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Bagamasbad v. Immigration and Naturalization Service


June 9, 1975



Author: Aldisert

Before: BIGGS, VAN DUSEN and ALDISERT, Circuit Judges.


ALDISERT, Circuit Judge.

The narrow issue presented in this alien's petition for review of an order of the Board of Immigration Appeals is whether Section 245(a) of the Immigration and Nationality Act, 8 U.S.C. § 1255 (a),*fn1 requires the Attorney General to make an eligibility determination before he can exercise his discretion. The Board held that the immigration judge could pretermit the eligibility issue and could deny the application for status adjustment as an exercise of discretion. We set aside the Board's order and remand for further proceedings.

Petitioner, a native and citizen of the Philippines, entered the United States at Honolulu, Hawaii, on July 12, 1968, as a nonimmigrant visitor for pleasure. Having overstayed her visit, she applied, pursuant to § 245, for an adjustment of her status to that of a permanent resident. On February 21, 1973, the Philadelphia District Director denied her application in the exercise of discretion and granted her 30 days to effect her voluntary departure from the United States. Because petitioner remained in the United States beyond the 30-day period, she was ordered to show cause why she should not be deported. At the April 19, 1973, deportation hearing, petitioner renewed her § 245 application, conceded deportability, and admitted she misrepresented her occupation at the time she applied for her visa. She listed her occupation as a merchant; she was a teacher. She also represented that she had not earned a college degree when, in fact, she had received a B.S. in Medical Technology in 1966.

In her written decision, the immigration judge denied petitioner's renewed application, reasoning that petitioner's "material, deliberate misrepresentations" did not merit a favorable exercise of administrative discretion. It is conceded that the Immigration Service made no determination of petitioner's eligibility for relief prior to denying her application as a matter of discretion.

Petitioner does not seek judicial review of the Attorney General's exercise of discretion. Rather, she urges that, irrespective of a denial of status adjustment based on an exercise of discretion, an eligibility determination is extremely important to her as well as being statutorily mandated.

She asserts that the importance of an eligibility determination will surface when she applies for an immigrant visa after departing from the United States pursuant to the Board's order: "Respondent's finding of fraud... might very well indicate to a consular officer abroad, reviewing the Petitioner's application for an immigrant visa in the future, that the Petitioner is excludable from admission...." Petitioner's Brief at 12.

An overview of the duties of consular officers and an explanation of the transfer of their duties to the Attorney General under § 245 place petitioner's apprehension in perspective. Therefore, we now turn our attention in that direction.

If an alien seeks admission into the United States he, like petitioner, completes a visa application. The consular officer then has an affirmative duty to determine the alien's eligibility for a visa. 8 U.S.C. § 1201(g). Congress has provided that certain classes of aliens are statutorily ingligible to receive visas:

(a) Except as otherwise provided in this chapter, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States:

(19) Any alien who seeks to procure, or has sought to procure, or has procured a visa or other documentation, or seeks to enter the United States, by fraud, or by willfully misrepresenting a material fact.... 8 U.S.C. § 1182. Thus, if the consular officer were to determine that the alien fell within this classification, no visa would issue.

We were told by government counsel at oral argument that, unlike final deportation orders of the INS, 8 U.S.C. § 1105a, eligibility determinations of consular officers are not subject to judicial review. Indeed, government counsel suggested that an administrative appeal from the consular officer's determination does not lie to the Secretary of State.*fn2 Therefore, the consular officer plays a significant role in the alien admission process.

Once the alien is admitted into the United States he may apply to the Attorney General, under § 245, for an adjustment of his alien status. However, his status can be adjusted only if the Attorney General determines he "is eligible to receive an immigrant visa." 8 U.S.C. § 1255 (a)(2).*fn3 Therefore, the statutory classifications of ineligibility, 8 U.S.C. § 1182, apply with equal force in a § 245 proceeding. Consequently, the failure of the immigration judge to determine first whether petitioner was an alien "eligible to receive an immigrant visa", 8 U.S.C. § 1255 (a)(2), is understandably important to petitioner, especially where, as here, the immigration judge characterized her misrepresentations as material and deliberate.

Petitioner's apprehension of the practical consequences of the immigration judge's failure to make an eligibility determination certainly is not controlling. Our task is to analyze the statute itself, and it is to this that we now turn.

Section 245(a) of the Act, 8 U.S.C. § 1255(a), provides:

The status of an alien, other than an alien crewman, who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is approved.

Petitioner argues that this section first requires a determination by the Attorney General that the three express conditions are met before he can deny adjustment of status as a matter of discretion. In support of her contention petitioner relies heavily on Jay v. Boyd, 351 U.S. 345 (1956).

There, the alien brought a habeas corpus action testing the validity of the denial of his application, under § 244 (a)(5) of the Act, 8 U.S.C. § 1254(a)(5),*fn4 for discretionary suspension of deportation. Although Jay was not an adjustment of status proceeding, the statutory structure of § 244 was strikingly similar to that of § 245. In the course of its opinion affirming the denial of discretionary suspension, the Court referred to the conditions of eligibility for discretionary relief as "the first step in the... procedure," ibid. at 352, and stated: "Eligibility for the relief here involved is governed by specific statutory standards which provide a right to a ruling on an applicant's eligibility." Ibid. at 353 (emphasis added).

The government attempts to dilute the Court's express declaration. It suggests that the regulations summarized in Jay required an eligibility determination before an exercise of discretion could take place; currently, the regulations do not require this two-step process.

In 1952 the regulations required the immigration judge to present evidence bearing on the applicant's eligibility for relief, 8 C.F.R. Rev. § 242.53(c) (1952) and further required a "written decision" with "a discussion of the evidence relating to the alien's eligibility for such relief and the reasons for granting or denying such application." 8 C.F.R. Rev. § 242.61(a) (1952). Now, "the only burden on the Immigration Judge in the present case was to make a decision, written or oral, which discusses the 'evidence and findings as to deportability' and which contains 'a discussion of the evidence pertinent to any application made by [the alien] under section 242.17 [e.g., § 244 and § 245 applications] and the reasons for granting or denying the request.' 8 C.F.R. § 242.18(a). Under the newer regulations, gone is the requirement that the Immigration Judge discuss the alien's eligibility for discretionary relief." Respondent's Brief at 8.

The government's argument runs into two walls. First, the current regulation does not set forth what determinations must be made. It does not say that an immigration judge can or cannot pretermit the § 244 or § 245 conditions and deny the application as an exercise of discretion. Thus, the current regulation supplies no support to the government's position.

Second, the government misreads the explicit language of Jay v. Boyd, supra, which states that statutory standards provided the alien's right to a Section 244 eligibility ruling. The Court did not say that the standards were imposed by regulations of the Attorney General or that the Attorney General could pretermit such a determination.

Analogizing the statutory formulation in § 244 to that in § 245, we find much force and logic in the Court's pronouncement in Jay. First, § 245(a) explicitly mandates the satisfaction of three conditions before the Attorney General can exercise his discretion in favor of permanent resident status. Second, there is no question that if the Attorney General does exercise favorable discretion, all three requirements must be satisfied. Third, if a point is reached where the Attorney General concludes that the alien should be denied relief as a matter of discretion, it would seem to follow that the applicant has the right to assume he has met all three qualifications. Otherwise, the exercise of unfavorable discretion would appear to be a meaningless, unnecessary act.

In the Board's view, that is not the case. It held that the immigration judge is not required to find eligibility. Therefore, under the Board's holding, petitioner cannot even rely on an implied finding of eligibility. We fail to see the logic of this holding. Moreover, the interest in orderly administrative and judicial review commands the Supreme Court statement. Contrasted with the procedures regulating a determination of eligibility by a consular officer,*fn5 there is, as heretofore observed, a statutory right to administrative and judicial review of the Attorney General's § 245 determination. Thus, Jay v. Boyd, supra, supports persuasively the statutory interpretation sought by petitioner.

Having unsuccessfully distinguished Jay, the government seeks comfort in Silva v. Carter, 326 F.2d 315 (9th Cir. 1963), cert. denied, 377 U.S. 917 (1964). There, a similar issue came before the court under the framework of §§ 212(g) and 249 of the Act. Like § 244 in Jay v. Boyd, supra, the provisions of §§ 212(g) and 249 in Silva v. Carter, supra, are similar in structure to those of § 245. Therefore, we will draw analogies to them.

In Carter, the acting regional commissioner denied Silva's application on the basis that Silva did not merit the favorable exercise of discretion of the Attorney General. Explicit eligibility conditions had to be met, but the Commissioner did not determine whether Silva had satisfied the requirement that his admission not be contrary to the national welfare, safety or security of the United States. The crucial distinction between Carter and our case lies in the reasons for exercising unfavorable discretion. In Carter the reasons for exercising unfavorable discretion had nothing to do with the national welfare requirement. Therefore, there was "nothing to indicate that discretionary relief was denied by the regional commissioner on the ground of ineligibility." Ibid. at 320. Here, the misrepresentations in petitioner's visa application formed the basis for the exercise of unfavorable discretion. And it is these identical misrepresentations that could render petitioner ineligible to receive an immigrant visa. 8 U.S.C. §§ 1182(a) (19), 1255(a) (2).*fn6 Thus, unless the question of her eligibility is now determined, there is no way of knowing whether relief was in fact denied on that ground.

Ameeriar v. INS, supra, provides no support to the dissent. There, the government conceded that "petitioners have met the statute requisite for eligibility of adjustment of status...." Ibid., 438 F.2d at 1029. Recognizing that "[adjustment] of status is... a matter of administrative grace [and] not mere statutory eligibility", 1030, the narrow question before us was whether there was a proper exercise of unfavorable discretion by the Attorney General. Thus, Ameeriar did not present, nor did we decide, the precise question here presented.

The finding of eligibility vel non is extremely critical to this petitioner: First, if she is found to be ineligible for a visa, she has a right to administrative and judicial review. The Supreme Court teaches that the "finding of eligibility involves questions of fact and law...." Foti v. INS, 375 U.S. 217, 228-29 n.15 (1963). Second, case law and the Attorney General's interpretation of § 1182(a) (19) distinguish among various forms of misrepresentations on visa applications. La Madrid-Peraza v. INS, 492 F.2d 1297 (9th Cir. 1974); Matter of S-and B-C-, supra, 9 I & N Dec. at 447. Third, if she is found to be eligible for a visa and discretion is exercised adverse to her, she may then reappear before a consular officer armed with any persuasive authority accorded the Attorney General's eligibility determination.

We are not impressed by the government's contention that, in any event, the consular officer would not be bound by the Attorney General's determination of eligibility or by a judicial determination thereof. We simply cannot speculate, at this stage of the proceedings, on what effect an Attorney General's determination of eligibility would have on a representative of the State Department. Nor do we have before us a case or controversy requiring a decision on the jural implications of a consular officer's refusal to respect a final judgment of a federal court.

We believe that it was the statutory schema to require a determination of eligibility as a prerequisite to any exercise of discretion by the Attorney General so that an alien, physically present in the United States, could avail himself of administrative and judicial review. Speaking for the Court in Foti v. INS, supra, former Chief Justice Warren said:

Since a special inquiry officer [immigration judge] cannot exercise his discretion to suspend deporation until he finds the alien statutorily eligible for suspension, a finding of eligibility and an exercise of (or refusal to exercise) discretion may properly be considered as distinct and separate matters.

Ibid. 375 U.S. at 228-29 n.15 (emphasis added).

The order of the Board of Immigration Appeals will be set aside and the cause remanded for proceedings consistent with the foregoing.

VAN DUSEN, Circuit Judge, dissenting.

I respectfully dissent because I believe the majority's holding is inconsistent with existing federal appellate decisions and will place an undue and unnecessary burden on the administrative and legal employees of the Government at a time when they are forced to deal with possible deportation of a large number of aliens who have illegally secured admission to this country.

8 U.S.C. § 1255(a) provides that "[the] status of an alien... may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if... the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence...." 8 C.F.R. 242.17(d) provides that "the burden of establishing that he is eligible for any requested benefit or privilege and that it should be granted in the exercise of discretion" is on the alien. 8 C.F.R. 242.18(a) requires that the decision of the administrative judge "contain a discussion of the evidence pertinent to any application... and the reasons for granting or denying the request."

Congress has, therefore, provided that the Attorney General, not the courts, shall make the decision on any application for adjustment of status "in his discretion."*fn1 In addition, such discretion may only be exercised "if the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence." In Ameeriar v. Immigration and Naturalization Service, 438 F.2d 1028, 1030 (3d Cir. 1971) (en banc), this court said:

"Adjustment of status is therefore a matter of administrative grace, not mere statutory eligibility.*fn3

Where the Attorney General decides he would not exercise his discretion, particularly in a case such as this where the immigrant concededly made "material, deliberate misrepresentations" in her application to representatives of the United States Government for a non-immigrant visa,*fn2 there is no need to consider the proviso concerning eligibility. Cf. Goon Wing Wak v. INS, 386 F.2d 292 (1st Cir. 1967); Silva v. Carter, 326 F.2d 315, 320 (9th Cir. 1963).

It is noted that Foti v. Immigration Service, 375 U.S. 217 (1963), did not involve 8 U.S.C. § 1255, which is applicable to this case, concerning adjustment of status of non-immigrant to that of a person admitted for permanent residence, but 8 U.S.C. § 1254, which permits suspension of deportation, voluntary departure, adjustment of status in certain cases, and other matters. Also, in the text of the Foti*fn3a case, supra at 228, as opposed to the footnote quoted by the majority, the Court said:

"Admittedly, the standard of review applicable to denials of discretionary relief cannot be the same as that for adjudications of deportability, since judicial review of the former is concededly limited to determinations of whether there has been any abuse of administrative discretion."

I would affirm the decision of the Board of Immigration Appeals.

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