From: Subject: Immigration Ruling-Adams Date: Thu, 26 May 2005 21:09:11 -0700 MIME-Version: 1.0 Content-Type: multipart/related; type="text/html"; boundary="----=_NextPart_000_0000_01C56237.29DED580" X-MimeOLE: Produced By Microsoft MimeOLE V6.00.2900.2180 This is a multi-part message in MIME format. ------=_NextPart_000_0000_01C56237.29DED580 Content-Type: text/html; charset="Windows-1252" Content-Transfer-Encoding: quoted-printable Content-Location: http://www.qrd.org/qrd/www/world/immigration/adams82.html Immigration Ruling-Adams

RICHARD FRANK ADAMS and ANTHONY CORBETT SULLIVAN,=20 Plaintiffs-Appellants,

vs.=20

JOSEPH D. HOWERTON,

Acting District Director of the Immigration = and=20 Naturalization Service of the United States Department of Justice,=20 Defendant-Appellee.

ADAMS v. HOWERTON

No. 80-5209

UNITED STATES COURT OF APPEALS, NINTH CIRCUIT

673 F.2d 1036

October 7, 1981, Argued=20

February 25, 1982, Decided

PRIOR HISTORY

Appeal from the United States District Court for = the=20 Central District of California.=20

COUNSEL: David M. Brown, Robert A. DePiano, Brown, Weston & = Sarno,=20 Beverly Hills, Cal., for plaintiffs-appellants.=20

Dzintra I. Janavs, Asst. U. S. Atty., Los Angeles, Cal., argued, for=20 defendant-appellee; Andrea Sheridan Ordin, U. S. Atty., Eva S. = Halbreich, Asst.=20 U. S. Atty., Los Angeles, Cal., on brief.=20

JUDGES: Before WALLACE and TANG, Circuit Judges, and TURRENTINE*, = District=20 Judge.=20

* Honorable Howard B. Turrentine, United States District Judge,=20

Southern District of California, sitting by designation.=20

OPINION BY: WALLACE

OPINION: [*1038] Adams, a male = American=20 citizen, and Sullivan, a male alien, appeal from the district court's = entry of=20 summary judgment for Howerton, Acting District Director of the = Immigration and=20 Naturalization Service (INS). The district court held that their = homosexual=20 marriage did not qualify Sullivan as Adams's spouse pursuant to section = 201(b)=20 of the Immigration and Nationality Act of 1952, as amended (the Act), 8 = U.S.C. @=20 1151(b).=20

We affirm.=20

I

Following the expiration of Sullivan's visitor's visa, Adams = and=20 Sullivan obtained a marriage license from the county clerk in Boulder, = Colorado,=20 and were "married" by a minister. Adams then petitioned the INS for=20 classification of Sullivan as an immediate relative of an American = citizen,=20 based upon Sullivan's alleged status as Adams's spouse. The petition was = denied,=20 and the denial was affirmed on appeal by the Board of Immigration = Appeals. Adams=20 and Sullivan then filed an action in district court challenging this = final=20 administrative decision on both statutory and constitutional grounds. = The=20 parties agreed that there was no genuine issue as to any material fact = and that=20 the only issues presented were issues of law. On cross-motions for = summary=20 judgment, the district court entered judgment for the INS. Adams v. = Howerton,=20 486 F. Supp. 1119 (C.D.Cal.1980). This appeal followed.

II

Two questions are presented in this appeal: first, whether a = citizen's spouse within the meaning of section 201(b) of the Act must be = an=20 individual of the opposite sex; and second, whether the statute, if so=20 interpreted, is constitutional.=20

Section 201(a) of the Act establishes immigration quotas and a system = of=20 preferential admissions based upon the existence of close family = relationships.=20 The section excludes immediate relatives of United States citizens from = the=20 quota limitations, which have been periodically revised by Congress.

8 U.S.C. @ 1151(a). Section 201(b) defines "immediate relatives" to = include=20 the spouses of United States citizens. 8 U.S.C. @ 1151(b). = (See note=20 1)

Section 201(b) was added to the Act in its present form by the = Immigration=20 and Nationality Act Amendments of 1965, Pub.L. No. 89-236, @ 1, 79 Stat. = 911.=20 Neither that section nor any subsequent amendments further define the = term=20 "spouse" directly.=20

Cases interpreting the Act indicate that a two-step analysis is = necessary to=20 determine whether a marriage will be recognized for immigration = purposes. The=20 first is whether the marriage is valid under state law. The second is = whether=20 that state-approved marriage qualifies under the Act. Both steps are = required.=20 E.g., United States v. Sacco, 428 F.2d 264, 270 (9th Cir.) (construing 8 = U.S.C.=20 @ 1302, 1306(a), 1451(a), (e)), cert. denied, 400 U.S. 903, 91 S. Ct. = 141, 27 L.=20 Ed. 2d 140 (1970).=20

This same two-step analysis is appropriate under section 201(b). We = first=20 consider the validity of the marriage under state law.=20

In visa petition proceedings addressing this question, the Board of=20 Immigration Appeals has held that the validity of a marriage is governed = by the=20 law of the [*1039] place of celebration. See In re Gamero, 14 I. & = N. Dec.=20 674 (B.I.A.1974). See also Gee Chee On v. Brownell, 253 F.2d 814, 817 = (5th Cir.=20 1958).=20

Because a valid marriage is necessary for spouse status under the = immigration=20 laws, In re P., 4 I. & N. Dec. 610, 613 (B.I.A.1952), we look to = Colorado=20 law to determine whether the Adams-Sullivan marriage is valid.=20

Adams and Sullivan argue, in effect, that we need not reach this = question=20 because each is a putative spouse under Colorado law. They claim that = they held=20 a good faith belief that they were married. The district judge rejected = this=20 claim as without merit, observing that Adams and Sullivan could not have = been=20 without doubts concerning the validity of their marriage. 486 F. Supp. = at 1123.=20 We need not reach the issue. Even if Adams and Sullivan held a good = faith belief=20 that they were legally married, it is clear that the provisions of = Colorado law=20 they cite were enacted not to confer validity on the marriage of a = putative=20 spouse, but rather to protect property rights and insure support for = children=20 when the invalidity of such a marriage is discovered. See Colo.Rev.Stat. = @=20 14-2-111 (1973).=20

It is not clear, however, whether Colorado would recognize a = homosexual=20 marriage. There are no reported Colorado cases on the subject. The = Colorado=20 Attorney General in an informal, unpublished opinion addressed to a = member of=20 the Colorado legislature three days after the alleged marriage in = question=20 occurred, stated that purported marriages between persons of the same = sex are of=20 no legal effect in Colorado. Colorado statutory law, however, neither = expressly=20 permits nor prohibits homosexual marriages. Some statutes appear to = contemplate=20 marriage only as a relationship between a male and a female. See = Colo.Rev.Stat.=20 @ 14-2-104 (1973) ("Formalities. Marriage between a man and a woman, = licensed,=20 solemnized, and registered ... is valid in this state.").=20

While we might well make an educated guess as to how the Colorado = courts=20 would decide this issue, it is unnecessary for us to do so. (= See note 2) . We decide this case solely upon construction of = section 201( b), the second step in our two-step analysis.

III =

Even if the Adams-Sullivan marriage were valid under Colorado = law, the marriage might still be insufficient to confer spouse status = for purposes of federal immigration law. So long as Congress acts = within constitutional constraints, it may determine the conditions under = which immigration visas are issued. Therefore, the intent of Congress = governs the conferral of spouse status under section 201(b), and a valid = marriage is determinative only if Congress so intends.

It is clear to = us that Congress did not intend the mere validity of a marriage under = state law to be controlling. Although the 1965 amendments do not define = the term"=20

Furthermore, valid marriages = entered=20 into by parties not intending to live together as husband and wife are = not=20 recognized for immigration purposes. Garcia-Jaramil lo v. INS, 604 F.2d = 1236,=20 1238 (9th Cir. 1979), cert. denied, 449 U.S. 828, 101 S. Ct. 94, 66 L. = Ed. 2d 32=20 (1980); Volianitis v. INS, 352 F.2d 766 (9th Cir. 1965). See also Lutwak = v.=20 United States, 3 44 U.S. 604, 611, 73 S. Ct. 481, 486, 97 L. Ed. 593 = (1953);=20 United States v. Sacco, supra, 428 F.2d at 269-71.=20

Therefore, even though two persons contract a marriage valid under = state law=20 and are recognized as spouses by that state, they are not necessarily = spouses=20 for purposes of section 201(b).=20

We thus turn to the question of whether Congress intended that = homosexual=20 marriages confer spouse status under section 201(b). Where a statute has = been=20 interpreted by the agency charged with its enforcement, we are = ordinarily=20 required to accord substantial deference to that construction, and = should follow=20 it "unless there are compelling indications that it is wrong." New York = Dept. of=20 Social Services v. Dublino, 413 U.S. 405, 421, 93 S. Ct. 2507, 2517, 37 = L. Ed.=20 2d 688 (1973); Faulkner v. Watt, 661 F.2d 809, 812 (9th Cir. 1981); = United=20 States v. Standard Oil Co. of California, 618 F.2d 511, 518 (9th Cir. = 1980).=20

Thus, we must be mindful that the INS, in carrying out its broad=20 responsibilities, has interpreted the term "spouse" to exclude a person = entering=20 a homosexual marriage.=20

While we do accord this construction proper weight, we base our = decision=20 primarily on the Act itself. See Southeastern Community College v. = Davis, 442=20 U.S. 397, 411, 99 S. Ct. 2361, 2369, 60 L. E d. 2d 980 (1979); Usery v. = First=20 Nat'l Bank of Arizona, 586 F.2d 107, 111 (9th Cir. 1978).=20

Nothing in the Act, the 1965 amendments or the legislative history = suggests=20 that the reference to "spouse" in section 201(b) was intended to include = a=20 person of the same sex as the citizen in question. It is "a fundamental = canon of=20 statutory construction" that, "unless otherwise defined, words will be=20 interpreted as taking their ordinary, contemporary, common meaning." = Perrin v.=20 United States, 444 U.S. 37, 42, 100 S. Ct. 311, 314, 62 L. Ed. 2d 199 = (1979).=20 See Rhodes v. Republic Nat'l Life Ins. Co., 5 01 F.2d 1213, 1217 (9th = Cir.=20 1974), cert. denied, 420 U.S. 928, 95 S. Ct. 1126, 43 L. Ed. 2d 398 = (1975).=20

The term "marriage" ordinarily contemplates a relationship between a = man and=20 a woman. See Webster's Third New International Dictionary 1384 (1971); = Black's=20 Law Dictionary 876 (5th ed. 1979). The term "spouse" commonly refers to = one of=20 the parties in a marital relationship so defined. Congress has not = indicated an=20 intent to enlarge the ordinary meaning of those words. In the absence of = such a=20 congressional directive, it would be inappropriate for us to expand the = meaning=20 of the term "spouse" for immigration purposes. Consumer Prods. Safety = Comm'n v.=20 GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S. Ct. 2051, 2056, 64 L. Ed. = 2d 766=20 (1980).=20

Our role is only to ascertain and apply the intent of Congress. See, = e.g.,=20 Lavin v. Marsh, 644 F.2d 1378, 1381 (9th Cir. 1981); Hughes Air Corp. v. = Public=20 Utilities Comm'n of California, 644 F.2d 1334, 1337 (9th Cir. 1981).=20

Our conclusion is supported by a further review of the 1965 = amendments to the=20 Act. These amendments not only added section 201(b) in its present form, = but=20 also amended the mandatory exclusion provisions of section 212(a) of the = Act, 8=20 U.S.C. @ 1182(a). Yet, both section 15(b) of the amendments, Pub.L. No. = 89-236,=20 @ 15(b), 79 Stat. 911, 919 (codified at 8 U.S.C. @ 1182(a)(4)), and the=20 accompanying Senate Report, S.Rep. No. 748, 89th Cong., 1st Sess., = reprinted in,=20 (1965) U.S.Code Cong. & Ad.News 3328, 3343, clearly express an = intent to=20 exclude homosexuals.=20

[Editor's note: I believe these provisions were repealed in = 1990 - any=20 legal beagles please confirm]

See Boutilier v. INS, 387 U.S . 118, 121, 87 S. Ct. 1563, 1565, 18 L. = Ed. 2d=20 661 (1967). As our duty is to ascertain and apply the intent of = Congress, we=20 strive to interpret language in one section of a statute consistently = with the=20 language of other sections and with the purposes of the entire statute=20 considered as a whole. Philbrook v. Glodgett, 421 U.S. 707, 713, 95 S. = Ct. 1893,=20 1898, 44 L. Ed. 2d 525 (1975). We think it unlikely that Congress = intended to=20 give homosexual spouses preferential [*1041] admission treatment under = section=20 201(b) of the Act when, in the very same amendments adding that section, = it=20 mandated their exclusion. Reading these provisions together, we can only = conclude that Congress intended that only partners in heterosexual = marriages be=20 considered spouses under section 201(b).=20

IV

We next consider the constitutionality of the section 201(b) so = interpreted.=20 Adams and Sullivan contend that the law violates the equal protection = clause (= See note 3) because it discriminates against them on the basis of = sex and homosexuality. They also argue that review of this claimed = violation must be pursuant to a strict standard because the federal law = abridges their fundamental right to marry.(See note 4) We need not and do not reach the question of the = nature=20 of the claimed right (= See note 5) or whether such a right is implicated in this case. = Even if it were, we would not apply a strict scrutiny standard of = review to the statute. Congress has almost plenary power to admit or = exclude aliens, see Fiallo v. Bell, 430 U.S. 787, 792, 97 S. Ct. 1473, = 1478, 52 L. Ed. 2d 50 (1977); Kleindienst v. Mandel, 408 U .S. 753, = 765-67, 92 S. Ct. 2576, 2583-84, 33 L. Ed. 2d 683 (1972), and the = decisions of Congress are subject only to limited judicial review. = Fiallo v. Bell, supra, 430 U.S. at 792, 97 S. Ct. at 147 8, quoting = Hampton v. Mow Sun Wong, 426 U.S. 88, 101 n.21, 96 S. Ct. 1895, 1904 = n.21, 48 L. Ed. 2d 495 (1976).

In Kleindienst v. Mandel, the Supreme = Court refused to balance the government's interest in excluding certain = aliens against the first amendment interests of American citizens who = sought to communicate with the excluded aliens. In reaching its = decision, the Court stated:

"=20 the of in not are by that be blockquote < ? ....? government branches = political=20 exclusively exercised to power -a dangers and encroachment foreign = against=20 country defending relations international normal maintaining for = necessary=20 sovereignty, ?inherent is aliens exclude ... broadly d hel (1893), 905) = Ed. L.=20 37 1016, Ct. S. (13 698 U.S. 149 States, United v. Ting Yue Fong (1889), = 1068)=20 32 631, 623, 9 581, (130 609 130 Case, Exclusion Chinese The Court=20 nation-states, law principles ancient with accord In here. inquiry our=20 dispositive however, implicated, rights Amendment First = Recognition>Oceanic=20 Navigation Co. v. Stranahan, 214 U.S. 320, 339 (29 S. Ct. 671, 676, 53 = L. Ed.=20 1013) (1909). 408 U.S. at 753 at 765-67, 92 S. Ct. 2576 ,33 L. Ed. 2d = 683=20 (footnotes omitted).=20
Thus, the Court has upheld the broad power of Congress to determine=20 immigration policy in the face of challenges based upon the first = amendment, id.=20 (statutory [*1042] exclusion of individuals advocating world communism), = the due=20 process clause, Boutilier v. INS, supra (vague statutory language = excluding=20 homosexuals), as well as the equal protection component of fifth = amendment due=20 process and constitutionally-implied fundamental rights, Fiallo v. Bell, = supra,=20 430 U.S. at 794, 97 S. Ct. at 1479 (discrimination based on sex and = illegitimacy=20 and denial of fundamental constitutional interests in family = relationships). In=20 Fiallo v. Bell, the Court observed=20
"that in the exercise of its broad power over immigration = and=20 naturalization, Congress regularly makes rules that would be = unacceptable if=20 applied to citizens."
Id. at 792, 97 S. Ct. at 1478, = quoting=20 Mathews v. Diaz, 426 U.S. 67, 80, 96 S. Ct. 188 3, 1891, 48 L. Ed. 2d = 478=20 (1976). Explaining the "special judicial deference to congressional = policy=20 choices in the immigration context," id. at 793, 97 S. Ct. at 1479 = (footnotes=20 omitted), the Court stated:=20

"Policies pertaining to the entry of aliens and their right = to=20 remain here are peculiarly concerned with the political conduct of = government.=20 In the enforcement of these policies, the Executive Branch of the = Government=20 must respect the procedural safeguards of due process.... But that the = formulation of these policies is entrusted exclusively to Congress has = become=20 about as firmly embedded in the legislative and judicial tissues of = our body=20 politic as any aspect of our government."
Id. at 792, 97 = S. Ct. at=20 1478 (= See note 4), quoting Galvan v. Press, 347 U.S. 522, 530-32, 74 S. = Ct. 737, 743, 98 L. Ed. 911 (1954).
The scope of this very limited = judicial review has not been further defined; the Supreme Court has not = determined what limitations, if any, the Constitution imposes on = Congress. Faced with numerous challenges to laws governing the = exclusion of aliens and the expulsion of resident and non-resident = aliens, the Court has consistently reaffirmed the power of Congress to = legislate in this area.
We do know that where there is a rational = basis for Congress's exercise of its power, whether articulated or not, = the Court will uphold the immigration laws that Congress enacts. = Hampton v. Mow S un Wong, supra, 426 U.S. at 103, 96 S. Ct. at 1905. See = also Fiallo v. Bell, supra, 430 U.S. at 799, 97 S. Ct. at 1481.
We = do not know whether this test must be met to validate legislation such = as section 201(b) of the Act because the Court teaches that we only have = a limited judicial review. As observed earlier, in this area of the = law, Congress has almost plenary power and may enact statutes which, if = applied to citizens, would be unconstitutional. Thus, it is not clear = what treatment a seemingly irrational statute should receive. It may = well depend on the nature of the statute. The Court has suggested, in = dicta, that a statute could be
"=20 the of be blockquote to power and Congress.?< beyond therefore process = due=20 violative as baseless so>Galvan v. Press, supra, 347 U.S. at 529, 74 S. = Ct. at=20 742. On the other hand, the Court has not dismissed the possibility that =
"there may be actions of the Congress with respect to aliens = that=20 are so essentially political in character as to be=20 nonjustifiable."
Fiallo v. Bell, supra, 430 U.S. at 793, 97 = S. Ct.=20 at 1478 (= See note 5).
We need not, however, delineate the exact outer = boundaries of this limited judicial review. We hold that Congress's = decision to confer spouse status under section 201(b) only upon the = parties to heterosexual marriages has a rational basis and therefore = comports with the due process clause and its equal protection = requirements. There is no occasion to consider in this case whether = some lesser standard of review should apply.
Congress manifested its = concern for family integrity when it passed laws facilitating the = immigration of the spouses of some valid heterosexual marriages. This = distinction is one of many drawn by Congress pursuant to its = determination to provide some-but not all-close relationships with = relief from immigration restrictions that might otherwise hinder = reunification in this country. See Fiall o v. Bell, supra, 430 U.S. at = 787, 97 S. Ct. at 1473, 52 L. Ed. 2d 50. In effect, Congress has = determined that preferential status is not warranted for the spouses of = homosexual marriages.
Perhaps [*1043] this is because homosexual = marriages never produce offspring, because they are not recognized in = most, if in any, of the states, or because they violate traditional and = often prevailing societal mores. In any event, having found that = Congress rationally intended to deny preferential status to the spouses = of such marriages, we need not further"=20
We hold that section 201(b) of the Act is not = unconstitutional=20 because it denies spouses of homosexual marriages the preferences = accorded to=20 spouses of heterosexual marriages.=20
AFFIRMED.=20
client: FAW library: LAWREV file: ALLREV

Footnotes
Note 1:
Section 201(b), 8 U.S.C. @ 1151(b), provides:=20
"The 'immediate relatives' referred to in subsection (a) of = this=20 section shall mean the children, spouses, and parents of a citizen of = the=20 United States: Provided, That in the case of parents, such children = must be at=20 least twenty-one years of age. The immediate relatives specified in = this=20 subsection who are otherwise qualified for admission shall be admitted = as=20 such, without regard to the numerical limitations in this=20 chapter."

Note 2:
Because we do not reach the question of whether Colorado law permits=20 homosexual marriages, we need not examine the constitutionality of the = statute.=20 We observe, however, that an appeal challenging a Minnesota law which = authorized=20 heterosexual but not homosexual marriages was dismissed by the Supreme = Court for=20 want of a substantial federal question. See Baker v. Nelson, 291 Minn. = 310, 191=20 N.W.2d 185 (1971), appeal dismissed, 409 U.S. 810, 93 S. Ct. 37, 34 L. = Ed. 2d 65=20 (1972), a case decided after Loving v. Virginia, 388 U.S. 1, 87 S. Ct. = 1817, 18=20 L. Ed. 2d 1010 (1967), but before Zab locki v. Redhail, 434 U.S. 374, 98 = S. Ct.=20 673, 54 L. Ed. 2d 618 (1978). "A summary dismissal by the Supreme Court = of an=20 appeal from a state court for want of a substantial federal question ... = operates as a decision on the merits." Carpenters Pension Trust v. = Kronschnabel,=20 632 F.2d 745, 747 (9th Cir. 1980), cert. denied, 453 U.S. 922, 101 S. = Ct. 3159,=20 69 L. Ed. 2d 1004 (1981). See Hicks v. Miranda, 422 U.S. 332, 334, 95 S. = Ct.=20 2281, 2284, 45 L. Ed. 2d 223 (1975).=20

Note 3:
Technically, the challenge to this construction of section 201(b) is = based=20 upon the equal protection "component" of the fifth amendment's due = process=20 clause. See Bolling v. Sharpe, 347 U.S. 4 97, 74 S. Ct. 693, 98 L. Ed. = 884=20 (1954). See also Richardson v. Belcher, 404 U.S. 78, 81, 92 S. Ct. 254, = 257, 30=20 L. Ed. 2d 231 (1971). The equal protection clause itself, a portion of = the=20 fourteenth amendment, applies only to the states, not the federal = government.=20

Note 4:
Adams and Sullivan contend that the right to marry is an intrinsic = part of a=20 constellation of personal rights variously described as rights of = privacy and as=20 components of substantive due process.=20

Note 5:
In Zablocki v. Redhail, supra, a case involving a traditional = heterosexual=20 marriage, the Supreme Court stated that "the right to marry is of = fundamental=20 importance." 434 U.S. at 383, 98 S. Ct. at 679. See also Loving v. = Virginia,=20 supra, 388 U.S. at 12, 87 S. Ct. at 1824; Skinner v. Oklahoma, 316 U.S. = 535,=20 541, 62 S. Ct. 1110, 1113, 86 L. Ed. 1655 (1942).=20

Copyright (c) Southern California Law Review 1995.=20
University of Southern California=20
May, 1995

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