when no deportation or exclusion proceedings are pending").
Because Plaintiff enjoys no protected liberty interest here, her procedural due process claim must be rejected.
3. Eighth Amendment Claim
Finally, Plaintiff adds in her complaint a makeweight Eighth Amendment claim, contending that application of § 1154(c) to bar the application filed on behalf of Mr. Barmo constitutes "cruel and unusual punishment." This claim is meritless. First, the Eighth Amendment's protection simply does not apply to Plaintiff because, as she has not been charged with anything, there has been no adjudication of her guilt here. See Bell v. Wolfish, 441 U.S. 520, 535, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979) (Eighth Amendment is inappropriate basis for analyzing conditions of confinement for pretrial detainees because no adjudication of guilt has been made yet). Moreover, deportation is not punishment and therefore is "not within the purview of" the Eighth Amendment. Stokes,393 F. Supp. at 32. Nor, then, is mere denial of permission to immigrate. Cf. McLat, 412 F. Supp. at 1027 (rejecting Eighth Amendment challenge to administrative procedures designed to ferret out sham marriages and prevent unwarranted conferral of "immediate relative" status, and observing that "deportation and exclusion" have been held to be outside protection of that amendment) (citations omitted). If deportation cannot said to be cognizable under the Eighth Amendment as "punishment" for the deported individual, a fortiori it gives rise to no such claim on behalf of that individual's spouse, whose suffering is purely incidental to the deportation. Accordingly, I dismiss Plaintiff's Eighth Amendment claim, too.
* * * *
Section 1154(c) has been described as a "harsh law," Ghaly, 48 F.3d at 1436 (Posner, C.J., concurring), and it undoubtedly is. But it is not an unconstitutional one. It accords fully with the balance of marriage-related immigration procedures, which are "designed to discourage marriages of convenience, entered into with both eyes on the statute, and [undertaken] solely to confer the riches of preferential immigration status as a dowry." Stokes, 393 F. Supp. at 32. Thus, while I am sympathetic to the dilemma Plaintiff faces under § 1154(c), I must uphold that provision.
None of Plaintiff's attacks on the constitutionality of § 1154(c) can survive the present motion to dismiss. Plaintiff's substantive due process claim must be rejected because the proper standard of review is the "legitimate and bona fide reason" inquiry enunciated in Fiallo, a standard easily satisfied here given Congress' justifiable concern over the problem of marriage fraud. I also reject Plaintiff's procedural due process and Eighth Amendment claims, the former because Plaintiff has no constitutionally protected liberty interest and the latter because the deprivation suffered by application of § 1154(c), while severe, is not "punishment" within the constitutional sense. Consequently, I uphold the validity of § 1154(c) and dismiss Plaintiff's complaint. Furthermore, because I previously stayed Mr. Barmo's deportation pending resolution of Plaintiff's constitutional claims, I also vacate the stay order and allow Mr. Barmo's deportation to proceed. An appropriate order follows.
Anita B. Brody, J.
AND NOW, this 13th day of September, 1995, in accordance with the accompanying Memorandum of this date, IT IS ORDERED that Defendant's motion to dismiss is GRANTED and that Plaintiff's complaint is dismissed. IT IS FURTHER ORDERED that the February 24, 1995, Order entered in this matter temporarily staying the deportation of Bashar Barmo is VACATED. This case is closed.
Anita B. Brody, J.