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BARMO v. RENO

September 13, 1995

ROBIN DENISE BARMO, Plaintiff,
v.
JANET RENO, Attorney General of the United States, Defendant.



The opinion of the court was delivered by: ANITA B. BRODY

 Anita B. Brody, J.

 September 13, 1995

 Defendant moves to dismiss Plaintiff's complaint, which challenges the constitutionality of § 204(c) of the Immigration and Nationality Act, codified at 8 U.S.C. § 1154(c). *fn1" That statutory provision bars approval of any immigrant visa petition filed on behalf of an alien who previously has been accorded or has sought to be accorded "immediate relative" status under the immigration laws by reason of a marriage determined by the Attorney General to have been fraudulent. Plaintiff attacks § 1154(c) on substantive due process grounds under the Fifth Amendment. Concluding that this question is controlled by the deferential standard articulated for substantive immigration classifications in Fiallo v. Bell, 430 U.S. 787, 52 L. Ed. 2d 50, 97 S. Ct. 1473 (1977), I find that § 1154(c) is supported by a "facially legitimate and bona fide reason" and is thus valid. Plaintiff also advances procedural due process and Eighth Amendment arguments against § 1154(c). I find that these contentions, too, are without merit. Accordingly, I uphold § 1154(c) and grant Defendant's motion to dismiss Plaintiff's complaint. In addition, because I stayed the deportation of Plaintiff's alien husband pending resolution of this motion, I now vacate the stay order.

 I. BACKGROUND

 The relevant facts are undisputed. Plaintiff, Robin Denise Barmo, is a United States citizen residing in Philadelphia. On August 29, 1986, she married Bashar Barmo, a Syrian national. Plaintiff's marriage to Mr. Barmo is her first, and its legitimacy is not contested. Mr. Barmo, however, had been previously married to a woman named Migdalia Lopez, who, like Plaintiff, is also a United States citizen. On the basis of his marriage to Ms. Lopez, Mr. Barmo sought and was granted an adjustment of his immigration status to that of lawful permanent resident of the United States. Mr. Barmo's marriage to Ms. Lopez ended in divorce on October 23, 1984.

 Immigration authorities subsequently determined that Mr. Barmo's marriage to Ms. Lopez was a sham and that Mr. Barmo had participated in a marriage fraud ring through which he had conspired with others to obtain immigration benefits illegally. As a result of these offenses, on June 26, 1984, Mr. Barmo was convicted in the United States District Court for the Eastern District of Pennsylvania on charges of making false statements to a government agency in violation of 18 U.S.C. §§ 1001 and 1002. He was sentenced by the Honorable Edward N. Cahn to a term of incarceration, which he served. Mr. Barmo was also stripped of his lawful immigrant status and, on June 10, 1986, was ordered deported by an immigration judge. The deportation order was affirmed by the Board of Immigration Appeals on April 17, 1989, and thereafter by the Third Circuit.

 Thus, with her husband facing imminent deportation, Plaintiff brought this challenge to the validity of § 1154(c), which perpetually bars from obtaining lawful immigrant status someone who, like Mr. Barmo, has been convicted of marriage fraud. On December 29, 1994, Plaintiff filed with the Eastern Service Center of the Immigration and Naturalization Service ("INS") an immigrant visa petition on behalf of Mr. Barmo to obtain for him the preferential status of "immediate relative" that would ordinarily result from a valid citizen-alien marriage. This petition remains pending before the INS. *fn2" On February 15, 1995, after being informed that Mr. Barmo's deportation had been set for February 28, 1995, and that the INS had refused to stay it further, Plaintiff filed the instant action seeking to have § 1154(c) declared unconstitutional. Concurrently with the filing of her complaint, Plaintiff moved for provisional injunctive relief staying her husband's deportation until her substantive claims could be addressed. This motion, styled a "Motion for Temporary Restraining Order," was opposed by Defendant, who promptly moved to dismiss Plaintiff's complaint. Following briefing on the injunctive request and underlying substantive issues by both parties, a hearing on the record was held in chambers on February 23, 1995.

 At that hearing, Plaintiff pressed the irreparable harm she would suffer were the stay not granted, emphasizing that because her husband was to report for deportation within two days, her family would experience certain and severe disruption before her constitutional claims could be examined. Defendant countered that Mr. Barmo's deportation arose out of past acts unrelated to Plaintiff's underlying claims and could not be characterized as "irreparable harm" connected with anything at issue in this suit. Moreover, Defendant observed, Plaintiff would not be entitled to a stay of Mr. Barmo's deportation even were she to prevail on her constitutional claims, as her victory would only require the INS to consider her visa petition without regard to the prohibition contained in § 1154(c). Reasoning that the INS could and usually does consider such petitions while the alien beneficiary resides outside the United States, Defendant argued that Plaintiff could not prevail on her stay request no matter what the outcome of her underlying suit.

 I concluded that I possessed insufficient familiarity with the visa petition procedure to evaluate definitively the competing arguments on the stay request at that time. Nonetheless, it was obvious to me that Plaintiff would suffer substantial harm were her stay request improperly denied. Moreover, I was convinced that it would not greatly harm Defendant or the public interest were I to delay for a short while longer execution of the deportation order, given the substantial length of time Plaintiff's husband had already been residing in the United States while fighting deportation. Tr. of 2/23/95 Hr'g at 20-21, 30-31. Consequently, I granted Plaintiff's request for a stay temporarily, until I could adequately study the relevant immigration procedures and underlying constitutional questions. On February 24, 1995, I entered an order to that effect, which, by the parties' consent, remained effective until I could address the merits of Plaintiff's claims by ruling on Defendant's motion to dismiss. See Tr. of 2/23/95 Hr'g at 30-31 (discussion with Defendant's counsel of necessity of time to study issues before lifting stay; assurance of Court that if merits of constitutional claims are decided against Plaintiff, deportation would proceed immediately).

 I take up Defendant's motion to dismiss today, and finding Plaintiff's constitutional claims without merit, I grant it. Accordingly, I also vacate the stay order of February 24, 1995. *fn3"

 III. DISCUSSION

 A. Ripeness

 Before turning to the substantive constitutional issues, I briefly address a threshold justiciability question Defendant raises. Defendant does not dispute that this case arises under the federal immigration laws and that jurisdiction is thus conferred under 28 U.S.C. § 1331 and 8 U.S.C. § 1329. Rather, Defendant asks me to refrain from exercising my admitted jurisdiction, contending that there is no "ripe" case or controversy here because Plaintiff's visa petition has yet to be decided by the INS. I disagree.

 The purpose of the ripeness doctrine is to prevent courts "from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way." Abbott Labs. v. Gardner, 387 U.S. 136, 148, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967). But ripeness, like the related court-developed restraints embodied in the principles of administrative exhaustion and finality, is to be applied in a pragmatic fashion. Cf. General Offshore Corp. v. Farrelly, 743 F. Supp. 1177, 1187-92 (D.V.I. 1990) (discussing relationship and practical nature of ripeness, exhaustion, and finality determinations; citations omitted). Specifically, the ripeness determination considers in a practical light the fitness of the issues for judicial decision and the hardship to the parties of withholding court examination. Abbott Labs., 387 U.S. at 149; General Offshore Corp., 743 F. Supp. at 1187.

 As to the issues' fitness for consideration, it is recognized that purely legal or constitutional issues are generally fit for judicial adjudication, as they implicate no special agency expertise. See, e.g., Pennell v. City of San Jose, 485 U.S. 1, 11-14, 99 L. Ed. 2d 1, 108 S. Ct. 849 (1988) (while "as applied" due process and equal protection challenge to rent control ordinance was not ripe because it required factual context that could only be developed during agency proceedings, facial attack presented purely legal issues and was thus ripe for judicial adjudication). The second prong of the ripeness analysis -- the hardship imposed on the parties were the court to refrain from addressing the issue -- is established if ...


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