Kiu Young Bae v. Immigration & Naturalization Service

Citations: 706 F.2d 866; 1983 U.S. App. LEXIS 28011Docket: 82-1986

Court: Court of Appeals for the Eighth Circuit; May 13, 1983; Federal Appellate Court

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Kiu Young Bae seeks judicial review of the Board of Immigration Appeals' (BIA) decision that denied his motion to reopen deportation proceedings. Bae, a Korean citizen, entered the U.S. as a nonimmigrant student in May 1976. His mother, a permanent resident, filed a visa petition for him in April 1977, which was approved, granting him "second preference" status as the unmarried son of a permanent resident. In July 1977, Bae left the U.S., married in Korea, and returned with his wife. During a December 1977 interview regarding his adjustment of status application, Bae falsely claimed to be single. The INS approved his application without knowledge of the misrepresentation. In January 1978, Bae filed a visa petition for his wife, disclosing their marriage, which contradicted his previous status as an unmarried son. Consequently, on May 31, 1978, the INS initiated rescission of his status, leading to a hearing where the immigration judge rescinded Bae's permanent resident status on October 27, 1978, due to his marital status. Bae's request for reinstatement as a nonimmigrant student was denied in early 1979, although he was granted a voluntary departure until June 1, 1979. After failing to depart, deportation proceedings began on August 13, 1979, due to unauthorized stay. Bae admitted his deportability at the hearing on August 23, 1979, and was granted voluntary departure by January 31, 1980, but did not appeal the BIA's deportation decision.

Petitioner remained in the United States and filed a motion to set aside a deportation order. The immigration judge interpreted this as a request for an extension of voluntary departure, which was referred to the district director. Initially denied, the district director allowed petitioner until February 29, 1980, to depart voluntarily, later extending this to March 15, 1980, at the request of new counsel. On March 17, 1980, petitioner’s counsel notified the INS of a filed petition for judicial review and submitted an application for a waiver of excludability, which was denied.

On November 18, 1980, petitioner sought to reopen deportation proceedings, claiming that the INS failed to inform him that marriage would affect his visa status. The immigration judge denied this motion on March 8, 1982, stating the cited regulation and case were not applicable, a decision affirmed by the BIA on June 18, 1982. Petitioner then filed a petition for review in court.

Under 8 U.S.C. Sec. 1105a(a), appellate courts can review final deportation orders, but petitions must be filed within six months of the order and all administrative remedies must be exhausted. Here, jurisdiction was limited to the denial of the motion to reopen, as the petition for review was filed over six months after the deportation order and petitioner did not appeal to the BIA. The standard of review for the denial of a motion to reopen is whether there was an abuse of discretion. The BIA found no abuse of discretion in affirming the immigration judge's decision, determining that the arguments regarding the lack of warning about marriage's impact on status were inapplicable.

The Supreme Court has not determined if affirmative misconduct can prevent the government from enforcing immigration laws. If estoppel is applicable, it requires proof of 'affirmative misconduct.' Previous rulings indicated that serious breaches of duty by INS officials do not constitute affirmative misconduct. In this case, the cited regulation, 22 C.F.R. Sec. 42.122(d), which mandates consular officials to warn visa recipients about marriage affecting their eligibility, does not apply to the petitioner. The regulation is specifically directed at consular officials and pertains to individuals outside the U.S. The petitioner, who married before entering the U.S., lost her visa status as a child, but the government's failure to warn her was not deemed affirmative misconduct as it does not apply to adjustment of status cases. The process of adjustment of status is equivalent to receiving an immigrant visa, and applicants are not at the same risk as those holding immigrant visas. The Board of Immigration Appeals (BIA) correctly concluded the regulation was not applicable to the petitioner, and there was no abuse of discretion in denying the motion to reopen deportation proceedings. Consequently, the petition for review is denied.

Title 22 C.F.R. Sec. 42.122(d) mandates that consular officers inform certain immigrant visa applicants that being unmarried at the time of admission is essential for maintaining their immigration status. The immigration judge incorrectly concluded that petitioner's mother misrepresented his marital status during the visa petition process, despite her accurately stating he was unmarried when she filed the petition in April 1977, prior to his marriage in July 1977. The BIA failed to correct this factual error in its order affirming the immigration judge's amended decision. Additionally, the original decision mistakenly noted the filing date of petitioner’s motion to reopen deportation proceedings as October 1980 instead of November 1980; however, this error did not impact the immigration judge's ruling regarding the inapplicability of 22 C.F.R. Sec. 42.122(d) and relevant case law. In July 1982, petitioner’s mother, now a U.S. citizen, filed for a fourth preference immigrant visa for him as her married son, while petitioner also sought a waiver of deportation under 8 U.S.C. Sec. 1251(f). INS counsel indicated that petitioner had been granted the fourth preference visa, but his waiver request was denied. Petitioner later pursued a waiver in federal district court, which was dismissed. The Ninth Circuit permits review of deportation orders and allows for the tolling of the six-month period for filing petitions for review if a motion to reopen is filed within that timeframe. However, petitioner’s motion to reopen was submitted more than six months after the final deportation order, thus excluding him from this exception. He also requested a waiver of deportability under 8 U.S.C. Sec. 1251(f), which, as amended in 1981, delegates waiver decisions to the Attorney General's discretion.