decided: January 16, 1976; As Amended February 9, 1976, March 8, 1976.
PETITION FOR REVIEW OF ORDER OF THE BOARD OF IMMIGRATION APPEALS.
Biggs, Van Dusen and Aldisert, Circuit Judges. On Reargument: Seitz, Chief Judge, and Biggs, Van Dusen, Aldisert, Adams, Gibbons, Rosenn, Hunter, Weis and Garth, Circuit Judges. Van Dusen, Circuit Judge, dissenting.
The narrow issue presented in this alien's petition for review of an order of the Board of Immigration Appeals is whether Section 245(a) of the Immigration and Nationality Act, 8 U.S.C. § 1255(a),*fn1 requires the Attorney General to make an eligibility determination before he can exercise his discretion. The Board held that the immigration judge could pretermit the eligibility issue and could deny the application for status adjustment as an exercise of discretion. We set aside the Board's order and remand for further proceedings.
Petitioner, a native and citizen of the Philippines, entered the United States at Honolulu, Hawaii, on July 12, 1968, as a nonimmigrant visitor for pleasure. Having overstayed her visit, she applied, pursuant to § 245, for an adjustment of her status to that of a permanent resident. On February 21, 1973, the Philadelphia District Director denied her application in the exercise of discretion and granted her 30 days to effect her voluntary departure from the United States. Because petitioner remained in the United States beyond the 30-day period, she was ordered to show cause why she should not be deported. At the April 19, 1973, deportation hearing, petitioner renewed her application for adjustment of status, conceded deportability, and admitted she had misrepresented her occupation when she applied for her visa. She had listed her occupation as a merchant; she was a teacher. She also had represented that she had not earned a college degree when, in fact, she had received a B.S. in Medical Technology in 1966.
In her written decision, the immigration judge denied petitioner's renewed application, reasoning that petitioner's "material, deliberate misrepresentations" did not merit a favorable exercise of administrative discretion. It is conceded that the Immigration Service made no specific determination of petitioner's eligibility for adjustment of status prior to denying her application as a matter of discretion.
Petitioner does not seek judicial review of the exercise of discretion. Rather, she urges that, irrespective of the discretionary denial of status adjustment, an eligibility determination is both extremely important to her and statutorily mandated.*fn2
Petitioner asserts that the importance of an eligibility determination will surface when, after departing from the United States pursuant to the Board's order, she applies to a consular office for an immigrant visa. "Respondent's finding of fraud . . . might very well indicate to a consular officer abroad, reviewing the Petitioner's application for an immigrant visa in the future, that the Petitioner is excludable from admission . . .." Petitioner's Brief at 12.
An overview of the duties of consular officers and an explanation of the transfer of their duties to the Attorney General under § 245 place petitioner's apprehension in perspective. Therefore, we now turn our attention in those directions.
If an alien seeks admission into the United States as an immigrant, he completes a visa application before a consular officer. The consular officer then has an affirmative duty to determine the alien's eligibility for a visa. See 8 U.S.C. § 1201(g). Congress has provided that certain classes of aliens are statutorily ineligible to receive visas:
(a) Except as otherwise provided in this chapter, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States:
(19) Any alien who seeks to procure, or has sought to procure, or has procured a visa or other documentation, or seeks to enter the United States, by fraud, or by willfully misrepresenting a material fact . . ..
8 U.S.C. § 1182. Thus, if the consular officer were to determine that the alien fell within this classification, no visa would issue.
We were told by government counsel at oral argument that, unlike final deportation orders of the INS, 8 U.S.C. § 1105a,*fn3 eligibility determinations of consular officers are not subject to judicial review. Indeed, government counsel suggested that not even an administrative appeal to the Secretary of State lies from the consular officer's determination.*fn4 Therefore, the consular officer plays a significant role in the alien admission process.
If the alien, other than an alien crewman, is in the United States, he may apply to the Attorney General under § 245 for an adjustment of status to that of an alien lawfully admitted for permanent residence. However, the application can be granted only if the Attorney General determines he "is eligible to receive an immigrant visa." 8 U.S.C. § 1225(a)(2). Therefore, the statutory classifications of ineligibility, 8 U.S.C. § 1182, would apply with equal force in a § 245 proceeding. Consequently, the failure of the immigration judge to determine first whether petitioner was an alien "eligible to receive an immigrant visa", 8 U.S.C. § 1255(a)(2), is doubly important to petitioner, especially where, as here, the immigration judge characterized her misrepresentations as material and deliberate.
Petitioner's apprehension of the practical consequences of the immigration judge's failure to make an eligibility determination certainly is not controlling. Our task is to analyze the statute itself, and it is to this that we now turn.
Section 245(a) provides in pertinent part:
The status of [a nonimmigrant] alien, . . . 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.
Petitioner argues that this sub-section requires a determination by the Attorney General that the three express conditions are met before he can deny adjustment of status as a matter of discretion. Although the language of the statute is not as specific as it could be, we find much logic to the contention. Analogous case law furthers the argument, and the legislative history of amendments to § 245 does not detract from it.
In support of her contention petitioner relies heavily on Jay v. Boyd, 351 U.S. 345, 100 L. Ed. 1242, 76 S. Ct. 919 (1956). There, the alien brought a habeas corpus action testing the validity of the denial of his application, under § 244(a)(5) of the Act, 8 U.S.C. § 1254(a)(5),*fn5 for discretionary suspension of deportation. In the course of its opinion affirming the denial of discretionary suspension, the Court referred to the conditions of eligibility for discretionary relief as "the first step in the . . . procedure," ibid. at 352, and stated: " Eligibility for the relief here involved is governed by specific statutory standards which provide a right to a ruling on an applicant's eligibility." Ibid. at 353 (emphasis added).
Although Jay was not an adjustment of status proceeding, the statutory structure of § 244 was strikingly similar to that of § 245. The government attempts to dilute the Court's express declaration. It suggests that the regulations summarized in Jay required an eligibility determination before an exercise of discretion could take place; currently, the regulations do not require this two-step process.
In 1952 the regulations required the immigration judge to present evidence bearing on the applicant's eligibility for relief, 8 C.F.R. Rev. § 242.53(c) (1952) and further required a "written decision" with "a discussion of the evidence relating to the alien's eligibility for such relief and the reasons for granting or denying such application." 8 C.F.R. Rev. § 242.61(a) (1952). Now, "the only burden on the Immigration Judge in the present case was to make a decision, written or oral, which discusses the 'evidence and findings as to deportability' and which contains 'a discussion of the evidence pertinent to any application made by [the alien] under section 242.17 [ e.g., § 244 and § 245 applications] and the reasons for granting or denying the request.' 8 C.F.R. § 242.18(a). Under the newer regulations, gone is the requirement that the Immigration Judge discuss the alien's eligibility for discretionary relief." Respondent's Brief at 8.
The government's argument runs into two walls. First, the current regulation does not set forth what determinations must be made. It does not say that an immigration judge can or cannot pretermit the § 244 or § 245 conditions and deny the application as an exercise of discretion. Thus, the current regulation supplies no support to the government's position.
Second, the government misreads the explicit language of Jay v. Boyd, supra, which states that statutory standards provided the alien's right to a Section 244 eligibility ruling. The Court did not say that the standards were imposed by regulations of the Attorney General or that the Attorney General could pretermit such a determination.
Analogizing the statutory formulation of § 244 to that in § 245, we find much force and logic in the Court's pronouncement in Jay. First, § 245(a) explicitly mandates the satisfaction of three conditions before the Attorney General can exercise his discretion in favor of permanent resident status. Second, there is no question that if the Attorney General does exercise favorable discretion, all three requirements must be satisfied. Third, if a point is reached where the Attorney General concludes that the alien should be denied relief as a matter of discretion, it would seem to follow that the applicant has the right to assume he has met all three qualifications. Otherwise, the exercise of unfavorable discretion would appear ...