Ruta Marie Kahn v. Immigration and Naturalization Service

Ruta Marie Kahn, a native and citizen of Canada, was admitted to the United States as a permanent resident alien in 1978 and has lived in California since. Kahn was convicted of money laundering and conspiracy to manufacture methamphetamine. The Immigration and Naturalization Service (INS) found Kahn deportable under 8 U.S.C. §§ 1251 (a)(11) and 1251(a)(4)(B) because of her drug conviction, and she petitioned for a waiver of deportation-under § 212(c) of the Immigration and Naturalization Act (INA). 8 U.S.C. § 1182 (c). Her petition was granted by an Immigration Judge (IJ), but denied on review by the Board of Immigration Appeals (Board). Kahn appeals.

I

The INS requires an alien who has been convicted of a serious drug offense to demonstrate outstanding equities in her favor to be considered for a waiver of deportation under § 212(c). Ayala-Chavez v. INS, 944 F.2d 638, 641 (9th Cir.1991). In determining whether to grant relief under § 212(c), the Board has refused to adopt an inflexible test, preferring instead a test that looks to the individual merits of each case. The IJ must balance the social and humane considerations presented on the alien’s behalf against the adverse…

dissenting:

According to the majority, the INS errs as a matter of law when it treats aliens who are actually married under the law of their domicile differently from those Who ' are not. Such reliance on state law, the majority holds, is inconsistent with uniform federal application of the immigration laws, is not rationally related to the purposes of the Immigration and Nationality Act and is therefore not a permissible interpretation of that statute.

With this conclusion, I respectfully disagree. Because federal law virtually always relies on state law to define personal and family relationships, the INS’s decision to follow state law here is neither bizarre nor irrational. It is the majority’s approach— which forces the INS to treat unmarried people as married — that will lead to irrational results and seriously encumber administration of the immigration laws. It’s unclear, moreover, why the majority considers this ease appropriate for announcing its new rule, as the record here conclusively shows that no American jurisdiction would consider Kahn a party to a valid common law marriage.

I

The majority opinion gives the distinct impression that reliance on state law in the…

20 F.3d 960 62 USLW 2597 Ruta Marie KAHN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 91-70544. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 3, 1993. Decided March 25, 1994. Frank T. Vecchione, San Diego, CA, for petitioner. Anne C. Arries, U.S. Dept. of Justice, Washington, DC, for respondent. On Review of a Decision of the Board of Immigration Appeals. Before: BROWNING, HUG and KOZINSKI, Circuit Judges. PER CURIAM: 1 Ruta Marie Kahn, a native and citizen of Canada, was admitted to the United States as a permanent resident alien in 1978 and has lived in California since. Kahn was convicted of money laundering and conspiracy to manufacture methamphetamine. The Immigration and Naturalization Service (INS) found Kahn deportable under 8 U.S.C. Secs. 1251 (a)(11) and 1251(a)(4)(B) because of her drug conviction, and she petitioned for a waiver of deportation under Sec. 212(c) of the Immigration and Naturalization Act (INA). 8 U.S.C. Sec. 1182 (c). Her petition was granted by an Immigration Judge (IJ), but denied on review by the Board of Immigration Appeals (Board). Kahn appeals. 2 * The INS requires an alien who has been…