Ruta Marie Kahn v. Immigration and Naturalization Service

dissenting:

Here is what I thought the majority was saying when I wrote my original dissent in this case: Because Kahn and Caldwell would be deemed common law spouses in some states, they had to be treated by the INS as married even in those states that do not recognize common law marriage.

Evidently I was mistaken. In what purports to be a clarification of its opinion, the majority now severs even that feeble tether between law and family. Untroubled by the novelty of calling two people not related by either blood or law “family,” the majority rejects not only state law definitions of marriage, but the notion of marriage altogether. Borrowing from the law of nowhere, the majority commissions the INS to invent a federal definition of “family,” one that turns not on any biological or legal connection, but on whether people have a “warm and continuing relationship” that is “close and deeply emotional.” Maj. op. at 1415 n. 5. Doubtless *1421 this will make for more piquant transcripts in immigration cases, but is it law? The majority’s freestyle adoption of a national definition of “family” falls well outside our competence, and is bad policy to boot.

I

Nothing in the…

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)(ll) 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 Nationality 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 ease. The IJ must balance the social and humane considerations presented on the alien’s behalf against the adverse…

36 F.3d 1412 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. Originally Filed March 25, 1994. Amended Sept. 28, 1994. Further Dissent Filed Sept. 28, 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 Nationality 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…