*1 procedural requirements of 28 U.S.C. judge requesting disqualify 144 in WHETSTONE, Gisela Irene Petitioner, himself. IMMIGRATION AND NATURALIZA next Anderson contends that he had SERVICE, Levi, Attorney TION Edward to prepare
insufficient time a defense. The States, General of Respon the United trial was held almost months he two dent. guilty plea, withdrew his and his counsel No. 75-2468. preparation did not request additional time. United States Court of Appeals, Anderson contends that he de Ninth Cirсuit. nied required due because he Sept. during two-day wear the same clothes trial, haircut, given a was not and was seen jurors hallway some of Anderson was attired
handcuffs. in non-
prison longer clothes. His hair was no
that of Government counsel and defense no request
counsel. And there was for a cautionary
mistrial or a instruction on the
clothes, hair handcuffs. jury’s
Anderson contends give
brief it did deliberation indicates impartial
full and evi consideration fully supports
dence. The record the ver
dict. is no rule There established
specified required time is to reach unanimi
ty. argument two-edged is a Defendant’s jury may thought
sword. The there
was not a shadow doubt guilt. even as to
Finally, Anderson contends that his
concurrent life sentences two kid excessive,
napping charges are cruel and
unusual. The sentences are within the stat maximum,
utory points and Anderson to no
improper judge. considerations the trial
There is no merit in of these conten-
tions.
AFFIRMED.
1304
BARNES, Judge: Senior Circuit Petitioner, year 26 old citizen of Ger- many, the United was admitted to States 10, 1971, on non-immigrant June as a fi- 9, 1971. September ancée until Petitioner possession was in pursuant visa issued to Sec. (8
Nationality 1101(a)(15)(K)) Act U.S.C. § Act”) as (herein “the the fiancée of Mr. Whetstone, Larry Hamilton an American citizen, age. years Petitioner married 2, (but on Whetstone left him within 30 and within three months of entry), and hence General was required, (she) unless was found otherwise inadmissible, to record the lawful admission (of Whetstone) Mrs. for resi- dence. 8 U.S.C. The record be- fore us fails to disclose whether such place. presume recordаtion took did not, no pur- for otherwise there would be pose petitioner’s filing an application for adjustment of to permanent resident. We need not concern ourselves with the six-year delay since the District Director’s deportation order of issued on November 23, A deportation 1971. order does not through become invalid or unenforceable lapse time, mere whether сaused intentional acts of a or laches on part officers, in the prejudice absence of to the alien affected. 481, Landon, 209 Spector See 1954); also United States v. Dek- 812, ermenjian, 508 F.2d 20, 1971, petitioner On an October Kahn, Atty., Lauren Dept. S. U. S. for of status to per- Justice, Washington, C.,D. argued for re manent resident. This was denied spondent. Director, was District or- Foundation, Schey, Legal Aid A. Peter depart dered to before December 1971. Cal., Diego, petitioner. for San not, she did When order show cause 15, 1971, charging was issued December was in the United States in viola- 241(a)(2) Act, tion of Sec. 8 U.S.C. SNEED, 1251(a)(2),1 “because she remained in Before Circuit BARNES HAUK,* Judge. country beyond the authorized time.” Judges, District * Hauk, inspection without or at Dis- United States Honorable A. Andrew United States California, place Judge, designated by sit- District of trict Central time or other than as ting designation. States in the United Chapter violation or in of this violation “Any in the United States shall 1. deported (2) entered who ... appeal exhibits introduced 1974. An Among the Immigra- Board of (Ex. 2) at Appeals the second was Government had. The order of the 23,1971, sustained, a letter dated November appeal dismissed June of the Immi- the Kansas District Director This (herein Petition Reviеw to this court Naturalization Service followed. gration and jurisdiction. We have 8 U.S.C. “INS”) § 1105a. stating reasons for the Govern- *3 application, denial of her as ment’s first I. ISSUES. follows: Petitioner arguments makes six denied as a on ap- “Your has been peal: first, fourth and sixth essentially discretion because it has not matter of claim that she due process; denied bona and been established a fide second аnd third relate to an alleged “insuf- lasting relationship marital now exists.” evidence”; ficiency of the and the fifth (Emphasis added.) contends that 1184(d) (see Title 8 U.S.C. § lasting fide rela- A “Bona marital 214(d) Act) is mandatory,2 requiring tionship” is not defined in this 1971 order in residence of case, in the June 1974 decision of nor an individual on “an intent marry to a Judge: visa, United States citizen” if the Immi- At the second before an otherwise admissible. Ysidro, Californiа, gration on San The INS states there are (1) two issues: 5, 1974, petitioner the facts June admitted petitioner is the deportable and eligible allegations contained in six the Order her adjusted; (2) Cause, charge Show but denied she petitioner process received due of law? remained in the United States for a had urges The INS that the alien prove “must longer permitted. he has entered into a bona fidе marriage.” her explained that left husband She Sec. does not use the term “bona job, he had no and had on insisted marriage,” fide but does state Attorney using savings brought Germany her to General must approve a visa such as peti- support them both. Petitioner also admit- tioner had ted her had not been consummat- “only satisfactory after evidence is sub- way,” ed “in the usual admitted that she- petitioner mitted to establish that and her husband did not live the parties have a bona fide intention sexually, man and wife but “we had satis- marry legally actually are able and factory sex relations ... in another willing to conclude a valid marriage in way”; way.” “the 'French period United States within a of nine- Immigration Judge entered an order ty days
The (Em- after alien’s arrival.” deportation against petitioner phasis added.) оn June ninety days other law of the United States.” after the alien’s arrival. In the 1251(a)(2). U.S.C. event with the does entry not occur within three months after the provi- 2. “A visa shall be issued under children, they said alien and minor sions of section of this title required depart be shall from the United peti- until the consular officer has received States and failure to do so shall be tion filed in the United States the fiancee deportеd in accordance with sections 1252 applying approved fiancé alien and and 1253 of this title. event the mar- Attorney General. The shall riage petition- between the said alien and the be in such form and such contain information er shall occur within three months after the shall, by regulation, as the entry they are found otherwise admissi- prescribe. only approved It shall be after ble, General shаll record the satisfactory pe- evidence is submitted lawful admission for residence of parties titioner establish have a the alien and minor children date of marry legally bona fide intention to and are payment required visa fees.” 8 actually willing able and conclude U.S.C. period in the United States within a lasting relationship Whetstone in now exists.” We married find
That the 2, 1971, requirement no in the statute Maryland, that this test County, Cecil arrival, un- met, her or that a ninety lawfully once within validity performed law, is made according No attack to state is to be disputed. proof The Government’s deemed insufficient marriage; of “a valid mar- of this occurrences thereafter. riage” with the merely cern is because at some later time terminated, either marriage is or the to a consideration We turn separate. only proof in this this court’s obli governing legal standards case establishes that petitioner’s marriage is pro the administrative review gation not terminated. So far as the record dis- place. taken heretofore ceedings which have facts, today closes the she is married to are based proceedings administrative although they living Whetstone are not to- panoply full and thus thе civil gether. There is no that a to a review of crimi applicable safeguards *4 faith, marriage, good entered into in must Nai required. are not proceedings nal any last certain days, number of months or I.N.S., 566, (1st F.2d 568 v. 537 Cheng Chen years. Much less is there I.N.S., v. 528 1976); Trias-Hernandez Cir. lasting that a bona fide and marital rela- 1975). Yet, 366, (9th Cir. 368-369 F.2d (whatever mean) tionship may exists hearing offi the various INS decisions questions as of the time the the validi- INS substantial, reasonable, must rest cers ty marriage. of the having probative value evidence sufficient record, considered as a to establish on panoply A full pride various states’ whole, deportation. 8 a correct basis integrity validly per- stands behind a 1105a(4), see also United States U.S.C. § marriage. Many formed ceremonial forms Gasca-Kraft, 149, (9th 522 F.2d 152 Cir. of may occur. This is not a feder- charge on a 1975). Deportation problem, al but one for the individual states cause, order to show or at presented in the regulate. is for each to determine hearing, process. would offend due marriages what It might are valid. be ar- Immigration and Naturalization Hirsch v. gued perhaps if an “arboreal mar- 562, 1962).3 Service, F.2d 566 308 riage” occurs —where no actual vows are exchanged, permit where no is issuеd aby note, important think to re We state, kept where no record is made or of charge finding no of a sham or peat, that respective where no solemn against marriage has been made fraudulent promises made, of kind are where no against her. charges in the pronouncement that a has taken Thus, no such issue was before the various place particular is made оne of the func- Hirsch, hearing supra, 308 F.2d at officers. designated by tionaries the particular state 566; Rios-Carillo, 10 IN 291 Matter of perform marriages any one of (1963). —under circumstances, such unusual a claimed “val- marriage” proved THE OR- id could be to be “non- II. DISTRICT DIRECTOR’S 23, 1971. DER OF NOVEMBER valid.” adverse re But those are
The first determination not the facts of the case based, terms, by petitioner ceived its before us. Mr. and Mrs. Whetstonе were together Director’s conclusion “it has married and thereafter lived on the District in been established that a bona fide and New York as husband and State wife. relief, appellate so that administrative discretion is exer- bodies within the 3. “[W]here guidance regulations, agency, reviewing and the courts are cised without able to (aside requirements arbitrary, capri- of due ascertain whethеr decision is notice, ‘reasonable, hearing, etc.) requirements fair cious or not sub- stantial, probative decision of the adminis- evidence are met if written record ” I.N.S., agency or the record of administra-' considered as a whole.’ Jarecha v. trative clearly ground out which tive set discretionary the denial of forms the basis for marriage” They in Cecil They were “united remained for less thаn 30 Moore, Day one County, Maryland, by E. after the marriage. Respondent has Elktown, Court neither seen nor heard Deputy Clerk from Whetstone since (License 6112) part No. the latter Maryland, July 1971 and he is not testify. Thus, available to document is entitled full 1971. That based on foregoing, I determining whether a conclude that there is no and credit faith valid insofar as marriage has occurred. laws are concernеd.” JUDGE’S THE IMMIGRATION III. Again, attempt there is no to define ei- DECISION. ther what constitutes a “satisfactory mar- riage,” next consider marriage” or a “bona fide (terms 5,1974. That Judge’s statute), of June deci- decision not used in or a “valid mar- mandatory provi- riage” (which used). initially considers sion (as the Act raised sions The still existing marriage of Mr. and Hays, the Matter of citing I.D. petitioner), fide”; Mrs. Whetstone was held “not bona Blair, Matter (1972);4 the I.D. 2154 petitioner-respondent’s testimony Zampetis, I.D. the (1972);5 standing alone was “not credible” —not (1972).6 Despite holdings of those cause there was testimony, other credible or decision, cases, incredibly, Judge’s finds otherwise, but 27 years dif- unnecessary question.” to reach that “it ages ference in “may problem by stating: then He decides by itself not be significant, but becomes *5 per- little evidence there is “What important cоnsidering when the record in marriage, that bona fide entirety.” disagree me its suades with this esti- to of importance. benefits under mate entitling an laws, has not been estab- IV. THE BOARD OF APPEALS’ respondent testified Although lished. DISMISSAL. satisfactory, I marriage was find that alone, standing testimony, not credi- her We next consider the by determination Acting out Trial pointed ble. As Immigration Appeals. the Board of It is a argument, respondent’s in Attorney his per opinion, three-line stating curiam 27 years her senior. spouse is more of Immigration “the decision is Judge Harris, signifi- affirmed. Matter of may itself While Interim Deci- cant, important sion, when con- (Board it Immigration becomes of Appeals, entirety. in The sidering appeal the record its The is accordingly dis- marriage has never been consummated. missed.” Hays, entry, statutorily In of within three after
4.
it was held
in the absence
months
is
fraud,
nonimmigrant
eligible
an alien admitted as the
of
for
creation
a record of lawful
citizen
permanent
fiancée
of
U.S.
under
section
admission for
residence notwith-
Immigration and
of the
Nationali-
standing
petitioner
the death of the citizen
sub-
Act,
amended,
ty
who concluded a valid
as
sequent
marriage
prior
filing
and
to the
days
marriage
to the citizen within
after
applicatiоn
of her
for creation of a
of
record
entry,
eligible
permanent
resident status
is
for
permanent
residence.
Act,
214(d)
pursuant
to section
notwith-
separated
standing
and
her citizen husband
Zampetis,
In
it
held
6.
was
that where an alien
days
marriage
after their
and chances
about
admitted to
United
as
non-
was
States
are doubtful.
for reconciliation
citizen,
immigrant
intending
U.S.
fiance of a
in
marry
pеtitioner,
good
faith
the citizen
and
Blair,
was
In
it was held that an alien who
5.
petition
good
the latter had filed the
faith but
to the United States as
fiancée
admitted
change
subsequently
honest
had an
of mind
upon presentation of. a
a United States citizen
alien,
marry
and did not
the alien is not
provisions
nonimmigrant visa issued under the
applying
precluded
for
sta-
Immigration
101(a)(15)(K) of
and
section
Immigration
Act,
amendеd,
under
Nationality
upon
tus
section 245
the basis
Act,
amended,
Nationality
petition
pursu-
approved
basis of his
behalf
filed
her
an
Act,
214(d)
another
citizen.
who
U.S.
ant
section
marriage to the citizen
cluded a valid
(c)
provides
Attorney
that the
month
Harris,
one
after
In
permanent
status of
for
approve
alien-wife
General is to
the American citizen’s
February
it on
resident,
swore
permit
his fiancée to obtain a
later
days
four
separated
couple
The
visa
20,1972. While
on June
were divorced
“only
satisfactory
after
evidence is sub-
resident sta-
permanent
application for
her
mitted
to establish that
Unit-
another
she married
pending,
tus
have a bona fide intention to
citizen.
ed States
marry
legally
actually
and are
able and
adjustment,
grant
would not
held he
willing
to conclude a valid
the existence of
depended
period
United States within a
of 90
viable
which must remain
“a
the alien’s
arrival.”
application for
the time the
deci-
upon.”
ruled
That
being
residence
“It can thus be seen that no Consular
Appeals de-
sion,
the Board
officer will or can issue a fiancée visa
Lew, 11
cided,
approval
until he has received the
(1965),
applicant’s
where
Dec. 148
I&NS
Attorney
Service, acting
General. The
interlocutory
de-
obtained
husband had
General,
on behalf of the
Lew,
Di-
the District
of divorce.
cree
the opportunity
pass
to determine and
relationship was
marital
found the
rector
the bona fides of the
intent
marital
in Harris also re-
The Board
non-existent.
fore a visa is even issued. Once the Ser-
case,
of Molci-
Matter
unreported
on an
lied
good
vice is satisfied as to the
faith of the
mar-
lio,
that since “a non-viable
and stated
issued,
the visa is
and the mar-
support adjust-
held not to
riage has been
riage is subsequently performed within
Act, the same rule
245 of the
under §
ment
difficult,
only
limit.
214(d) cases.”
apply to
should
impossible,
but also
to conceive how sec-
acknowledges that Blair and
Board
permit-
can be interpreted as
but
contrary
position,
tо its
Hays, supra, are
ting
deny
are not control-
that those decisions
argues
alien’s
resi-
decisions
“we are not bound
ling because
*6
dence,
the
Regional
though
original
Commissioner.”
even
bona fide
marriage has
point
deteriorated to the
opinion of the
majority
Significantly,
dissolution”; and
two other rea-
ultimately provides
Board
granted under
could not be
why status
sons
(d) that
respondent (petitioner)
245—“because
§
opinion
“the
is of the
Service
that
certification”;
valid labor
not have a
does
specific discretionary power contained in
husband
respondent’s second
“because
of a
permits
section 245
standard
on her be-
petition
his visa
has withdrawn
marriage
applied
to be
viable
cases
half.”
under
that
section. We must assume
dissented in
of the Board
Two members
Cоngress deliberately
that
left that same
Harris,
opinion
filed a well-reasoned
214(d). Therefore,
power out of section
requested un-
stating that
because of the distinct difference be
mandatory;
that the Ser-
214(a) was
der §
wording
tween the
and intent of section
had advised the
Counsel
vice’s General
section 245 the
sub
Service
Board:
proper
judge
mits that
it
is not
always treated
“has
(a) that
the Service
under either statute
pur-
adjudication of an
r
same standard.”
nothing
than a
214(d) as
more
suant
§
required by the
act which is
Immigration
ministerial
In Bark v.
& Naturalization
statute”;
Service,
(1975) (a
case),
(§§
I concur
result
reached
therein, we held that
it was
interpreted
court.
heart
this case is whether
error,
a denial of
resident
when
Harris,
Interim Decision 2336
solely
Immigration
was based
(Board
Appeals, 1974) was
conclusion, (affirmed by
Judge’s
the Board
properly
was,
If
decided.
we should af-
that the
Immigration Appeals),
firm the Board’s determination in this case.
sham,
parties
sepa-
because thе
had
was a
not,
If it was
we should reverse the Board’s
stated, id.,
court
marriage. This
rated after
determination and remand for further pro-
1201-1202,
issue was the
key
that
at
ceedings.
join
I
the court in reversing a life
parties
“to establish
intent
my
cause in
the dissenting
view
members of
marriage.”
of their
the Board in Matter of Harris
States,
properly
Johl
United
regard,
in this
v.
See
strued 8 U.S.C.
A
valid marriage
§
concluded “within a period of ninety days
us, the decision of the
In the case before
after the alien’s arrival” is
what
neces-
mentioned, and ob-
District Director never
sary
require
the Attorney General
on,
viously
not focus
the intent
did
“record
lawful
Immigra-
married. The
they
when
residence of the alien
.
provided
.”
inquired
tion
never mentioned
he or
“otherwise admissible”.
Ibid.
but
concerning
intent
opinion
confined his
to whether the mar-
requirements
mеets those
“valid,”
riage
age
itself was
based
so
far
this record reveals. The statute
respective parties,
and the short time
does
require
not
that
be a
elapsed
before the wife left the hus-
satisfactory one at the time the Service acts
marriage.
after their
band
the alien. Nor does it
Bark, supra,
court “de
require that it be undissolved at that time.
speculate
clined to
about
conclusions
I reach this
relying
result without
on Bark
that would have been reached if the Service
Service,
& Naturalization
had confined itself
evidence relevant
1975),
must be that when
governmental fail institutions to make judgments
these and decisions in a manner Constitution, comports with duty remedy courts
federal
violation.”7
We reverse and remand to the INS. Johnson, 7. Hon. M. Jr. “The Frank Role Government.” 11 Geo.L.Rev. Respect Judiciary (1977). With to the Other Branches