Jesus Paras Liwanag v. Immigration and Naturalization Service

liability imposes FELA Because failed. “feather test of very loose

upon cannot believe negligence, we

weight” compara less hold would courts Louisiana liability custodial

ble, purposes, fault negligence tortfeasors. ordinary (La. Hebert, 449 So.2d Richoux also denied, 450 So.2d writ

App.1983), racehorse, strictly liable who

(owner of it, injury caused Art. owner negligent solido liable in discus racetrack; comparative fault no

sion). reasons, RE- foregoing

For for a and REMAND judgment

VERSE jury, including submission to new trial D’s B & issue of appropriate,

if of fault.

degree REMANDED.

REVERSED Petitioner, LIWANAG, Paras

Jesus NATURALIZA- AND

IMMIGRATION SERVICE, Respondent.

TION

No. 88-4489. of Appeals, Court

Fifth Circuit. 15, 1989.

May Banc Rehearing En

Rehearing and 28, 1989.

Denied June JONES,

EDITH H. Judge: Circuit

FACTS Jesus Liwanag appeals Paras the deci- sion of the Board of Appeals (BIA) denying withholding deporta- 1251(f)(1) tion under 8 U.S.C. deny- § ing voluntary departure under 8 U.S.C. 1254(e). below, For the reasons set forth § we AFFIRM.

In April Liwanag, 1980 Petitioner a Fili- pino, entered the United claiming anbe unmarried son of a lawful 203(a)(2) resident under Immigra- § (INA), and Naturalization Act 8 U.S.C. 1153(a)(2)(1988).1 A. Liwanag § was ac- cordingly admitted preference as a second immigrant. At the time of his entry, how- ever, Liwanag actually was married to Lu- cilia M. Canilao. spending approxi- After mately years two States, the United Li- wanag returned to the Philippines in Janu- ary 1982 and married Canilao a second time immigrant to obtain visas for both his wife and children.

Liwanag filed for divorce from Canilao just two months later in March 1982. legally Canilao, While still married to Li- wanag subsequently fathered a son with Plorgo, Helen with whom he had been liv- ing since October 1983. This child was Eugenio Cazorla, Dallas, Tex., peti- Dallas, born in Texas on October 1984. tioner. Liwanag investigated by the Immi- Meese, III, Gen., Atty. Edwin Charles E. gration (INS) and Naturalization Service Pazar, Zengler, Jill E. Robert L. Bom- oath, November 1984. Under Kline, bough, Smith, David J. Alice M. Rob- gave testimony regarding false his mar- Kendall, Jr., Div., Dept, ert Civ. riage(s) Canilao, concealing the fact that Justice, D.C., Washington, respondent. he was married at the time of his depor- into the United States. At his Chandler, Director, Deputy Ronald Dal- hearing tation in early Liwanag con- las, Tex., Caplinger, Deputy John B.Z. Di- deportability ceded applied for relief rector, I.N.S., La., Orleans, New for other 241(f)(1) INA, 8 U.S.C. § parties. interested 1251(f)(1)(1982). Alternatively, Liwanag

requested voluntary that he be allowed de- parture (1982). 1254(e) under U.S.C. § relief, voluntary The IJ denied denied de- REAVLEY, WILLIAMS, Before parture, Liwanag deported. and ordered JONES, Judges. appealed Circuit Petitioner to the BIA. Before the 1153(a)(2) daughters” lawfully per- 8 U.S.C.A. allows the issuance of of aliens admitted for immigrant qualified persons visas to who are manent residence. spouses, "the unmarried sons or unmarried factor in the bal- as an adverse case, considered Liwanag mar- Board con- the INS has ancing equation. Since thereby legitimating Plogro, Helen ried point, we need not address this ceded States. in the United born child their I.N.S., issue further. statu- Petitioner determined Cf. Cir.1986),withdrawn, 539, 542 relief waiver for the eligible torily (INS Cir.1988) same conceding had discre- then deportation. Board circumstances). point in similar It considered grant such a waiver. to tion depor- to Petitioner: favorable factors II. (new) his him from separate tation would son; good a his claim to be and citizen wife weighing the erroneous Despite record and of a criminal provider; absence act, the Liwanag’s original fraudulent of then It references. good character BIA’s argues we INS —that —and misrepre- factors: opposing weighed deportability waiver of denial of the an im- to obtain status senting marital his of additional proper because nonetheless 1980; in a participating in migrant visa by Liwanag.2 wrought ceremony and marriage second, fraudulent argument responds to this Petitioner marriage fraudulent use attempting to “split” improperly the Board claiming that family into the and first wife bring his to his misrepresenting act of his fraudulent Liwan- BIA affirmed States. United acts. discrete into several marital status ag's deportation. his essence, Liwanag contends that In for marriage to Canilao second fraudulent

ANALYSIS their bringing her and children purposes by the States; filing petition of a examining the decision his In to the United behalf; the Board her BIA, immigrant whether visa on consider we for an ar thereby regarding acted his the INS officer lying discretion abused its his to I.N.S., Jarecha all be considered capriciously. must bitrarily marriage Canilao Cir.1969). cannot We original 224 misdeed. part F.2d of his 417 of his be- this characterization

agree with contention, Petitioner’s his Despite havior. I. unnec- actions were fraudulent subsequent first asserts Petitioner original act of his essary perpetuate fraud- original his have included should not marital status his true misrepresenting marital his misrepresenting ulent act Liwanag com- immigrant visa. an obtain balancing in entry time of status at gaining act fraudulent mitted one factors against the unfavorable favorable He for himself. States into the United inap- arguing In his case. present in attempting in fraud separate a committed Liwan- methodology, of this propriateness into the United bring wife U.S.C. 8 correctly We find persuasive. person shall be person found to be a of good who, moral during character the time rendering In decision, this we are good for which moral required is character Congress’s mindful that primary objective established, is, to be or was “one who has enacting 241(f)(1) in was to unite fami § given testimony false for purpose the of generally, Errico, lies. INS v. 385 obtaining any benefits under chapter.” this 214, 224-25, U.S. 473, 480, 87 S.Ct. The BIA concluded Liwanag’s that Novem 318, (1966) L.Ed.2d (Congress’s “fundamen ber 1984 misrepresentation of his marital purpose” tal in adopting legislation this status, oath, was testimony false was to unite comprised, families part, in of included 1101(f)(6), within as a result of § American citizens or lawful permanent resi which he statutorily became ineligible for dents, thereby achieving voluntary a departure. “humanitarian Although the result”). The family relevant Board’s interpretation this case of governing immi gration Liwanag, now consists of Plorgo, subject law review, a lawful is to de novo permanent resident, our son, circuit accords their deference to the BIA’s interpretation unless Despite compelling citizen. there the humanitarian indications wrong. Campos- concerns that underlying 241(f), Congress has § I.N.S., Guardado v. 285, entrusted perform BIA to the a balancing — denied, Cir.1987), cert. U.S. -, operation. Although proof of United 92, (1987). S.Ct. 98 L.Ed.2d 53 States family connections a “necessary element in the determination of whether to In challenging the Board’s denial of his grant waiver,” it solely “is not dispositive request voluntary departure, Liwanag Start, of the issue.” 803 F.2d at 541. The contends that the testimony given false record that the thoughtfully shows the INS officer in 1984 should not have objective underlying segregated been original from his fraudu- 241(f)(1). Our review is § limited to cor (i.e., lent act lying about his marital status recting abuses discretion. may There visa) to obtain his initial because it was instances in which several misrepresenta furtherance, done in preserve, his tions single, would constitute a indivisible original argument essentially fraud.3 This fraud, but in this case say we cannot recapitulates “one fraud” contention the BIA abused its discretion in considering Liwanag sought which achieve with- Liwanag’s several holding of deportation. We find it even already The INS contends this has issue act deporta- constitutes the basis for the I.N.S., by Nunez-Payan been decided 264, charge. disagree v. We INS’s charac- (5th Cir.1987). Nunez-Payan. INS claims that terization of original In that case BIA, Nunez-Payan applying allows the deportation apparently was on based 1254(e), precludes to consider the act “having which the alien’s entered the United States finding good (in case, moral presenting character inspection by without himself for transportation marijuana), though even [INS] officials." 811 F.2d at 265. Holland, F.2d 270 good purposes persuasive less Bufalino denied, 364 U.S. 863, Cir.1960), cert. per- (3rd his because provision character moral (1960), peti terms of literal 5 L.Ed.2d falls within 81 S.Ct. jury denominates, 1101(f)(6) given testi Section found to have false statute. was tioner of bad person to be narrowly, “a rather when, deportation the course of mony having given account on character moral purposely provided inaccurate hearings, he even most testimony if he has told false applica preexamination on information subjective intent of lies with the immaterial also Special Inquiry Officer tion. immigration or naturalization obtaining presented false Bufalino had found U.S., Kungys benefits.” place, regard to his birth testimony with (1988). 1537, 1551, 99 L.Ed.2d date, the United from and absences birth both Kungys articulated The court in Circuit, Third According to the States. 1101(f)(6) and the basis limitations on appellant tes “having that the determined argu- Liwanag’s interpretation. literal proceedings in order falsely in these tified testimo- false ment, hold some would Inquiry deportation Special to avoid statute, flies from excluded ny effect 110(f)(6)] to required by Officer [§ meaning. its literal face of in the good person not a appellant was find the alternatively seeks added). (emphasis character.” moral rule to bene language” “plain turn upheld recently, Ninth Circuit More testimony false contending that his fit peti immigration judge who found immigration to “obtain” delivered establishing good precluded from tioner reads, rather benefits, but as the statute 1101(f)(6)because moral character under § status resident permanent “retain” his giv testimony Bachelier which false investi by an INS challenged it was when resident permanent status en when his distinction with semantic is a gation. This & Immigration Bachelier rescinded. im Liwanag’s argument a difference. out (9th Serv., Naturalization permanent resident plicitly assumes Liwanag, Bache Cir.1980). petitioner Like conferred, from is a “benefit” status, once granted already permanent been lier had statute laws to immigration began its INS status when Permanent resident disagree. solely speaks. We instance, Thus, Liwanag, Bacheli if like revocable, investigation. for resident status protect his Bachelier Immi lying e.g., fraud, have been by er must procured Service, status. & Naturalization resident gration permanent Cir.1980), permanent (9th and F.2d support for inferential find additional We a “bene consequently “obtains” resident supra, Kungys, decision the BIA’s successfully inves withstands if he fit” noted: the Court where no see reason status. We tigation by this accompanied dishonesty only It is protect oath to falsely testifying under why immigration obtaining intent precise [of immigration laws status one’s morally Congress found benefits] 1101(f)(6)than by encompassed any less § misrepresenta- unacceptable. Willful to obtain oath falsely under testifying reasons, such as made for other tions Further, per cannot originally.4 status pri- for embarrassment, fear, or a desire have chosen Congress would why ceive culpa- sufficiently not were deemed vacy, of false incidents such distinguish between someone applicant as to brand the ble statute. writing the testimony when character. good moral lacks who Liwanag be by would urged The result approval with (quoting at 1551 in two other decided cases inconsistent brief).5 from Government’s circuits. passing to characterize Liwanag seeks semantics, 5. petitioner could trans- By clever misstates of fear. This an act done out lie as the proceedings into those many INS form acknowledged record, in which "ob- rather than were "retained" which benefits permanent resident protect his he lied tained.” always may losing status such a Fear status. Inasmuch as Kungys sought to draw a in the Ninth Circuit case of Start v. Immi- clear distinction between gration and misrepre- willful Serv., Naturalization sentations immigration made to obtain ben- withdrawn, F.2d Cir.1986), efits, hand, on one Cir.1988), majority reasons, made for other it would be incon- follows the approach of exactly. I sistent to splice again statute into cate- am inclined to with Judge Rein- gories of “benefits” bestowed the immi- hardt’s dissent the BIA’s application gration laws themselves. of 8 1251(f), U.S.C. approved by § Start, Ninth Circuit in and now receiving IV. court, sanction of this contrary “is sum, BIA erroneously included the the intent Congress in amending the petitioner’s original fraud in its balancing statute and thus is acceptable neither nor test under 1251(f)(1). 8 U.S.C. Neverthe- legitimate.” 803 F.2d at (Reinhardt, J., less, the BIA properly deny could Liwan- dissenting). I need reurge Judge Rein- ag’s request deportation a waiver of argument,1 hardt’s however, because this because of his additional misrepresenta- court has committed a much more funda- tions. The BIA properly also found Liwan- mental error in reviewing the Attorney ag to person be a lacking good moral char- General’s exercise of discretion. acter provisions under the 1101(f)(6), of § consequently, he was ineligible recapitulate Let me volun- the basis of the ad- tary departure. Therefore, the order of ministrative decision in this case. After and Naturalization Service determining petitioner was statu- is AFFIRMED. torily eligible waiver, for the pro- the BIA ceeded to balance “the alien’s undesirabili-

REAVLEY, Judge, dissenting: Circuit ty as a resident with the social As the majority correctly noted, the facts and humane present considerations to de- in this virtually case are identical those termine according whether him such relief testimony involved in the false covered statute. Mercy compassion are inherent in 1101(f)(6), obviously but that is not the “fear" functions; its ameliorative and we are con- Kungys. referred to in Congress vinced that did not intend for the niggardly courts to be interpretation in their of Start, 542, 1. The court in as at did the language." its Immigra- de Moreno v. Gonzalez case, majority in this affirmed the BIA decision Serv., 532, tion and Naturalization 538 petitioner that the was not entitled to the discre- (5th Cir.1974). originally The waiver was man- tionary attempted through because waiver "he datory problems but administering in prompt- bring artifice to his wife and children into this Congress ed to amend give the statute country join in 1981 to to him and the rest of his immedi- Attorney the family.” (Reinhardt, J., applying ate ing). General discretion Id. at 543 in the dissent- purpose 1251(f) legislative history The waiver. The of the § waiver is of the to amend- that, “Congress unite many families. in ments makes felt clear that it was not the intent of circumstances, important it was more to Congress unite to availability the limit of the waiver. preserve family families and than it ties was to 264, H.R.Rep. See Cong., No. 97th 1st Sess. at strictly quota enforce many the or limitations even 24-25, reprinted Cong. in 1981 U.S.Code & Ad- designed restrictive sections that are to 2577, min. News Judge 2593-94. As Reinhardt keep or undesirable harmful out aliens of the noted, Congress amending “[t]he of intent in the country.” Immigration and Serv. Naturalization section was to deport not enable the BIA to an Errico, 214, 220, 473, 478, individual, Start, clearly qualified like who (1966). Congress L.Ed.2d 318 determined that Start, J., (Reinhardt, relief." 803 F.2d at 543 "[t]he facts that the alien honestly could dissenting). artificially dividing petition- the gain it, entry ... and had lied about were ... er's fraud into several discrete and in acts con- by more than counterbalanced familial relation- sidering petitioner’s the desire to be united with ships." Immigration Cacho v. and Naturaliza- family character, his as evidence of bad the BIA Serv., 1057, (9th Cir.1976). "manifestly decision was contrary to the intent Supreme The Court has that noted the waiver Congress." of the Judge Id. at 544. Reinhardt designed accomplish was to a humanitarian re- urges part grounds reversal in on the that the "give meaning sult and courts that must to the policy decision based on inherent light statute in purpose of its humanitarian judgments contrary were that the intent of preventing Errico, breaking up the of families.” Congress. the See id. Indeed, 385 U.S. at 87 S.Ct. at 480. this 1251(f) court has that § held "is a benevolent “grave solely on such a based of the waiver On country.” of this interest in the best is misrepresenting one’s marital as misdeed” positive the scale of the side one against status, when balanced particularly to his family ties petitioner’s the factors: factors, permissible wife, positive resident considerable permanent lawful Start, 803 F.2d at son, Act. lawful the and citizen States residing J., dissenting). (although (Reinhardt, she mother resident of the hear- at the time Philippines in the in weighed factors of the adverse One family by his suffered hardship to be ing); however, universally admitted case, this son; his and from wife separated if he were impermissible. and to have been irrelevant other any criminal record the absence deportation for aliens The waives statute in the United illegal conduct evidence if by misrepresentation gained who record; the employment States; steady spouse or child parent, has a who the alien good been petitioner had the that fact legal permanent resi- citizen or is a U.S. in the United family his for both provider specifically for- statute dent. Because the Philippines; family in the and his fact the mere misrepresentation, gives the as petitioner the produced references misrepresentation was made that such character; petitioner’s and the good against weighed a factor as cannot habits. or bad no vices he claim majority holds the waiver. granting adverse weighed the these are Against Circuit, Start, much, the Ninth as has Mr. factors, lies that the three Hernandez-Robledo, 542; F.2d at (1) to 1984: from 1980 government told the government’s lawyer and the F.2d at entry, in 1980 to obtain told that he lie point. Thus all case concedes this petitioning in 1982 (2) he told lie that lie, weighing him, (3) and join wife and children for his factor impermissible BIA hide in 1984 he told the lie Liwanag’s Mr. case. balancing of deportation. prevent and ineligibility Nevertheless, affirms majority adverse BIA determined on the weighing” “erroneous BIA’s positive factors outweighed the factors BIA's denial waiv- “the grounds that the waiver. denied proper was nonetheless deportability er of not untenable decision is BIA’s While additional because face, admitted it must be on its holding that Liwanag.” In wrought Although from obvious. is far decision lie the 1982 properly concluded BIA govern- to the misrepresentation making a positive outweighed the lie activity, under praiseworthy not a ment is a deter- factors, majority has affirmed case, does this neither the circumstances make, did not that the mination Compare Her- outrage. moral it excite reading fair by a is not discernible and Nat- nandez-Robledo opinion. its 536, (9th Serv., 777 F.2d 541 uralization is not inci- 1980 lie of the Consideration exercise Cir.1985) (affirming the BIA’s decision, it an nor is BIA to the dental to a Mexi- the waiver denying discretion rather, is essential ground; it alternative son, because American with an can citizen un- opinion balancing. The Board’s the a “serious” recent conviction of his misrep- original the states that equivocally Immigration and Natu- crime); Dallo v. against weighed is to resentation 581, (6th Serv., 588 F.2d 765 ralization would include factors petitioner: “Adverse exercise Cir.1985) (affirming the BIA’s underlying circumstances the nature Iraqi to an waiver denying discretion in- misrepresentation fraud or the volved_” who had wife American with an citizen same ar- made Petitioner into gained successfully that he the BIA gument marriage to another of a fraudulent means applicants “all to this court made conspired arrange and who woman fraud, and 241(f) committed relief have marriages of other fraudulent number is case only fraud certainly where citizens). Judge Reinhardt relief, it eligible for made him the denial whether questioning justified should not bar the relief as a matter of to vacate the order and remand the case to rejected discretion.” BIA argu- the BIA. See Siang Wang Ken v. Immi- ment, gration and however: do not “We with the Serv., Naturalization respondent’s assessment of his case.... 286, Cir.1969). Thus, even if unwilling to minimize the nature [W]e majority is correct in premises, all its way extent of his fraud the respon- has committed error in remanding not subsequent dent has.” misrepre- Of the BIA for reweighing of the relevant sentations on opinion which the majority Instead, factors. the majority has “substi- relies, the BIA holds that these acts “com- judgment for that agen- tute[d] pounded” majority fraud. The Park, Overton cy.” 416, 401 U.S. at noting is correct in that our review of the S.Ct. at 824. BIA decision limited to a determination Because the weighed impermissi- an of whether there was an abuse of discre- against ble factor positive substantial Jarecha v. and Natu- tion. factors, the decision itself must be vacated. Serv., ralization 220, 224-25 should case be remanded for reconsid- Cir.1969). in reviewing But an administra- eration. tive decision on an abuse discretion stan- dard, this court must “consider whether

the decision on a was based consideration

of the relevant factors and whether there Bow-

has been a error judgment.” clear Transportation,

man Inc. v. Arkansas- Inc., Freight System,

Best 281, 419 U.S.

285, 438, 442, (1974) 95 S.Ct. 42 L.Ed.2d 447 (quoting Citizens to Preserve Overton BANK, Plaintiff, TEXAS NATIONAL Park, Volpe, Inc. v. 402, 416, 401 U.S. 814, 824, (1971)). S.Ct. L.Ed.2d 136 An administrative decision is arbitrary ca- CORPORATION, SANDIA MORTGAGE

pricious agency “if has relied on Defendant-Appellee, Congress factors which has not intended it Vehicle Motor to consider.” Manufactur- NELSON, B. William ers Ass’n v. Farm State Mutual Automo- Defendant-Appellant. Co., bile Ins. 29, 43, 463 U.S. 2856, 2867, see also (1983); L.Ed.2d No. 88-1194. Fund, Brock, Farmworker Justice Inc. v. United States Appeals, Court of (D.C.Cir.), vacated Fifth Circuit. moot, (1987) (an F.2d 890 deci- may rely “statutorily sion not on impermis- May factors”). sible or irrelevant When agency’s impermissible decision is based on factors, reviewing irrelevant court “[t]he attempt

should not makeup itself to deficiencies; may

such supply agency’s

reasoned basis action that State given.” itself has not

Farm, at at 2867.

At least one has held court one when four factors considered BIA

exercising its discretion was irrelevant and considered,

improperly the court cannot de-

termine how would have exercised

its discretion only rele- factors, proper disposition

vant notes ag marriage. second, sham through a petitioner 1254(a)(2)presupposes question argument raises Liwanag’s deporta- justifying an act has committed Circuit, al- one but in our impression first brief, INS concedes its tion. ain Circuit Ninth by the ready addressed not be act should original fraudulent proper factors misrepresentations, were ought to remand suggests we The dissent consideration, substantially disagree. similar are INS. We by the for reconsideration act. agency Liwanag’s on fraudulent relied has administrative character to When an agen- Therefore, factors improper or irrelevant that the or more is little likelihood one there determination, will exer our court reaching its a different conclusion cy reached would have to the a remand Project, as to whether e.g., cise discretion Salt River error. but for this Sierra-Reyes v. Immi appropriate. agency is agency (‘When relies n. 8 762 F.2d at Ser., gration & Naturalization findings, more which one or number of on a erroneous, Service, Cir.1978). v. U.S. Postal Accord Diaz only remand must reverse Cir.1988); Project Agr. (1st River Salt but significant chance that is a when there (D.C.Cir. States, F.2d Imp. v. United might have reached the errors Immigration and 1985); Chung v. U.S. Chun So result.”). different 1979). (3d Nat., additional Cir. F.2d 608 I.N.S., strikingly similar case. separate acts in the balancing process for (9th Cir.1986), withdrawn, withholding deportation. (9th Cir.1988) F.2d 787 (subsequent events original appeal moot). There, rendered III. second, court found that Start’s sham mar- Liwanag alternatively contests the riage performed to allow first wife and BIA decision to refuse voluntary depar immigrate their children into the United ture. 1254(e), Under 8 INS, U.S.C. States constituted misrepresenta- a second discretion, may grant permis an alien tion which weighed could be against his depart sion to voluntarily if “such alien request for deportation. a waiver of Like shall is, establish ... that he been, and has Liwanag, Start fraudulently entered the person good moral character for at pretense States under the being years least five immediately preceding his an unmarried son of a lawful application voluntary departure.” Sec resident, when, fact, he was married. 1101(f)(6) provides title 8 that no

Case Details

Case Name: Jesus Paras Liwanag v. Immigration and Naturalization Service

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jun 28, 1989

Citation: 872 F.2d 685

Docket Number: 88-4489

Court Abbreviation: 5th Cir.