Zalmai Sayyad Ameeriar and Ayesha Zalmai Ameeriar v. Immigration and Naturalization Service

438 F.2d 1028

Opinions

OPINION OF THE COURT

GANEY, Circuit Judge:

The sole problem posed for disposition by this court is whether there was a proper exercise of discretion by the des-ignees of the Attorney General, the Special Inquiry Officer and the Board of Immigration Appeals in denying adjustment of status to the petitioners under § 245 of the Immigration and Nationality Act, 8 U.S.C. § 1255(a), (1964). Review is here sought under § 242(b) of that Act, 8 U.S.C. § 1252(b), (1964).

The narrow problem posed here results from the fact that the petitioners have conceded their deportability, but have requested that they be given the discretionary relief of adjustment of status, 8 U.S.C. § 1255(a), (1964), or voluntary departure in lieu of deportation, 8 U.S.C. § 1254(e), (1964). Additionally, the Government has conceded that petitioners have met the statute requisite for eligibility of adjustment of status, 8 U.S.C. § 1255(a), (1964). The guiding principle for the exercise of such discretion is set forth in Santos v. Immigration and Naturalization Service, 375 F.2d 262, 264 (C.A.9, 1967), wherein the court, in considering the proper exercise of discretion, stated: “An ‘evaluation of all the facts’ requires due consideration be given to the presence or absence of special equities. See Matter of Oritz-Prieto, B.I.A.Int.Dec. #1508, July 16, 1965; Matter of V-, 7 I. & N. Dec. 348 (1956). Indeed, such a requirement is implicit in the high burden of proof placed on the applicant by the Board. ‘The extraordinary discretionary relief provided in Section 245 of the Act can only be granted in meritorious cases; the burden is always upon the alien to establish that his application for such relief merits favorable consideration.’ Matter of Oriz-Prieto, supra, (emphasis added); Matter of A-, 9 I. & N.Dec. 249 (1961); Mater of G-, 9 I. & N.Dec. 38 (1960). See also 8 C.F.R. § 242.17(d).”¹ Cf. Fook Hong Mak v. Immigration and Naturalization Service, 435 F.2d 728 (2nd Cir., Opinion of 11/24/70).

Section 245 of the Immigration and Naturalization Act2 requires the alien to fulfill two requirements, (1) the statutory requirements of inspection and admission, application, eligibility for an immigrant visa and immediate availability of the visa, and (2) he must convince the Attorney General to exercise favorable discretion in his ease. Lihati Lui Unga v. Immigration and Naturalization Service, 404 F.2d 48, 49 (C.A.9, 1968); Chen v. Foley, 385 F.2d 929, 935 (C.A. 6, 1967). Adjustment of status is therefore a matter of administrative grace, not mere statutory eligibility.³

Based on the “unequivocal” finding that petitioners had entered the United States with the intention to seek employment and adjustment of status immediately, the Special Inquiry Officer declined to exercise his discretion to grant them adjustment of status, holding, “It may seem to some persons to be rather harsh to require these people to depart from the United States merely for the purpose of obtaining immigrant visas with which to return for permanent residence. I cannot, however, in good conscience, grant their request for adjustment of status under Section 245 * * * because the adjustment of status provided for in that section of law is an extraordinary means of giving persons lawful permanent residence status where their cases have great merit. The cases of these two respondents do not have such great merit and, in addition, I am satisfied that they have attempted to impose upon the Government of the United States by coming here as nonimmigrants with the intention of adjusting their status to that of lawful permanent resident aliens as soon after they arrived in the United States as they believed possible.”

The Board of Immigration Appeals dismissed petitioners’ appeals, finding that the Special Inquiry Officer had properly exercised his discretion.

The pertinent facts upon which the Special Inquiry Officer’s judgment was affirmed by the Board of Immigration Appeals are as follows: Zalmai Sayyad Ameeriar came to this country from Kabul, Afghanistan, where he had been a cashier in the employ of the United Nations for a period of five years, and it may readily be assumed from the nature of his position that he was entirely familiar with English and governmental authorities. Accordingly, in 1967, he first sought and obtained a visa entitling him to come to this country as a student, and when discussing the nature of his visa with his superior, he was told it was a mistake and he should apply for a visitor’s pleasure visa, which he obtained in 1968, from the Deputy Representative of the United Nations, calling for a pleasure trip as a tourist in the United States, “on a personal matter,” and he forwarded this to the Consul of the United States.⁴ He was admitted to this country as a nonimmigrant under § 101(a) (15) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a) (15) (B) (1964). This would show his knowledge of the limited duration of his visa. He was married to his wife for seventeen years and sired six children, three of whom he placed with his father and three with their mother. After separating from his wife, he secured a divorce from her and married his present wife. Five months after his marriage, he applied for the visa aforesaid, left Afghanistan and arrived in New York on February 10, 1968. On February 15, 1968, he located in the small village of Butztown, Pennsylvania, on the outskirts of the city of Bethlehem, hard by the sprawling plant of the Bethlehem Steel Company which stretches along the Le-high River for some five miles, and secured a job as an accountant with a steel contracting firm, all this within five days of his arrival in New York. On February 14th, four days after his arrival here, as shown by evidence offered by the Government, he resigned his position as a cashier with the United Nations in Kabul, Afghanistan, and never renewed his application for a visitor’s pleasure visa, but explained the same by saying that at the time he made application with the Labor Department for a job, he was jtold by a lady clerk, “You are in under a visitor’s visa because now your visa is changed to other immigration visa. If you work or don’t work, that is up to you.” He testified this conversation persuaded him that it was unnecessary to renew his visitor’s pleasure visa and he thought he was not overstaying his permitted time, which was to expire on March 15, 1968. He testified that it was his intention to come to the United States and remain here if he liked it, that he wanted to stay in this country and his wife, likewise, repeated the same statement.

At the time of his departure from Afghanistan and his arrival in New York, his present wife was five months pregnant and she testified that if they were compelled to return to Afghanistan, food conditions were not conducive to the proper rearing of her infant child and a change in climate and food would be bad for the child.

The reality of the situation must be taken into consideration as it obtains on this record in which a total stranger to a foreign land, having no relatives here at all, comes immediately on a visitor’s pleasure visa to a large industrial center, secures a house in a small village thousands of miles from his home and immediately seeks employment, all within five days.

While we are in agreement that the law should lend itself to the amelioration of hardship cases and especially since previously the Government permitted individuals to arrange for what was termed “pre-examination” eases in which they went to Canada and returned to the United States and thereby acquired permanent residence status, nevertheless, adjustment of status should be granted only in meritorious cases.

Petitioners argue that amendments made to Section 245 in 1958 and 1960 demonstrate a Congressional intent to prohibit the Attorney General from denying adjustment of status where the result would be, as in this case, the return of the alien to his home country to apply for and receive an immigrant visa immediately available to him there. However, our examination of the legislative history indicates that the deletion of certain eligibility requirements from Section 245 as originally enacted was intended to increase, not decrease, the scope of the Attorney General’s discretion. In the joint report accompanying the 1958 amendments, it was stated: “The purpose of the bill is (1) to revise section 245 * * * in such a manner as to broaden the discretionary authority of the Attorney General to adjust the status of certain aliens * * * in worthy cases * * Sen.Rep.No. 2133, H.R.Rep.No. 2258, 85th Cong., 2d Sess. (1958), 1958 U.S. Code Cong. & Admin.News, p. 3698. (Emphasis added). In 1960, the amendments broadened the class of aliens that the Attorney General could consider still further-, “thereby providing considerably more flexibility in the administration of the law.” Sen.Rep.No. 1651, 86th Cong., 2d Sess. (1960), 1960 U.S.Code Cong. & Admin.News, p. 3147.

Petitioners also argue that Congress removed from the consideration of the Attorney General whether an applicant for adjustment entered the United States with a pre-fixed intent to remain, by deleting in 1960 the eligibility requirement that an applicant be a “bona fide nonimmigrant.” The 1960 Committee Report makes clear that such was not the case. “It is intended that only those aliens who enter the United States in good faith and without any intention of circumventing quota restrictions -» * * sha.Il be entitled to the benefits of section 245(a), as amended.” Sen. Rep.No. 1651, supra, 1960 U.S.Code Cong. & Admin.News, p. 3147, (emphasis added).”⁵

When we consider all the factors here involved, the totality of the circumstances under which he left Kabul, Afghanistan, the securing of a visitor’s pleasure visa; his being only five days in this country and applying for a permanent job which he secured; his resignation from his job in Afghanistan as cashier for the United Nations after four days here, all point unerringly, in our judgment, to the fact that he had a preconceived intention in Kabul, Afghanistan, of bypassing normal consular procedures for obtaining permanent residence.⁶ We see no meritorious claim advanced by counsel, nor indeed does the record disclose any, and in our opinion the record justifies a finding that there was a deception on the appellants’ part of the Immigration authorities. If this Court lends its imprimatur to this conduct, as shown by this record, it would work an attrition and indeed a rapid erosion of the authority invested in the Attorney General by Section 245 to exercise his discretion in the granting or denying of petitioners’ adjustment of status.

We have carefully considered the Board’s decision in Matter of Arai (Interim Decision No. 2027, filed March 4, 1970) and have concluded that it is inapplicable to the facts presented by this record.⁷ See Thomaidis v. Immigration and Naturalization Service, 431 F.2d 711, 712 (C.A.9, 1970).

The judgment of the Board of Immigration Appeals will be affirmed and adjustment of status to the petitioners denied.

Footnotes

1

. 8 C.F.R. § 242.17(d) (application for adjustment of status in deportation proceedings) provides: “The respondent [applicant for adjustment] shall have 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.”

2

. This section 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.”

3

. See United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 266-267, 74 S.Ct. 499, 503, 98 L.Ed. 681 (1954) : “[I]f the word ‘discretion’ means anything in a statutory or administrative grant of power, it means that the recipient must exercise his authority according to his own understanding and conscience.” (Emphasis added.) Cf. Foti v. Immigration and Naturalization Service, 375 U.S. 217, 228-229, n. 15, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963); United States ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72, 77, 77 S.Ct. 618, 1 L.Ed.2d 652 (1957).

4

. Every alien is presumed to be an immigrant “until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 1101(a) (15) of this title.” 8 U.S.C. § 1184(b). 8 U.S.C. § 1101(a) (15) provides: “The term ‘immigrant’ means every alien except * * * [(A) (iii) (B)] an alien * * * having a residence in a foreign country which he has no intention of abandoning and who is visiting the United States * * * temporarily for pleasure.” (Emphasis added.)

5

. This sentence appears at the end of a three-paragraph portion of the Report (pp. 3146, 3147 of 1960 U.S.Code Cong. & Admin.News), reading as follows:

“Section 10 of the joint resolution, as amended, would amend section 245 (a) of the Immigration and Nationality Act which authorizes the Attorney General under certain circumstances to adjust the status of an alien who was admitted into the United States as a bona fide nonimmigrant to that of an alien lawfully admitted for permanent residence. Under the proposed amendment to section 245(a) the procedure for the adjustment of the immigration status of aliens to that of aliens lawfully admitted for permanent residence would be broadened so as to include all aliens (other than alien crewmen) who have been inspected and admitted or who have been paroled into the United States, thereby providing considerably more flexibility in the administration of the law.

“The committee is aware that under the visa regulations of the Department of State that an alien who is registered on a quota waiting list as an intending immigrant will be issued a visitor’s visa if he shows that he has to enter the United States temporarily to attend a business conference, to undergo medical treatment not otherwise available, or to attend to other urgent personal business. In order to prevent abuse by mala fide nonimmigrants, existing visa regulations require that the name of such an alien be taken off the quota waiting list if he willfully violates his nonimmigrant status while in the United States (22 CFR 42.22(a)- (2)). For example, an alien’s name will be removed from the quota waiting list if he was issued a visitor visa to attend a business conference, but while in the United States accepted local employment or overstayed the period of time of his admission. “It is not intended that the enactment of this proposed legislation would have the effect of repealing the visa regulations in this regard. It is intended that only those aliens who enter the United States in good faith and without any intention of circumventing quota restrictions of the Immigration and Nationality Act, or any other law relating to immigration shall be entitled to the benefits of section 245(a), as amended.”

6

. It should be remembered that any alien who applies for a nonimmigrant visa must, as required by statute, see note 4, supra, demonstrate to the satisfaction of the American consul in his home country and to the immigration officials upon his arrival in the United States that he fully intends to return to his home country. Therefore, absent an administrative error, any alien who arrives in the United States with the fixed intention to remain permanently has misrepresented his intention to the immigration authorities. An applicant who has thus misled immigration officials in an attempt to circumvent established procedures presents a weak case for the favorable exercise of the Attorney General’s discretion. There are many cases where the Attorney General has refused to exercise favorable discretion in adjustment proceedings, based on his finding that the nonimmigrant alien had entered the United States with the intent to remain permanently (if he could), by applying for and successfully pursuing adjustment of status under Section 245. Chen v. Foley, 385 F.2d 929, 935-936 (C.A. 6, 1967); Santos v. Immigration & Naturalization Service, 375 F.2d 262, 264 (C.A. 9, 1967) ; Castillo v. Immigration & Naturalization Service, 350 F.2d 1 (C.A. 9, 1965), aff’g Matter of Garcia-Castillo, 10 I. & N. Dec. 516 (1964), reconsideration denied, 10 I. & N. Dec. 790 (1964) ; Cubillos-Gonzalez v. Immigration & Naturalization Service, 352 F.2d 782 (C.A. 9, 1965) ; Matter of Muslemi, 12 I. & N. Dec. 616 (1968) ; Matter of Tonga, 12 I. & N. Dec. 212 (1967) ; Matter of Ramirez, 12 I. & N. Dec. 78 (1967) ; Matter of Leger, 11 I. & N. Dec. 796 (1966) ; Matter of Vega, 11 I. & N. Dec. 337 (1965); Matter of Rubio-Vargas, 11 I. & N. Dec. 167 (1965).

7

. This decision is attached to the petitioner’s motion to remand filed October 6, 1970, which was subsequently denied.