Dissenting opinion filed by Circuit Judge STARR.
GINSBURG, Circuit Judge:
Sang Seup Shin, a Korean citizen, seeks review of an order of the Board of Immigration Appeals (BIA or Board). The order under review denied Shin's motion to reopen his deportation proceeding to allow him to apply for adjustment of his status to that of a permanent resident. The Board regarded the application at issue as repetitive of a prior motion to reopen Shin had made. In denying the instant motion, the BIA referred solely to the reasons already stated in its rejection of Shin's earlier reopening request. But Shin featured two linked events occurring after the Board's prior ruling: his wife's attainment of United States citizenship; and approval by the Immigration and Naturalization Service (INS) of an "immediate relative" visa petition she filed on his behalf. Because the Board failed to acknowledge the existence of these new circumstances and thus did not address their significance, we are unable to affirm the Board's order. We remand the case so that the BIA may supply a reasoned, evenhanded response to Shin's altered situation — his current status as an "immediate relative" of a citizen of the United States.
Shin entered the United States in November 1972, as a nonimmigrant visitor for business. He did not depart upon the expiration of his visa in March 1973. On the petition of a company that sought to engage Shin as a truck mechanic, the INS, on September 19, 1973, accorded him sixth preference immigrant classification. Based on this preference, on December 14, 1973, Shin applied for status as a permanent resident. Twenty-two months later, on September 17, 1975, the INS denied his application because the agency's inquiries impugned a representation Shin had made concerning his employment when he applied for his nonimmigrant business visa. On October 21, 1975, Shin was found deportable and was granted permission to depart voluntarily by January 5, 1976. On the same day, October 21, 1975, Shin filed a motion to reopen his application for permanent residence; in this filing, he sought to substantiate further the veracity of his representations about prior employment. Shin requested, but did not receive, a stay of deportation pending disposition of this motion. He did not depart on the appointed day. The INS denied the motion to reopen on February 7, 1977.
Shin married a naturalized United States citizen, his second wife,
Shin married his present wife, then a lawful permanent resident, in June 1980. She filed a petition for second preference immigrant status on his behalf in July 1980. See 8 U.S.C. § 1153(a)(2) (1982). The INS granted her petition on June 23, 1981. On June 15, 1981, Shin was taken into custody under a warrant of deportation, but was released under an order of supervision. Shin thereupon filed an application to stay deportation pending consideration of his simultaneously filed motion to reopen to permit him to apply for political asylum, suspension of deportation, and reinstatement of voluntary departure. The immigration judge granted the stay. Eventually, on March 11, 1982, the judge denied reopening, citing Shin's failure to submit affidavits or other evidence demonstrating either the "extreme hardship" that might qualify him for suspension of deportation, see id. § 1254(a)(1), or the "well-founded
From August 1981 through June 1982, Shin reported in person each month to an INS deportation officer pursuant to his order of supervision. In July 1982, INS ordered Shin to report for deportation on August 2, 1982. Prior to that date, Shin again moved to reopen, this time limiting requested relief to suspension of deportation. On August 11, 1982, the District Director stayed Shin's deportation pending resolution of this motion.
The BIA denied reopening on January 18, 1983. It gave two reasons for its decision. First, the Board found that Shin had failed to make a prima facie showing of "extreme hardship" to himself or his spouse, a statutory prerequisite for suspension of deportation under 8 U.S.C. § 1254(a)(1). Second, the Board denied Shin's request for relief as a matter of discretion because he had "flouted the immigration laws." In re Sang Seup Shin, No. A20-484-414, slip op. at 3 (BIA Jan. 18, 1983) ("Shin I").
Some months after the BIA's January 1983 decision, on May 13, 1983, Shin's spouse became a naturalized United States citizen. On June 7, 1983, she petitioned for Shin's classification as an "immediate relative," a status that would exempt him from numerical limitations on immigration visas. 8 U.S.C. § 1151(b) (only "children, spouses, and parents of a citizen of the United States" can qualify for "immediate relative" status). Shin simultaneously applied for adjustment of status. The INS approved "immediate relative" immigrant classification for Shin. The BIA, however, treating Shin's request for adjustment as a motion to reopen his deportation proceeding,
Shin has applied for discretionary relief — adjustment of his status — under the Immigration and Nationality Act. See 8 U.S.C. § 1255; infra note 6. Regulations promulgated under the Act permit reopening his deportation proceeding, so that he may apply for such relief, on a showing of "circumstances which have arisen subsequent to the [deportation] hearing." 8 C.F.R. § 3.2 (1984); see also id. § 242.22. Shin rests his claim on two such circumstances — his wife's attainment of United States citizenship and the attendant INS determination of his "immediate relative" status. The material documenting these circumstances "was not available and could not have been ... presented" earlier. 8 C.F.R. §§ 3.2, 242.22.
The BIA unquestionably has wide discretion in determining what circumstances warrant reopening a deportation proceeding. See INS v. Jong Ha Wang, 450 U.S. 139, 143 n. 5, 101 S.Ct. 1027, 1030 n. 5, 67 L.Ed.2d 123 (1981) (per curiam). We review Board dispositions in cases of this kind
The BIA's exercise of discretion in ruling on reopening motions is linked to its projection of the likelihood that the applicant would be granted the relief sought if reopening were permitted. In re Rodriguez-Vera, 17 I. & N. Dec. 105, 106 (BIA 1979). In this case, the Board pretermitted consideration of Shin's statutory eligibility for status adjustment;
In its January 1983 ruling, the BIA did not question Shin's satisfaction of the statutory requirements of presence in the United
The BIA ruled additionally that reopening should be denied as a matter of discretion, because Shin "has flouted the immigration laws of the United States except when they served his purpose." Shin I, slip op. at 3.
We do not suggest that the BIA must rule de novo on each of a series of petitions to reopen a deportation hearing. When circumstances have not changed or significant newly discovered evidence is not presented,
It is true that the Board's January 1983 opinion touched on Shin's marriage, but only in the context of finding hardship insufficiently extreme. Moreover, that opinion contemplated that Shin's wife might return to Korea with him, to find employment
In In re Ibrahim, 18 I. & N. Dec. 55 (BIA 1981), the BIA recognized that "[t]he Immigration and Nationality Act makes immediate relative status a special and weighty equity." Id. at 57. The Act, the Board noted, exempts "immediate relatives" ("the children, spouses, and parents of a citizen of the United States") from numerical limitations on immigration visas. 8 U.S.C. § 1151(b). Further, an "immediate relative" is exempt from denials of adjustment in status founded on unauthorized employment. 8 U.S.C. § 1255(c)(2); see also 8 C.F.R. § 242.5(a)(2)(vi)(A), .5(a)(3) (duration of voluntary departure privilege is extended for immediate relatives). The special position of "immediate relatives" was the sole basis upon which the BIA squared denying adjustment of status to Mr. Ibrahim, whose United States-citizen sister obtained approval of a fifth preference visa petition for him, with granting adjustment to an otherwise similarly situated alien in In re Cavazos, 17 I. & N. Dec. 215 (BIA 1980). Specifically, the BIA said: "In view of this most favorable status accorded by Congress, we believe it appropriate to accord greater weight to immediate relative status than to visa-preference status when making discretionary determinations under the Act." Ibrahim, 18 I. & N. Dec. at 58.
We are cognizant that marriage to a United States citizen does not, as a matter of law, entitle a deportable alien to reopening for adjustment. See Riasati v. INS, 738 F.2d 1115, 1118 (10th Cir.1984); Obitz v. District Director of the INS, 623 F.2d 1331 (9th Cir.1980). In both Riasati and Obitz, courts affirmed BIA denials of motions to reopen where the Board relied on prior denials; in each case, however, the BIA had evidently already taken into account citizenship of the petitioner's spouse and imminent entitlement to "immediate relative" status. In neither Riasati nor Obitz, we note, did the BIA utterly fail to consider a "substantial and weighty equity"; nor was there a salient change in status, such as that identified by the Board in Ibrahim, underlying either Riasati's or Obitz's second petition to reopen.
The BIA has judged "immediate relative" status, about which it was silent in Shin's case, to be on a higher plane than visa preference status, which it did consider. Because of its silence, we do not know whether the Board has changed course, whether it considers its exposition in Ibrahim distinguishable, whether it believes failing to depart twice is a per se offense which defeats even "substantial and weighty equit[ies]," or whether the BIA has acted without reason. What determines rights in one case the Board may not ignore in the next.
It is so ordered.
STARR, Circuit Judge, dissenting:
I respectfully dissent. In my judgment, the Board of Immigration Appeals (BIA) acted properly within its discretion in refusing to reopen Mr. Shin's deportation proceedings.
The majority's decision rests principally upon the BIA's failure in its October 31, 1983, order to discuss the new factor of Mr. Shin's wife's having become a United States citizen, an event which occurred after the BIA had denied Mr. Shin's earlier motion to reopen. That prior motion, aimed at suspending deportation proceedings, was denied by the BIA in a comprehensive order dated January 18, 1983. In denying relief, the BIA there determined, first, that Mr. Shin had failed to establish extreme hardship and, in so concluding, took expressly into account the circumstances of Mr. Shin's present spouse, whom the Board observed was "a lawful permanent resident of the United States." Order of January 18, 1983 at 1.
But the Board did not stop there. After finding no extreme hardship, the Board went on to determine, second, that "significant reasons exist for denying reopening, in the exercise of discretion, based on [Mr. Shin's] actions. [Mr. Shin] has flouted the immigration laws of the United States except when they served his purpose." Id. at 3. In setting forth a bill of particulars in this respect, the BIA emphasized the following: (1) Mr. Shin had remained in the United States in an illegal status since 1973; (2) he was granted the privilege of voluntary departure on two occasions, in 1975 and 1976, and on each occasion failed to depart; (3) he had been under a final deportation order since January 1976; and (4) it appeared to the Board that Mr. Shin's "various motions at this point in the proceedings [were] designed to prolong his stay in this country pending the processing of his visa in Canada." Id. at 4. The BIA's order, it bears noting, was final and appealable but no appeal was taken.
It was this second ground for rejecting Mr. Shin's earlier motion — the willful disobedience of United States law — upon which the BIA exclusively relied in denying relief in the order under review. Nothing has changed in this respect. Mr. Shin stands here now, as he did before the BIA last fall, with a final, unappealed from determination that he has "flouted the immigration laws of the United States." He does not here, nor did he before the Board, advance any new facts in this respect; in consequence, the BIA's second ground for denying relief in January 1983 stands unaffected and unassailable by the happy occurrence of Mrs. Shin's having since become a U.S. citizen.
There can be no doubt that it was this second ground — willful disobedience of federal law — upon which the Board relied in denying relief in this latest round of maneuvering. The Board's order is crystal clear:
Order of October 31, 1983 (citation omitted) (emphasis added).
That explanation is entirely sufficient. In a word, Mrs. Shin's new-found status is utterly beside the point; the Board has ruled that, as a matter of discretion, it will not entertain a request for discretionary relief because of Mr. Shin's own checkered past of failing time after time to comply with applicable law.
If we must go beyond this basis for the Board's action — a ground that I find completely adequate and independent of Mrs. Shin's status to support the Board's order — we then move to the significance of her new status. In my view, it is here that the majority's reasoning is fraught with potential mischief for future cases, as opposed to reflecting simply what I believe to be a misapprehension of the basis of the Board's action.
To begin, let us take note again of the background of this case. Mr. Shin has been illegally present in the United States for over a decade. He has evinced no intention whatever to leave, notwithstanding his illegal status and clear and binding directives to him to depart. He has been taken into custody in order to effect his departure, but through the exercise of discretion was permitted by INS to make other, voluntary arrangements for departing. He still did not leave. His present marriage (his third) occurred seven years into his period of unlawful residence, and five years after he first agreed to depart voluntarily.
And the likelihood of his wife's eventually becoming a U.S. citizen could scarcely have been unknown to the Board in January 1983 when it denied the earlier request to reopen deportation proceedings. The BIA indicated at the outset of its opinion that Mrs. Shin was "a lawful permanent resident of the United States" and noted that she had filed a visa petition on Mr. Shin's behalf, which had subsequently been approved. Her citizenship, coming a few months later, was no new evidence; it was, in the words of the Second Circuit, merely "the natural consequence of her earlier virtual completion of the naturalization process." Hibbert v. INS, 554 F.2d 17, 21 (2d Cir.1977). Hibbert is, in fact, highly instructive. There, the Second Circuit upheld a BIA determination not to reopen deportation proceedings, even in the face of the petitioner's wife's having become a U.S. citizen and the fact that the petitioner, in the interim, had become the father of a U.S. citizen child. In language that rings true here, the court flatly rejected the attack on the Board's refusal to reopen:
Id. at 21. As does Mr. Shin, Mr. Hibbert strenuously maintained, correctly, that marriage to a citizen is a "factor of significance" to the INS or, in the words of In re Ibrahim, 18 I. & N. Dec. 55 (BIA 1981), relied upon here by the majority, "a special and weighty equity." Like Mr. Shin, Mr. Hibbert argued that this new equity could support a favorable exercise of discretion by the BIA and that the case should thus be remanded to the Board.
But the Second Circuit was unmoved. The court flatly rejected this request as "without merit" because, critically, Mr. Hibbert's "immigration history amply supports the discretionary refusal to waive deportation." 554 F.2d at 21. Under those circumstances, the court concluded, it would be pointless to remand to determine his technical eligibility since the end result was destined to be deportation.
Here, as in Hibbert, a remand to consider the "special and weighty equity" of Mr. Shin's post-deportation-order marriage to a U.S. citizen — when the factor of that marriage had earlier been taken into account — is an exercise in futility, for the Board is properly within its broad discretion in refusing to reopen deportation proceedings of
Here, in effect, the majority is directing the Board to issue an advisory opinion as to the applicability of Ibrahim. But, as in Hibbert and Bagamasbad, there is no need for the exercise, no matter how enlightening and edifying a new opinion from the Board might be, for the Board has spoken, finally and decisively. It will not hear further from Mr. Shin no matter how many equities he may amass, for he stands charged and convicted, administratively, of deliberately flouting this Nation's laws.
In the judicial quest for reasoned administrative decision-making, we have today taken a salutary principle of law and applied it in a setting where, in my view, it simply does not fit. The immigration laws are unique, an act of fundamental sovereignty quite unlike administrative regulation of natural gas sales or activities in the communications industry. Congress, which continues periodically to examine this set of laws which have aptly been compared to the labyrinth of ancient Crete, has nowhere provided for the procedural vehicle invoked by Mr. Shin. One will sift through this labyrinthine maze of immigration laws and find not a word about motions to reopen deportation proceedings. Congress clearly knows how to provide for motions to reopen, such as petitions for reconsideration, in administrative settings, and has done so with regularity, but it did not do so in this unique area of sovereign national interest. It is within the inherent power of an administrative agency to reconsider its actions, see Dawson v. Merit Systems Protection Board, 712 F.2d 264, 267 (7th Cir.1983), but there is fairly to be inferred a congressional mandate that deportation proceedings, while comporting with elementary values of fairness and decency, are to be accomplished with dispatch.
That mandate is flouted daily throughout the Nation, to the point that it has become a truism in public discourse on the subject that this Nation has lost control of its borders. Not only does the Nation seem powerless to curb the tide of illegal immigration in the first instance, but the process of returning whence they came those who are now illegally here has become so protracted and complicated that the cost of an able immigration lawyer is in effect a ticket of admission permitting those unlawfully here to remain indefinitely. See, e.g., Rios-Pineda v. INS, 720 F.2d 529 (8th Cir.1983), cert. granted, ___ U.S. ___, 105 S.Ct. 562, 83 L.Ed.2d 503 (1984). The INS has itself contributed measurably to this enervation, as the saga of the case at hand itself shows. The INS apparently felt that it knew better than Congress, so it drew up a regulation providing administratively for the procedural vehicle that the Article I branch never saw fit to enact. (And, stays of deportation at critical junctures in this drama were granted in two instances, once by an immigration judge and once by an INS District Director.) Then, the Article III branch has seen fit over the years to incorporate a wide body of judicial teaching on administrative decision-making that seems to me wildly misplaced. Today's decision is but part of that development, unfolding case by case, the end result of which is immobilism in enforcement of these most fundamental of laws. And even a change in today's result would do little to eliminate the administrative and legal barnacles that have turned the immigration laws and their administration into what our elected representatives not infrequently disparage as a national disgrace.
And thus, as so frequently happens, a confession of error within the judiciary contains in it the prayer for relief from the
These broader observations lead me, in closing, back to a narrower point. Since Congress itself has not, in the unique area of immigration regulation, seen fit to provide for motions to reopen deportation proceedings, I should think we would be highly deferential to the Board, particularly where, as here, the petitioner had previously, without success, availed himself of a motion to reopen. The Board's discretion, in my view, is at its zenith in making a discretionary procedural determination which Congress did not see fit to enact. That discretion was exercised entirely appropriately here, given the blemishes of studied noncompliance with law that mar Mr. Shin's record, laws of a Nation where he so earnestly and understandably desires to stay. He has been here illegally since 1973. He was first found deportable in 1975; now, almost a decade later as 1985 approaches, his quest to remain in the United States under the protective umbrella of the laws he chooses day by day to violate continues with what seems to be a powerful life of its own.
I would affirm the Board's order.
More troubling is the general postulate, proffered by the dissent, that judicial deference should be greatest where an agency exceeds its statutory authority. See dissent at 131. Logically, in such a case, the need for judicial scrutiny would be greater than where administrative power is confined by Congress' guidance. Our system of laws requires evenhanded adjudication, not administrative indulgences unchecked by congressional limits or judicial review.
Shin has applied for adjustment of status and, by virtue of his wife's approved petition for "immediate relative" classification, it appears that he is eligible for and has immediately available an immigrant visa.
The BIA's October 1983 decision thus rests on the discretionary aspect of its prior ruling. Because the Board's precedents call for a balancing of relevant factors in light of the relief sought, see supra p. 125; infra note 12, we canvass other facets of its January 1983 decision for matters it may have weighed. The dissent's suggestion that the Board may halt upon finding adverse factors seems inconsistent with the Board's current precedents.
8 U.S.C. § 1254(a)(1).