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December 9, 1988


The opinion of the court was delivered by: HOGAN


 This is a challenge to the constitutionality of Section 5 of the so-called "Immigration Marriage Fraud Amendments of 1986," 8 U.S.C. §§ 1154(h), 1255(e) (Supp. IV 1986) ("Section 5"). The case is presently before the Court on defendants' Motion to Dismiss and plaintiffs' Motion for Summary Judgment. The Court heard argument on the motions on October 14, 1988. Although the Court sympathizes with plaintiffs' plight, for the reasons set forth below, the Court shall grant defendants' Motion to Dismiss and deny plaintiffs' Motion for Summary Judgment.


 Moises Escobar, a citizen of El Salvador, entered the United States illegally on September 22, 1984. He was apprehended that same day and ordered to show cause why he should not be deported. He admitted deportability and filed an application for political asylum on November 2, 1984. On November 9, 1984, he was permitted to travel to Washington, D.C., where his mother, sister and two brothers reside. At the end of September, 1984, he moved to Hyattsville, Maryland. He has worked continuously since 1984, first as a baker and then at his present job with the Church of Jesus Christ of Latter-day Saints, beginning in January, 1987. It was through the Mormon Church that he met his wife to-be in February, 1987.

 Laura Staples Escobar is a United States citizen. She was born in Mexico and speaks Spanish fluently. She is also a member and employee of the Mormon Church. After she met Mr. Escobar, the couple became engaged and were interviewed by officials of the Mormon Church in connection with their desire to be married in the Mormon Temple, a privilege granted only to those whom Church officials recommend. With the blessing of the Church, the Escobars were indeed married in the Mormon Temple on June 13, 1987.

 On June 29, 1987, Mrs. Escobar filed a marriage petition with the Immigration and Naturalization Service ("INS") requesting that her husband be classified as an "immediate relative." On September 30, 1987, Mr. Escobar withdrew his request for political asylum and was granted a voluntary departure order requiring him to leave the United States by March 30, 1988, later extended to June 25, 1988, with a request for a further extension currently pending.

 Because deportation proceedings were pending against Mr. Escobar at the time of his marriage, Section 5 precluded INS from granting the marriage petition to classify him as an immediate relative until after he has left the country for two years. Faced with this forced exile, the Escobars filed this suit on March 17, 1988, challenging the constitutionality of Section 5.


 "Immediate relatives," including spouses, of United States citizens are exempt from the numerical quotas for immigrants set by the Immigration and Naturalization Act. See 8 U.S.C § 1151 (1982). As the title suggests, the Immigration Marriage Fraud Amendments of 1986 were enacted to counter the problem of "sham" marriages, or marriages entered solely for the purpose of circumventing the immigration laws. See generally Fraudulent Marriage and Fiance Arrangements to Obtain Permanent Resident Immigration Status: Hearing Before the Subcomm. on Immigration and Refugee Policy of the Senate Comm. on the Judiciary, 99th Cong., 1st Sess. (1985). As Representative Mazzoli explained in introducing the legislation to the House, it

addresses the problem of marriage fraud. Because spouses of U.S. citizens are -- and I think quite rightly -- given special consideration under our immigration laws, many aliens who would not otherwise be allowed to live in the United States find it expedient to enter into a fraudulent marriage.

 132 Cong. Rec. H8587 (daily ed. Sept. 29, 1986) (statement of Rep. Mazzoli).

 Section 5, entitled "Two-year waiting period before granting immediate relative status," provides that "a petition may not be approved to grant an alien immediate relative status or preference status by reason of a marriage which was entered into during the period described in section 245(e)(2), until the alien has resided outside the United States for a 2-year period beginning after the date of the marriage." 8 U.S.C. § 1154(h). The cross-referenced section, 245(e)(2), in turn, defines the relevant period as that "during which administrative or judicial proceedings are pending regarding the alien's right to enter or remain in the United States." Id. at § 1255(e)(2). Nor may "an alien who is seeking to receive an immigrant visa on the basis of a marriage which was entered into during the period described" have his or her status adjusted. Id. at § 1255(e)(1).

 If the marriage was entered before this period, however, Section 2 applies. Under that section, a marriage petition may be considered without the two-year waiting period abroad, and the alien spouse may be granted "conditional permanent resident status." Id. at § 1186a(a). The conditional permanent resident status lasts for a probationary two-year period and is subject to revocation if it is shown by a preponderance of the evidence that the marriage "was entered into for the purpose of procuring an alien's entry as an immigrant"; or "has been judicially annulled or terminated, other than through the death of a spouse"; or that "a fee or other consideration was given" for filing the marriage petition. Id. at § 1186a(b)(1). Finally, within ninety days before the second anniversary, or later if good cause is ...

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