Pacita Imana Hilacion v. Immigration and Naturalization Service
Docket: 93-70982
Court: Court of Appeals for the Ninth Circuit; June 19, 1995; Federal Appellate Court
Ninth Circuit Rule 36-3 states that non-published dispositions are not precedential and should only be cited in specific legal contexts. In the case of Pacita Imana Hilacion v. Immigration and Naturalization Service (No. 93-70982), the Ninth Circuit reviewed Hilacion's petition against a Board of Immigration Appeals (BIA) decision declaring her deportable due to a fraudulent marriage and denying her applications for hardship waiver and voluntary departure. Key points include:
1. Hilacion, a citizen of the Philippines, argued that the Immigration Judge (IJ) lacked jurisdiction because the Order to Show Cause (OSC) was issued before the District Director denied her relief applications, claiming this violated her Fifth Amendment right to due process. The court found she did not raise this issue before the IJ or BIA, leading to a failure to exhaust remedies and depriving the court of jurisdiction to review it.
2. Despite due process claims generally being exempt from pre-agency raising requirements, the court concluded that procedural errors not raised before the agency cannot be reviewed simply by alleging due process violations.
3. Hilacion contested the IJ's finding that her marriage was a sham, asserting the government did not meet the burden of proof. However, the BIA confirmed the IJ's findings, which included sworn statements from Hilacion and her husband admitting the marriage was arranged solely for immigration benefits, with financial incentives involved.
The Ninth Circuit ultimately denied Hilacion’s petition for review.
Petitioner provided a sworn statement indicating her marriage was arranged by Ligaya and Romulo 'Garingo' and that she had not cohabited with her husband since arriving in the U.S. over a month ago, although she admitted to having sex with Hilacion on their wedding night. However, during the deportation hearing, both Petitioner and Hilacion altered their previous statements significantly. Hilacion claimed they lived together intermittently, had a sexual relationship, shared household responsibilities, and filed a joint tax return in 1992, asserting that he married her voluntarily without payment. He later stated that much of his earlier sworn statement was false due to fear of the Immigration officer.
Petitioner corroborated Hilacion's claim of cohabitation and responsibilities but stated she did not understand her previous sworn statement, which contradicted the interpreter's testimony that it was read to her before signing. The Immigration Judge (IJ) found both their testimonies highly unreliable, highlighting the inconsistencies between their sworn statements and hearing testimonies. The IJ described Hilacion as an unreliable witness, citing his inability to recall basic details, and deemed Petitioner’s testimony similarly unconvincing. The IJ determined there was no evidence to refute the government interpreter's and Immigration Officer's credibility.
Consequently, the IJ concluded that the marriage was a sham based on substantial evidence from the conflicting accounts. Additionally, Petitioner claimed she was not informed of her right to counsel when giving her sworn statement; however, it was clarified that she had no constitutional right to counsel at that time.
Aliens possess a Fifth Amendment due process right to counsel at their own expense during deportation proceedings, supported by both statute (8 U.S.C. § 1362) and regulation (8 C.F.R. § 242.1). However, since Petitioner provided her sworn statement to the Immigration Officer before any deportation proceedings were initiated, she had no constitutional right to counsel at that time.
Regarding the hardship waiver, the Immigration Judge (IJ) properly considered relevant factors in denying Petitioner’s application, as established in Matter of Anderson, 16 I&N Dec. 596 (BIA 1978). Even if the hardship to a spouse could be considered, Petitioner did not provide evidence of any potential hardship her husband would face due to her deportation, supporting the IJ's decision.
On the issue of voluntary departure, the Board of Immigration Appeals (BIA) correctly vacated the IJ's grant of this relief. Under 8 U.S.C. § 1254(e), an alien must demonstrate good moral character for voluntary departure eligibility. Given that the IJ found Petitioner’s testimony to be incredible, she could not be deemed of good moral character, thus making her ineligible for voluntary departure. The BIA's decision to deny the petition for review is upheld, and the case publication is restricted as per 9th Cir. R. 36-3. Additionally, efforts by Petitioner's counsel to introduce new evidence of hardship not present in the administrative record were viewed unfavorably by the court.
