ef cases to to INS consider effect move to deportation fect would have on an alien’s eight-year-old on would have American citi who are citizens. See zen). Discretion, although concept, I.N.S., broad 1419, 809 F.2d 1426 Cerrillo-Perez (9th Cir.1987) (BIA all-encompassing permits is not so that it the spe must “consider the 1251(a)(1)(H) BIA in a proceeding section to cific circumstances of citizen children and ignore totally plainly relevant factor. Al express reach an and considered conclusion though the statute does not set forth that as to the effect of those circumstances children.”). particular specifically factor consideration Congressional, intent was those 1251(a)(1)(H). 1254(a)(1), making in in as done section the regard with to section similar epochal Congress provision enacted the waiver of decision of whether to allow an alien 1251(f), predecessor legally family to remain with her in the section the to section Unit 1251(a)(1)(H), prevent break-up hardship to the of ed the BIA must consider to States comprised part potential deportees along in citi families of American the children of with zens or lawful residents. See all other relevant factors. Errico, 87

I.N.S. 385 U.S. S.Ct. (1966). Congress 17 L.Ed.2d 318 III. CONCLUSION upon granting “was intent relief to limited Having found the BIA failed to consider all classes of aliens whose fraud was of such a factors, we must reverse and re it nature that was more than counterba proceedings. for further mand this case We family by after-acquired lanced ties.” Reid remaining argu need not reach Casern’s I.N.S., S.Ct. note, however, ments. The BIA should that (1975); Braun, 43 L.Ed.2d 501 see also authority upon this circuit withdrew an (discussing 992 F.2d at 1018 humanitarian heavily, it relies and the decision therefore is statute). purpose of I.N.S., controlling. Compare not Start v. respondent In its brief the claims that the (9th Cir.1986) (allowing F.2d 539 fraudulent family BIA account the ties of takes into separate conduct to be divided for consider requesting deportation. aliens waivers of 1251(f) proceedings), §in with ation waiver ties, however, inquiry family into must drawn, Cir.1988), noting living of not be limited to benefits (9th Cir.1993) I.N.S., Braun v. family. near one’s immediate or extended (forbidding initial fraud from conside impact The BIA also must examine the red).1 “untying” family Congress sought ties safeguard. especially AND REMANDED. That examination is REVERSED join Judge Rymer's well-expressed give deportation on 1. We in con- the BIA must to the effect of currence, majori- paragraph. except children as it arises in this case. In last ty’s specific in 8 primarily view the mention of children seem to differ as to the consideration appeal clearly by concurring: controlled R.YMER, Judge, As Casern’s Circuit Braun, decide, as unnecessary to it is erroneously BIA re- because the I concur does, majority the BIA must consider that original fraudulent lied on deportation children when the effect of deportation. deny her waiver 1251(a)(1)(H) § considering an 8 waiv- U.S.C. stated in Hernandez-Robledo first As we statute, unlike 8 deportation. That er (9th Cir.1985), INS, an 1254(a), says nothing about the ef- mistake, entry through illegal original alien’s Though on children. fects

fraud, against her consid may not be held atrocious, delay here is and the result ering waiver of felicitous, by majority seem reached petitioner’s the BIA noted its decision 1251(a)(1)(H) justifies reading into neither as employment fa- lengthy residence and Congress requirement implicit an factors, undercut that not- vorable impose. itself chose illegally. The ing that both were achieved the in- improper since latter conclusion of his or her illegality into

quiry is not but the rea- in the United States

presence allowed an alien be should

sons *5 despite illegality.

stay, INS, in Braun 540-41. Likewise

Id. at (9th Cir.1993), imper- the BIA

992 F.2d 1016 original weight fraud missibly gave America, UNITED STATES of “not en- it stated that the alien when Plaintiff-Appellee, marriage upon his tered into a fraudulent entry, pursued he an elaborate initial RAMOS-RASCON, Rene Defendant- eventually brought his first plan by he which Appellant. after States sometime he wife to he ob- committed fraud had America, UNITED STATES (internal status.” Id. at 1020 tained his own Plaintiff-Appellee, omitted). quotation marks infir- opinion the same The BIA’s suffers It the Administra- mity adopts in this case. GONZALEZ-VILLEGAS, Alejandro Judge’s that Casern tive Law conclusion Defendant-Appellant. equities of the in her favor —her achieved one 92-10153, Nos. 92-10154. through origi- citizen son— addition, entry. the BIA nal fraudulent Appeals, United States Court [wedding] timing “the of the cere- states that Ninth Circuit. filing petition indi- mony of the visa Argued and Feb. Submitted immigra- purpose was to obtain

cate that based husband tion benefits 2, 1993. Decided Nov. visa.” These fraudulently obtained own relied indicate that the BIA statements entry. original As this fraudulent Braun, must remand

runs afoul of including equities, Ca-

BIA to consider child, afresh, regard without

sern’s citizen

the initial fraud. 1254(a) to the for the in addition issue surely mandate that nate basis remand does not U.S.C. the BIA holding along by Judge explained Rymer. Our in this not also consider considering a waiver other factors when respect be to the should useful 1254(a)(1)(H). under U.S.C. when it re-examines Naturalization Service hardship to her child Casern raised the issue case. appeal, point as an alter- in this and that serves