Filipinas Lucero Casem v. Immigration and Naturalization Service

8 F.3d 700 Filipinas Lucero CASEM, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 92-70039. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 13, 1993. Decided Nov. 1, 1993. Russell L. Marshak (John M. Levant, with him on the brief), Popkin, Shamir & Golan, Los Angeles, CA, for petitioner. David M. McConnell (Anthony W. Norwood, with him on the brief), U.S. Dept. of Justice, Washington, DC, for respondent. Petition to Review a Decision of the Immigration and Naturalization Service. Before: WOOD, * Senior Circuit Judge, REINHARDT and RYMER, Circuit Judges. HARLINGTON WOOD, Jr., Senior Circuit Judge: 1 Filipinas Lucero Casem faces deportation for lying about her marriage. Finding the Immigration and Naturalization Service did not consider all relevant factors in making its decision, we reverse and remand for proceedings consistent with the following opinion. I. BACKGROUND 2 In November 1983 Filipinas Lucero Casem, a citizen of the Philippines, applied for a visa to the United States as an unmarried child of a permanent United States resident pursuant to 8 U.S.C. § 1153 (a)(2) (now codified at 8 U.S.C. § 1153 (a)(2)(A)).…

Filipinas Lucero Casern faces deportation for lying about her marriage. Finding the Immigration and Naturalization Service did not consider all relevant factors in making its decision, we reverse and remand for proceedings consistent with the following opinion.

I. BACKGROUND

In November 1983 Filipinas Lucero Ca-sern, a citizen of the Philippines, applied for a visa to the United States as an unmarried child of a permanent United States resident pursuant to 8 U.S.C. § 1153 (a)(2) (now codified at 8 U.S.C. § 1153 (a)(2)(A)). Shortly thereafter Casern discovered that she was pregnant. On December 12, 1983, Casern married the father of her unborn child, Eduardo Valera, also a citizen of the Philippines, in their native land. Six days later Casern entered the United States as a “second preference immigrant,” i.e. as an unmarried child of a resident, her father.

On May 25,1984, Casern’s son was born in this country. On November 27, 1984, Casern returned to the Philippines to visit her husband. The couple remarried in a church ceremony on January 6, 1985. Casern then came back to the United States on March 5, 1985. On March 7, 1985, she submitted a visa petition on behalf of her…

concurring:

I concur because the BIA erroneously relied on Casern’s original fraudulent entry to deny her waiver of deportation.

As we first stated in Hernandez-Robledo v. INS, 777 F.2d 536, 540 (9th Cir.1985), an alien’s original mistake, illegal entry through fraud, may not be held against her in considering waiver of deportation.

Id. at 540-41 . Likewise in Braun v. INS, 992 F.2d 1016 (9th Cir.1993), the BIA imper-missibly gave weight to the original fraud when it stated that the alien “not only entered into a fraudulent marriage upon his initial entry, but he pursued an elaborate plan by which he eventually brought his first wife to the United States sometime after he had committed the fraud by which he obtained his own status.” Id. at 1020 (internal quotation marks omitted).

The BIA’s opinion suffers the same infirmity in this case. It adopts the Administrative Law Judge’s conclusion that Casern achieved one of the equities in her favor — her United States citizen son — through the original fraudulent entry. In addition, the BIA states that “the timing of the [wedding] ceremony and the filing of the visa petition indicate that her purpose was to obtain immigration…