Wake Forest Law Review

wedding

By Elissa Hachmeister

On Monday, February 2, in the criminal case of United States v. Fatih Sonmez, a published opinion, the Fourth Circuit held that the District Court for the District of Maryland did not abuse its discretion when it rejected the defendant’s proposed jury instructions in favor of a charge tracking the actual statutory language.

Immigration Marriage Fraud Conviction and Proposed Jury Instructions

A jury convicted Sonmez of marriage fraud in violation of 8 U.S.C. § 1325(c), which applies when an individual “knowingly enters into a marriage for the purpose of evading any provision of the immigration laws.”

On appeal, Sonmez contended that the district court erred when it rejected his proposed jury instructions on the elements of the offense under Section 1325(c). Specifically, Sonmez’s proposed instructions required the government to prove that “the only reason the marriage was entered into was to obtain an immigration benefit” and that “the defendant and his US citizen spouse had no intent to establish a life together.” Instead, the trial court instructed the jury that the government must prove “that the marriage was entered into for the purpose of evading a provision of the United States immigration laws.”

Denial of Proposed Jury Instructions Reviewed for Abuse of Discretion

A district court’s denial of proposed jury instructions is reviewed for abuse of discretion; to establish abuse of discretion in this context, a defendant must show that the proposed instructions (1) were “correct,” (2) were “not substantially covered by the charge that the district court actually gave to the jury,” and (3) “involved some point so important that the failure to give the instruction[s] seriously impaired the defendant’s defense.” United States v. Bartko, 728 F.3d 327, 343 (4th Cir. 2013).

Proposed Jury Instructions Were Incorrect Statements of Law

Explaining that it must interpret statutory language as written, see Ignacio v. United States, 674 F.3d 252, 255 (4th Cir. 2012), the Fourth Circuit reasoned that the instructions sought by Sonmez were not supported by the plain language of Section 1325(c), but instead would have changed the elements of the crime.

The Fourth Circuit cited approvingly to the Sixth Circuit’s decision in United States v. Chowdhury, where a similar instruction to the one ultimately given by the trial court, requiring the government to prove that the defendant “entered into the marriage for the purpose of evading the United States immigration laws,” was held proper because it tracked the language of statute. 169 F.3d 402, 406-07 (6th Cir. 1999). Indeed, the majority of circuits that have considered the language of Section 1325(c) have set forth elements consistent with the district court’s instructions to the jury in this case. See United States v. Yang, 603 F.3d 1024, 1026 (8th Cir. 2010); United States v. Darif, 446 F.3d 701, 709-10 (7th Cir. 2006); United States v. Islam, 418 F.3d 1125, 1129-30 (10th Cir. 2005); United States v. Rojas, 718 F.3d 1317, 1320 (11th Cir. 2013).

The Fourth Circuit characterized the Ninth Circuit’s contrary decisions, see, e.g.United States v. Orellana-Blanco, 294 F.3d 1143, 1151 (9th Cir. 2002) (requiring as an element of the offense that the government prove that the defendant had no intent to establish a life with his spouse at the time of the marriage), as unpersuasive and imposing “a requirement completely apart from the statutory language.”

Court of Appeals for the Fourth Circuit Affirmed the District Court’s Judgment

The Fourth Circuit affirmed, holding that the district court did not abuse its discretion in declining to give the proposed jury instructions because they were not correct statements of the law.

By: Carson Smith

Last Wednesday, the Fourth Circuit denied two separate petitions for review of removal orders, each of which addressed the question of whether an individual qualifies as a lawful permanent resident in the United States. In Chavez v. Holder, the Court upheld the Board of Immigration’s (BIA) decision to remove the plaintiff, a permanent resident, from the United States because of a larceny conviction. Full details of the Court’s decision can be found here. In Zoubairi v. Holder, the Court upheld the BIA’s ruling that Plaintiff, Khalil Zoubairi, did not qualify for lawful permanent residency (LPR) because the marriage from which LPR status could have arisen was not entered into in good faith. Consequentially, Zoubairi and his two sons were ordered to be removed from the United States.

Zoubairi entered the United States in 1995 on a tourist visa. While Zoubairi overstayed the visa, no legal action was taken, and, in 2001, he married Joyce Clark, a United States citizen. Under 8 U.S.C. § 1186, an alien is conditionally granted LPR status upon marriage to a citizen. However, LPR status only applies for the course of the marriage. In 2004, the couple jointly filed a petition to remove the conditional element. In response, the Department of Homeland Security (DHS) claimed that Zoubairi and Clark’s marriage was not entered into in good faith and that the conditional LPR status should be removed.

Zoubairi and Clark divorced in 2005. In 2008, Zoubairi withdrew the jointly-filed petition and, in its place, applied for a waiver of the joint-filing requirement pursuant to 8 U.S.C. § 1186(a)(C)(4). This section of the statute allows for the extension of full LPR status to aliens who (1) have alien children, (2) were previously married to a United States citizen, and (3) would undergo extreme hardship if removed from the country. The DHS denied the application and filed for removal proceedings in immigration court.

In 2012, the immigration court judge ordered Zoubairi and his two sons to be removed from the United States, finding that the marriage between Zoubairi and Clark was not entered into in good faith. The BIA dismissed Zoubairi’s appeal on the basis that the immigration judge had made no clear error in his ruling. A timely appeal to the Fourth Circuit followed.

In determining whether a marriage is entered into in good faith, the Court asked “whether [the couple] intended to establish a life together at the time they were married.” To answer this question, the Court looked to (1) the assets and liabilities of the parties; (2) the length of cohabitation during the marriage; and (3) birth certificates of any children born during the marriage. After laying out the standard and pertinent factors, the Fourth Circuit “conclude[d] that the evidence in the record clearly and overwhelmingly support[ed] [BIA’s] determination that Zoubairi did not intend to establish a marital life with Clark at the time he entered into the marriage.” It can be inferred that the Court found persuasive the numerous inconsistencies between the testimony of Zoubairi and Clark regarding their marriage. Accordingly, the Court upheld the denial of Zoubairi’s petition for removal.