Ruta Marie Kahn v. Immigration and Naturalization Service
20 F.3d 960
9th Cir.
1994
Check Treatment

*1 indiffer- felony and reckless der-producing Tison, at life. U.S. to human

ence record contains at

107 S.Ct. culpability. finding of

requisite

CONCLUSION claims of Paradis’

Although consideration proscription rule by the new barred Lane, 489 U.S. Teague announced (1989), none L.Ed.2d 334

109 S.Ct. of the denial reversal them merits claim corpus. Paradis’

petition for habeas utter of an evidence there is insufficient require- meet life to

disregard for human Virginia, Jackson

ments of (1979), must be 61 L.Ed.2d in the district to raise it for failure

dismissed

court. AF- corpus of habeas relief denial that the facts do The claim

FIRMED. beyond a reasonable doubt

demonstrate disregard for human with utter

Paradis acted

life is DISMISSED. Petitioner, KAHN,

Ruta Marie AND

IMMIGRATION SERVICE,

NATURALIZATION

Respondent.

No. 91-70544. Appeals, Court

United States

Ninth Circuit. 3, 1993.

Argued March Submitted 25, 1994. March

Decided *2 adopt test,

Board has refused to an inflexible preferring instead a test looks to the individual merits of each case. The IJ must balance the social and humane considerations presented against on the alien’s behalf the including adverse factors the alien’s undesir- ability permanent as a Yepes-Pra resident. INS, (9th do v. 10 F.3d 1365-66 Cir. 1993); Marin, Matter 16 I. & N. Dec. of Vecchione, CA, Diego, Frank San for T. (1978). Among the factors to be . petitioner. weighed petitioner’s in a favor is the exis family tence of ties within the United Arríes, Justice, States.1 Dept, Anne C. U.S. of DC, Washington, respondent. testimony The IJ heard from Kahn and long-standing

others about her relationship Caldwell, with a Mr. with whom she had been living years. for several Caldwell character- ized the as “like [a] common- BROWNING, Before: HUG and couple law” and stated the intended KOZINSKI, Judges. Circuit marry if to Kahn deported. were not Mem- family bers of Caldwell’s PER extended CURIAM: testified strength to the existence of and Kahn’s rela- Kahn, Ruta Marie a native and citizen of tionship with Caldwell and with them. The Canada, was admitted to the United States family IJ found Kahn’s ties the United permanent as a resident alien in 1978 and n strong, States were and on the basis of this has lived California since. Kahn was con equities and granted request other Kahn’s money laundering conspiracy victed of to 212(c). § for a waiver under The Board methamphetamine. manufacture Immi The reversed. (INS) gration and Naturalization Service deportable found Kahn under 8 U.S.C. recognized The Board that the existence of 1251(a)(11) 1251(a)(4)(B) §§ because of family substantial ties the United States is conviction, drug petitioned and she for a weighty factor in support of the favor- 212(c) deportation-under § waiver of 212(c). § able exercise of discretion under (INA). Immigration and Naturalization Act evaluating family In Kahn’s ties in this coun- 1182(c). § petition grant 8 U.S.C. Her was however, try, the Board found conclusive the by (IJ), Immigration Judge ed an but denied California, residence, fact that her state of on review Immigration Ap the Board of recognize did marriages. common law (Board). peals appeals. Kahn The Board said: ... respondent’s We do not find the rela-

I tionship to Caldwell to Mr. substantial requires equity. During an alien who has been hearing, Mr. Caldwell drug convicted of a serious offense demon respondent testified that he considered the outstanding equities strate in her favor to be to be akin to a common law wife. Howev- er, considered for deportation a waiver of marriages recog- are not 212(c). § Ayala-Chavez v. nized in California. See Malhiot v. South (9th Cir.1991). Union, determining ern Retail Clerks California grant 212(c), § Cir.1984), denied, whether to relief under F.2d 1133 cert. laws, positive long 1. Other factors include residence of of other violations of the country, hardship nature, duration in this and to the alien recency, any and seriousness of criminal family deported, history employment, of record, presence any and the other evidence of ties, service,' community or business applicant's undesirability bad character and, record, genuine when there is a criminal legal permanent resident of the United States. Negative rehabilitation. factors include the na- Mann, 16 I. & N.Dec. at 584-85. ground deportation, presence ture of the (1983); v. Natu NLRB 74 L.Ed.2d 83 L.Ed.2d 105 S.Ct. U.S. County, 402 Hawkins Utility Dist. ral Gas 1746, 1748, 600, 603, 29 L.Ed.2d 91 S.Ct. U.S. adopt this court asks government Turley, United States law determi- make state analysis and Board’s 1 L.Ed.2d discre- purposes of family ties for native *3 (1957). especially ap presumption is This 212(c): § “[B]ecause under tionary relief gener is statute propriate where the federal recognize common not law does California ap uniform nationwide ally to have intended marriage, petitioner’s the program and where the federal plication (Gov. equity.” not a substantial ... was to cont impaired if state law were would be p. Brief Indians, Mississippi Band Choctaw rol.2 of II 43-44, 109 S.Ct. at 1605-06. 490 U.S. at Board, of the Attor- acting on behalf The applicable here. principles are These General, to may establish standards ney implement a uni designed to The INA “was granting of discretion guide the exercise meaning of the policy,” and form federal 212(c) § “as deportation under waivers of application are “not concepts important to its rationally related to the long [they] are according of the to the law determined to be Ayala-Chavez, 944 F.2d statutory scheme.” forum, require[ a federal ] rather uniform but on a must be based A standard at 641. INS, 220, F.2d Rosario v. definition.” statute, al- interpretation of the permissible (2nd Cir.1992) by analogy Mis (applying only one [the it not be “the though need Indians). Com sissippi Band Choctaw of adopted ... permissibly have agency] could legal marriages are accorded status mon have reading the court would the even and the of thirteen states under the laws judi- in a question had arisen reached the Columbia, such of but are denied District Res. v. Natural proceeding.” cial Chevron states, twenty-seven the laws of status under Council, n. 467 U.S. Def. Kandoian, Ellen California. See including (1984). 11, 81 L.Ed.2d 694 2782 n. S.Ct. Cohabitation, Marriage, and Law Common Life, 75 Possibility a Shared Moral law the as matter of The Board erred a of n. 11 Under mea Geo.L.Rev. adopting law as the state conclusive alien is standard whether an the Board’s family in the of ties United sure may depend 212(c) deportation of Supreme granted a waiver § The purposes of relief. Nothing in of residence. that on that state occasions alien’s has held on numerous Court 212(c) justifies disparate treatment of § such to the plain a “in the absence of indication In the similarly situated aliens. otherwise Congress enacts a stat contrary, ... when it implied Congres express or of an making application of the fed absence the ute contrary, Board’s the sional intention the Jerome dependent eral act law.” conclusively de 101, 104, that States, adoption of standard 63 S.Ct. 318 U.S. United 212(c) by § reference (1943); family under Mississip fines ties see 87 L.Ed. vary state to that from Holy field, 490 to pi Indians v. classifications Choctaw Band of rationally the INA’s 1597, 1605, 104 not related to 30, 43, 109 L.Ed.2d state is interpreta permissible purpose and is not a Banner Insti Dickerson v. New tute, Inc., tion of Act.3 Congressional in the enactment. by either as used 2. statutes cited dissent federal meaning expandable expressly strongly imply divergencies state law is to utter that state or applied. to the law of the be once recourse diversification to.”); alleged offense resorted state of INS, 514 Moon Ho Kim v. F.2d See Cir.1964) INS, Wadman ("The (D.C.Cir.1975) legislative history of the "adultery” (applying of INA); federal definition incorporat- plethora and the of definitions [INA] 101(f)(2) pre-1981 § see Bera- of the but 1101(a), it, § leave little 8 U.S.C.A. ed in Title (3rd Cir.1976) (ap- 531 F.2d 693 Garcia v. uniformity. Congress seeking was To doubt "adultery”). plying law definition of adopt of the state to [that a rule relied on the law destroy any 'adultery'] be to mean- define 'adultery' ingful uniformity to the definition frequently III relies on it—and without com- promising uniformity. national This is invar- of Kahn’s The Board’s evaluation iably questions the case with family status. country only family in this was one of ties By holding agencies federal weighed in casting the Board several factors rely on state law definitions of request against balance Kahn’s for a express congressional authorization, without 212(c) Nonetheless, clearly § waiver. it was majority departs pre- from tradition and significant adopted one. the Board Since cedent. family ties that was unautho definition statute, judgment bankruptcy rized Take the Though code. we single bankruptcy system, vacated and the matter re have a Board it . reconsideration, heavily and it is so ord relies on state manded law See Butner v. *4 States, 914, ered.4 United 917, (“Congress 59 L.Ed.2d 136 has KOZINSKI, Judge, dissenting: Circuit generally property left the determination of According majority, errs rights in bankrupt’s the assets of a estate to a matter of law when it treats aliens who are law.”). state example, For under section actually married under the law of their domi- 547(b) the trustee pref- recover voidable ' differently cile from those Who are not. is, property erences —that gave the debtor law, majority Such reliance on state away just filing bankruptcy. before for Yet holds, is with uniform inconsistent federal triggered only this federal rule is if the debt- laws, application immigration of the gave away “property” his term defined —a rationally purposes Im- related to the of the Johnson, by state law. See Barnhill v. Nationality migration and Act and is there- -, 1386, 112 S.Ct. 118 L.Ed.2d 39 interpretation permissible fore not a of that (1992) (“In any controlling the absence of statute. law, ‘property1 prop in ‘interests conclusion, respectfully I With this dis- erty’ law.”); are creatures of state In re: agree. virtually always federal law Because Computer Corp., Unicom 13 F.3d 325 personal on state law to relies define (9th Cir.1994) (variations in state law deter family relationships, the INS’s decision to whether held mine debtor is follow state law here neither bizarre nor bankruptcy constructive trust is included in majority’s approach— It irrational. is the estate); Assocs., G.S. Rasmussen & Inc. v. which forces the INS to treat unmarried Service, Inc., Flying Kalitta 958 F.2d people as married —that will lead to irration- (9th Cir.1992) (state 902 law determines seriously al results and encumber adminis- Supplemental Type whether FAA Certificate unclear, immigration tration of the laws. It’s property). provisions is Various bank- moreover, why majority considers this ruptcy give rights depend code creditors rule, appropriate announcing ease for its new on whether are secured or unsecured conclusively as the record here shows that no Butner, under state law. See 440 U.S. at 52- jurisdiction would Kahn American consider a 54, Likewise, 99 at 916-18. whether a party marriage. to a valid common law is, keep debtor can his home —that whether exemption he can claim a homestead under I 522(d)(1) and, so, section for how much— result, opinion gives the distinct im- turns on state law. As a debtors in pression identically- that reliance on state law in the a lot some states do better than Compare administration of federal law is uncommon situated others. In re debtors Cir.1992) (9th (under inappropriate. simply Hyman, and somehow This is F.2d 1316 law, law, shunning not so. Far from state federal California than creditors —rather debt- ("[A]n Yepes-Prado, reassessing 10 F.3d at 1366 error of the balance between favorable and discretion."); However, appeal. law ... an constitutes abuse of Jen unfavorable factors on INS, (9th Hung Ng power Board has "the to review the record de Cir. 1986) ("The improper findings inclusion of an factor in novo and make its own of fact.” Cardo (9th reaching remand.”). discretionary grounds is for decision F.2d za-Fonseca argues Kahn also Board erred in Cir. Cir.1982) (9th law on (construing California appreciation post-petition from ors—benefit Hall, eligibility to determine homestead), 1 F.3d 853 marital status In re with law, (under under Social Secu- Cir.1993) Washington debt- insurance benefits (9th child’s Act). including rity from whether Marital creditors —benefit than ors—rather status — marriage— common state appreciation). such privi- may claim the marital who determines hinges on also often criminal law Federal leges the Federal Rules of Evidence. RICO, instance, law definitions. state 501; v. Lus United States See Fed.R.Evid. from many crimes derived predicate relies on (9th Cir.1977); Ste tig, F.2d 747-48 See, v. Free- e.g., States United law. Gofman, Judge Says “Honey, The N. ven Cir.1993) (review- (9th man, 6 F.3d Abrogating Marital History”: We’re part was based ing RICO conviction Doctrines Marital Privileges via Modem crimes”). bribery “predicate state law on Worthiness, 77 L.REY. CORNELL possessing from prohibits felons Federal usually firearms, 922(g), U.S.C. § but it’s a felon. that brands someone state .law body of for our most relevant Meeks, F.2d United surpris- purposes law. Not Cir.1993) (Missouri burglary conviction hinge many provisions also ingly, of its under section .predicate offense served law, including mari- state definitions of *5 Frushon, v. 922(g)); see also United example, marrying an Ameri- tal status. For Cir.1993) (‘Whether Fru 10 F.3d 663 gain help citizen can an alien admittance can by punishable a crime has committed 1151(b) shon § 8 U.S.C. to the United States. See exceeding year one imprisonment term (aliens eligi- married to U.S. citizen become in accordance with state be determined status). Relative” ble “Immediate law”). marriage parties entered the Whether the is a merely to avoid the laws Though the tax code. we Then there’s 1186a, § question, see 8 U.S.C. but federal taxation, system of federal have a uniform they legally depends married in are whether law. For exam- intimately tied to state it’s large on state law. See 8 U.S.C. measure community property states in ple, spouses 1186a(d)(1)(A). § one-half share of are for their liable income, spouses in common community while pervasive reliance on state law Given the only their are liable law states statutes, variety hard to of federal it’s Seaborn, v. 282 U.S. income. See Poe own irrationally using say state the INS acted 58, 61, 101, 117-18, 75 L.Ed. 239 two individuals law to determine whether (“[DJifferences law, (1930) which deserving special def- have a category or bring person within without with, begin the INS could ration- erence. To taxable, may by Congress as designated that ally significance attribute to the fact spell to out a the Revenue Act be read into what’s to parties have failed to do needed uniformity.”); States v. Mitch- lack of United easy enough husband and wife. It’s become 1768, ell, 1763, 29 91 403 U.S. S.Ct. boyfriend say, and her to ‘We’d for Kahn (1971) (“[WJith respect com- to L.Ed.2d 406 only living if certainly be married we were income, respect to other in- munity as with mar- common law a state come, liability follows income tax riages,” who can tell what their relation- but of owner- ownership. the determination they actually ship lived in would look like controls.”) (citations omit- ship, state law married, all, Getting a state? after such ted). simple to take the not that hard. Failure law, necessary status, steps to become husband and wife Marital as defined strong parties prominent in the raises a inference particularly role plays a If security to remain unattached. Kahn and prefer of federal law. Social administration living boyfriend in a state that hinge marital status. See her were often benefits Jobst, 47, 8, marriages, recognizes common law it is en- 52-53 n. 98 v. Califano adjust tirely they their behav- 95, 8, possible n. 54 L.Ed.2d 228 99 Schweiker, cementing a common law mar- 271 ior to avoid Purganan v.

965 ally pp. (discussing alimony pay. Vigil Vigil, re- no to riage. See infra (1959) Colo. P.2d marriage). (affirming law quirements for common alimony dismissal of motion for because wife Contrary majority’s premise', to the central failed to marriage). establish common law moreover, couples common law married Marvin, But see Marvin v. 18 Cal.3d position emotionally, not in the same moral- Cal.Rptr. (pali 557 P.2d 106 merely ly legally couples who are —as mony). cohabiting. Couples married under the com- marriage Because of the common —even are, fact, See, e.g., married. mon law variety serious and moral —carries (Ala. Kirk, Mattison So.2d consequences, perfectly it’s rational for the 1986) (“Common marriages are valid in equities only INS to accord certain to those Alabama, co-equal and are with ceremonial Marriage so bound. connotes a level of sta- (citations omitted), marriages.”) overruled on bility and simply commitment that doesn’t grounds by Mfg., other Carbon Hill Inc. folks, exist between unmarried no matter Moore, (Ala.1992). they If 602 So.2d 364 relationship. how warm their This distinc- separate, must contend with state law deal, great tion matters a and the INS is separation couples. on the of married See entitled to consider it discharging when Calvert, People ex rel. Cortez v. 200 Colo. obligations Congress solemn has entrusted it. (1980) (suit P.2d filed to yet why There is another reason the INS’s marriage declare ceremonial invalid because Determining distinction makes sense. party preexisting wife was common law whether an alien is married under the law of marriage). party one to a Should .common relatively simple; pres- his domicile is die, marriage eligible the other is ence or of a absence license will be intestacy under the inherit state’s statute. dispositive. recognize Even in states that (Ala. Brown, Piel v. See So.2d marriage, immigration officials just parties Income of the is treated *6 only particular need look to the law of a couples; like the income of married there is parties qualify. to determine whether Under alimony upon and a division of marital assets majority’s approach, the INS officials will See, Harris, e.g., divorce. Harris v. 171 have to the master domestic relations law of (common Colo. 466 P.2d 70 every states, jurisdiction fifty American the — seeking alimony temporary wife in divorce Columbia; Rico, Guam, District of Puerto the action). spouse If one former enters a com- Islands, Northern Mariana American Samoa marriage, support mon law the other’s obli- Virgin and the American Islands —to deter- gations just newlywed if terminate as the had couples living mine whether unmarried marriage. a entered ceremonial See O’Dell place might only one be deemed married if O’Dell, Ala.App. So.2d they lived elsewhere. The is well within (1976). rights declining its this chore. See EEOC Couples living together who are a state Co., v. Commercial Products Office recognize that does not common law mar- 107, 124, 108 1666, 1676, 100 L.Ed.2d 96 riages receive none of these benefits and are (1988) .(affirming part EEOC’s rule in be They bound none of constraints. these administered”); “easily cause it is Stowell go separate ways any they can their Cir.1993) time (1st Secretary, 3 F.3d Pickett, please. See Pickett v. Colo. (finding that a “cardinal reason deference is (1945) (where 161 P.2d 520 no there is com- agency’s interpretation due” is because the marriage, proceedings mon law divorce is, “eminently it sensible” —that “facilitates dismissed); unnecessary administration”). and should be Paul ... Simon, Lover, Ways to Leave Your II Negotiations Songs and Love (Warner 1988) (“Just back, substituted, slip Bros. out the Having judgment for that of its Jack”). They qualify spouses don’t majority up as the the comes with a rule Piel, intestacy ultimately statute. at 92. no fairer So.2d is ill-defined majority subject rejects. Division to the than the one it While the governing couples to treat as married rules marital assets. There’s usu- orders the*INS vagaries of state equally dependent on the married in a state that be deemed be, marriages, opin- If national rule there is to we law. a recognizes common state’s law the explain which text ion does not should look to the statute’s ourselves apply. While common But purpose INS must henceforth and announce one. this by similar rules in marriages are defined expertise from our as task is so removed jurisdictions, law does differ from many judges, only that the it underscores H. generally 1 Homer to state. See wrong turn majority must have taken a Clark, Jr., The Law Domestic Relations somewhere. (2d § 2.4 ed. the United apply the law of the state the INS Should Ill applicant’s state geographically closest to the event, why case is any In it’s unclear this of the strictest Or the law of residence? issue, resolving thorny appropriate for this permissive? most state? The the record shows that —whatever since uncertainty, no its this rule is Aside from boyfriend Kahn’s to her —it’s all, of the INS. After once fairer than that only thing in marriage. The a common law requirement par- that the we cast aside supporting record Kahn’s claim is her married, many couples plausibly can ties be boyfriend’s offhand remark that Kahn is “like married, they’re good as even claim Majority op. at 961. [wife].” a common law they could not married under the though fact; This is not a statement of it’s any jurisdiction. fed- law of American What conclusion, compe- something Caldwell is not by giving is served Kahn and eral interest fact, contrary popular give. tent deny- boyfriend favored treatment while her belief, marriages don’t arise though they ing cannot it to others who— spontaneously parties because the live to- qualify for common law —have gether, expenses, have án intimate re- share long-term physical, emotional and financial Rather, lationship and raise children. there gay relationship? Isn’t the case of and lesbi- very specific requirements. See are two long- couples many of have made an whom Clark, First, Domestic Relations at 104-05. raising chil- term commitments and are parties agree to become husband compelling far more one? Kahn and dren —a Sardonis, 106 R.I. and wife. Sardonis all, boyfriend, option of after have the Second, they 261 A.2d married; only get li- getting they need assumption mutual must demonstrate a holds, If, cense. Clark, relationship. 1 Domestic *7 the marital unfettered state law remain Simply put, parties at Relations 104-05. definitions, adopt how can we a rule that’s to be married and must hold must intend recog- itself tethered to the law of states that Id.; as themselves out to the world married. marriage common law and so exclude nize Deter, see also Deter v. 484 P.2d relationships every bit stable (1971); Smith, 161 Kan. 165 P.2d Smith v. enduring marriages? and as common law Sardonis, 261 A.2d at 24.1 My position is that we have no busi- basic and The record is clear that Kahn Caldwell meddling Congress ness this area since requirement satisfy the first because do responsibility has this to the INS. entrusted they agreed never to become husband and Ayala-Chavez v. Cir.1991) (“We wife. asked to describe their relation- When show considerable deference like, ship, say things Kahn and Caldwell interpretation to the BIA’s of the statutes it involved,” administers.”). romantically However, AR at 101 “We’re going if we are (Caldwell), or, had a serious romantic reject state-by-state approach “[W]e the INS’s —for (Kahn). reason, seems, relationship,” they But practice AR at 111 it that this is too Quite say they married. the con- dependent majority’s ap- never on state law—the trary, they emphasize day they proach improvement no at all as it is that some D.C., jurisdictions, notably Washington, press wife, present mutual intent to be husband and 1. Some by good express requirement faith cohabitation." the second somewhat differ- followed (D.C.Ct. Young, ently: 372 A.2d "To establish a common-law Johnson v. App.1977). be an ex- the District of Columbia there must See, e.g., guably point, moreover, AR dicta. may get married. at There is no married.”) (Cald (“We’re getting remanding. us, planning on On the record before we are (We well); plan getting perfectly capable applying do id. at 102 of our own rule her.”) affirming this is behind married as soon as the INS’s decision because (Caldwell). This, course, utterly prove of is at war with Kahn has failed to her case. the notion required for common law cock v. also sufficient Piel, (intent Peacock, to form common law they’re already So.2d to be married in future not 196 Ga. at 93 (present agreement 441, 26 married. See marriage). marriage); S.E.2d Pea see where no federal court has respectfully decline the mission. domestic By purporting to establish a federal law of relations, [*] [*] gone [*] boldly goes before. I satisfy Nor do Kahn and Caldwell the sec- requirement,

ond don’t hold them- Kahn her-'

selves out as married. Affidavits produced girlfriend”

self describe her as “the See, Caldwell, e.g.,

of John not the wife. AR (Affidavit MacKinnon)

at 149 of James

(“Ruta girlfriend my is the friend John (Affidavit TONRY,

Caldwell....”); Plaintiff-Appellee, Alfred F. AR at 151 (“Ruta Ludwig) and Yasmin is the Steve girlfriend good of our friend John Cald- EXPERTS, INC., SECURITY well_”). None of these folks seem to Defendant-Appellant, think Kahn and Caldwell are married. It’s thus hard to see what this case has to do marriage. with common law FOGLIA, Robert Defendant. Petitioner, course, bears the burden of No. 92-15505. presenting support claim. evidence her presented nothing Here Kahn to show she Appeals, United States Court of any- qualify as a common law wife Circuit. Ninth making where. Even if we excuse her from showing perhaps such a because the INS Argued and Submitted Nov. 1993. rejected ignore claim2—we cannot March Decided present, the evidence did evidence that she possibly establishes she couldn’t be deemed living

Caldwell’s wife if she even were marriages. Kahn, way

Given the Caldwell and their relationship,

friends characterized the there’s

nothing say she could or show to her revive

claim. why

I therefore can’t see

orders the to evaluate INS Kahn’s relation- jurisdiction

ship as if she lived in a marriages. The sim- is,

ple fact even such a claim were available litigant,

to some other it’s not available to case, being majority’s pro-

her. This subject gratuitous,-

nouncement on the ar- given hand in 2. There is no indication in the record that the the INS seems to have Kahn a free prevented introducing her from evidence to presenting whatever evidence she wanted about ' qualified show she would have as Caldwell’s with Caldwell. fact, common wife in some other state.