United States Court of Appeals,

Fifth Circuit.

No. 96-60335

Summary Calendar.

Marcia M WITTER; Abraham Nee Ntreh, Petitioners,

v.

IMMIGRATION and NATURALIZATION SERVICE, Respondent.

May 30, 1997.

Petition for Review of an Order of the Board of Immigration Appeals.

Before DAVIS, EMILIO M. GARZA and STEWART, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Marcia M. Witter and Abraham Nee Ntreh seek review of a final order of the B o ard of

Immigration Appeals ("BIA" or "Board ") finding them deportable under § 241(a)(1)(A) of the

Immigration and Nationality Act ("INA"), 8 U.S.C. § 1251(a)(1)(A). We affirm.

I

Witter is a native of Ja maica and citizen of the United Kingdom. Abraham Nee Ntreh is a

native and citizen of Ghana. Both entered the United States legally and were married in Dallas, Texas

in August 1988. In May 1989, Nee Ntreh filed a petition fo r annulment alleging that Witter had

fraudulently induced him to marry her, that the couple had never lived together, and t hat they had

never consummated the marriage. Witter signed a waiver of notice in which she swore that she read

and understood the annulment petition and agreed that the petition could be considered by the court

without further noti ce to her. A transcript of the hearing indicates that Nee Ntreh appeared and

testified at the proceeding. The court granted the annulment and sent a copy of the order to Witter

at the address provided in the waiver. Witter's apartment number was omitted from the address to

which the order was sent.

While in London five months later, Petitioners applied for new immigrant visas with the

American embassy, representing that they were married and presenting their 1988 marriage certificate1 INA § 212(a)(6)(C)(i) states: "Any alien who, by fraud or willfully misrepresenting a material

fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or

entry into the United States or other benefit provided under this chapter is excludable." In 1990,

Congress amended the INA, redesignating INA § 212(a)(19) as § 212(a)(6)(C)(i), codified at 8

U.S.C. § 1182(a)(6)(C)(i). The amendment, however, applies only to individuals entering the

United States on or after June 1, 1991. Because Petitioners entered the United States in 1989,

the show cause orders should have charged excludability under § 212(a)(19). However, the

Board found that Petitioners never objected to the designation and that they suffered no prejudice

from the error, since the language of INA § 212(a)(19) and amended § 212(a)(6)(C)(i) are

identical in all relevant respects. All subsequent references in this opinion will be to INA §

212(a)(19).

2 INA § 212(a)(6)(E)(i) states: "Any alien who at any time knowingly has encouraged,

induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in

violation of law is excludable."

3 INA § 241(a)(1)(G)(ii) states: "An alien shall be considered to be deportable as having

procured a visa or other documentation by fraud ... if ... it appears to the satisfaction of the

Attorney General that the alien has failed or refused to fulfill the alien's marital agreement which

in the opinion of the Attorney General was made for the purpose of procuring the alien's entry as

an immigrant." as evidence. Witter received a preference for entry based on her employment as a nurse at Parkland

Hospital in Dallas. Nee Ntreh's application was granted because he was Witter's spouse. Petitioners

made no mention of the annulment in their visa applications.

In June 1993, the Immigration and Naturalization Service ("INS") issued show cause orders

against Witter and Nee Ntreh alleging that they were deportable under INA § 241(a)(1)(a) for having

willfully misrepresented a material fact in order to obtain Nee Ntreh's visa und e r INA §

212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i). 1 The INS later filed additional charges against Witter,

alleging that she was excludable under INA § 212(a)(6)(E)(i), 8 U.S.C. § 1182(a)(6)(E)(i), for alien

smuggling. 2 In addition, t he INS charged Nee Ntreh with marriage fraud under INA §

241(a)(1)(G)(ii), 8 U.S.C. § 1251(a)(1)(G)(ii). 3

At that time, Petitioners filed a petition in Texas sta t e court seeking to set aside the 1989

annulment order. Petitioners alleged that they never intended to complete the annulment and only

recently discovered that an order annulling their marriage had been issued. Nee Ntreh testified that

he did not attend the original annulment hearing and that he and Witter had never lived apart. The

state court set aside the annulment based on Petitioners' repr esentations. However, the State

subsequently charged Nee Ntreh with perjury based on his representations regarding the annulment.4 Congress recently passed the Antiterrorism and Effective Death Penalty Act of 1996

("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, and the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009, which

amended 8 U.S.C. § 1105a(a)(10) in part to significantly curtail our jurisdiction to review certain

orders of the Board. See Mendez-Rosas v. INS, 87 F.3d 672 (5th Cir.1996), cert. denied, --- U.S.

----, 117 S.Ct. 694, 136 L.Ed.2d 617 (1997); Pichardo v. INS, 104 F.3d 756 (5th Cir.1997); 8

U.S.C. § 1105a(a)(10) (removing federal court jurisdiction to review deportation orders based on

certain criminal convictions). However, the AEDPA and IIRIRA do not affect our jurisdiction to

consider orders involving application of INA § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i), or its

predecessor provision, INA § 212(a)(19). After the deportati on proceedings were set for hearing, Nee Ntreh requested a continuance

until the state criminal perjury charges against him were resolv ed. Nee Ntreh explained that he

wished to testify in his own defense but did not wish to sacrifice h is Fifth Amendment privilege

against self-incrimination. The Immigration Judge ("IJ") denied the continuance. However, the IJ

did not compel Nee Ntreh to take the stand when the INS called him as a hostile witness.

The IJ found Witter and Nee Ntreh deportable as charged. On appeal, the BIA affirmed the

IJ's denial of a continuance and its determination that both Witter and Nee Ntreh were deportable for

willful misrepresentation under INA § 212(a)(19). However, the Board dismissed the alien smuggling

charge against Witter, fin ding no evidence that Witter had engaged in smuggling "for gain," an

essential element of the offense. The Board also dismissed the marriage fraud charge against Nee

Ntreh.

Petitioners t imely petitioned for review, arguing that (1) the BIA erred in refusing to relate

back the order vacating the annulment to validate thei r marriage a b initio, thus curing any alleged

misrepresentation on their visa petition; (2) the Board erred in finding that there was no common law

marriage; (3) the Board erred in finding Petitioners' misrepresentations to be "willful"; (4) Witter's

representations of marital status were immaterial to her visa application, thus INA § 212(a)(19) does

not apply to her; and (5) the Board abused its discretion in affirming the IJ's denial of Nee Ntreh's

motion for continuance.

II

We have jurisdiction to review the Board's decision under INA § 106, 8 U.S.C. § 1105a(a). 4

We will affirm an order of deportati on issued by the BIA if supported by "reasonable, substantial, andprobative evidence on the record considered as a whole." C arbajal-Gonzalez v. INS, 78 F.3d 194,

197 (5th Cir.1996) (internal citations omitted). We review findings of fact for substantial evidence.

Id. We will affirm the Board's findings of fact unless the alien can show that the evidence in his favor

"was so compelling that no reasonable factfinder could conclude against it." I d. We review

conclusions of law de novo, but with deference to the BIA's interpretation of ambiguous statutory

provisions. Id.

A

The state court order vacating the annulment retroactively va lidat ed Petitioners' marriage

from its inc ept ion under Texas law; thus, Witter and Nee Ntreh are now formally married.

Petitioners assert that the order vacating the annulment proves that they were married at the time of

entry, and thus their statements conce rning marit al status on their visa applications were not

misrepresentations. The BIA affirmed the IJ's finding that although the order vacating the annulment

"may be valid for all concerns of th e state, ... it cannot and does not make a lie uttered to a visa

o fficer in 1989 a truthful statement when it was made." Petitioners assert that the BIA erred in

refusing to give retroactive effect to the order to cure the misrepresentation.

We have never specifically addressed this issue; however, Petitioners' assertion is contrary

to decisions of the Seventh and Ninth Circuits and the BIA. In Hendrix v. INS, 583 F.2d 1102, 1103

(9th Cir.1978), the Ninth Circuit held that a woman admitted to the United State s based on her

representation that she was unmarried could not retroactively cure the fact that she was married at

the time of entry by obta ining a subsequent annulment. The court held that "[u]nless unusual

circumstances dictate that in the interest of justice retroactive effect should be given

... it is the marital

status at the time of entry that should serve as the basis for one alien's preferment over others." Id.

(internal citation omitted).

The Seventh Circuit, in a case factually similar to Hendrix, held that willful misrepresentation

under INA

§ 212(a)(19) focused on the alien's subjective state of mind at the time of the

representation, not on technical legal issues invo lving the validity of the marriage or retroactivity of

the annulment under the law of the jurisdiction in which it was granted. G arcia v. INS, 31 F.3d 441,5 Petitioners' reliance on Mayo v. Schiltgen, 921 F.2d 177 (8th Cir.1990), is misplaced. In that

case, the Eighth Circuit stated that an alien who represented that she was unmarried on her visa

application despite the fact that she believed she was married might not be guilty of

misrepresentation if her marriage was void under the law of her home country at the time of entry.

Id. at 180. Mayo apparently conflicts with the Seventh Circuit's holding in Garcia that §

212(a)(19) focuses on the alien's state of mind, not legal technicalities. We need not decide which

is the proper interpretation of the statute. As an initial matter, the Eighth Circuit's pronouncement

was dictum; the court reversed and remanded because the district court affirmed the BIA on

grounds that the agency had not considered. Furthermore, in the instant case, the BIA found that

Witter and Nee Ntreh, unlike Mayo, both believed that they were unmarried at the time of entry to

the United States and were, in fact, unmarried at that time under Texas law. 443 (7th Cir.1994). The court accordingly refused to give retroactive effect t o an annulment

procured after entry to the United States to sanction a willful misrepresentation made at the time of

application for the visa. I

d. ; s ee also Matter of Magana, 17 I & N Dec. 111 (BIA 1979) (alien who

entered United States based on marriage to American citizen although already married to noncitizen

could not overcome charges of fraud by subsequently having first marriage annulled); c f. Matter of

Astorga, 17 I & N Dec. 1 (BIA 19 79) (holding that annulment related back to original date of

marriage where there was no fraud, misrepresentation, or manipulation of immigration law). 5

The BIA found that Witter and Nee Ntreh were not legally married under Texas law at the

time of their visa applications, regardless of the legal fiction created by the subsequent order vacating

the annulment. The record shows that Petitioners sought to vacate their annulment only after they

lear ned t hat t he INS contemplated deportation proceedings against them. The fact that this case

involves an order vacating an annulment, rather than an annulment as in the precedents cited, does

not alter the application of the basic principle that changes in marital status undertaken after entry into

the United States should not be used to manipulate immigration law. See Garcia, 31 F.3d at 444;

Hendrix, 583 F.2d at 1104. The BIA properly refused to relat e back the order vacating the

annulment to cure Petitioners' misrepresentations.

B

Witter and Nee Ntreh next claim that even though their 1988 ceremonial marriage had been

annulled, they subsequently entered int o a common-law marriage prior to their visa applications.

Therefore, they argue, they did not misrepresent their marital status. This argument lacks merit.

First, the BIA found that Petitioners relied upon their annulled 1988 ceremonial marriage, not upon6 Moreover, the BIA did not abuse its discretion by refusing to consider new evidence

proffered by Petitioners on appeal on the grounds that the evidence was either available prior to

the IJ's decision or was immaterial to deportation. See Reyes-Hernandez v. INS, 89 F.3d 490,

494 (7th Cir.1996) (noting that although Board may receive evidence not submitted to IJ, its

practice is not to do so, but rather to remand to IJ only if it believes evidence might change

outcom e). a subsequently arising common law marriage, when representing that they were married on their visa

applications. The record shows that Petitioners listed 1988 as their marriage date and presented their

1988 marriage certificate to the embassy as proof of their marital status. There is no evidence that

Petitioners informed the visa officer that th e ceremo nial marriage evidenced by the certificate had

been annulled and that they were in st ead relying on a common law marriage arising after the

annulment.

Furthermore, the Board found that the evidence did not support the existence of a common

law marriage. Under Texas law, three elements are necessary to establish a common law marriage.

The parties must (1) agree to be married, (2) live together after the agreement as husband and wife,

and (3) represent to others that they are married. Tex. Fam.Code Ann. § 1.91(a)(2) (Vernon 1993);

see Estate of Giessel, 734 S.W.2d 27, 30 (Tex.App.1987, writ ref'd n.r.e.). Substantial testimonial

and documentary evidence supports the BIA's findings that after the annulment, Petitioners resided

at separate addresses, listed themselves as single on various documents, referred to each other as

"friends," "cousins," "relatives," or siblings, and, in light of the circu mstances surrounding the

annulment, never formed the requisite intent to be married. Therefore, the Board properly found that

Petitioners were not married under the common law at the time of their visa applications, and their

averments to the contrary constituted misrepresentations. 6

C

Petitioners argue in the alternative that any misrepresentations concerning their marital status

were not made "willfully" as required under § 212(a)(19). The element of willfulness is satisfied by

a finding that the misrepresentation was deliberate and voluntary. Espinoza-Espinoza v. INS, 554

F.2d 921, 925 (9th Cir.1977). Proof of an intent to deceive is not required; rather, knowledge of the

falsity of the representation is sufficient. Id.; Forbes v. INS, 48 F.3d 439, 442 (9th Cir.1995).7 The court records indicating the address to which notice of the annulment was sent did not

specify Witter's apartment number. Witter argues that this omission proves that she did not

receive actual notice of the final decree. We disagree. The omission of the apartment number is

not conclusive proof that the annulment decree was never properly delivered. Moreover, the IJ

found Witter's testimony that she "couldn't remember" receiving notice of the annulment decree

not credible. Petitioners argue that they held a good faith belief that they were married because they had

no knowledge of the annulment de c ree. Substantial evidence, however, supports the BIA's

co nclusion that both Petitioners were aware that their marriage had been annulled. Nee Ntreh

initiated the annulment proceeding and was personally present at the hearing. Although Witter did

not attend the hearing, she signed a waiver of citation and notice in the cause, effectively conceding

the allegations made in the annulment petition and explicitly allowing the court to consider the

petition without further notice to her. Court records show that a copy of the annulment decree was

mailed to her address. 7 Therefore, the BIA properly determined that both Witter and Nee Ntreh knew

at the time that they applied for their visas that their marriage had been annulled.

D

Witter argues that even if she willfully misrepresented that she and Nee Ntreh were married,

INA § 212(a)(19) do es not apply to her actions. The statute requires that the willful

misrepresentation be material to the pro curement of a visa. Although Nee Ntreh's visa was

contingent upon his purported marriage to Witter, Witter sought entry to the United States based on

her employment as a nurse. Witter's marital status, while relevant to Nee Ntreh's entry, was irrelevant

to the procurement of her own visa petition. See Kungys v. United States, 485 U.S. 759, 772, 108

S.Ct. 1537, 1547, 99 L.Ed.2d 839 (1988) (holding that test of whether misrepresentations are

material is whether they had natural tendency to influence decision of INS); F orbes, 48 F.3d at 442-

43 (applying Kungys definition of "materiality" to INA § 212(a)(19)). Witter argues that §

212(a)(19) does not apply to aliens who make misrepresentations material only to the procurement

of visas for others.

Witter did not raise this issue before the IJ or on appeal to the Board, and neither the IJ's nor

the BIA's decision addresses the question. We have no jurisdiction to consider issues that were notpresented to or considered at the administrative level on appeal. Y

ahkpua v. INS, 770 F.2d 1317,

1320 (5th Ci r.1985); K

a Fung Chan v. INS, 634 F.2d 248, 258 (5th Cir.1981); INS § 106(c), 8

U.S.C. § 1105a(c) ("An order of deportati on or of exclusion shall not be reviewed by any court if the

alien has not exhausted the administrative remedies available to him as of right under the immigration

laws and regulations....").

Witter, however, asserts that she was unaware that INA § 212(a)(19) constituted the basis

of her deportability until the Board issued its final decision. Witter argues that the IJ's decision after

remand strongly suggested that her deportability rest ed on the alien smuggling charge, not §

212(a)(19). Only after the BIA dismissed the smuggling charge and affirmed her deportation was it

clear that § 212(a)(19) constituted the basis of her deportation. Therefore, Witter asserts, she had

no opportunity to raise the issue of materiality before the Board.

We disagree. The sho w cause orders issued to Witter clearly charged her with both

misrepresentation of a material fact for the purpose of procuring a visa for Nee Ntreh and with alien

smuggling. Although the IJ's decisio n do es no t specifically discuss the individual charges or their

elements and couched its discussion of Witter's deportability in terms of "aiding and abetting," the IJ

specifically found Witter "deportable as charged." At no time did the IJ dismiss the § 212(a)(19)

charge against her, and either charge alone was sufficient to support her deportati on. Witter's neglect

in failing to raise the issue of materiality before the Board does not excuse her failure to exhaust her

administrative remedies. Consequently, we lack jurisdiction to consider the materiality of Witter's

misrepresentations.

E

Nee Ntreh argues that the BIA abused its discretion by affirming the IJ's denial of his request

for a continuance of the deportati on proceeding until the completion of the pending state cr iminal

proceeding against him. The grant of a continuance of a deportati on hearing lies within the sound

discretion of the immigration judge, who may grant a continuance upon a showing of good cause.

Patel v. INS, 803 F.2d 804, 806 (5th Cir.1986); 8 C.F.R. § 3.29 ("The Immigration Judge may grant

a motion for continuance for good cause shown."); 8 C.F.R. § 242.13 ("After the commencementof the hearing, the Immigration Judge may grant a reasonable adjournment either at his or her own

instance or, for good cause shown, upon application by the respondent or the Service.").

Nee Ntreh asserts that he was unable to testify in his defense at the deportati on hearing

because to do so would have jeopardized his Fifth Amendment right against self-incrimination in the

criminal proceeding. The BIA found that Nee Ntreh failed to show good cause for a continuance,

citing the Third Circuit's decision in Musso v. INS, 574 F.2d 794, 795 (3rd Cir. 1978) (rej ecti ng

argument that choice between asserting privilege against self-incrimination and entry of defense in

deportation proceeding unlawfully burdened exercise of Fifth Amendment rights).

We find no abuse of discretion in the Board's determination. The mere fact t hat a parallel

criminal proceeding exists does not undercut Nee Ntreh's constitutional privilege. H oover v. Knight,

678 F.2d 578, 581 (5th Cir.1982) (holding that parallel criminal and civil proceedings alone do not

raise questions of constitutional magnitude with respect to privilege against self-incrimination). Nee

Ntreh was under no obligation t o t est ify at the deportation hearing; his Fifth Amendment right

against self-incrimination was thus unimpaired. Neither Nee Ntreh's testimony, nor a negative

inference drawn from his failure to testify, was necessary for a finding of deportability. Indeed, the

record does not indicate that the Board drew any negative inference from Nee Ntreh's silence, even

though it would have been constitutionally permitted to do so. B axter v. Palmigiano, 425 U.S. 308,

318, 96 S.Ct. 1551, 1558, 47 L.Ed.2d 810 (1976) (holding that Fifth Amendment "does not forbid

adverse inferences against parties to civil actions when they refuse to testify in response to probative

evidence offered against them"); H oover, 678 F.2d at 582 n. 1 (applying Baxter in deportati o n

context). The decision whether or no t t o t est ify necessarily implies some collateral limitations on

one's abilit

y to ass ert a claim o r a defense. Such difficult litigation choices, however, do not

substantially infringe Fifth Amendment rights. Hoover, 678 F.2d at 582; Musso, 574 F.2d at 795.

Moreover, although Nee Ntreh argues that the IJ merely had to postpone the proceedings

for "a matter of weeks," Nee Ntreh was unable to inform the IJ, when requesting the continuance,

when he expected the criminal proceedings to be completed. In fact, Nee Ntreh's counsel informed

the IJ that the criminal proceedings were not a priority because Nee Ntreh was out on bond, thusimplying that the continuance might be lengthy. The BIA did not abuse its discretion in affirming the

IJ's refusal to grant a continuance of indefinite duration.

III

Finally, Petitioners request that we remand the case for consideration of their eligibilit y for

voluntary departure under INA § 244(e), 8 U.S.C. § 1254(e). Petitioners did not request voluntary

departure in the agency proceedings. To qualify for voluntary departure in lieu o f deportation,

Petitioners must establish that they have exhibited good moral character for at least five years prior

to their request. INA § 244(e). In light of the IJ's determination that they had misrepresented their

marital status in November 1989, Petitioners assert that they could not have qualified as persons of

good moral character under the statute until November 1994, when their appeal was already pending

before the Board. See Cipriano v. INS, 24 F.3d 763, 76 4-65 (5th Cir.1994) (hol di ng that ti m e

required for relief from deportation continues to accrue during nonfrivolous appeal to BIA).

We do not find that these new circumstances warrant remand. A motion to reopen filed with

the BIA is the proper procedure for proffering new evidence pertaining to a request for discretionary

relief from deportation. Faddoul v. INS, 37 F.3d 185, 190-91 (5th Cir.1994); 8 C.F.R. § 3.2.

IV

For the foregoing reasons, we AFFIRM the decision of the BIA in all respects.