Huyen V. Nguyen, Petitioner,v.Eric H. Holder, Jr., United States Attorney General, Respondent.

Brief

N.Y.September 9, 2014

To be Argued by: MICHAEL E. MARSZALKOWSKI, ESQ. (Time Requested: 15 Minutes) Docket No. CTQ-2014-000003 Court of Appeals of the State of New York HUYEN N. NGUYEN, Petitioner, – v. – ERIC H. HOLDER, JR., Attorney General of the United States, Respondent. –––––––––––––––––––––––––– ON APPEAL FROM THE QUESTIONS CERTIFIED BY THE U.S. COURT OF APPEALS FOR THE SECOND CIRCUIT IN DOCKET NO. 13-0605 BRIEF FOR PETITIONER Michael E. Marszalkowski, Esq. MICHAEL E. MARSZALKOWSKI, P.C. Attorney for Petitioner 69 Delaware Avenue, Suite 602 Buffalo, New York 14202 Tel.: (716) 856-3023 Fax: (716) 856-6235 May 27, 2014 TABLE OF CONTENTS PRELIMINARY STATEMENT ............................................................................. 1 QUESTION PRESENTED ...................................................................................... 3 STATEMENT OF JURISDICTION....................................................................... 3 STATEMENT OF THE CASE ................................................................................ 3 ARGUMENT ........................................................................................................... 4 POINT I. DOES SECTION 5(3) OF NEW YORK'S DOMESTIC RELATIONS LAW VOID AS INCESTUOUS A MARRIAGE BETWEEN AN UNCLE AND NIECE OF THE HALF BLOOD (THAT IS, WHERE THE HUSBAND IS THE HALF-BROTHER OF THE WIFE’S MOTHER? CONCLUSION ....................................................................................................... 8 i TABLE OF AUTHORITIES CASES Simms v. Jankowitz, 26 N.Y.2d 163 (1970) ........................................................ 5, 6 In re May’s Estate, 305 N.Y. 486 (1953) ........................................................... 6, 7 Audley v. Audley, 187 N.Y.S. 652 (1st Dept. 1921) ............................................ 4, 5 NEW YORK STATE STATUTES New York State Domestic Relations Law Section 5 .................................. 4, 5, 6, 7 FEDERAL CASES Peralta-Taveras v. Attorney General, 488 F.3d 580 (2nd Cir. 2007) ...................... 6 Hughes Aircraft Co. v. Jacobson, 525 U.S. 432 (1999) ......................................... 6 Callanan v. United States, 364 U.S. 587 (1961)..................................................... 6 FEDERAL STATUTES Immigration and Nationality Act Section 216 ......................................................... 2 FEDERAL REGULATIONS 8 C.F.R. Section 216 ................................................................................................ 2 ii PRELIMINARY STATEMENT Huyen Nguyen (“Petitioner”) filed a Petition for Review to the U.S. Court of Appeals for the 2 nd Circuit, to review the decision of the Board of Immigration Appeals (“BIA”), dated January 25, 2013, (“BIA Decision”). In the BIA Decision (A.22-23), the BIA dismissed the Petitioner’s appeal from a decision of United States Immigration Judge Philip J. Montante, Jr. (“IJ”), who found the Petitioner removable from the United States as charged (A.10-21) and affirmed the Department of Homeland Security’s (“DHS”) termination of the Petitioner’s Conditional Resident Status (A.3-5). The Petitioner is a female citizen of Vietnam who married a United States citizen in 2000 and sought U.S. lawful permanent resident status based on that marriage. Her husband first filed for sponsorship of the Petitioner as his fiancee on DHS Form I-129F, Petition for Alien Fiance(e), (“Form I-129F”) and Form I-129F was approved. The Petitioner then was issued a fiancee visa by the United States Consul General and was lawfully admitted to the United States to conclude her intended marriage to her fiancé. The Petitioner married her husband within 90 days of her lawful admission, as required by DHS regulations. The Petitioner then applied for lawful permanent resident status on Form I-485, Application for Adjustment of Status (“Form 1 I-485”). The Form I-485 was approved and Petitioner was granted Conditional Resident Status, valid for two years, pursuant to INA Section 216 and 8 C.F.R. Section 216. The Petitioner and her husband jointly and timely filed DHS Form I-751, a Petition to Remove the Conditions of Residence (“Form I-751”). In 2006, the Petitioner and her husband were interviewed by a DHS officer at the DHS United States Citizenship and Immigration Services office in Buffalo, NY (A.2). The DHS terminated the Petitioner’s Conditional Resident Status on December 12, 2007 and placed Petitioner in Removal Proceedings in U.S. Immigration Court. (A.6-9) Three charges of removability were lodged under Immigration and Nationality Act (“INA”) Sections 212(a)(7)(A)(i)(I), 237(a)(1)(A) and 237(a)(1)(D)(i). All charges stemmed from the allegation that Petitioner’s marriage was void ab initio because it involved the Petitioner’s union to a man alleged to be her half-uncle. The Petitioner denied all charges of removability and sought review and reversal of the decision denying the Form I-751. The IJ concluded that the DHS prevailed in its burden and ordered Petitioner removed to her native country of Vietnam. (A.10-21). Respondent filed a timely appeal to the BIA. The BIA dismissed the appeal (A.22-23). The Petition for Review was then timely filed. The U.S. Court of 2 Appeals concluded that the determination that the Petitioner and her husband were related as niece and half-uncle by “half-blood” was supported by substantial evidence. (A.25-37). However, the question whether such relationship is void under New York State Domestic Relations Law warranted certification to the New York Court of Appeals (A.38-42). The Court of Appeals accepted the certified question on March 27, 2014 (A.44-45). QUESTION PRESENTED I. Does Section 5(3) of New York's Domestic Relations Law Void as Incestuous a Marriage Between an Uncle and Niece of the Half Blood (that is, Where the Husband is the Half-Brother of the Wife's Mother)? STATEMENT OF JURISDICTION This Court accepted certification of the question from the United States Court of Appeals on March 27, 2014. STATEMENT OF THE CASE The Petitioner and her husband were married in New York State in 2000. They have continuously lived together as husband and wife for over 14 years. Petitioner and her husband denied that they were related as half-uncle and half-niece. Nevertheless, the Court of Appeal’s determination must be accepted, that this half-blood relationship exists, for purposes of answering the certified question. 3 If their marriage is deemed valid under New York law, then the Petitioner may resume and complete her immigration process to become a lawful permanent resident of the U.S.A. If this marriage is deemed void under New York law, then the Petitioner shall be removed and deported to Vietnam. ARGUMENT I. A Marriage Between a Half-Uncle and Half-Niece is Valid Under New York State Domestic Relations Law Section 5 New York State Domestic Relations Law Section 5 states that, as to marriages entered into in New York State: “A marriage is incestuous and void whether the relatives are legitimate or illegitimate between either: 1. An ancestor and a descendant; 2. A brother and sister of either the whole or the half blood; 3. An uncle and niece or aunt and nephew.” The plain language of the statute does not include an uncle/niece union by the “half blood”. Nevertheless, the government (DHS, IJ and BIA) interpreted this law to conclude that the marriage between Petitioner and her husband was void ab initio and could not form the legal basis for immigration benefits. The IJ reached his conclusion by citing a case issued by the New York State, First Appellate Department in 1921. In Audley v. Audley, 187 N.Y.S. 652 (1st Dept. 1921), the court essentially rewrote Section 5 of the New York State 4 Domestic Relations Law. The Audley court presumed that the Legislature intended to include half blood relations between uncles and nieces and aunts and nephews in its prohibition on marriages to relatives. The court reached this conclusion despite the fact that the statue only included the “half blood” language for brothers and sisters, but specifically excluded the same language for uncles/nieces and aunts/nephews. While Audley has not been expressly overruled, this Court forcefully criticized the opinion in Simms v. Jankowitz, 26 N.Y.2d 163 (1970). Because of the specific facts involved in that case, the Simms Court did not need to decide the issue of whether section 5 of the New York State Domestic Relations Law included uncles/nieces and aunts/nephews by the half-blood. However, the Court focused a considerable portion of its opinion on that issue and stated that this section of the law “does not expressly include an uncle and niece by the half blood.” Simms, at 164-165. The Simms Court stated that: “It would be assumed that the term [incestuous and void] would include relationship by the half blood were it not for the fact that the preceding subdivision 2 of the section, in dealing with marriages between brothers and sisters, spells out both the full and the half blood relationship” at 164-165. “In this context it seems reasonable to think that if the Legislature intended to prohibit marriages between uncles, nieces, aunts and nephews whose parents were related to the contracting party only by the half blood, it would 5 have used similar language, and its failure to do so in immediate context of dealing with a more remote relationship than brother and sister suggests that it did not intend to put this limited class within the interdiction.” at 165. The Simms Court based its reasoning on well-established principles of statutory construction, which require any inquiry to begin with the plain language of the statute. See Peralta-Taveras v. Attorney General, 488 F.3d 580, 584 (2nd Cir. 2007). It is axiomatic that when the answer is clear from the statutory language, the inquiry must end there. Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999). Legislative history and other outside resources cannot be used to create ambiguity where none exists. Callanan v. United States, 364 U.S. 587, 596 (1961). Accordingly, as the Simms Court aptly pointed out, Section 5 of the New York State Domestic Relations Law clearly does not include a prohibition on “half blood” uncle/niece and aunt/nephew marriages. The fact that the “half blood” language is included in other portions of the statute further serves to clarify the intent of the Legislature. The BIA cited another older court case to erroneously reach the conclusion that the Petitioner’s marriage herein was void. In re May’s Estate, 305 N.Y. 486 (1953), this Court did not decide that such a marriage was incestuous and void. Instead, the Court held that the marriage must be recognized under New York law. 6 “As section 5 of the New York Domestic Relations Law (quoted supra) does not expressly declare void a marriage of its domiciliaries solemnized in a foreign State where such marriage is valid, the statute’s scope should not be extended by judicial construction (citation omitted).” The Simms Court refused to engage in legislation, such role being reserved to the State Legislature: “Indeed, had the Legislature been so disposed it could have declared by appropriate enactment that marriages contracted in another State which if entered into here would be void shall have no force in this State (citation omitted). “Accordingly, as to the first exception to the general rule that a marriage valid where performed is valid everywhere, we conclude that, absent any New York statute expressing clearly the Legisalature’s intent to regulate within this State marriages of its domiciliaries solemnized abroad, there is no 'positive law' in this jurisdiction which serves to interdict the 1913 marriage in Rhode Island of the respondent Sam May and the decedent.” The Court of Appeals further considered whether the second degree of consanguinity relationship between the uncle and niece should be voided on other grounds, and again concluded that such marriage was to be deemed valid under New York law: “As to the application of the second exception to the marriage here involved — between persons of the Jewish faith whose kinship was not in the direct ascending or descending line of consanguinity and who were not brother and sister — we conclude that such marriage, solemnized, as it was, in accord with the ritual of the Jewish faith in a State whose legislative body has declared such a marriage to be “good and valid in law”, was not offensive to the public sense of morality to a degree regarded generally with abhorrence and thus was not within the inhibitions of natural law. 7 For this reason, this Court should find that, even accepting the determination that the Petitioner’s husband is also her half-uncle (a relationship of the third degree of consanguinity), their marriage should not be deemed incestuous and void under New York State Domestic Relations Law. CONCLUSION Based on the foregoing, Petitioner respectfully submits that the marriage between the Petitioner and her husband is valid under New York States law. Dated: Buffalo, NY May 27, 2014 s/ Michael E. Marszalkowski Michael E. Marszalkowski, Esq. Attorney for Petitioner Michael E. Marszalkowski, P.C. 69 Delaware Avenue, Suite 602 Buffalo, NY 14202 Tel. (716) 856-3023 Fax (716) 856-6235 8