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Nguyen v. Holder

United States Court of Appeals, Second Circuit

February 19, 2014

HUYEN V. NGUYEN, Petitioner,
v.
ERIC H. HOLDER, JR., United States Attorney General, Respondent

Submitted January 16, 2014.

Page 312

Petition for review of a decision of the Board of Immigration Appeals, which affirmed an immigration judge's order of removal and denial of a petition to remove the conditions on the petitioner's residency. We conclude that although the determination that the petitioner and her husband were related as niece and husband by " half-blood" is supported by substantial evidence, the question of whether such relationships are void for incest under New York's Domestic Relations Law warrants certification to the New York Court of Appeals.

DECISION RESERVED AND QUESTION CERTIFIED.

Michael E. Marszalkowski, Buffalo, NY, for Petitioner.

Michael C. Heyse, Trial Attorney, Stuart F. Delery, Assistant Attorney General, and Mary Jane Candaux, Assistant Director, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

Before: KATZMANN, Chief Judge, WESLEY and CHIN, Circuit Judges.

OPINION

Page 313

Katzmann, Chief Judge :

Petitioner Huyen V. Nguyen (" Nguyen" ), a citizen of Vietnam, seeks review of an order of the Board of Immigration Appeals (" BIA" ) dismissing her appeal from a decision of the Immigration Judge (" IJ" ), which ordered her removed and denied her petition to remove conditions placed upon her residency in the United States. See In re Huyen V. Nguyen, No. A076-127-741 (B.I.A. Jan. 25, 2013), aff'g No. A076 127 741 (Immig. Ct. Buffalo, NY Aug. 31, 2010).

Nguyen was admitted as a conditional permanent resident on August 22, 2000, based on her marriage to United States citizen Vu Truong (" Truong" ). On July 10, 2002, Nguyen jointly filed a petition with her husband to remove the conditions on her residency. On December 12, 2007, the United States Customs and Immigration Service denied the petition after finding that Nguyen was Truong's half-niece. The agency concluded that Nguyen's marriage to her citizen husband was incestuous and therefore void. Consequently, Nguyen was charged as removable from the United States on various grounds, each of which was related to the determination that her marriage was void and her conditional residency in the United States was improper. Nguyen denied the charges and proceeded to a hearing before the IJ regarding her removability.

Following a hearing, the IJ concluded that the government's evidence showing that Nguyen was the half-niece of her husband was credible. The IJ further held that a New York statute voiding as incestuous a marriage between " an uncle and a niece" also reaches " any marriage in which a parent of the niece is a half-sibling of the uncle." Admin. Rec. at 66 (citing Audley v. Audley, 196 A.D. 103, 187 N.Y.S. 652 (N.Y.App.Div. 1921) (internal quotation marks omitted)). Nguyen appealed to the BIA. The BIA affirmed the IJ's finding that record evidence, which included both a birth certificate and Truong's sister's immigration documents indicating that Nguyen's grandmother was also Truong's mother, was sufficient to show that Nguyen and Truong were related as half-niece and half-uncle. The BIA also affirmed the IJ's conclusion that " a marriage between a niece and a half-uncle is invalid under New

Page 314

York law." Admin Rec. at 4 (citing In re May's Estate, 305 N.Y. 486, 114 ...


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