Tanuja-Sahai v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
May 30, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

05-60625

TANUJA SAHAI GIL WAGGONER,

Petitioner,

v.

ALBERTO R. GONZALES,
U.S. Attorney General,

Respondent.

On Petition for Review from an Order of
the Board of Immigration Appeals

Before SMITH, BENAVIDES, and PRADO, Circuit Judges.

BENAVIDES, Circuit Judge.

The petitioner seeks review of the Board of Immigration

Appeals’s (“BIA”) ruling that she was statutorily ineligible for an

extreme hardship waiver based on a finding that her marriage was

not entered into in good faith. 8 U.S.C. § 1186a(c)(4)(A).

Finding the plain language of the statute does not require a good

faith marriage to obtain an extreme hardship waiver, we grant the

petition.

I. BACKGROUND

Tanuja Sahai Gil Waggoner (Waggoner) is a native and citizen
of the Fiji Islands. She entered the United States in April 1991

on a nonimmigrant visa. Waggoner married a United States citizen,

Domingo Gil, and in June 1992 she applied for a transfer in status

on the basis of her marriage. In October 1992, the former

Immigration and Naturalization Service (INS) adjusted her status to

a conditional permanent resident on the basis of her marriage to a

United States citizen, pursuant to 8 U.S.C. § 1186a(a)(1) (1994).

In September 1994, Waggoner filed a Petition to Remove the

Conditions on Residence. Waggoner reported that she could not file

the statutorily-required joint petition and requested a waiver

because she was divorced despite the fact that she had entered the

marriage to Gil in good faith. § 1186a(c)(1). The INS denied the

waiver, determining that Waggoner had presented no evidence that

she had committed to her relationship with Gil and thus had entered

her marriage in bad faith. On February 9, 1995, the INS terminated

Waggoner’s conditional resident status and issued an Order to Show

Cause.

At her initial appearance before the Immigration Judge (IJ) on

July 25, 1995, Waggoner admitted her citizenship status in the Fiji

Islands and her admission in the United States, but denied the

adjustment of her status to conditional permanent resident and the

termination of that status on the basis of her bad faith marriage.

The IJ found that the other allegations were true.

While the case was pending before the IJ, Waggoner received

approval from the INS for adjustment of status based upon her

2
marriage to her second husband, Steven Waggoner (Steven). The INS

later revoked the approval of the adjustment of status based on the

finding that Waggoner’s first marriage was not entered into in good

faith. Waggoner also filed an amended petition to remove the

conditions on her permanent resident status, asserting that she was

unable to file a joint petition with Gil in conjunction with her

first request for adjustment of status because “[t]he termination

of my status and deportation from the United States would result in

an extreme hardship.” 8 U.S.C. § 1186a(c)(4)(A). The INS also

denied this petition, concluding that Waggoner was not entitled to

the “extreme hardship” exception because of her first bad-faith

marriage.

The IJ held a hearing to address whether Waggoner’s first

marriage was in fact a sham. After testimony from Waggoner, Gil,

Waggoner’s mother, and her uncle, Waggoner attempted to present

testimony from her second husband, Steven, that would establish the

“extreme hardship” waiver. The IJ refused to admit the testimony,

concluding that the waiver was unavailable if the INS proved that

the first marriage was a sham. The IJ indicated his inclination to

conclude that the first marriage was a sham, and Waggoner requested

an opportunity to file an asylum application based upon problems

suffered by native Indians in Fiji. However, she later waived her

opportunity to apply for asylum, noting that at the time the

conditions in Fiji would not justify such relief.

The IJ ordered Waggoner deportable after concluding that her

3
first marriage was not entered in good faith. The IJ again noted

that Waggoner had sought an “extreme hardship” waiver but concluded

that even if she could establish such hardship, she was ineligible

for the waiver because of her “willing participation in a sham

marriage.”

Waggoner appealed the adverse ruling to the BIA. She asserted

that the IJ and INS incorrectly concluded that her bad-faith

marriage rendered her ineligible for the “extreme hardship” waiver.

Waggoner also noted that “conditions in Fiji have changed markedly

since April 1999, when Respondent declined the opportunity of

applying for asylum.”1 The INS objected to the remand, contending

that Waggoner had failed to submit an asylum application under 8

C.F.R. § 3.2(c)(1) (currently § 1003.2(c)(1)).

In November 2002, the BIA administratively closed the

proceedings so that the INS could decide whether to elect to

terminate deportation proceedings and reinstate the proceedings as

removal proceedings, which would allow Waggoner to apply for

cancellation of removal based on her continuous presence in the

United States. In February 2005, the government moved to reopen

the case after concluding that such “repapering” was not

appropriate in light of Waggoner’s sham marriage. The BIA

1
Specifically, she noted that in May 2000 indigenous Fijian
rebels took over the government and engaged in violence against
ethnic Indo-Fijians, such as Waggoner. If the BIA concluded
Waggoner was not entitled to relief on her waivers, she requested
that the case be remanded to the IJ to allow her to apply for
asylum and withholding of deportation.

4
reinstated the proceedings and dismissed Waggoner’s appeal. The

BIA concluded that Waggoner was not entitled to a remand to file an

asylum application because she had failed to file an application

for asylum and because she had previously waived her right to seek

asylum. The BIA also concluded that there was insufficient

evidence to show that Waggoner’s first marriage was entered in good

faith and that, as a result, she was ineligible for the “extreme

hardship” waiver. Waggoner petitions this Court for review.

II. ANALYSIS

A. EXTREME HARDSHIP WAIVER PROVISION

The instant question is one of statutory interpretation.

Waggoner argues that section 1186a(c)(4)(A) does not require her to

prove that her marriage was entered into in good faith to qualify

for an extreme hardship waiver. 8 U.S.C. § 1186a(c)(4)(A).

“Section 1186a facilitates the detection of fraudulent

marriages by withholding permanent resident status from immigrants

who marry United States citizens unless these couples meet two

conditions.” Olabanji v. INS, 973 F.2d 1232, 1233 (5th Cir. 1992).

It allows alien spouses of United States citizens to become

permanent residents after a two-year conditional status if, (1)

within ninety days of the expiration of that two-year period, the

alien and spouse file a joint petition to remove the conditional

basis and (2) both appear before an immigration official for a

personal interview. § 1186a(c)(1). However, if the alien spouse

5
fails to meet these requirements, section 1186a(c)(4) provides

three grounds that excuse compliance with section 1186a(c)(1)’s

requirements of a joint petition and personal interview:

The Attorney General, in the Attorney General's
discretion, may remove the conditional basis of the
permanent resident status for an alien who fails to meet
the requirements of paragraph (1) if the alien
demonstrates that –

(A) extreme hardship would result if such alien
is removed,

(B) the qualifying marriage was entered into in
good faith by the alien spouse, but the qualifying
marriage has been terminated (other than through the
death of the spouse) and the alien was not at fault in
failing to meet the requirements of paragraph (1), or

(C) the qualifying marriage was entered into in
good faith by the alien spouse and during the marriage
the alien spouse or child was battered by or was the
subject of extreme cruelty perpetrated by his or her
spouse or citizen or permanent resident parent and the
alien was not at fault in failing to meet the
requirements of paragraph (1).

In the instant case, the BIA denied relief, stating that

“[b]ecause of [Waggoner’s] willing participation in a sham

marriage, she is ineligible to receive ‘good faith’ and/or

‘hardship’ waivers.” Waggoner expressly does not challenge the

agency’s determination that her first marriage was not entered into

in good faith.2 Her position is that the “extreme hardship”

provision, subsection 1186a(c)(4)(A), does not require such a

2
Waggoner takes pains to explain that she does not concede
that she entered the marriage in bad faith. She asserts she entered
into the marriage in good faith but that there was a lack of
evidence to prove the marriage “bona fide.”

6
showing.

The crux of the matter is whether the first ground, the

“extreme hardship” prong of the waiver provision, implicitly

requires that the qualifying marriage be entered into in good

faith. Although the latter two subsections explicitly contain a

requirement that the qualifying marriage be entered in good faith

by the alien spouse, the “extreme hardship” provision does not.

This Court gives deference to the BIA’s interpretation of the

Immigration and Nationality Act (INA) under the principles of

Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.

837 (1984). Chevron provides for a two-step inquiry. “We first

ask whether Congress has spoken directly to the precise question at

issue.” Heaven v. Gonzalez, 473 F.3d 167, 174-75 (5th Cir. 2006)

(citing Chevron, 467 U.S. at 842; Malagon de Fuentes v. Gonzales,

462 F.3d 498, 502 (5th Cir. 2006)). “If Congress’s intent is

clear, the BIA and this court must give effect to that intent.” Id.

at 175 (citing Chevron, 467 U.S. at 842-43; Malagon, 462 F.3d at

502). However, if “the statute is silent or ambiguous with respect

to the specific issue, we ask only whether ‘the agency’s answer is

based on a permissible construction of the statute.’” Id. (quoting

Chevron, 467 U.S. at 843; Malagon, 462 F.3d at 502).

Thus, our first inquiry is whether Congress has spoken

directly with respect to whether a good faith marriage is needed to

qualify for an extreme hardship waiver. “When interpreting

7
statutes, we begin with the plain language used by the drafters.

Furthermore, each part or section of a statute should be construed

in connection with every other part or section to produce a

harmonious whole.” United States v. Uvalle-Patricio, 478 F.3d 699,

703 (5th Cir. 2007) (internal quotation marks and citation

omitted).

As previously quoted, the statute lists three grounds for

excusing the failure to meet the joint petition and interview

requirements, and the first ground is extreme hardship. Unlike the

second and third grounds, the extreme hardship exception does not

list the requirement of a good faith marriage. The canon of

statutory construction “expressio unius est exclusio alterius (the

expression of one thing is the exclusion of another)” indicates

that extreme hardship is the only requirement. United States v.

Shah, 44 F.3d 285, 293 (5th Cir. 1995). Moreover, to read the

extreme hardship exception as implicitly requiring a good faith

marriage would render superfluous the words setting forth that

requirement in the second and third exceptions. “We must read the

statute as a whole, so as to give effect to each of its provisions

without rendering any language superfluous.” Bustamante-Barrera v.

Gonzales, 447 F.3d 388, 397 (5th Cir. 2006), cert. denied, 127

S.Ct. 1247 (2007). Finally, the three grounds are set forth

disjunctively as separate and independent bases to excuse the joint

petition and interview requirement. See In re Balsillie, 20 I&N

8
Dec. 486, 491 (BIA 1992)(§ 1186(a)(4) creates three separate waiver

provisions); cf. United States v. Canada, 110 F.3d 260, 264 (5th

Cir. 1997) (recognizing that terms set forth disjunctively are

generally given separate meanings).

Accordingly, after applying these canons of statutory

construction, we find that the statutory language unambiguously

does not require a good faith marriage to qualify for an extreme

hardship waiver. Although we may well conclude a different result

is more appropriate, when a statute is clear on its face, we must

faithfully interpret it. Matter of Pro-Snax Distributors, Inc.,

157 F.3d 414, 425 (5th Cir. 1998). Indeed, even if Congress

inadvertently failed to include the good faith marriage requirement

in the extreme hardship waiver provision, we are precluded from

reading it into the text. Id. Having found the statutory language

unambiguous, “the BIA and this court must give effect to that

intent.” Heaven, 473 F.3d at 175 (citing Chevron, 467 U.S. at

842-43). Thus, we do not reach the second step of the Chevron

inquiry, and no deference is afforded to the BIA’s interpretation.

Although research indicates that this is the first time this

precise issue has been joined before a circuit court, a district

court has upheld the former INS’s ruling that a qualifying marriage

must be in good faith to be eligible for the extreme hardship

9
waiver. Velazquez v. INS, 876 F.Supp. 1071 (D. Minn. 1995).3 In

Velazquez, the district court ruled that the former INS’s

interpretation was permissible and consistent with the statutory

scheme and was “not contrary to the plain and unambiguous language

of the statute.” Id. at 1077. The court further found that the

extreme hardship waiver did “not specifically address whether it

applies to confer immigration benefits on an alien who engages in

a sham marriage,” but the language of section 1186a “indicates that

it does not.” Id. The court applied Chevron deference despite

having found the statutory language plain and unambiguous. While

unclear, it appears that the court believed the statute was silent

as to the instant question and therefore accorded deference to the

agency’s determination.

3
One commentator has reported that the Eighth Circuit held
a good faith marriage is necessary to be eligible for the extreme
hardship waiver. Ann Gallagher, 2 Immigration Law Serv. 2d § 7:224
(West 2007) (discussing Nyonzele v. INS, 83 F.3d 975 (8th Cir.
1996)). In Nyonzele, the Eighth Circuit addressed a petitioner’s
contention that the Attorney General had erred in denying a waiver
of the joint petition requirement pursuant to section 1186a(c)(4).
83 F.3d 979-81. The Eighth Circuit discusses the hardship waiver
statute as a whole and does not treat the three subsections of the
statute as separate grounds for a waiver. Indeed, the only time the
phrase “extreme hardship” occurs in the opinion is in a footnote
that sets forth the statute. Id. at 979 n.2. In any event, the
petitioner did not raise the argument that a good faith marriage
was unnecessary to be eligible for an extreme hardship waiver.
Instead, he argued that the Attorney General abused his discretion
in concluding that the marriage was not entered into in good faith.
Although the issue at bar was not joined in Nyonzele, the Eighth
Circuit was aware of the Velazquez opinion in that it cited
Velazquez as “offering an overview of the operation of § 1186a.” 83
F.3d at 979.

10
 The court believed that the hardship waiver provision of

section 1186a(c)(4) “simply excuse[s]” an alien for failing to meet

the petition and interview requirements of section 1186a(c)(1).

Id. at 1077. The court opined that the waiver provisions “do not

otherwise remove or excuse the applicant from complying with the

substantive conditions required for removal of an alien’s

conditional residence status contained throughout [section 1186a].”

Id. The court noted that section 1186a(c)(3) requires a

determination of whether the facts alleged in the petition as

required by section 1186a(d)(1) are “true with respect to the

qualifying marriage.” Subsection (d)(1) requires a statement that

the qualifying marriage, among other things, “was not entered into

for the purpose of procuring an alien’s admission as an immigrant”

and that “no fee or other consideration was given . . . for the

filing of a petition . . . with respect to the alien spouse.”

We cannot agree with the Velazquez court’s reading of the

statute. The hardship waiver provision of section 1186a(c)(4)

expressly allows the Attorney General, in his discretion, to

“remove the conditional basis of the permanent resident status for

an alien who fails to meet the [joint petition and interview]

requirements . . . if the alien demonstrates that . . . extreme

hardship would result.” (emphasis added). Contrary to Velazquez,

we understand that to be the end of the process. In other words,

once the alien has demonstrated that extreme hardship would result

11
from her removal, there is nothing else for the alien to do. The

Attorney General must then make the discretionary decision of

whether to remove the conditional basis of the permanent resident

status.

Although the district court in Velazquez found it significant

that sections 1186a(c)(3)(A) and 1186a(d)(1)(A)(i) require an

applicant to swear that the marriage “was not entered into for the

purpose of procuring an alien’s entry as an immigrant,” those

requirements relate to filing the joint petition and appearing for

the joint interview. Velazquez, 876 F.Supp. at 1077. Thus, once

the required joint petition and interview are excused, those two

sections are no longer relevant.4 The district court also relied

on the legislative history in support of its decision. Id. at

1078. If, however, there is no “ambiguity, our examination is

confined to the words of the statute, which are assumed to carry

their ordinary meaning.” Matter of Pro-Snax Distrib., Inc., 157

F.3d at 425 (internal quotation marks and citation omitted).

4
Additionally, section 1186a(b)(1) provides that if, prior to
the expiration of the two-year period of conditional status, the
Attorney General determines that the marriage was for the purpose
of gaining admission as an immigrant, the alien’s permanent
resident status shall be terminated. Although, unlike sections
1186a(c)(3)(A) and 1186a(d)(1)(A)(i), this provision is independent
of the petition and interview requirements. We do not believe
that it amends the unambiguous language of the hardship waiver
provision. In any event, it appears that section 1186a(b)(1) is
inapplicable to Waggoner in that the former INS did not terminate
her conditional resident status until after the expiration of the
two-year period.

12
Stated another way, “[r]ecourse to the legislative history is

unnecessary in light of the plain meaning of this text.” Id.

We are mindful of the common mandate of statutory construction

to avoid absurd results. See, e.g., Atchison v. Collins, 288 F.3d

177, 181 (5th Cir. 2002). While we may not have chosen this

result, we do not believe it is absurd. As Waggoner points out,

Congress has made other exceptions to immigration requirements

based on extreme cruelty or hardship in the INA. Perhaps most

analogously, in the context of an alien who is inadmissible

pursuant to 8 U.S.C. § 1182(a)(6)(C)(i) for having fraudulently

misrepresented a material fact to procure admission into the United

States, Congress has delegated discretion to the Attorney General

to waive inadmissibility if the alien proves that refusal of such

admission would cause extreme hardship to the alien’s family member

who is a citizen or lawful permanent resident. 8 U.S.C. §

1182(i)(1). See also §§ 1229b(b)(1) and (2).5

Accordingly, in light of the plain language of the statute and

the INA’s other analogous hardship waiver exceptions, we conclude

5
Section 1229b(b)(1) allows the Attorney General to cancel
removal and adjust status from deportable to lawful permanent
residence when, among other things, it would result in exceptional
and extremely unusual hardship to the alien’s family member who is
a citizen or lawful permanent resident. Section 1229b(b)(2) allows
the Attorney General to cancel removal and adjust status of an
alien from deportable to lawful permanent resident if the alien
demonstrates that he or she has been battered or subjected to
extreme cruelty by a spouse or parent who is a citizen or lawful
permanent resident.

13
that an alien does not have to demonstrate a good faith marriage to

obtain an extreme hardship waiver under section 1186a(c)(4). We

grant the petition and remand the case to allow Waggoner to present

her evidence of extreme hardship to the IJ.

B. ASYLUM

Waggoner asserts that the BIA erred in denying her request to

remand her case to allow her to apply for asylum on the basis of

changed country conditions. She notes that the BIA based its

denial on her failure to file an asylum application and on her

express waiver of the right to file an application submitted before

the IJ. Waggoner contends that because the BIA failed to cite to

a regulation requiring her to submit an asylum application with her

request for remand, the absence of an application should not bar

her claim for relief. Waggoner also notes that in light of her

allegations of changed country conditions in 2000, her 1999 waiver

should not be held against her.

The regulations provide that an alien may seek to have a case

reopened based on changed circumstances if the motion is

accompanied by an application for relief and all supporting

documentation. See 8 C.F.R. § 1003.2(c)(1). A motion to reopen

filed while an appeal to the BIA is pending may be deemed as a

motion to remand for further proceedings before the IJ. §

1003.2(c)(4). This Court reviews the BIA’s order on a motion to

reopen under a highly deferential abuse-of-discretion standard.

14
See Lara v. Trominski, 216 F.3d 487, 496 (5th Cir. 2000); Osuchukwu

v. INS, 744 F.2d 1136, 1141 (5th Cir. 1984).

Waggoner cannot establish that the BIA abused its discretion

in denying her motion for remand. Her motion was based upon

changed country conditions in Fiji indicating an increased risk of

violence against Indo-Fijians. Although she did not specifically

ask for reopening of her case, “[a] motion to reopen proceedings

shall state the new facts that will be proven at a hearing” and

must rely on previously unavailable evidence; Waggoner’s motion was

in fact a motion to reopen. § 1003.2(c)(1). The regulation

provides that “[a] motion to reopen proceedings for the purpose of

submitting an application for relief must be accompanied by the

appropriate application for relief and all supporting

documentation.” Id. Waggoner did not submit such an application.

In the absence of this application, the BIA did not abuse its

discretion in denying Waggoner leave to remand. See Lara, 216 F.3d

at 496.

III. CONCLUSION

For the above reasons, the petition for review is GRANTED and

the case is REMANDED to allow proceedings consistent with this

opinion.

15