United States District Court, District of New Jersey, D.
April 5, 2000
BALWINDER SINGH, PETITIONER,
ANDREA QUARANTILLO, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT. BALWINDER SINGH, PETITIONER, V. ANDREA QUARANTILLO, AS DISTRICT DIRECTOR, IMMIGRATION & NATURALIZATION SERVICE, RESPONDENT.
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 approval of
June 11, 1998 — BIA dismissed petitioner's appeal
from IJ decision of Feb. 5, 1996.
July 11, 1998 — Petitioner filed motion to reopen
Jan. 13, 1999 — BIA denied motion to reopen on
ground that it was not accompanied
by a notice of approval of visa petition.
April 27, 1999 — Notice directed petitioner to
surrender to INS custody on May 27.
May 25, 1999 — Petitioner moved BIA to reconsider
order of Jan. 13, 1999.
Petitioner applied by mail for stay
during period of Reconsideration.
May 27, 1999 — INS notified petitioner it
would rule on stay application on or
before May 28, 1999.
July 7, 1999 — INS arrested petitioner.
July 21, 1999 — Petitioner's original petition was
Sept. 21, 1999 — Petitioners supplemental petition
B. Petitioner's Grounds for Relief
Petitioner asserts that the court has habeas corpus jurisdiction under
principles set forth in Sandoval v. Reno, 166 F.3d 225 (3d Cir. 1999) and
applied in Velasquez v. Reno, 37 F. Supp.2d 663 (D.N.J. 1999).
In his original petition petitioner challenged the BIA's January 13,
1999 denial of his motion to reopen. He asserted that approval of the
visa petition was not required and that the BIA's denial of his motion on
the ground that such approval had not been obtained was error. Visa
numbers are always available under the "immediate relative"
classification pursuant to which the visa petition was filed in
petitioner's case. According to petitioner the regulations required that
his application for adjustment of status, filed simultaneously with the
1-130 visa petition, should be held for processing pending action on the
1-130 petition. 8 C.F.R. § 245.2 (a)(2). By the same token the motion
for reopening of deportation proceedings should have been held in
Petitioner challenges the BIA decision in In re H-A-., Interim Decision
3394 (BIA 5/25/99). There the BIA, sitting en banc, held in a 9-7 ruling
that motions based on marriages after deportation proceedings had
commenced must be denied in the absence of an approved visa petition.
This would be the case even in situations where time limitations might
make it impossible for the motion to be accompanied by an approval.
Petitioner urges that the court adopt the rationale of the 7 judge H-A-
In his original petition petitioner challenges the failure of the INS
to process and provide a hearing on the November 7, 1997 1-130 visa
petition. This failure resulted in the absence of an approved petition,
the basis of the BIA denial of the motion to reopen the deportation
Finally, in his original petition petitioner invited a review of the
circumstances of his July 7, 1999 arrest. He had applied for a stay of
his May 27, 1999 deportation on May 25; he was advised by INS officials
that a decision on the stay application would be made on or before May
28. No decision was communicated to petitioner and he was arrested on
July 7, 1999.
In his supplemental petition petitioner alleged that he first became
aware that the January 13, 1999 BIA decision was not the sole basis for
his arrest by reading the INS's August 15, 1999 answer to his petition.
From the answer he learned that the government relied on the June 11,
1998 BIA dismissal of the appeal from the
IJ's decision and alternate order of deportation permitting petitioner to
depart voluntarily within thirty days of the order. It was pursuant to
that order that (i) the July 10, 1998 warrant of deportation issued, (ii)
by letter dated April 27, 1999 the INS directed petitioner to surrender
for deportation on May 27, and (iii) petitioner was arrested on July 7,
Petitioner refers to 8 C.F.R. § 241.33 (a)(1) which provides in
part that ". . . once an order of deportation becomes final, an alien
shall be taken into custody and the order shall be executed. For the
purpose of this part, an order of deportation is final and subject to
execution upon the date when any of the following occurs: (1) A grant of
voluntary departure expires." It is petitioner's contention that the
voluntary departure which was until July 11, 1998 had not "expired" when
the INS entered the alternate order and issued the warrant against him on
July 10, 1998. Petitioner further contends that his November 7, 1997
application for adjustment of his immigration status had a tolling effect
which continued when his motion to reopen was filed on July 11, 1998.
Thus, according to petitioner, the July 10, 1998 order of deportation and
warrant were premature and unlawful.
1. Jurisdiction: The court's jurisdiction is controlled by the
provisions of the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), enacted April 24,
1996, the Illegal Immigration Reform and Immigrant Responsibility Act of
1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009-5461 (1996), enacted
September 30, 1996, and by the Supreme Court and Third Circuit Court of
Appeals decisions interpreting the AEDPA and IIRIRA.
The government in its answer to the original petition characterizes the
June 11, 1998 order as "the final order of deportation." This case is
different from Sandoval v. Reno, 166 F.3d 225 (3d Cir. 1999) in that it
does not involve deportation of an alien who is deportable because he had
committed certain criminal offenses. It is different from Sandoval
because the provisions of AEDPA and IIRIRA do not deprive the courts of
appeal of jurisdiction to review final orders of deportation. The
government contends that therefore the petition in this case must be
dismissed because judicial review of the June 11, 1998 order was within
the exclusive jurisdiction of the Court of Appeals for the Third
Circuit. The defect in the government's argument is that petitioner is
not challenging the June 11, 1998 order per se. He is challenging
subsequent orders, actions and inactions of the INS which had the
cumulative effect of depriving him of a statutory right.
Quite likely the January 13, 1999 order of the BIA could have been
appealed to the Court of Appeals for the Third Circuit. However,
petitioner and his counsel were unaware of that order until long after the
time for appeal had expired. There were and are no other orders which
petitioner could appeal to challenge his deportation in violation of his
statutory rights, and the various agencies of the INS have blocked or
denied relief, rendering petitioner's rights under
8 U.S.C. § 1255(e)(3) a nullity.
Were petitioner seeking simply to vacate execution of the warrant of
removal, he might well be confronted with the jurisdictional bar of
8 U.S.C. § 1252(g):
Except as provided in this section and
notwithstanding any other provision of law, no court
shall have jurisdiction to hear any cause or claim by
or on behalf of any alien arising from the decision or
action by the Attorney General to commence
proceedings, adjudicate cases, or execute removal
orders against any alien under this Act.
Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 119
S.Ct. 936, 142 L.Ed.2d 940 (1999). The thrust of the petition in the
present case is not an attack on the warrant for deportation and its
execution. Rather it is an attack on the decisions and procedures of the
have the effect, if not the purpose, of depriving petitioner of
statutory rights. If these decisions and procedures are corrected there
is no reason to believe that the Attorney General would execute the
warrant of deportation.
It has been established in this circuit in Sandoval v. Reno, 166 F.3d 225
(3d Cir. 1999) and more recently in Liang v. INS, 206 F.3d 308 (3d Cir.
2000) that neither the transitional rules nor the permanent rules
promulgated under AEDPA and IIRIRA deprive district courts of habeas
jurisdiction under 28 U.S.C. § 2241. The court has jurisdiction in
the present case, therefore, to consider petitioner's claims.
2. Stay or Tolling of Departure Date: On February 5, 1996 the IJ issued
an order denying asylum and denying withholding deportation. He issued an
alternate order of deportation granting petitioner thirty days to
voluntarily depart. In his oral opinion in compliance with the
regulations, the IJ advised petitioner that if he failed to comply with
"my order", for a period of five years he would "be ineligible for a
certain type of relief and among those are additional periods of
voluntary departure, adjustment of status under Sections 244, 245 and 249
or any changes of nonimigrant classifications under Section 248."
On February 13, 1996 petitioner appealed to the BIA, which resulted in
an automatic stay of the IJ's order and a tolling of his voluntary
departure time. On October 2, 1997, while the appeal was pending,
petitioner married Elena Espinosa, a United States citizen. On November
7, 1997 Espinosa filed an 1-130 visa petition on petitioner's behalf, and
petitioner filed an application for adjustment of his immigration status
based upon anticipated approval of the 1-130 visa petition.
On June 11, 1998 the BIA dismissed petitioner's appeal from the IJ's
order denying asylum and withholding deportation, ordering that
petitioner be permitted to voluntarily depart from the United States
within 30 days from the date of the order, or, in the event of failure to
depart, face deportation.
Proceeding under 8 C.F.R. § 3.2 (c)(1), on August 3, 1998
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. On January 13, 1999 the BIA denied the motion for the reason that
his spouse's visa petition had not been approved and thus petitioner had
not established that an immigrant visa was "immediately available to
him." This state of affairs raises two issues: (i) whether, as petitioner
contends, the October 14, 1997 adjustment application preserved the
voluntary departure dates set forth in the February 5, 1996 order of the
IJ and the June 11, 1998 order of the BIA affirming the decision of the
IJ, and (ii) whether the BIA correctly applied the law when it denied
petitioners motion to reopen.
If the adjustment application did not toll the voluntary departure
date, the deadline for petitioner's departure would have been July 11,
1998, thirty days after the June 11, 1998 decision of the BIA dismissing
petitioner's appeal. If petitioner had departed it would have constituted
an abandonment of the visa petition and application for adjustment.
Absent tolling of the departure date, the consequences of failure to
depart by the July 11 date were dire indeed.
Former Section 242b(e)(2) of the Immigration and Nationality Act
(INA), 8 U.S.C. § 1252b(e)(2), eliminated the availability of some
forms of discretionary relief from deportation with respect to aliens who
failed to comply with voluntary departure orders. The provision stated as
(2) VOLUNTARY DEPARTURE —
(A) IN GENERAL — Subject to subparagraph (B),
any alien allowed to depart voluntarily under section
244(e)(1) or who has agreed to depart voluntarily at
his own expense under section 242(b)(1)
who remains in the United States after the scheduled
date of departure, other than because of exceptional
circumstances, shall not be eligible for relief
described in paragraph (5) for a period of 5 years
after the scheduled date of departure or the date of
unlawful reentry, respectively.
(B) WRITTEN AND ORAL NOTICE REQUIRED
— Subparagraph (A) shall not apply to an alien
allowed to depart voluntarily unless, before such
departure, the Attorney General has provided written
notice to the alien in English and Spanish and oral
notice either in the alien's native language or in
another language the alien understands of the
consequences under subparagraph (A) of the alien's
remaining in the United States after the scheduled
date of departure, other than because of exceptional
The relief from deportation described in the paragraph (5) referenced in
the above language includes adjustment of status under Section 245 of the
INA. See 8 U.S.C. § 1255; see also Shaar v. I.N.S., 141 F.3d 953, 956
(9th Cir. 1998) (finding that aliens who fail to voluntarily depart as
they agreed are subject to the statute barring discretionary relief,
The government correctly notes that pursuant to 8 C.F.R. § 3.2(f) a
motion to reopen does not stay the execution of a decision by the BIA,
unless a stay of execution is specifically granted by the BIA, an
immigration judge or an authorized officer of the INS. Thus, under the
regulations petitioner's August 3, 1998 motion to reopen his deportation
proceedings did not have the effect of staying his deportation.
Petitioner, however, is relying not on his August 3, 1998 motion. Rather
he relies on his November 7, 1997 application for adjustment of status
based upon his wife's 1-130 visa petition. This was filed during the
period when the IJ's alternative order of deportation was stayed by reason
of the appeal to the BIA, and it is petitioner's contention that "as he
had made timely application to adjust his voluntary departure status, the
voluntary departure time did not expire as a matter of law, and his
remaining here thereafter was lawful." (Petitioner's Reply Mem. at 15.)
To support this position petitioner relies upon GORDON, MAILMAN &
YALELOEHR, IMMIGRATION LAW AND PROCEDURE, (rev.ed.) at § 51.01[a]
and § 74.02[f], and he relies upon the en banc decision in
Contreras-Aragon v. INS, 852 F.2d 1088 (9th Cir. 1988).
The treatise states that "[d]uring the pendency of an application for
adjustment the alien is generally authorized to remain in the United
States and is ordinarily not considered `illegally' or `unlawfully'
within this country." Chapter 51 at § 51.01[a]. This makes eminent
sense, because if an alien does leave the country while an application to
adjust is pending the adjustment application is deemed abandoned.
Contreras-Aragon can be applied to the present case by analogy. In that
case the BIA's period of departure expired in thirty days; the time for
appeal did not expire for six months; the alien appealed within the six
months but after the expiration of thirty days. The court held that the
voluntary departure period did not expire until after its affirmance of
the deportation order.
Applying the rationale of Contreras-Aragon, petitioner and his spouse
were accorded the right to make the November 7, 1997 applications. By
virtue of 8 U.S.C. § 1154 (a) Elena Espinosa was authorized to move
for designation of petitioner to an immediate relative status under
§ 1151(b)(2)(A)(i). Petitioner was entitled to apply for adjustment
of his immigration status based upon the anticipated approval of his
spouse's application. Under 8 C.F.R. § 245.2 (a)(2):
(2) Proper filing of application — (i) Under
section 245. Before an application for adjustment of
status under section 245 of the Act may be considered
properly filed, a visa must be immediately available.
If a visa would be immediately available upon approval
visa petition, the application will not be
considered properly filed unless such petition has
first been approved. If an immediate relative petition
filed for classification under section 201(b)(2)(A)(i)
of the Act or a preference petition filed for
classification under section 203(a) of the Act is
submitted simultaneously with the adjustment
application, the adjustment application shall be
retained for processing only if approval of the visa
petition would make a visa immediately available at
the time of filing the adjustment application. If the
visa petition is subsequently approved, the date of
filing the adjustment application shall be deemed to
be the date on which the accompanying petition was
"Citizens have a constitutionally protected statutory entitlement `to
submit and substantiate their marriage.' . . . This entitlement is
derived from the INA's definition of `immediate relative' in section
201(b), 8 U.S.C. § 1151(b) . . . ." Manwani v. U.S. Dept of Justice,
I.N.S., 736 F. Supp. 1367, 1381 (W.D.N.C. 1990). The statute and
regulations contemplate that the INS provide Espinosa and petitioner an
opportunity to establish their entitlement to the relief they seek. Just
as Contreras-Aragon mandated tolling a voluntary departure date to
preserve the right to appeal, so mandated tolling is required in the
present case to preserve Espinosa's and petitioner's statutory right to
pursue a visa petition and adjustment of immigration status. By simply
sitting on these applications (as the INS has done since November 1997)
and failing to provide a hearing the INS has effectively deprived
petitioner of any relief. Absent a tolling requirement there are serious
due process concerns.
In these circumstances the departure date established in the BIA's June
11, 1998 order must be tolled in order to preserve petitioner's rights
under 8 U.S.C. § 1255(e)(3).
3. BIA's Denial of Motion to Reopen: Failing to apply tolling to
petitioner's departure date had the effect of depriving him of a statutory
right. Similarly the BIA's rule that a motion to reopen must be denied
unless the visa petition had been approved deprived petitioner (and his
United States spouse) of rights under 8 U.S.C. § 1255(e)(3).
As recited above the BIA summarily denied petitioner's motion to reopen
for the single reason that he failed to demonstrate that he had 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." It is petitioner's contention that visa
numbers are always available under the "immediate relative"
classification, that the visa availability requirements were met by
virtue of the fact that the visa petition and adjustment application were
filed simultaneously: "If an immediate relative petition filed for
classification under section 201(b)(2)(A)(i) of this Act or a preference
petition filed for classification under section 203(a) of the Act is
submitted simultaneously with the adjustment application, the adjustment
application shall be retained for processing only if approval of the visa
petition would make a visa immediately available at the time of filing the
adjustment application. If the visa petition is subsequently approved,
the date of filing the adjustment application shall be deemed to be the
date on which the accompanying petition was filed."
8 C.F.R. § 245.2(a)(2).
Both the statute and the regulation are nullified unless the motion for
adjustment is held in abeyance pending adjudication of the visa
petition. Such nullification is the result of the ruling of the BIA in
The BIA evidently relied upon its decision in Matter of Arthur, 20 I. &
N. Dec. 475 (BIA 1992) in which it held that it would not grant motions
to reopen for consideration of adjustment applications based upon
unadjudicated visa petitions. The government in the present case relies
upon In re H-A-, Interim Decision 3394 (BIA 5/25/99). There the BIA was
asked to reconsider its ruling in Matter of Arthur.
A majority of nine members of the BIA held that the ruling in Matter of
Arthur should be continued. This produced the absurd result that the BIA
denied a motion to reopen based upon a timely but unapproved visa petition
and then, when the visa petition was approved, denied reconsideration of the
denial. The seven member minority dissented in a well reasoned opinion (in
which the chairman joined) demonstrating that the majority opinion not only
produced manifest injustice but also flouted Congressional intent.
In H-A- petitioner, a native of the Sudan, came to the United States in
1990 seeking asylum. The INS issued an order to show cause and notice of
hearing in June 1993. His appeal from a denial of asylum was dismissed on
September 7, 1995. On July 27, 1994 he married a United States citizen
who filed a visa petition on his behalf on September 18, 1996.
Simultaneously with the visa petition, petitioner filed an application
for adjustment of status. On September 25, 1996 petitioner submitted a
motion to reopen to adjust status. At that time, of course, the INS had
not ruled on the visa petition. The deadline for filing the motion to
reopen was September 30, 1996. On April 17, 1997 the BIA denied the
motion under the policy set forth in Matter of Arthur which requires
prior approval of marital visa petitions before reopening for adjustment
of status cases subject to the marriage fraud provisions of
8 U.S.C. § 1154(g) and 8 U.S.C. § 1255 (e). There followed
petitioner's motion for reconsideration.
The Immigration Marriage Fraud Amendments of 1986, Pub.L. No. 99-639,
100 Stat. 3537, prohibited approval of visa petitions and adjustment
applications based on marriages entered into while an alien was in
proceedings. The obvious purpose was to eliminate fraudulent marriages as
the means to avoid deportation. Recognizing that this absolute rule could
have an unfair impact upon persons who married legitimately during the
often lengthy period of INS proceedings, Congress amended the statute in
1990 to allow approval of such visa petitions and adjustment applications
if the alien established by clear and convincing evidence that the
marriage was bona fide.
In its decision denying reconsideration in the H-A- case, the BIA
majority held that in order to implement the statutory marriage fraud
provisions "motions to reopen for adjustment of status based upon
unadjudicated visa petitions which fall within the ambit of sections
204(g) and 245(e) of the Act will not be granted." The majority opinion
effectively prevents the movant for adjustment from relief after a visa
petition is ultimately granted by application of reopening regulations.
Subject to certain exceptions, a party may file only one motion to reopen
and it must be filed within 90 days of the final administrative
decision. It would be the rare case that the visa petition could be acted
upon within that tight time frame.
The majority opinion, rather than implementing Congressional intent,
subverts such intent Congress removed the absolute bar to visa petitions
on behalf of aliens who married after the institution of deportation
proceedings. The BIA majority takes away that right. The minority opinion
effectively destroys the rationale upon which the majority in H-A-
relied. It sets forth a detailed history of the applicable statutory and
regulatory provisions. On the basis of that history it concluded:
The regulations at 8 C.F.R. § 245.1 (c)(9)(iii)(F)
and (iv) confer jurisdiction on the Immigration Court
to at least consider prima facie evidence of a bona
fide marriage for purposes of reopening. The
regulation at 8 C.F.R. § 245.1 (C)(9)(iii)(F)
specifically states that the prohibition against
adjustment of status on the basis of a marriage while
in deportation proceedings does not apply if the alien
establishes that the marriage is bona fide by
providing clear and convincing evidence that the
marriage was entered into in good faith. The
regulation at 8 C.F.R. § 245.2 (a)(2) permits
simultaneous filing of the visa petition and
adjustment application, and
under 8 C.F.R. § 245.2 (a)(1) the
Immigration Court has sole jurisdiction over
adjustment applications after an alien is place
in deportation proceedings.
To deny reopening because the Service has not completed its
adjudication of the visa petition, as the majority insists must be done,
and then deny reconsideration of the denial after the Service approves
the visa petition defeats the purpose of the regulations that allow for a
United States citizen to file a simultaneous visa petition on behalf of a
spouse. The record reflects that the Service did not oppose the motion to
reopen and has not opposed the respondent's motion to reconsider. Why
conclusively presume otherwise? The majority also disregards the
authority of this Board and of the Immigration Judges to adjudicate
whether a respondent is a party to a bona fide marriage under the
regulations. No legitimate governmental interest is furthered by
effectively precluding a forum to spouses of United States citizens who
submit a visa petition within the strict limits prescribed by the
regulations. It is only that result that is accomplished by the
majority's disposition of this matter.
Absent individual adverse factors we can not invoke discretion to
deprive a class of eligible applicants of the sole forum prescribed by
the regulations and section 245(e)(3) of the Act for consideration of
their bona fide marriages. See 8 C.F.R. § 245.1 (c)(9)(iii)(F),
(iv); 245.2(a)(1), (2). It is well settled that the Attorney General
from whom we derive our authority can not disregard the procedure
prescribed by the regulations as they have the force of law. United States
ex rel Accardi it Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681
(1954); In re Ponce De Leon-Ruiz, Interim Decision 3261 (BIA 1996). In
determining whether to exercise our delegated power under
8 C.F.R. § 3.2 (a)(2), we should apply the test prescribed in Mathews
v. Eldridge, 424 U.S. 319, 335, [96 S.Ct. 893, 47 L.Ed.2d 18] (1976),
which takes into account three factors: the interest at stake for the
individual; the risk of erroneous deprivation of that interest; and the
Government's administrative burden. See Padilla-Agustin v. INS, 21 F.3d 970
(9th Cir. 1994); Hernandez v. Cremer, 913 F.2d 230 (5th Cir.
1990); Haitian Refugee Center, Inc. v. Nelson, 872 F.2d 1555 (11th Cir.
1989), aff'd. sub nom McNary v. Haitian Refugee Center, Inc., 498 U.S. 479,
[111 S.Ct. 888, 112 L.Ed.2d 1005] (1991). Here the fundamental nature of
the marital relationship being threatened by our failure to provide a
forum, and the reduced administrative burden entailed in proceedings
likely to result in the prompt and fair resolution of the respondent's
status favor reopening.
The minority opinion in H-A- sets forth a correct statement of the law
which will be applied in the present case. It follows that the BIA's
January 13, 1999 ruling denying petitioner's motion to reopen on the
ground that it was not accompanied by a notice of approval of Espinosas
visa petition was erroneous as a matter of law. Unfortunately petitioner
did not receive notice of that ruling until long after the time for
appeal had expired.
It will be recalled that on June 11, 1998 the BIA dismissed an appeal
of the IJ's decision and, with an alternate order of deportation
permitted petitioner to depart from the United States voluntarily within
thirty days of the date of its order. Because petitioner had failed to
depart from the United States voluntarily within thirty days following
the BIA's June 11 decision, a warrant of deportation issued on July 10,
1998. No action was taken on the warrant until after the January 13, 1999
decision of the BIA denying petitioner's motion to reopen. That
(erroneous) decision triggered execution of the warrant and petitioner's
arrest on July 7, 1999.
8 C.F.R. § 241.33 (a) governs execution of a warrant of
deportation. It provides that "once an order of deportation becomes
final, an alien shall be taken into custody and the order shall be
executed." The regulation specifies that an order of deportation is final
and subject to execution when "[a] grant of voluntary departure expires."
In the present case, as noted above, the departure date established in
the June 11, 1998 BIA order was tolled by virtue of the November 7, 1997
filing of the visa petition and petition for adjustment of immigration
status. The BIA's erroneous January 13, 1999 denial of the motion did not
break the tolling effect, and petitioner is being unlawfully detained.
The writ will issue, restoring petitioner's liberty until the INS has
provided a hearing and ruled on the visa petition and the application for
adjustment of immigration status and until the BIA, after receiving said
rulings, has heard petitioner's motion to reopen.
An order will issue implementing the foregoing.