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April 5, 2000


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 exceptional 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 permanent resident.

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 motion.

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, 1999.

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 deportation.

To facilitate an understanding of the discussion that follows, a chronological summary of the pertinent events is set forth at this point.

June 21, 1994 — Petitioner entered United States without inspection.
July 27, 1995 — INS placed petitioner in deportation proceedings.

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 departure.
Feb. 13, 1996 — Petitioner appealed to BIA.
Oct. 2, 1997 — Petitioner mated Elena Espinosa.
Nov. 7, 1997 — Elena filed an 1-130 visa petition with INS.
Nov. 7, 1997 — Petitioner filed application for adjustment of immigration status based on anticipated ...

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