The opinion of the court was delivered by: Debevoise, Senior District Judge.
Petitioner, Balwinder Singh, an alien in custody pursuant to an order
of deportation, filed a petition and a supplemental petition for a writ
of habeas corpus alleging that he is in custody in violation of the
Constitution and laws of the United States.*fn1 The Immigration and
Naturalization Service ("INS") responded, asserting that the court lacks
jurisdiction to hear the case and, in any event, the petition lacks
merit. The court has held hearings, at which additional facts were
presented and arguments made.
The court has jurisdiction over this proceeding. By failing to timely
process both a visa petition which petitioner's wife filed and
petitioner's application for adjustment of immigration status, by denying
petitioner's motion to reopen on erroneous legal grounds, and by failing
to apply appropriate tolling to petitioner's voluntary departure date,
the INS has deprived petitioner of a statutorily created right to a
hearing to determine if his marriage was bona fide and to determine
whether he is entitled to adjustment of his immigration status.
Petitioner is being illegally detained. The writ will issue.
A. The Factual and Procedural Background
Petitioner is a 24 year old native and citizen of India. He entered the
United States without inspection on June 21, 1994. On July 19, 1995
deportation proceedings were commenced against him.
Petitioner applied for political asylum. Hearings were held before an
Immigration Judge ("IJ") on the order to show cause for deportation and
on the asylum application on November 1, 1995, December 6, 1995 and
February 5, 1996. On February 5, 1996 the IJ issued an order denying
asylum and withholding of deportation. He issued an alternate order of
deportation, granting petitioner thirty days voluntary departure, stating
in his oral opinion:
I must also tell the respondent that' if he fails to
comply with my order, for a period of five years he
will be ineligible for a certain type of relief and
among those are additional periods of voluntary
departure, adjustment of status under Section 244, 245
and 249 or any changes of nonimigrant
classifications under Section 248. And, finally, I
must tell him that the only excuse for not complying
with my decision is what the Act characterizes as
circumstances which refer mostly to his
own grave illness or the death of an immediate
relative in his family.
Petitioner appealed to the Board of Immigration Appeals ("BIA"). This
resulted in an automatic stay of the IJ's order, and the voluntary
departure time was tolled.
On October 2, 1997, while the appeal was pending petitioner married
eighteen year old Elena Espinosa, a United States citizen. On November
7, 1997 Espinosa filed an 1-130 visa petition on petitioner's behalf, and
on the same date petitioner filed an application for adjustment of his
immigration status based upon future approval of the 1-130 visa
petition. The adjustment he sought was from the status of a deportable
alien who was granted voluntary departure to the status of a lawful
On June 11, 1998 the BIA dismissed petitioner's appeal from the IJ's
order denying asylum and withholding of deportation, holding that the IJ
correctly concluded that petitioner had not established his eligibility
for either form of relief. The BIA further ordered that "[petitioner] is
permitted to depart from the United States voluntarily within 30 days from
this order and in the event of a failure to so depart, [petitioner] shall
be deported as provided in the Immigration Judge's order."
On August 3, 1998, pursuant to 8 C.F.R. § 3.2 (c)(1), petitioner
filed with the BIA a motion to reopen his deportation proceedings based
upon his wife's November 7, 1997 1-130 visa petition and his application
of the same date for adjustment of his immigration status. According to
petitioner, under the applicable regulation "the adjustment application
and the motion it supported were to be held in abeyance while the visa
petition was being adjudicated." (Petitioner's Reply Memorandum at pp. 7,
8.) On January 13, 1999 the BIA denied the motion, stating "[t]he
respondent has failed to demonstrate that he has an immigrant visa
immediately available to him, since he has not provided a notice of
approval for the visa petition allegedly filed for him by his United
States citizen spouse. See 8 C.F.R. § 3.2(c)(1) (1998); see also
Matter of Coelho, 20 I & N Dec. 464 (BIA 1992)." Petitioner's spouse had
filed the 1-130 visa petition on November 7, 1997, in conjunction with
petitioner's petition for adjustment of status. Neither had been acted
upon when petitioner filed his motion to reopen nor when the BIA denied
The effect of the legal principle upon which the BIA relied, i.e.
automatic denial of a motion to reopen if the INS had not approved a visa
petition, is to make the applicant's statutory right to a change of status
based on marriage to a United States citizen wholly contingent upon
prompt INS action upon the visa petition. Here the visa petition was filed
in November 1997, two years before the hearings in this action. At those
hearings the attorney for the government candidly admitted that because
of its heavy case load it was impossible to predict when the INS would
act upon the visa petition. This is remarkably casual treatment of a
right which Congress has conferred.
In any event it appears that petitioner and his counsel did not receive
notice of the January 13, 1999 decision until long after the time for
appeal to the Court of Appeals had expired. The next communication from
the INS that petitioner received was an April 27, 1999 letter directing
him to surrender on May 27. On May 25 petitioner moved before the BIA to
reconsider its order of January 13, 1999 and for a stay of deportation
proceedings during the pendency of the motion to reconsider. He did not
receive a ruling on his application for a stay.
Earlier in the deportation proceedings, after failure of petitioner to
voluntarily depart within thirty days following the BIA's June 11, 1998
dismissal of his appeal from the IJ's denial of his asylum application,
the INS obtained a warrant of deportation issued on July 10, 1998
requiring that petitioner be taken into custody. This
warrant was executed when petitioner was taken into custody on July 7,
The petition and supplemental petition for habeas relief were filed on
July 21, 1999 and September 21, 1999, respectively. Petitioner challenges
both the January 13, 1999 decision of the BIA and the warrant for
To facilitate an understanding of the discussion that follows, a
chronological summary of the pertinent events is set forth at this
June 21, 1994 — Petitioner entered United States
July 27, 1995 — INS placed petitioner in deportation
Petitioner applied for asylum.
Feb. 5, 1996 — IJ issued order denying asylum and
denying withholding deportation.
He issued alternative order of
deportation granting 30 days voluntary
Feb. 13, 1996 — Petitioner appealed to BIA.
Oct. 2, 1997 — Petitioner mated Elena Espinosa.
Nov. 7, 1997 — Elena filed an 1-130 visa petition
Nov. 7, 1997 — Petitioner filed application
for adjustment of immigration status
based on anticipated ...