Wednesday, July 24, 2002
Immigrant Who Married American Denied Fair Hearing On Adjustment of Status, Ninth Circuit Rules
By a MetNews Staff Writer
An immigrant whose petition for adjustment of status, based on his marriage to a citizen, was denied after a hearing at which his wife was unable to testify because she was hospitalized due to a psychiatric disorder was denied due process, the Ninth U.S. Circuit Courts of Appeals ruled yesterday.
In an opinion by Senior Judge Warren Ferguson, joined by Judge Ronald Gould, the panel ordered the INS to grant Emmanuel Senyo Agyeman a new hearing on his petition. Judge Andrew Kleinfeld dissented, saying the decision “creates bizarre new constitutional law” by requiring immigration judges “to act as lawyer and psychiatrist.”
Ferguson said an immigration judge treated Agyeman unfairly by ruling that his marriage to Barbara Levy did not entitle him to resident status, on the ground that Levy did not attend a scheduled interview with the agency. Levy was not able to attend, Ferguson said, because she was hospitalized in New Jersey at the time.
Agyeman, a native of Ghana, came to the United States as a visitor in 1988, married Levy in 1991, lived with her in New Jersey for a time, received an immediate relative visa in 1992, and moved to Nevada in 1993. He was taken into Immigration and Naturalization Service custody in 1997, charged with overstaying his visa because he had not obtained an adjustment of status, and found deportable.
The immigration judge told Agyeman that his marriage to a citizen could not result in an adjustment of status unless his wife was “physically present” to be examined concerning the bona fides of their marriage. When she did not appear following a continuance, the IJ denied adjustment of status and granted a request by Agyeman, who was in custody in Arizona at the time, a voluntary departure to Ghana.
The Board of Immigration Appeals affirmed. It found that Agyeman had not established his marriage to be valid and that he was not entitled to a suspension of deportation because he failed to demonstrate that he or Levy would suffer “extreme hardship” if he had to return to Ghana.
But Ferguson, writing for the court, concluded that Agyeman was not given the “full and fair hearing” to which he was entitled under the Fifth Amendment.
No law requires that an immigrant’s spouse be present or testify at a deportation hearing, the judge said, adding that the IJ should have explained that he was only required to give proof of a bona fide marriage.
Agyeman, Ferguson noted, had filed an application for adjustment of status, which was denied because Levy was unable to attend an interview. The record, Ferguson explained, showed that Levy suffered from bipolar disorder and was hospitalized for months at a time.
It was unclear whether Levy attempted to get to Arizona for the deportation hearing, the judge said. In any event, he added, the IJ was aware that Levy was seriously ill, yet “he still required Agyeman to procure her attendance and interpreted her subsequent absence as dispositive in his determination that Agyeman’s marriage to Levy was not bona fide.”
Under the circumstances, Ferguson said, “the IJ had a duty to apprise Agyeman of reasonable means of proving” the bona fides of the marriage.
Kleinfeld, dissenting, accused the majority of “offering a psychiatric diagnosis and prognosis of the wife that no physician has ever given, so far as the record shows” and of reaching conclusions about the nature of Levy’s disorder based on “generic research done in an appellate judge’s chambers, totally without foundation in the record.”
The case is Agyeman v. Immigration & Naturalization Service, 99-70396.
Copyright 2002, Metropolitan News Company