Jesus Paras Liwanag v. Immigration and Naturalization Service ( 1989 )

EDITH H. JONES, Circuit Judge:

FACTS

Jesus Paras Liwanag appeals the decision of the Board of Immigration Appeals (BIA) denying the withholding of deportation under 8 U.S.C. § 1251(f)(1) and denying voluntary departure under 8 U.S.C. § 1254(e). For the reasons set forth below, we AFFIRM.

In April 1980 Petitioner Liwanag, a Filipino, entered the United States claiming to be an unmarried son of a lawful permanent resident under § 203(a)(2) of the Immigration and Naturalization Act (INA), 8 U.S.C. A. § 1153(a)(2) (1988).¹ Liwanag was accordingly admitted as a second preference immigrant. At the time of his entry, however, Liwanag was actually married to Lu-cilia M. Canilao. After spending approximately two years in the United States, Li-wanag returned to the Philippines in January 1982 and married Canilao a second time to obtain immigrant visas for both his wife and children.

Liwanag filed for divorce from Canilao just two months later in March 1982. While still legally married to Canilao, Li-wanag subsequently fathered a son with Helen Plorgo, with whom he had been living since October 1983. This child was born in Dallas, Texas on October 13, 1984.

Liwanag was investigated by the Immigration and Naturalization Service (INS) in November 1984. Under oath, Liwanag gave false testimony regarding his marriage(s) to Canilao, concealing the fact that he was married at the time of his original entry into the United States. At his deportation hearing in early 1985, Liwanag conceded deportability and applied for relief under § 241(f)(1) of the INA, 8 U.S.C. § 1251(f)(1) (1982). Alternatively, Liwanag requested that he be allowed voluntary departure under 8 U.S.C. § 1254(e) (1982). The IJ denied relief, denied voluntary departure, and ordered Liwanag deported. Petitioner appealed to the BIA. Before the Board considered his case, Liwanag married Helen Plogro, thereby legitimating their child born in the United States. The BIA determined that Petitioner was statutorily eligible for the relief of waiver of deportation. The Board then had discretion to grant such a waiver. It considered the factors favorable to Petitioner: deportation would separate him from his (new) wife and citizen son; his claim to be a good provider; absence of a criminal record and good character references. It then weighed the opposing factors: misrepresenting his marital status to obtain an immigrant visa in 1980; participating in a second, fraudulent marriage ceremony and attempting to use that fraudulent marriage to bring his first wife and family into the United States. The BIA affirmed Liwan-ag's deportation.

ANALYSIS

In examining the decision by the BIA, we consider whether the Board abused its discretion and thereby acted arbitrarily or capriciously. Jarecha v. I.N.S., 417 F.2d 220, 224 (5th Cir.1969).

I.

Petitioner first asserts that the BIA should not have included his original fraudulent act of misrepresenting his marital status at the time of entry in balancing the favorable against the unfavorable factors present in his case. In arguing the inappropriateness of this methodology, Liwan-ag correctly notes that 8 U.S.C. § 1254(a)(2) presupposes that the petitioner has committed an act justifying deportation. In its brief, the INS concedes that the original fraudulent act should not be considered as an adverse factor in the balancing equation. Since the INS has conceded this point, we need not address the issue further. Cf. Start v. I.N.S., 803 F.2d 539, 542 (9th Cir.1986), withdrawn, 862 F.2d 787 (9th Cir.1988) (INS conceding same point in similar circumstances).

II.

Despite the erroneous weighing of Liwanag’s original fraudulent act, the INS argues — and we agree — that the BIA’s denial of the waiver of deportability was nonetheless proper because of additional misrepresentations wrought by Liwanag.²

Petitioner responds to this argument by claiming that the Board improperly “split” his fraudulent act of misrepresenting his marital status into several discrete acts. In essence, Liwanag contends that his fraudulent second marriage to Canilao for purposes of bringing her and their children to the United States; his filing of a petition for an immigrant visa on her behalf; and his lying to the INS officer regarding his marriage to Canilao must all be considered as part of his original misdeed. We cannot agree with this characterization of his behavior. Despite his contention, Petitioner’s subsequent fraudulent actions were unnecessary to perpetuate his original act of misrepresenting his true marital status to obtain an immigrant visa. Liwanag committed one fraudulent act by gaining entry into the United States for himself. He committed a separate fraud in attempting to bring his wife into the United States through a second, sham marriage.

Liwanag’s argument raises a question of first impression in our Circuit, but one already addressed by the Ninth Circuit in a strikingly similar case. Start v. I.N.S., 803 F.2d 539 (9th Cir.1986), withdrawn, 862 F.2d 787 (9th Cir.1988) (subsequent events rendered original appeal moot). There, the court found that Start’s second, sham marriage performed to allow his first wife and their children to immigrate into the United States constituted a second misrepresentation which could be weighed against his request for a waiver of deportation. Like Liwanag, Start fraudulently entered the United States under the pretense of being an unmarried son of a lawful permanent resident, when, in fact, he was married. We find Start persuasive.

In rendering this decision, we are mindful that Congress’s primary objective in enacting § 241(f)(1) was to unite families. See generally, INS v. Errico, 385 U.S. 214, 224-25, 87 S.Ct. 473, 480, 17 L.Ed.2d 318, 326 (1966) (Congress’s “fundamental purpose” in adopting this legislation was to unite families comprised, in part, of American citizens or lawful permanent residents, thereby achieving a “humanitarian result”). The relevant family in this case now consists of Liwanag, Plorgo, a lawful permanent resident, and their son, a United States citizen. Despite the humanitarian concerns underlying § 241(f), Congress has entrusted the BIA to perform a balancing operation. Although proof of United States family connections is a “necessary element in the determination of whether to grant waiver,” it “is not solely dispositive of the issue.” Start, 803 F.2d at 541. The record shows that the BIA thoughtfully considered the objective underlying § 241(f)(1). Our review is limited to correcting abuses of discretion. There may be instances in which several misrepresentations would constitute a single, indivisible fraud, but in this case we cannot say that the BIA abused its discretion in considering Liwanag’s several misrepresentations as separate acts in the balancing process for withholding deportation.

III.

Liwanag alternatively contests the BIA decision to refuse voluntary departure. Under 8 U.S.C. § 1254(e), the INS, in its discretion, may grant an alien permission to depart voluntarily if “such alien shall establish ... that he is, and has been, a person of good moral character for at least five years immediately preceding his application for voluntary departure.” Section 1101(f)(6) of title 8 provides that no person shall be found to be a person of good moral character who, during the time for which good moral character is required to be established, is, or was “one who has given false testimony for the purpose of obtaining any benefits under this chapter.” The BIA concluded that Liwanag’s November 1984 misrepresentation of his marital status, under oath, was false testimony included within § 1101(f)(6), as a result of which he became statutorily ineligible for voluntary departure. Although the Board’s interpretation of governing immigration law is subject to de novo review, our circuit accords deference to the BIA’s interpretation unless there are compelling indications that it is wrong. Campos-Guardado v. I.N.S., 809 F.2d 285, 289 (5th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 92, 98 L.Ed.2d 53 (1987).

In challenging the Board’s denial of his request for voluntary departure, Liwanag contends that the false testimony given to the INS officer in 1984 should not have been segregated from his original fraudulent act (i.e., lying about his marital status to obtain his initial visa) because it was done in furtherance, or to preserve, his original fraud.³ This argument essentially recapitulates the “one fraud” contention by which Liwanag sought to achieve a withholding of deportation. We find it even less persuasive for purposes of the good moral character provision because his perjury falls within the literal terms of that statute. Section 1101(f)(6) denominates, rather narrowly, “a person to be of bad moral character on account of having given false testimony if he has told even the most immaterial of lies with the subjective intent of obtaining immigration or naturalization benefits.” Kungys v. U.S., 485 U.S. 759, 108 S.Ct. 1537, 1551, 99 L.Ed.2d 839 (1988). The court in Kungys articulated both the limitations on § 1101(f)(6) and the basis for its literal interpretation. Liwanag’s argument, which would hold some false testimony in effect excluded from the statute, flies in the face of its literal meaning.

Liwanag alternatively seeks to turn the “plain language” rule to his benefit by contending that his false testimony was delivered not to “obtain” immigration benefits, as the statute reads, but rather to “retain” his permanent resident status when it was challenged by an INS investigation. This is a semantic distinction without a difference. Liwanag’s argument implicitly assumes that permanent resident status, once conferred, is a “benefit” from the immigration laws to which the statute solely speaks. We disagree. Permanent resident status is revocable, for instance, if procured by fraud, e.g., Bachelier v. Immigration & Naturalization Service, 625 F.2d 902 (9th Cir.1980), and a permanent resident consequently “obtains” a “benefit” if he successfully withstands an investigation of his status. We see no reason why testifying falsely under oath to protect one’s status under the immigration laws is any less encompassed by § 1101(f)(6) than testifying falsely under oath to obtain that status originally.⁴ Further, we cannot perceive why Congress would have chosen to distinguish between such incidents of false testimony when writing the statute.

The result urged by Liwanag would be inconsistent with cases decided in two other circuits.

In Bufalino v. Holland, 277 F.2d 270 (3rd Cir.1960), cert. denied, 364 U.S. 863, 81 S.Ct. 103, 5 L.Ed.2d 85 (1960), the petitioner was found to have given false testimony when, in the course of deportation hearings, he purposely provided inaccurate information on his preexamination application. The Special Inquiry Officer also found that Bufalino had presented false testimony with regard to his birth place, birth date, and absences from the United States. According to the Third Circuit, “having determined that the appellant testified falsely in these proceedings in order to avoid deportation the Special Inquiry Officer was required by [§ 110(f)(6)] to find the appellant was not a person of good moral character.” (emphasis added).

More recently, the Ninth Circuit upheld an immigration judge who found the petitioner precluded from establishing good moral character under § 1101(f)(6) because of false testimony which Bachelier had given when his permanent resident status was rescinded. Bachelier v. Immigration & Naturalization Serv., 625 F.2d 902 (9th Cir.1980). Like petitioner Liwanag, Bachelier had already been granted permanent resident status when the INS began its investigation. Thus, like Liwanag, Bachelier must have been lying to protect his permanent resident status.

We find additional inferential support for the BIA’s decision in Kungys, supra, where the Court noted:

It is only dishonesty accompanied by this precise intent [of obtaining immigration benefits] that Congress found morally unacceptable. Willful misrepresentations made for other reasons, such as embarrassment, fear, or a desire for privacy, were not deemed sufficiently culpable to brand the applicant as someone who lacks good moral character.

108 S.Ct. at 1551 (quoting with approval from the Government’s brief).⁵

Inasmuch as Kungys sought to draw a clear distinction between willful misrepresentations made to obtain immigration benefits, on one hand, and misrepresentations made for other reasons, it would be inconsistent to splice the statute again into categories of “benefits” bestowed by the immigration laws themselves.

IV.

In sum, the BIA erroneously included the petitioner’s original fraud in its balancing test under 8 U.S.C. § 1251(f)(1). Nevertheless, the BIA could properly deny Liwan-ag’s request for a waiver of deportation because of his additional misrepresentations. The BIA also properly found Liwan-ag to be a person lacking good moral character under the provisions of § 1101(f)(6), consequently, he was ineligible for voluntary departure. Therefore, the order of the Immigration and Naturalization Service is AFFIRMED.

1 . 8 U.S.C.A. § 1153(a)(2) allows the issuance of immigrant visas to qualified persons who are "the spouses, unmarried sons or unmarried daughters” of aliens lawfully admitted for permanent residence.

2 . The dissent suggests that we ought to remand for reconsideration by the INS. We disagree. When an administrative agency has relied on one or more improper or irrelevant factors in reaching its determination, our court will exercise discretion as to whether a remand to the agency is appropriate. Sierra-Reyes v. Immigration & Naturalization Ser., 585 F.2d 762 (5th Cir.1978). Accord Diaz v. U.S. Postal Service, 853 F.2d 5 (1st Cir.1988); Salt River Project Agr. Imp. v. United States, 762 F.2d 1053 (D.C.Cir.1985); So Chun Chung v. U.S. Immigration and Nat., 602 F.2d 608 (3d Cir.1979). The additional misrepresentations, which were proper factors for consideration, are substantially similar in character to Liwanag’s original fraudulent act. Therefore, there is little likelihood that the agency would have reached a different conclusion but for this error. See e.g., Salt River Project, 762 F.2d at 1060 n. 8 (‘When an agency relies on a number of findings, one or more which are erroneous, we must reverse and remand only when there is a significant chance that but for the errors the agency might have reached a different result.”).

3 . The INS contends that this issue has already been decided by Nunez-Payan v. I.N.S., 811 F.2d 264, 267 (5th Cir.1987). The INS claims that Nunez-Payan allows the BIA, in applying § 1254(e), to consider the act which precludes a finding of good moral character (in that case, transportation of marijuana), even though that act constitutes the basis for the original deportation charge. We disagree with the INS’s characterization of Nunez-Payan. In that case the original deportation was apparently based on the alien’s “having entered the United States without presenting himself for inspection by [INS] officials." 811 F.2d at 265.

4 . By clever semantics, a petitioner could transform many INS proceedings into those for which benefits were "retained" rather than "obtained.”

5 . Liwanag seeks in passing to characterize his lie as an act done out of fear. This misstates the record, in which Liwanag acknowledged that he lied to protect his permanent resident status. Fear of losing such a status may always be involved in the false testimony covered by § 1101(f)(6), but that is obviously not the “fear" referred to in Kungys.