13-605 Nguyen v. Holder UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

_______________

August Term, 2013

(Submitted: January 16, 2014 Decided: February 19, 2014)

Docket No. 13‐605‐ag

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HUYEN V. NGUYEN,

Petitioner,

—v.—

ERIC H. HOLDER, JR., United States Attorney General,

Respondent.

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B e f o r e:

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

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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. _______________

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

2 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,

(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 3 BIA also affirmed the IJ’s conclusion that “a marriage between a niece and a half‐

uncle is invalid under New York law.” Admin Rec. at 4 (citing In re Mayʹs Estate,

(1953)).

We have reviewed both the IJ’s and the BIA’s opinions “for the sake of

completeness,” Zaman v. Mukasey,

(2d Cir. 2008) (internal

quotation marks omitted), reviewing the factual findings for “substantial

evidence” and questions of law de novo. See

(b)(4). A factual finding

will be based on substantial evidence where it is “supported by reasonable,

substantial and probative evidence in the record.” Yanqin Weng v. Holder,

(2d Cir. 2009) (quoting Lin Zhong v. U.S. Dep’t of Justice,

(2d Cir. 2007)).

Applying those standards here, we conclude that the agency’s factual

finding that Nguyen’s maternal grandmother, Nguyen Thi Ba, is also the mother

of the petitioner’s husband, Truong (and thus that Nguyen and her husband are

half‐blooded niece and uncle) is supported by substantial evidence. The agency’s

determination was reasonably based on a review of Nguyen’s mother’s birth

certificate, as well as a document in the immigration file of Truong’s sister, which

listed Nguyen’s mother as her half‐sister. Where, as here, the agency’s inference is 4 “tethered to the evidentiary record,” Siewe v. Gonzalez,

(2d Cir.

2007), we will defer to its finding even if there is “support for a contrary

inference,”

While Nguyen contends that testimony disputing the relationship between

Nguyen’s mother and Nguyen’s husband was more credible than the evidence on

which the agency relied, we afford “particular deference” to the agency’s

credibility determinations where they are “based on analysis of testimony.”

Zhong, 480 F.3d at 116‐17. Having reviewed the administrative record, we are not

compelled to conclude that the IJ erred in deeming Nguyen and her husband’s

testimony less credible than the evidence on which it relied in finding the two

related as half‐blooded niece and uncle. Accordingly, we affirm the IJ’s factual

determination that Nguyen and her husband are related as half‐blooded niece

and uncle.

But that is not the end of the matter. We must also review de novo the

agency’s application of New York law to the fact that the petitioner and her

husband are related as niece and uncle “of . . . the half blood,” to borrow a phrase

used by New York’s Domestic Relations Law. See

(2).

5 The BIA concluded that, as a matter of New York statutory law, marriages

between half‐blooded nieces and uncles are, like the full‐blooded equivalent

relationship between niece and uncle, void as incestuous.

In their briefing before this Court, the parties do not dispute that New York

law applies to the question of whether Nguyen’s marriage is void for incest.

However, they part ways on the proper interpretation to be given to New York’s

statute defining and proscribing “incestuous” marriages. The applicable statute is

section 5 of New York’s Domestic Relations Law, which provides, in pertinent

part, as follows:

A marriage is incestuous and void whether the relatives are legitimate or illegitimate between either: 1. An ancestor and a descendant; 2. A brother and sister of either the whole or the half blood; 3. An uncle and niece or an aunt and nephew.

.

Curiously, subsection (2), which regulates marriages between brothers and

sisters, expressly applies to “half blood” relationships, whereas subsection (3),

which is the provision applied to the petitioner and her husband, omits the

relevant language. The question presented, therefore, is whether subsection (3)

should be read, like subsection (2), to also reach an uncle and niece “of either the 6 whole or the half blood.” Our resolution of this question will be dispositive of the

petition before us: an affirmative answer—that is, that the statute also reaches

marriages between nieces and uncles of the half‐blood—would require denial of

the petition, while a negative answer would, at the least, be grounds for

termination of the removal proceeding.

We note that two cases from New York’s intermediate appellate courts hold

that marriages between half‐nieces and half‐uncles are void for incest

notwithstanding the omission of the “whole or the half blood” language from

subsection (3) of the statute. The most influential among them is Audley v. Audley,

(N.Y. App. Div. 1921), in which the Appellate Division first held

that subsection (3) reaches relationships “between an uncle and a niece or an aunt

and nephew without regard to the percentage of their blood relationship,”

. The second case, also from the Appellate Division, is In re May’s Estate,

(N.Y. App. Div. 1952), aff’d,

(1953), which cited, without

further analysis, the rule set out in Audley and held that a half‐niece and half‐

uncle “were forbidden to intermarry” under section 5 of New York’s Domestic

Relations Law,

.

7 The parties have not identified, nor have we discovered, any reported

decision of the New York Court of Appeals that squarely holds that section 5(3) of

New York’s Domestic Relations Law prohibits marriages between half‐blooded

nieces and uncles. Although the BIA cited the New York Court of Appeals’s

decision in In re May’s Estate for the “holding that a marriage between a half uncle

and his niece is incestuous and void,” Admin. Rec. at 4, we find no clear

affirmance of the Audley rule in that case. By contrast, the one case from the Court

of Appeals to address the question of statutory interpretation before us is In re

Simms’ Estate,

(1970), which calls into question the gloss given to

New York’s incest statute in Audley.

.

In Simms, the Court of Appeals did not decide the question of statutory

interpretation that is before us here, see

, but it nevertheless cast doubt

upon the analysis given by the Appellate Division in Audley. The Simms opinion

observed that the omission of the phrase “whole or half blood” from the

applicable statutory language was troublesome given the inclusion of that

language in the statute’s immediately preceding interdiction of marriages

between brothers and sisters, and further noted that “it seems reasonable to think

that if the Legislature intended to prohibit marriages between uncles, nieces,

8 aunts and nephews whose parents were related to the contracting party only by

the half blood, it would have used similar language.”

. The Court of

Appeals further opined that

[i]f the Legislature had intended that its interdiction on this type of marriage should extend down to the rather more remote relationship of half blood between uncle and niece, it could have made suitable provision. Its failure to do so in the light of its explicit language relating to brothers and sisters suggests it may not have intended to carry the interdiction this far.

While the Court of Appeals’s analysis in Simms can fairly be called dicta, it

nonetheless gives us pause in considering the continued vitality of Audley’s

interpretation of subsection (3).

In these circumstances, we are faced with an outcome‐determinative

question in a case in which “the New York Court of Appeals has not squarely

addressed an issue and other decisions by New York courts are insufficient to

predict how the Court of Appeals would resolve it.” Penguin Grp. (USA) Inc. v.

Am. Buddha,

(2d Cir. 2010). On the briefing before us, we are

unable to conclude that either the plain language of the statute or its legislative

history readily furnishes an answer, see

and are therefore not “confident that

we can correctly resolve the matter at issue ourselves,” Licci ex rel. Licci v. Lebanese

9 Canadian Bank, SAL,

(2d Cir. 2012). We therefore consider whether

to certify the question of New York law that is before us to the New York Court of

Appeals.

Before exercising our discretion to certify the question before us to the New

York Court of Appeals, we must satisfy ourselves that the question meets the

following criteria: 1) it must be determinative of this petition; 2) it must not have

been squarely addressed by the New York Court of Appeals and the decisions of

other New York courts must leave us unable to predict how the Court of Appeals

would rule; and 3) the question must be important to the state and its resolution

must require value‐laden judgments or public policy choices. See In re Thelen LLP,

(2d Cir. 2013); 10 Ellicott Square Court Corp. v. Mountain Valley

Indem. Co.,

, 125‐26 (2d Cir. 2011). In light of our foregoing discussion,

we conclude that the question before us satisfies the first two considerations. We

therefore turn to the last consideration: the importance of the question to the state.

We are mindful that in exercising our discretion to certify a question to the

Court of Appeals we must assure that “the question on which we certify [is] of

importance to the state, and its resolution must require value judgments and

10 important public policy choices that the New York Court of Appeals is better

situated than we to make.” Licci,

(internal quotation marks and

alterations omitted). In considering the importance of the question before us, we

observe that a thread running through New York’s case law regarding the

degrees of consanguinity within which a marriage is incestuous is the rule that

marriages between individuals whose relationship is more remote than brother

and sister must be deemed incestuous by express legislation. See generally

Wightman v. Wightman,

(N.Y. Ch. 1820). Following the passage of

New York’s Domestic Relations Law, lower courts in the late nineteenth and early

twentieth century read “half‐blood” into the legislature’s proscription of niece‐

uncle marriages in part because they concluded that such marriages “would

certainly shock the sentiment of any enlightened community,” Campbell v.

Crampton,

(C.C. N.D.N.Y. 1880), and that an equivalence between

whole‐ and half‐blood relationships was a matter of “public policy,” Audley,

. See also Audley,

(describing the prohibition of

incest, including marriages between nieces and uncles of any “percentage” of

11 blood relationship, as being “for the benefit of the public health and the

perpetuation of the human race”).

We express no view on whether public policy, either now or at the time the

statute was passed, directs that either a narrower or more expansive gloss should

be given to the definition of incestuous niece‐uncle relationships. Clearer

guidance from the Court of Appeals is, however, in order. See Tire Eng’g & Distrib.

L.L.C. v. Bank of China Ltd., Nos. 13‐1519‐cv, 13‐2535‐cv(L), 13‐2639‐cv(con), ‐‐‐

F.3d ‐‐‐,

, at *5‐6 (2d Cir. Jan. 14, 2014) (noting that where a rule

reflects a “judicially created doctrine that reflects policy considerations over time”

on which courts, the legislature, and others may have come to rely, certification is

“particularly compelling”). We therefore conclude that the final factor counsels in

favor of certification.

For the foregoing reasons, and pursuant to New York Court of Appeals

Rule 500.27 and Local Rule 27.2 of this Court, we certify the following question to

the New York Court of Appeals:

Does section 5(3) of New York’s Domestic Relations Law void as incestuous a marriage between an uncle and niece “of the half blood” (that is, where the husband is the half‐brother of the wife’s mother)?

12

Consistent with our usual practice, “we do not intend to limit the scope of the

Court of Appeals’ analysis through the formulation of our question, and we invite

the Court of Appeals to expand upon or alter this question as it should deem

appropriate.” 10 Ellicott Square,

.

It is hereby ORDERED that the Clerk of this Court transmit to the Clerk of

the New York Court of Appeals this opinion as our certificate, together with a

complete set of the briefs and the administrative record filed in this Court. The

parties will equally bear any fees and costs that may be imposed by the New York

Court of Appeals in connection with this certification. This panel will resume its

consideration of this petition after the New York Court of Appeals disposes of

this certification either by providing guidance or declining certification.

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