Huyen V. Nguyen, Petitioner,v.Eric H. Holder, Jr., United States Attorney General, Respondent.BriefN.Y.September 9, 2014 To Be Argued By: Michael C. Heyse Time Requested: 15 Minutes CTQ-2014-00003 _________________________________________________________ COURT OF APPEALS OF THE STATE OF NEW YORK _________________________________________________________ HUYEN V. NGUYEN, Petitioner, v. ERIC H. HOLDER, JR., United States Attorney General, Respondent. _________________________________________________________ CERTIFIED QUESTION FROM THE U.S. COURT OF APPEALS FOR THE SECOND CIRCUIT IN DOCKET NO. 13-605 ___________________________________________ BRIEF FOR RESPONDENT ___________________________________________ STUART F. DELERY MICHAEL C. HEYSE Assistant Attorney General Trial Attorney Civil Division United States Department of Justice Office of Immigration Litigation MARY JANE CANDAUX P.O. Box 878, Ben Franklin Station Assistant Director Washington, D.C. 20044 (202) 305-7002 JESSICA D. STROKUS Law Clerk Attorneys for Respondent i TABLE OF CONTENTS INTRODUCTION AND STATEMENT OF JURISDICTION ................................ 1 STATEMENT OF THE ISSUE ................................................................................. 3 STATEMENT OF THE CASE AND FACTS .......................................................... 3 SUMMARY OF ARGUMENT ................................................................................. 5 ARGUMENT ............................................................................................................. 6 HALF BLOOD UNCLE AND NIECE MARRIAGES ARE INVALID UNDER NEW YORK LAW ................................................................................................ 6 I. New York Incestuous Marriage Law ............................................................ 6 II. Ms. Nguyen and Mr. Truong’s Marriage is Void In A Majority of the United States .................................................................................................... 16 III. The Cases Holding That Statutes Like New York’s Do Not Bar Relationships Like Ms. Nguyen and Mr. Truong’s Involved Criminal Matters, And Thus Applied A Higher Review Standard Than Should Apply Here ....................................................................................................... 21 CONCLUSION ........................................................................................................ 24 CERTIFICATE OF SERVICE ii TABLE OF AUTHORITIES CASES Audley v. Audley, 187 N.Y.S. 652 (N.Y. App. Div. 1921) ................................................... 4, passim Benton v. State, 461 S.E.2d 202 (Ga. 1995) ................................................................................... 10 Bourquin v. Cuomo, 85 N.Y.2d 781 (N.Y. 1995) ................................................................................. 16 Brewer's Lessee v. Blougher, 39 U.S. 178 (1840) ............................................................................................... 10 Burdue v. Commonwealth, 138 S.W. 296 (Ky. Ct. App. 1911) ...................................................................... 18 Chestnut v. State, 652 S.E.2d 596 (Ga. 2007) ................................................................................... 18 Commonwealth v. Ashey, 142 N.E. 788 (1924) ................................................................................ 11, 17, 19 Commonwealth v. Reigel, 1913 WL 3981 (Pa.Quar. Sess. 1913) ................................................................. 19 Fearon v. Treanor, 272 N.Y. 268 (N.Y. 1936) ............................................................................ 7, 8, 9 Goddard v. Westcott, 46 N.W. 242 (Mich. 1890) ..................................................................................... 8 Heikkila v. State, 98 S.W.3d 805 (Ark. 2003) .................................................................................. 18 Hernandez v. Robles, 805 N.Y.S.2d 354 ............................................................................................ 7, 16 iii Incuria v. Incuria, 280 N.Y.S. 716 (N.Y.S. 1935) ............................................................................. 11 INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) ........................................................................................... 23 Majewski v. Broadalbin-Perth Central School Dist., 91 N.Y.2d 577 (N.Y. 1998) ................................................................................... 9 Matter of May, 305 N.Y. 486 (N.Y. 1953) ....................................................................... 4, passim Matter of Saffer, 241 N.Y.S.2d 681 (N.Y. Sur. 1963) .................................................................... 13 Matter of Simms, 26 N.Y. 2d 163 (N.Y. 1970) .................................................................. 12, 13, 14 Maynard v. Hill, 125 U.S. 190 (1888) ............................................................................................... 7 Michigan v. Bay Mills Indian Community, 134 S. Ct. 2024 (2014) ................................................................................ 8, 9, 15 Nguyen v. Holder, 743 F.3d 311 (2d Cir. 2014) ...............................................................................1, 4 Ochs v. Ochs, 749 N.Y.S.2d 650 (N.Y. Sup. Ct. 2002) .............................................................. 18 People v. Baker, 442 P.2d 675 (Cal. 1968) .................................................................. 16, 20, 21, 22 People v. Bing, 76 N.Y.2d 331 (N.Y. 1990) ................................................................................... 8 People v. James,, 1858 WL 2321 (Mich. 1858) ............................................................................... 19 iv People v. Ryan, 274 N.Y. 149 (N.Y. 1937) ..................................................................................... 9 R. v. R.,, 454 N.Y.S.2d 779 (N.Y. Sup. Ct. 1982) .............................................................. 18 Rajah v. Mukasey, 544 F.3d 427 (2d Cir. 2008) ................................................................................. 23 Reynolds v. U.S., 98 U.S. 145 (1878) ............................................................................................... 14 Roschen v. Ward, 279 U.S. 337 (1928) ............................................................................................... 9 Shelley v. State, 31 S.W. 492 (Tenn. 1895) .................................................................................... 19 Singh v. Singh, 569 A.2d 1112 (Conn. 1990) ............................................................ 11, 16, 17, 19 State v. Bartley, 263 S.W. 95 (Mo. 1924) ......................................................................... 20, 21, 22 State v. Craig, 867 P.2d 1013 (Ka. 1994) ....................................................................... 20, 21, 22 State v. Guiton, 24 So. 784 (La. 1898) .......................................................................................... 18 State v. Lamb, 227 N.W. 830 (Iowa 1929) .................................................................................. 19 State v. Reedy, 24 P. 66 (Kan. 1890) ............................................................................................ 17 State v. Sharon H., 429 A.2d 1321 (Del. Super. Ct. 1981) ................................................................. 19 v State v. Smith, 85 S.E. 958 (S.C. 1915) ....................................................................................... 19 State v. Wyman, 8 A. 900 (Vt. 1887) .............................................................................................. 19 Tapscott v. State., 684 A.2d 439 (Md. 1996) ................................................................. 10, 11, 17, 19 U.S. v. Sawyer, 85 F.3d 713 (1st Cir. 1996) .................................................................................. 16 Vasquez v. Hillery, 474 U.S. 254 (1986) ............................................................................................... 8 Wade v. State, 308 S.W.3d 178 (Ark. 2009) ................................................................................ 18 Williams v. McKeene, 1915 WL 2162 (Ill. App. 3d 1915) ...................................................................... 18 STATUTES Immigration and Nationality Act of 1952, as amended: Section 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I) ............................................................................... 3 Section 216A, 8 U.S.C. § 1186a ................................................................................................2, 3 Section 216A(b), 8 U.S.C. § 1186a(b) ............................................................................................... 2 Section 216A(c), 8 U.S.C. § 1186a(c) ................................................................................................ 2 Section 216A(d), 8 U.S.C. § 1186a(d) ............................................................................................... 2 vi Section 216A(c)(3)(C), 8 U.S.C. § 1186a(c)(3)(C) ...................................................................................... 2 Section 237(a)(1)(A), 8 U.S.C. § 1227(a)(1)(A) ....................................................................................... 4 Sectin 237(a)(1)(D)(i), 8 U.S.C. § 1227(a)(1)(D)(i) ................................................................................... 3 Section 242(b), 8 U.S.C. § 1252(b) .......................................................................................... 4, 23 Section 242(b)(4)(A), 8 U.S.C. § 1252(b)(4)(A) ....................................................................................... 2 Section 245(a), 8 U.S.C. § 1255(a) ................................................................................................. 2 Section 310, 8 U.S.C. § 1421 ...................................................................................................... 2 Section 316, 8 U.S.C. § 1427 ...................................................................................................... 2 State Statutes Ala. Code § 13-13-3(a)(4) (2013) ............................................................................ 19 Alaska Stat. § 11.41.450 .......................................................................................... 19 Alaska Stat. § 25.05.021 .......................................................................................... 19 Ariz. Rev. Stat. § 25-101(A) ................................................................................... 19 Cal. Penal Code § 285 .............................................................................................. 21 Cal. Fam Code § 2200.............................................................................................. 21 vii Colo. Rev. Stat. Ann. § 14-2-110............................................................................. 19 Haw. Rev. Stat. Ann. § 572-1(1) ............................................................................ 19 Idaho Code Ann. § 32-205 (2013) .......................................................................... 19 750 Ill. Comp. Stat. Ann. § 5/212(a)(2) .................................................................. 18 Kan. Stat. Ann. § 21-5604(a) .................................................................................. 21 Ky. Rev. Stat. Ann. § 402-010 (2013) .................................................................... 18 La. Rev. Stat. Ann. § 14:78(A-B); La. Civ. Code Ann. Art. 90 .............................. 18 Me. Rev. State. Ann. Tit. 19-A § 701(A) ...............................................................20 Me. Rev. State. Ann. Tit. 19-A § 701(B) .................................................................20 Mo. Rev. Stat. § 568.020 ......................................................................................... 21 Minn. Stat. § 517.03 ................................................................................................. 19 Neb. Rev. Stat. Ann. § 28-702 ................................................................................. 19 N.J. Stat. Ann. 37:1-1 ...............................................................................................20 N.M. Stat. Ann. § 30-10-3 ....................................................................................... 19 N.Y. Dom. Rel. Law. 5(2) ........................................................................................ 6 N.Y. Dom. Rel. Law 5(3) ........................................................................... 6, passim N.C. Gen. Stat. § 51-3 .............................................................................................. 20 N.C. Gen. Stat. § 51-4 .............................................................................................. 20 N.D. Cent. Code § 14-03-03 .................................................................................... 20 Okla. Stat. Ann. Tit. 43 § 2 ...................................................................................... 19 viii Or. Rev. Stat. § 106.020 ........................................................................................... 20 18 Pa. Cons. Stat. Ann. § 4302 ................................................................................ 19 R.I. Gen. Laws § 15-1-4 ................................................................................... 12, 20 S.D. Codified Laws 25-1-6 ...................................................................................... 19 Tex. Fam. Code Ann. § 6.201 .................................................................................. 20 Utah Code Ann. § 76-7-102(1)(b)(i) ....................................................................... 20 VA. Code Ann. § 20-38.1 ........................................................................................ 20 Wash. Rev. Code Ann. § 26.04.020(b) ................................................................... 20 W. VA. Code Ann. § 48-2-302(a-b) ....................................................................... 20 Wis. Stat. § 765.03 ................................................................................................... 20 Wyo. Stat. Ann. § 20-2-101(a)(iii) ......................................................................... 19 Other Authorities Beyond Interstate Recognition in the Same-Sex Marriage Debate, 40 UC Davis L. Rev. 313 (2006) ......................................................................... 12 Kinship Detectors Prevent Incest . . . In Some Cases, livescience (Feb. 14, 2007), available at http://www.livescience.com/4363-kinship- detectors-prevent-incest-cases.html ..................................................................... 10 Webster’s International Dictionary of the English Language (1894) ..................... 15 Uniform Marriage and Divorce Act § 207 .............................................................. 18 CTQ-2014-00003 _________________________________________________________ COURT OF APPEALS OF THE STATE OF NEW YORK _________________________________________________________ HUYEN V. NGUYEN, Petitioner, v. ERIC H. HOLDER, JR., United States Attorney General, Respondent. _________________________________________________________ CERTIFIED QUESTION FROM THE U.S. COURT OF APPEALS FOR THE SECOND CIRCUIT IN DOCKET NO. 13-605 ___________________________________________ BRIEF FOR RESPONDENT ___________________________________________ INTRODUCTION AND STATEMENT OF JURISDICTION The United States Court of Appeals for the Second Circuit (“Second Circuit”) certified a question to this Court, asking: 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)? Nguyen v. Holder, 743 F.3d 311, 317 (2d Cir. 2014). Before the Second Circuit, Petitioner Huyen V. Nguyen (“Ms. Nguyen”) sought review of a January 25, 2013, 2 decision by the Board of Immigration Appeals (“Board”) denying her appeal of an Immigration Judge’s August 31, 2010, decision finding Ms. Nguyen removable from the United States based on her incestuous marriage to her half-uncle. Petitioner’s Appendix (“Pet’r Appx”) A12-A22, A24-A25.1 The Second Circuit agreed that substantial evidence supported the factual finding that Ms. Nguyen and her husband, Vu H. Truong (“Mr. Truong”) are half-blood uncle and niece.2 Pet’r Appx A30-A31; see also Pet’r Appx A21, A24-A25. Pursuant to New York Court of Appeals Rule 500.27, the Court retains jurisdiction to adjudicate this question, having accepted certification thereof. 1 Because this matter involves exclusively a single legal question as certified to the Court by the Second Circuit, and the facts of the case are not in dispute, the Court need not consider the entire Certified Administrative Record. See, e.g., 8 U.S.C. § 1252(b)(4)(A) (stating that Circuit Courts adjudicating immigration petitions for review must limit their review on the administrative record on which the removal order is based). 2 United States citizens who marry non-citizens can sponsor that individual for a visa to enter the United States. The non-citizen enters the United States as a conditional lawful permanent resident, and may thereafter adjust status to that of a lawful permanent resident. 8 U.S.C. § 1186a; 8 U.S.C. § 1255(a). Removing the conditional status requires that the beneficiary timely establish that the marriage is, or was, valid, and not entered into for immigration purposes. 8 U.S.C. §§ 1186a(b- d). If the beneficiary so desires and qualifies, the beneficiary can also eventually apply to become a naturalized United States citizen. 8 U.S.C. § 1421; 8 U.S.C. § 1427. Absent a valid marriage, however, that individual cannot adjust status or naturalize, and indeed was never properly admitted as a conditional lawful permanent resident. 8 U.S.C. § 1186a(c)(3)(C). Barring any other lawful basis to remain in the United States, that individual is thus subject to removal. Id. 3 STATEMENT OF THE ISSUE Whether a marriage between an uncle and niece of the half-blood is void as incestuous under New York law. STATEMENT OF THE CASE AND FACTS Ms. Nguyen is a native and citizen of Vietnam. Pet’r Appx A8. Mr. Truong, also a native of Vietnam, is a naturalized United States citizen. Pet’r Appx A8. Ms. Nguyen married Mr. Truong on January 4, 2000, in Rochester, New York. Pet’r Appx A16. Based on their marriage, Mr. Truong filed a petition with the United States Citizenship and Immigration Services (“USCIS”) seeking to obtain lawful permanent resident status for Ms. Nguyen. Id. She became a lawful permanent resident on that basis, subject to the conditions of 8 U.S.C. § 1186a. Id. As required under 8 U.S.C. § 1186a, Ms. Nguyen and Mr. Truong timely filed petition with USCIS to remove those conditions. Id. On November 16, 2007, however, USCIS denied that petition when it concluded that the marriage was void because Mr. Truong was Ms. Nguyen’s half-uncle. Id. Thereafter, the Department of Homeland Security (“DHS”) charged Ms. Nguyen with removability under 8 U.S.C. § 1227(a)(1)(D)(i), as an immigrant whose conditional permanent resident status has been terminated. Pet’r Appx A8. DHS later charged Ms. Nguyen with inadmissibility, under 8 U.S.C. § 1182(a)(7)(A)(i)(I), and removability, under 8 4 U.S.C. § 1227(a)(1)(A), as of when she entered the United States on August, 22, 2000, because her incestuous marriage was void ab initio. Pet’r Appx A10. After a hearing, the Immigration Judge issued a written decision on August 31, 2010, concluding that Ms. Nguyen was removable as charged. Pet’r Appx A12-22. The Judge cited New York State Domestic Relations Law § 5(3), and Audley v. Audley, 187 N.Y.S. 652 (N.Y. App. Div. 1921), as establishing that Ms. Nguyen’s marriage to her half-uncle was void as incestuous. Pet’r Appx A19-A20. Ms. Nguyen appealed that decision to the Board, which on January 25, 2013, dismissed Ms. Nguyen’s appeal. Pet’r Appx A24-A25. The Board agreed that a marriage between a half-uncle and his niece is indeed illegal under New York law. Id. (citing Matter of May, 305 N.Y. 486 (N.Y. 1953)). Ms. Nguyen then filed a petition for review with the Second Circuit, pursuant to 8 U.S.C. § 1252(b), disputing the finding that she had a blood relationship to Mr. Truong, as well as challenging that such a relationship was void as incestuous under New York law. The Second Circuit held that substantial evidence supported the conclusion that Ms. Nguyen and Mr. Truong were indeed half-niece and half-uncle, respectively, but certified the question to this Court of whether their marriage is void as incestuous under New York law. Nguyen, 743 F.3d at 311-17. 5 SUMMARY OF ARGUMENT Ms. Nguyen’s marriage is incestuous and void under New York law, and this Court should not usurp the role of the legislature, or violate the principle of stare decisis, to hold otherwise. Long-standing New York law plainly holds that the legislature enjoys broad, if not exclusive, authority to regulate marriage. And Audley, decided nearly a century ago, remains good law. To the extent subsequent New York case law at all casts doubt onto Audley, those cases involved religious practices and out-of-state marriages, two issues not present in this case, and a contract claim. Assuming the Court will nonetheless review the statutory language, the historical backdrop of New York’s incest laws, and the plain meaning of the terms “brother,” “uncle,” and “niece,” demonstrate that Ms. Nguyen’s marriage to her half-uncle is void as incestuous. Determining legislative intent is the cardinal rule of statutory construction, and courts are not required to strictly construe every statute, especially when such a reading would lead to a result patently contrary to the underlying statutory scheme. And while courts are compelled to first look to the statutory language to fulfill legislative intent, where the terms involved present ambiguities or engender confusion, courts routinely look to other sources to better establish what those words mean. Lastly, nationally, only five states expressly authorize marriages like Ms. Nguyen’s, and three of those states so concluded when strictly-construing statutes in criminal cases, rather 6 than civil proceedings. Accordingly, the Court should hold, consistent with Audley and with legislative intent, that a marriage between a half-uncle and niece is void as incestuous under N.Y. Dom. Rel. Law § 5(3). ARGUMENT HALF BLOOD UNCLE AND NIECE MARRIAGES ARE INVALID UNDER NEW YORK LAW I. New York Incestuous Marriage Law Ms. Nguyen’s marriage is void ab initio under New York law. N.Y. Dom. Rel. Law § 5(2-3), in pertinent part, states: A marriage is incestuous and void . . . between either: * * * 2. A brother and sister of either the whole or the half blood; 3. An uncle and niece or an aunt and nephew.3 While the statute does not expressly include half-blood uncles and nieces, such verbiage is unnecessary because of the plain meaning of the terms at issue, especially when the statute was drafted in 1893, and because the New York state legislature has left the statute undisturbed as to this issue for over a century. In 1921, the New York State Supreme Court’s Appellate Division, in Audley, 187 N.Y.S. at 652-54, held that, under N.Y. Dom. Rel. Law § 5(3), a half- 3 Because this case involves a marriage between an uncle and niece, Respondent will focus solely on that type of marriage, though logically marriages between half- aunts and nephews would be equally barred under New York law. 7 uncle cannot marry his half-niece. The parties in Audley did not dispute that they were related. Id. The court reviewed the controlling statutes, and noted that courts in Tennessee, Vermont, and Kansas had held, in interpreting similar statutes, that half-blood uncles and nieces could not marry. Id. The court further explained that while half-brothers and sisters are commonly referred to as such, half-nieces and nephews are not. Id. The court added that such a distinction would be unnecessary, inasmuch as it would be highly unusual for an uncle and niece to not be at-most half-blood relatives, because for them to be whole blood relatives, the niece’s parents would both need to be whole-blood relatives with the uncle, which means that the niece’s parents would have to be brother and sister.4 Id. This Court should not assume the role of the state legislature to reverse Audley. Marriage has long been considered a social relation that is subject to a state’s police power, and one that the legislature controls. Maynard v. Hill, 125 U.S. 190, 205-09 (1888). Indeed, in Hernandez v. Robles, 805 N.Y.S.2d 354, 359, the court unequivocally stated that “[t]he power to regulate marriage lies with the Legislature, not the judiciary.” In Fearon v. Treanor, 272 N.Y. 268, 272 (N.Y. 4 Given that Ms. Nguyen is the daughter of Mr. Truong’s half-sister, Ms. Nguyen and Mr. Truong are mathematically quarter-blood relatives. Ms. Nguyen has half of her mother’s blood, and half of her father’s blood, while Mr. Truong and his half-sister, Ms. Nguyen’s mother, share only half of the same blood. Ms. Nguyen’s blood relationship to Mr. Truong is thus half of his half-blood relationship to his half-sister, or, mathematically, quarter-blood. 8 1936), this Court stated that the legislature enjoys plenary power to regulate marriage, “an institution involving the highest interests of society, . . . the most important relation in life, . . . [and thus] always . . . subject to the control of the legislature.” The Court added that marriage involves “‘the profoundest interests of human life, transmitting its complex influences direct to posterity.’” Id. at 273 (quoting Goddard v. Westcott, 46 N.W. 242, 244 (Mich. 1890)). As such, if marriages such as Ms. Nguyen’s are to be permitted, the legislature, and not this Court, should so declare in the first instance. Furthermore, Audley, decided nearly a century ago, remains good law. As the United State Supreme Court and this Court have repeatedly recognized, “[s]tare decisis is a foundation stone of the rule of law, necessary to ensure that legal rules develop ‘in a principled and intelligible fashion.’” Michigan v. Bay Mills Indian Community, 134 S. Ct. 2024, 2036 (2014) (quoting Vasquez v. Hillery, 474 U.S. 254, 265 (1986)); see also People v. Bing, 76 N.Y.2d 331, 337- 38 (N.Y. 1990) (stating that “stare decisis . . . promote[s] efficiency and provide[s] guidance and consistency in future cases by recognizing that legal questions, once settled, should not be reexamined every time they are presented.”). Adhering to prior precedents is a fundamental precept of judicial decision-making, ensuring integrity in the judicial process and promoting reliance on judicial decisions. Bay Mills, 134 S. Ct. at 2036. And regardless, as noted above, legislatures are better 9 suited to make statutory changes, especially regarding marriage-related issues. Id. at 2037-38; Fearon, 272 N.Y. at 272. Even if the Court decides to revisit Audley and the interpretation therein of N.Y. Dom. Rel. Law § 5(3), the Court should reaffirm Audley’s validity. The cardinal rule of statutory interpretation is that Court should, whenever possible, effectuate the legislature’s intent, and the clearest indicator of legislative intent is the plain meaning of the statutory text. Majewski v. Broadalbin-Perth Central School Dist., 91 N.Y.2d 577, 583 (N.Y. 1998); People v. Ryan, 274 N.Y. 149, 152 (N.Y. 1937). But where the text itself fails to definitively resolve a statutory interpretation question, such as what is posed before the Court in this matter, the Court can consider materials reaching beyond the four corners of the statute itself. Majewski, 91 N.Y. 2d at 583-90. Further, “there is no canon against using common sense in construing laws as saying what they obviously mean,” even if a statute lacks certain verbiage. Roschen v. Ward, 279 U.S. 337, 339 (1928). Indeed, this Court has cautioned against endorsing literal readings of statutory language that may defeat the general purpose of the statute. Ryan, 274 N.Y. at 152. Nearly two hundred years ago, the United States Supreme Court acknowledged the states’ authority to outlaw incestuous marriages. “Incestuous marriages have always been regarded with abhorrence by the soundest writers, and 10 the most polished states of antiquity; and an incestuous connection between an uncle and niece, by a great master of public law, a nuisance.” Brewer’s Lessee v. Blougher, 39 U.S. 178 (1840). Indeed, incest has long been condemned amongst civilized society. The “incest taboo” is not only genetically driven, but also based on sociological principles that foster and promote external relationships so as to form broader economic and political alliances, enabling a larger society to form. Benton v. State, 461 S.E.2d 202, 205 (Ga. 1995) (Sears, J., concurring). Condemning incest also maintains family stability by protecting younger family members from exploitation by older family members, and reduces competition and jealous friction among family members. Id. In addition to these sociological concerns, incest raises the risk of harmful genetic mutations that negatively affect health and fertility. Ker Than, Kinship Detectors Prevent Incest . . . In Some Cases, livescience (Feb. 14, 2007), available at http://www.livescience.com/4363- kinship-detectors-prevent-incest-cases.html (last accessed June 17, 2014). At common law, ecclesiastical courts adjudicated incest offenses. Tapscott v. State. 684 A.2d 439, 443 (Md. 1996). Ecclesiastical courts followed Levitical law, referring to principles set forth in the Bible’s Book of Leviticus, which barred marriages between persons more closely related than fourth cousins, and made no distinction between persons related by affinity or consanguinity. Id.; see also Lev. 18, 20. These principles thus specifically barred sexual relations between an uncle 11 and his niece, or an aunt and her nephew. See Lev. 20:19-20. In Incuria v. Incuria, 280 N.Y.S. 716, 719 (N.Y.S. 1935), the court recognized that N.Y. Dom. Rel. Law § 5(3) was based on these passages from the Book of Leviticus. In 1540, after King Henry VIII broke from the Catholic Church, England passed a statute barring marriages between anyone more closely related than a first cousin, and the English courts and authorities consistently interpreted this statute to include half-blood relations. Tapscott, 648 A.2d at 443 (citing Singh v. Singh, 569 A.2d 1112, 1121 (Conn. 1990)). American states’ marriage incest laws were modeled on these principles, and incest, in some form, is also now a crime in all 50 states. See Tapscott, 648 A.2d at 443-44; Singh, 569 A.2d at 1115-21; Commonwealth v. Ashey, 142 N.E. 788, 788-89 (1924). Against this ecclesiastical and Levitical backdrop, the New York state legislature enacted N.Y. Dom. Rel. Law § 5(3) in 1893. Incuria, 280 N.Y.S. at 719. And the court in Audley concluded that a marriage like Ms. Nguyen’s and Mr. Truong’s was void as incestuous under N.Y. Dom. Rel. Law § 5(3). Audley, 187 N.Y.S. at 652-54. This Court in Matter of May, 305 N.Y. 486, 491-93 (N.Y. 1953), subsequently indirectly affirmed Audley, inasmuch as it held that while the half-blood uncle and niece’s Rhode Island marriage would be illegal were it performed in New York, the marriage remained valid because N.Y. Dom. Rel. Law § 5(3) lacked extraterritorial effectiveness. The subject marriage involved a Jewish 12 couple, and Judaism, as opposed to Levitical law, allows for uncles to marry their nieces.5 Matter of May, 305 N.Y. at 489, 492-93. Rhode Island statutory law, see R.I. Gen. Laws § 15-1-4 (2012), specifically permits Jewish marriages that otherwise violate Rhode Island’s incest laws. Matter of May, 305 N.Y. at 489, 492-93. Ms. Nguyen argues that this Court “forcefully criticized” Audley in Matter of Simms, 26 N.Y. 2d 163 (N.Y. 1970), because the Court observed that the statute does not specify that half-blood uncles and nieces could not marry, while the statute does specify that half-blood brothers and sisters could not marry. Petitioner’s Brief 5. To be sure, the Court expressed an opinion on Audley’s holding, but in dicta. Simms, 26 N.Y.2d at 165. The Court plainly stated that it was not reversing Audley, however, stating “it is unnecessary to rest on the question of statutory construction,” and instead adjudicated the case as a matter of contract law. Id. at 166. The Court ultimately concluded that the parties’ antenuptual contract did not require that their marriage be valid under New York 5 Pursuant to the rabbinical approach to Biblical interpretation, “an act is not a crime under Jewish law unless the Bible expressly prohibits it and specifies a punishment for it.” Gary J. Simson, Beyond Interstate Recognition in the Same- Sex Marriage Debate, 40 UC Davis L. Rev. 313, 328 and n. 58 (2006). According to the Jewish translation, the Bible expressly prohibits only aunt-nephew marriages, and thus under the rabbinical approach, uncle-niece marriages are permitted. Id. (citing Lev. 18:12-14). Notably, these rabbinical principles make no distinction between half-blood and whole-blood. 13 law to be enforced. Id. at 167. Their marriage contract required only that their marriage be solemnized during a proper Jewish ceremony. Id. at 163, 167. And like the couple in Matter of May, their marriage ceremony was performed in Rhode Island, where statutory law specifically permits Jewish marriages that otherwise violate Rhode Island’s incest laws. Simms, 26 N.Y.2d at 167. While this Court in both Matter of May and Simms recognized as valid two different marriages between half-uncles and nieces, in both cases the marriages were based on Jewish traditions that were expressly authorized by statute in the state where the marriages occurred. To find that an out-of-state Jewish marriage was void in New York, the Court would have needed to conclude that such a marriage was “within the inhibitions of natural law,” juxtaposed against the settled principle that the laws of the place where a marriage is celebrated dictate the legality of that marriage. Matter of May, 305 N.Y. at 490, 493. As discussed above, both cases involved Jewish Rhode Island marriages, expressly authorized by the Rhode Island legislature and rabbinical law. Id.; Simms, 26 N.Y.2d at 167; see also Matter of Saffer, 241 N.Y.S.2d 681 (N.Y. Sur. 1963). As the court recognized in Audley, and acknowledged in Matter of May, New York law prohibits half-uncles from marrying their nieces. To be sure, Rhode Island law, relying on rabbinical principles, permits Jewish marriages between such relatives, and in fact permits marriages between an uncle and niece, regardless of their exact 14 degree of consanguinity. But to conclude that those marriages are invalid in New York would arguably have raised various First Amendment concerns, inasmuch as the state would be intruding on those individuals’ freedom of religion. But see Reynolds v. U.S., 98 U.S. 145, 161-67 (1878) (holding that religious beliefs cannot excuse an individual from criminal prosecution for polygamy). New York’s incest laws have no such religious exemption. Further, undersigned counsel has not uncovered a single Rhode Island case sanctioning a non-Jewish marriage between an uncle and niece. And ultimately, such religious issues are not before this Court in this case, inasmuch as Ms. Nguyen has never claimed that her marriage to Mr. Truong is permitted due to their religion. This Court thus should not conclude that either Matter of May or Simms supports the reversal of Audley. Again, the text of N.Y. Dom. Rel. Law § 5(3) does not expressly include half-blood uncles and nieces as being ineligible to wed, but Audley plainly holds that such a marriage is void under New York law, and Audley remains good law. The logic in Audley as to why the legislature omitted any reference to half-blood uncles and nieces remains sound, inasmuch as for an uncle and a niece to be of the whole blood, the uncle would need to be the whole-blooded brother of two whole- blooded siblings who parented a child together - the niece. Such a remote set of circumstances is not likely one the legislature envisioned when drafting N.Y. Dom. Rel. Law § 5(3). 15 Indeed, as the court acknowledged in Audley, 187 N.Y.S. at 652-54, the plain meaning of the terms at issue confirms that including the “half-blood” language as to uncle and niece relationships would have been redundant, if not inaccurate. While it is arguably common for people to refer to half-brothers and half-sisters as such, it is far less common for people to identify a relative as a “half- uncle” or “half-aunt.” The New York legislature enacted N.Y. Dom. Rel. Law § 5(3) in 1893. As of 1894, Webster’s Dictionary defined “brother” as “a male person who has the same father and mother with another person, or one of them only.” Webster’s International Dictionary of the English Language, 185 (1894) (emphasis added). By contrast, an “uncle” was defined as the “brother of one’s father or mother.” Id. at 1567. The “uncle” definition contained no clarification as to whether the “brother” was a “half-brother” or whole blood “brother.” Id. Similarly, “niece” was defined as the “daughter of one’s brother or sister,” and contained no half-blood or whole-blood clarification. Id. at 975. Logically, the “uncle” and “niece” definition’s use of the word “brother” without the latter’s clarification as to whole or half-blood, shows that the common understanding of the term “uncle” and “niece” included half-uncles and half-nieces, inasmuch as the definition of “brother” included half-brothers. Moreover, if the New York legislature disagreed with Audley, it has had nearly a century to change the statute, but it has not done so. See, e.g., Bay Mills, 16 134 S. Ct. at 2038-39 (noting that Congress considered bills to amend Native American tribal immunity regarding commercial dealings, but ultimately retained the existing law); U.S. v. Sawyer, 85 F.3d 713, 738 (1st Cir. 1996) (deferring to an ethics commission’s statutory interpretation of a gratuity statute the Massachusetts legislature had previously left undisturbed for over three decades); but see Bourquin v. Cuomo, 85 N.Y.2d 781, 787-88 (N.Y. 1995) (discounting the informative value of legislative inaction due to its inherent ambiguity). The Court should not assume the role of the legislature to reverse a nearly 100-year-old decision involving an issue plainly within the power of the legislature to regulate. Hernandez, 805 N.Y.S.2d at 359. II. Ms. Nguyen and Mr. Truong’s Marriage is Void In A Majority of the United States In Singh, 569 A.2d at 1115-21, the Connecticut Supreme Court held that half-blood uncles and nieces could not marry based on a thorough review of how states and the church historically limited, if not outlawed, such marriages. The court noted that Levitical law “‘prohibited marriages between persons more closely related than fourth cousins,’” and that “‘no distinction was made between persons related by affinity or consanguinity.’” Id. at 643 (quoting People v. Baker, 442 P.2d 675, 678 (Cal. 1968)). The court added that “[a]ccording to the common meaning of the word [‘uncle’], it includes the half-brother of the [mother] and 17 there is no distinction between the whole and half blood.” Singh, 569 A.2d at 1121 (internal quotations omitted); see also State v. Reedy, 24 P. 66 (Kan. 1890). Similarly, in Ashey, 142 N.E. at 788-89, the Massachusetts Supreme Judicial Court reviewed the English origin of incest laws, noting that English courts have, for at least three centuries, treated half-blood marriages the same as whole-blood marriages. The court noted that the “common meaning” of the terms “‘uncle’ and ‘niece’” include half-blood relationships. Id. at 789. In Tapscott, 684 A.2d at 442-44, the Maryland Court of Appeals agreed with both the Connecticut and Massachusetts courts that, historically, marriages between half-blood uncles and nieces are barred, and that the plain meaning of the terms “uncle” and “aunt” have long-encompassed such a degree of consanguinity. The court added that the Maryland legislature leaving the statute mostly- unchanged for over 200 years reflected the legislature’s intent to continue to prohibit half-blood uncles from marrying their half-blood nieces. Id. at 444. A survey of incest statutes and state case law from across the country, both as relates to marriages and criminal charges, further confirms that Ms. Nguyen’s marriage to her half-uncle should be considered void as a matter of law. Five states - Arkansas, Georgia, Illinois, Kentucky, and Louisiana - have, or previously had, statutes similar to New York’s that were held to prohibit incest between half- blood uncles and nieces, as well as incest between uncles and nieces only related 18 by affinity, despite the statute explicitly barring only half-blood brother and sister marriages. See Heikkila v. State, 98 S.W.3d 805 (Ark. 2003) (defendant properly convicted of incest with a non-blood niece); Wade v. State, 308 S.W.3d 178 (Ark. 2009) (same, as to niece rape conviction); Chestnut v. State, 652 S.E.2d 596 (Ga. 2007) (uncle by affinity guilty of incest with niece, who was the non-biological daughter of his brother); Williams v. McKeene, 1915 WL 2162 (Ill. App. 3d 1915) (half uncle-half niece marriage held incestuous because the 1915 definition of “sister” included a “half-sister”); Burdue v. Commonwealth, 138 S.W. 296 (Ky. Ct. App. 1911) (holding that a half uncle-half niece marriage is incestuous, relying on inheritance distinctions); State v. Guiton, 24 So. 784 (La. 1898) (holding that a half uncle-half niece relationship was incestuous based on the plain meaning of the terms “brother” and “sister”). Illinois, Kentucky, and Louisiana each later amended their statutes to more expressly prohibit such marriages. See 750 Ill. Comp. Stat. Ann. § 5/212(a)(2) (2013) (Illinois); Ky. Rev. Stat. Ann. § 402-010 (2013) (Kentucky); La. Rev. Stat. Ann. § 14:78(A-B); La. Civ. Code Ann. Art. 90 (2013) (Louisiana). The Uniform Marriage and Divorce Act § 207 (1973) also expressly prohibits marriages between half-blood uncles and nieces.6 6 New York has not adopted the Uniform Marriage and Divorce Act in its entirety, but state courts have previously favorably cited it as to provisions other than § 207. R. v. R., 454 N.Y.S.2d 779 (N.Y. Sup. Ct. 1982); Ochs v. Ochs, 749 N.Y.S.2d 650 (N.Y. Sup. Ct. 2002). 19 Similarly, 10 states have concluded that their incest statutes prohibit a half- uncle and half-niece sexual or marital relationship despite their statute remaining silent as to any form half-blood relationship.7 See Singh, 569 A.2d 1112; State v. Sharon H., 429 A.2d 1321 (Del. Super. Ct. 1981); State v. Lamb, 227 N.W. 830 (Iowa 1929); Tapscott, 684 A.2d 439; Ashey, 142 N.E. 788; People v. James, 1858 WL 2321 (Mich. 1858); Commonwealth v. Reigel, 1913 WL 3981 (Pa.Quar. Sess. 1913)8; State v. Smith, 85 S.E. 958 (S.C. 1915); Shelley v. State, 31 S.W. 492 (Tenn. 1895); State v. Wyman, 8 A. 900 (Vt. 1887). Further, in addition to Illinois, Kentucky, and Louisiana, 14 other states have enacted statutes expressly prohibiting half-blood uncles and nieces from engaging in incest. Ala. Code § 13-13-3(a)(4) (2013) (Alabama); Alaska Stat. §§ 11.41.450 and 25.05.021 (2013); Colo. Rev. Stat. Ann. § 14-2-110 (2013) (Colorado); Minn. 7 Eight states have statutes like New York’s that expressly prohibit half-blood brother and sister marriages but are silent as to half-blood uncle and niece marriages and that have not faced the judicial challenge presented here. Ariz. Rev. Stat. § 25-101(A) (2013) (Arizona); Haw. Rev. Stat. Ann. § 572-1(1) (2013) (Hawaii); Idaho Code Ann. § 32-205 (2013); Neb. Rev. Stat. Ann. § 28-702 (2013) (Nebraska); N.M. Stat. Ann. § 30-10-3 (2013) (New Mexico); Okla. Stat. Ann. Tit. 43 § 2 (2013) (Oklahoma); S.D. Codified Laws 25-1-6 (2013) (South Dakota); and Wyo. Stat. Ann. § 20-2-101(a)(iii) (2013) (Wyoming). South Dakota’s statute notably expressly prohibits half-cousins from marrying, but does not specifically mention half-blood uncles and nieces, despite half-cousins being a more-remote degree of consanguinity. 8 Pennsylvania later amended its incest statute to bar half-blood brothers and sisters from marrying, and it specifically bars only whole-blood uncles from marrying their nieces. 18 Pa. Cons. Stat. Ann. § 4302. 20 Stat. § 517.03 (2013) (Minnesota); N.J. Stat. Ann. 37:1-1 (2013) (New Jersey); N.C. Gen. Stat. §§ 51-3 and 51-4 (2013) (North Carolina); N.D. Cent. Code § 14- 03-03 (2013) (North Dakota); Or. Rev. Stat. § 106.020 (2013) (Oregon); Tex. Fam. Code Ann. § 6.201 (2013) (Texas); Utah Code Ann. § 76-7-102(1)(b)(i) (2013) (Utah criminal statute); VA. Code Ann. § 20-38.1 (2013) (Virginia); Wash. Rev. Code Ann. § 26.04.020(b) (2013) (Washington); W. VA. Code Ann. § 48-2-302(a- b) (2013) (West Virginia); Wis. Stat. § 765.03 (2013) (Wisconsin). In total, at least 30 states bar precisely Ms. Nguyen and Mr. Truong’s marriage as a matter of law. In contrast, only five states have expressly concluded that sexual relations between a half uncle and his half niece are permissible, or at least not criminal incest. Baker, 442 P.2d 675; State v. Craig, 867 P.2d 1013 (Ka. 1994); State v. Bartley, 263 S.W. 95 (Mo. 1924). Only two states - Maine, and Rhode Island as previously discussed - enacted statutes permitting such marriages, albeit with attendant codicils. Me. Rev. State. Ann. Tit. 19-A § 701(A-B) (2013) (Maine statute expressly allowing uncles and aunts to marry their nieces and nephews, respectively, but only if the parties complete “genetic counseling”); R.I. Gen. Laws § 15-1-4 (2012) (permitting consanguineous marriages authorized under Jewish law). 21 III. The Cases Holding That Statutes Like New York’s Do Not Bar Relationships Like Ms. Nguyen and Mr. Truong’s Involved Criminal Matters, And Thus Applied A Higher Review Standard Than Should Apply Here Aside from Maine’s and Rhode Island’s statutes, the cases in which each of the California, Kansas, and Missouri courts considered statutes similar to New York’s9 were criminal cases, and thus a higher statutory interpretation standard was applied than should be applied here. In Baker, the defendant was charged with criminal incest, and the Supreme Court of California stated that a criminal defendant enjoys “every reasonable doubt as to whether the statute was applicable to him.” 442 P.2d 675 (internal quotation omitted). Notably in Baker, the court conceded that “[u]ndeniably, the great weight of authority” confirms that sexual relations between half-blood uncles and nieces are barred as incestuous. Id. Nonetheless, because the statute barred whole and half-brothers and sisters, but only whole-blood uncles and nieces, the court concluded that the statute did not apply. Id. 9 Each of the statutes at issue in Baker, Craig, and Bartley were phrased like New York’s, inasmuch as they expressly barred half-brothers and sisters from marrying or engaging in sexual relations, but did not specifically bar half-uncles and nieces. See Cal. Penal Code § 285 and Cal. Fam Code § 2200 (California); Kan. Stat. Ann. § 21-5604(a) (Kansas); and Mo. Rev. Stat. § 568.020 (Missouri). Missouri later amended its statute to expressly state that only whole-blood uncles and nieces cannot engage in sexual relations. 22 In Craig, the defendant was charged with aggravated incest, and, like the Supreme Court of California, the Supreme Court of Kansas “emphasize[d] the fundamental rule that penal statutes must be strictly construed in favor of the accused.” 867 P.2d at 1016. The court also conceded that the “civil law common understanding of the term [‘uncle’]” would include a half-blood uncle. Id. But like California in Baker, the statutory phrasing barring half-blood brothers and sisters without specifying half-blood uncles and nieces precluded attaching criminal guilt to the defendant’s conduct. Id. In Bartley, the Supreme Court of Missouri similarly noted that the criminal incest statute needed to be construed in the light most favorable to the defendant, and strictly against the state. 263 S.W. at 96. The court also conceded that the common understanding of the term “uncle” included half-uncles. Id. Nonetheless, relying on the canon of statutory construction, “expressio unius est exclusio alterius,” which when roughly translated states that the inclusion of one term in a statute inherently establishes the exclusion of another, the court concluded that the legislature’s omission of “half-blood” when proscribing sexual relations between uncles and nieces required the conclusion that sexual relations between a half- uncle and half-niece fell beyond the statute’s purview. Id. 23 Each of these cases involved individuals facing criminal prosecution for engaging in incest. Ms. Nguyen, however, is not facing criminal prosecution.10 Immigration hearings are civil proceedings. INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984) (stating that immigration proceedings are “purely civil action[s]” designed not to punish past transgressions “but rather to put an end to a continuing violation of the immigration laws.”); Rajah v. Mukasey, 544 F.3d 427, 442 (2d Cir. 2008) (citing Lopez-Mendoza). Thus, the Court need not strictly construe N.Y. Dom. Rel. Law § 5(3). A reasonable reading of the statute, considering: 1) the historical backdrop of incest statutes in general; and 2) the common understanding of the terms “uncle” and “niece” as including half-uncles and nieces, indeed as conceded in each of the aforementioned criminal cases, establishes that Ms. Nguyen’s marriage to her half-uncle is void as a matter of law. 10 The immigration consequences of this Court’s decision in this matter are not properly before the Court, inasmuch as this Court lacks jurisdiction over immigration matters. See 8 U.S.C. § 1252(b). The question certified to the Court from the Second Circuit is a pure legal question of statutory interpretation, and thus the Court should not apply any special level of scrutiny in adjudicating this question. 24 CONCLUSION For the foregoing reasons, the Court should affirm that New York law bars marriages between half uncles and nieces. Respectfully submitted, STUART F. DELERY Assistant Attorney General Civil Division MARY JANE CANDAUX Assistant Director /s/ Michael C. Heyse MICHAEL C. HEYSE Trial Attorney JESSICA D. STROKUS Law Clerk Office of Immigration Litigation Civil Division U.S. Department of Justice P.O. Box 878, Ben Franklin Station Washington, D.C. 20044 Telephone: (202) 305-7002 Fax: (202) 616-4923 Dated: July 10, 2014 Attorneys for Respondent CERTIFICATE OF SERVICE I hereby certify that on July 10, 2014, I caused a copy of the foregoing BRIEF FOR RESPONDENT to be filed with the Court using the Court’s Court- PASS electronic filing system. I also mailed paper copies of the foregoing to the Court, as well as to Counsel for Petitioner, via first class United States mail, postage prepaid, to the address listed on the Court’s docket: Michael E. Marszalkowski, Esq. Michael E. Marszalkowski, P.C. 69 Delaware Ave. Suite 602 Buffalo, NY 14202 /s/ Michael C. Heyse MICHAEL C. HEYSE Trial Attorney