Alphonsine Ngongo v. John Ashcroft, Attorney General

397 F.3d 821 Alphonsine NGONGO, Petitioner, v. John ASHCROFT, Attorney General, Respondent. No. 03-70903. United States Court of Appeals, Ninth Circuit. Submitted May 12, 2004. * Filed February 14, 2005. Victor M. Castro, Castro & Flores-Cerul, San Jose, CA, for the petitioner. Peter D. Keisler, Assistant United States Attorney General, Civil Division; David V. Bernal, Assistant Director; and Andrew C. Maclachlan, Office of Immigration Litigation, Washington, DC, for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. Ayq-edf-vzj. Before O'SCANNLAIN, SILER, JR., ** and HAWKINS, Circuit Judges. Opinion by Judge SILER; Dissent by Judge HAWKINS. SILER, Circuit Judge. 1 Alphonsine Ngongo, a native and citizen of the Congo, petitions for review of the decision of the Board of Immigration Appeals ("BIA") ordering her deported as an alien who procured her visa to remain in the United States by marital fraud. 8 U.S.C. § 1251 (a)(1)(G)(ii). 1 2 In 1991, Ngongo entered the United States under a student visa. In 1994, she married United States citizen Walden Chambers, who subsequently filed a Petition for Alien Relative ("I-130") on her…

Opinion by Judge SILER; Dissent by Judge HAWKINS.

Alphonsine Ngongo, a native and citizen of the Congo, petitions for review of the decision of the Board of Immigration Appeals (“BIA”) ordering her deported as an alien who procured her visa to remain in the United States by marital fraud. 8 U.S.C. § 1251 (a)(1)(G)(ii).

In 1991, Ngongo entered the United States under a student visa. In 1994, she married United States citizen Walden Chambers, who subsequently filed a Petition for Alien Relative (“1-130”) on her behalf in 1995. He later withdrew the I-130, claiming that the marriage was fraudulent. However, in 1996, Chambers filed a second 1-130 on her behalf. Despite Ngongo’s request, the petitions were never consolidated, so Ngongo had two actions simultaneously proceeding through the Immigration and Naturalization Service (“INS”).

During the deportation hearings before the Immigration Judge (“IJ”) concerning the first petition, Ngongo and Chambers offered testimony to rebut the contention that their marriage was fraudulent. However, the IJ made Ngongo testify first, with Chambers out of the room, and then allowed Chambers to testify because the credibility of both spouses was…

dissenting:

This ease brings Abbott & Costello’s “Who’s on First” routine to life. A woman seeks a visa as the spouse of a United States citizen. Her husband first signs the application on her behalf, then withdraws it saying the marriage was a sham, only to file a second application, saying the withdrawal was done in haste and that the marriage was legitimate all along. In the meantime, making use of the husband’s initial withdrawal, the government seeks and obtains a removal order based on marriage fraud. She appeals the removal order to the BIA. When her visa application is denied, she appeals that also and asks the BIA to consolidate the two obviously related matters. Without explanation, the BIA fails to act on Ngongo’s efforts to consolidate and her cases proceed on two tracks, as two separate appeals. Not only does the BIA fail to act on Ngongo’s consolidation request, it sends the visa denial to a BIA merits panel, and, at nearly the same time, sends the removal appeal to a single BIA member for summary affir-mance.

If the failure to consolidate was strange, the result in the two appeals was even stranger. The BIA merits panel reversed and remanded the visa denial,…