Zahaf v. Ashcroft

89 F. App'x 966
CourtCourt of Appeals for the Sixth Circuit
DecidedFebruary 11, 2004
DocketNo. 02-6219
StatusPublished

This text of 89 F. App'x 966 (Zahaf v. Ashcroft) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zahaf v. Ashcroft, 89 F. App'x 966 (6th Cir. 2004).

Opinion

SILER, Circuit Judge.

In this appeal, Zouhir Zahaf challenges the district court’s determination that it lacked subject matter jurisdiction over his habeas action. We affirm.

BACKGROUND

Zahaf, an Algerian citizen, was originally admitted to the United States in 1995 under a valid F-l student visa. Desiring to remain in the U.S. after his student visa expired, Zahaf filed an application for asylum and withholding of removal with the San Francisco asylum office. Thereafter the Immigration and Naturalization Service (“INS”) served Zahaf with a notice to appear in which it alleged that Zahaf was subject to deportation and advised him that his asylum application had been referred to the immigration court. In 2001, while his asylum application was still pending, Zahaf married Fatiha Roundtree, an American citizen.

At that time the Louisville, Kentucky INS office had an unwritten policy of accepting and processing 1-485 applications (for adjustment of status to legal permanent resident) for aliens under voluntary orders of departure and foregoing enforcement of alternate orders of removal against those aliens until such time as their 1-485 applications were adjudicated. According to Zahaf, the interim Officer-in-Charge of the INS subdistrict office in Louisville advised Zahaf of this policy and suggested that he abandon his asylum application and seek a voluntary departure order. Relying on this advice, Zahaf withdrew his asylum application, admitted deportability, and moved the immigration judge (“IJ”) for a voluntary departure order. On May 5, 2001, the IJ granted Zahaf s motion and ordered him to depart the United States voluntarily by August 5, 2001. Zahaf then on June 12, 2001 filed his 1-485 change of status application on the basis of his marriage.

Zahaf did not depart as ordered, but remained in Kentucky with his wife. More than six months after Zahafs voluntary departure date passed, the Louisville sub-district office informed him that his 1-485 application had been denied.1 In his decision, the district director cited 8 C.F.R. § 245.1(c)(9) — the regulation stating that aliens married after deportation proceedings had been initiated against them are ineligible to seek a change in status — and then tersely explained that

[t]he record shows that the applicant filed Form 1-485, Application to Regis[968]*968ter Permanent Residence of Adjust Status on June 13, 2001. The record also shows that on April 5, 2001, the applicant was granted voluntary departure until August 5, 2001. Accordingly, the applicant is statutorily ineligible to file form 1-485 ... and the instant application must be and is hereby denied.

After learning that his 1-485 application had been denied, Zahaf moved the IJ to reopen his removal proceedings. That motion was denied. Though Zahaf could have appealed to the Board of Immigration Appeals, and ultimately to this court, he did not.

Zahaf was picked up by the INS in 2002. Six days later, he filed this habeas action in the district court. Zahaf s petition purported to challenge Attorney General Ashcroft’s “legal determination” that he was “statutorily ineligible” for an 1-485 change of status and sought a temporary restraining order prohibiting his deportation until his 1-485 application could be adjudicated “on the merits.” The district court dismissed for want of subject matter jurisdiction, and Zahaf was subsequently deported.

STANDARD OF REVIEW

“[This court] review[s] dismissals for lack of subject matter jurisdiction de novo.” Mustata v. U.S. Dep’t of Justice, 179 F.3d 1017, 1019 (6th Cir.1999) (citation omitted).

DISCUSSION

This dispute revolves around Zahaf s attempt to take advantage of the Attorney General’s authority to adjust an alien’s status to that of an “alien lawfully admitted for permanent residence” under 8 U.S.C. § 1255(a). Section § 1255 states that an alien’s status may be adjusted “by the Attorney General, in his discretion and under such regulations as he may prescribe,” when certain conditions are met.

The statute and accompanying regulations (8 C.F.R. § 245.1 et seq.) make clear, however, that not all aliens are eligible for the exception. One category of aliens not eligible for an adjustment of status are those who, like Zahaf, apply for an adjustment based on a marriage transpiring after deportation proceedings have been initiated against them. 8 C.F.R. § 245.1(c)(9). There is, however, an “exception to the exception.” It provides that the Attorney General can adjust status even on the basis of a marriage that took place after the initiation of proceedings if the alien, among other things,

establishes the marriage is bona fide by providing clear and convincing evidence that the marriage was entered into in good faith and in accordance with the laws of the place where the marriage took place, was not entered into for the purpose of procuring the alien’s entry as an immigrant, and no fee or other consideration was given ... for the filing of the petition.

8 C.F.R. § 245.1(e)(9)(iii)(F). This is the so-called “bona fide marriage exception.” Zahaf, “in proceedings” when he was married and thus under 8 C.F.R. § 245.1(c)(9) otherwise ineligible for an adjustment of status, apparently sought to become eligible by taking advantage of the “bona fide marriage exception” outlined in subsection (c)(9)(iii)(F). Another subsection, 8 C.F.R. § 245.1(c)(9)(iv), explains that to do so “[t]he request [for the bona fide marriage exception] must be made in writing and submitted with the Form I-485.” Moreover, “[t]he request must state the basis for requesting consideration for the exemption and must be supported by documentary evidence establishing eligibility for the exemption.” Id. Zahaf, however, failed to submit a written request and documentation with his 1-485 application.

[969]*969Citing the relevant statutory sections and 8 C.F.R. § 245.1(c)(9), the regulation rendering ineligible all aliens “seek[ing] to adjust status based upon a marriage which occurred ... while the alien was in exclusion, deportation, or removal proceedings, or judicial proceedings relating thereto,” the district director of the Louisville INS office in February 2002 denied Zahafs I-485 application. In so doing, the district director simply applied the statute and regulation to Zahafs case. As part of his decision, the district director stated that Zahafs application was being denied because Zahaf was “statutorily ineligible to file form 1-485.”

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89 F. App'x 966, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zahaf-v-ashcroft-ca6-2004.