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