PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS.
Gibbons and Garth, Circuit Judges, Weiner, District Judge.*fn* Garth, Circuit Judge, dissenting.
This case involves an appeal filed by Cecilia S. Jacobe for review of a deportation order of the Board of Immigration of the Immigration and Naturalization Service (INS), a denial of a stay thereof, and denial of a motion to reopen the deportation proceedings.
Petitioner, Cecilia S. Jacobe (nee Rances) entered the United States on January 15, 1974. She had been issued a permanent immigration visa as the result of her statement that she was married to one Adolf Michael Martin, a United States citizen. Subsequently, the Immigration and Naturalization Service discovered that Adolf Michael Martin was a fictitious name and that petitioner knowingly and fraudulently made statements in her visa application alleging marriage to the non-existent Mr. Martin in order to obtain entry into this country. Deportation proceedings were commenced and on April 23, 1976, the Immigration Judge directed her deportation. On April 27, 1976, petitioner filed a Notice of Appeal contending that the Immigration Judge erred in denying petitioner's request for relief from deportation under § 241(f) of the Immigration and Naturalization Act, 8 U.S.C. § 1251(f).*fn1
On May 4, 1976, petitioner married one Francisco C. Jacobe, a United States citizen. On May 27, 1976, Mr. Jacobe, on behalf of petitioner, his new wife, petitioned the INS for an "immediate relative" visa*fn2 for his new wife. On that same date, petitioner withdrew her appeal of the April deportation order.
Petitioner, on August 26, 1976, moved for a stay of deportation and for a reopening of the deportation proceedings to permit adjustment of status based upon her husband's visa petition on her behalf. On September 1, 1976, the District Director of INS denied Mr. Jacobe's visa petition and an Immigration Judge denied Mrs. Jacobe's motion to reopen the original deportation proceeding of April, 1976. On June 3, 1977, after an appeal had already been taken to this Court, the Board of Immigration Appeals reversed the District Director's denial of Mr. Jacobe's visa petition on his wife's behalf, and remanded the case for further proceedings. They also affirmed the denial of Mrs. Jacobe's motion to reopen the original deportation proceeding.
Petitioner summarizes her argument into three parts. We will deal with each in turn. First, she contends that the denial of the immediate relative visa petition filed by her United States citizen husband in her behalf was erroneous as a matter of law. The District Director denied Mr. Jacobe's visa petition, filed on behalf of his wife. After the appeal to this Court was taken, the Board of Immigration Appeals reversed the denial and remanded it to the agency for a determination of the bona fides of the marriage.*fn3 Petitioner acknowledges that this issue is moot and we agree.
Petitioner's second ground of review is that the institution of deportation proceedings against her on documentary grounds, rather than on ground of fraud, at the time of entry, was erroneous as a matter of law. This is an attack upon the validity of the original deportation proceeding. Petitioner, on May 27, 1976, withdrew her appeal of the Immigration Judge's decision to deport which was rendered on April 23, 1976. 8 U.S.C. § 1105a(c) states: "An order of deportation or of exclusion shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right under the immigration laws and regulations. . . ." The immigration regulations provide, in relation to deportation proceedings, that an appeal lies with the Board of Immigration Appeals. 8 C.F.R. § 242.21 (1977). In spite of this available administrative appeal, petitioner withdrew her Notice to Appeal on the same day that her new husband petitioned for an immediate relative visa on her behalf. Petitioner then proceeded by way of motion to reopen the original deportation proceedings, rather than by way of direct appeal. In Vergel v. Immigration & Naturalization Service, 536 F.2d 755 (8th Cir. 1976), petitioner challenged the validity of the original order of deportation and denial of her motion to reopen deportation proceedings. The court ruled it had no jurisdiction to review the original order of deportation since no appeal was taken.*fn4 Failure to exhaust administrative remedies results in a lack of jurisdiction in the Court of Appeals.*fn5 We, therefore, cannot entertain an attack on the original deportation proceeding.
The third issue the petitioner is appealing is the decision denying her motion to reopen the deportation proceedings and a denial of a stay of deportation pending appeal. 8 C.F.R. § 3.2 (1977) states the grounds for reopening or reconsideration:
". . . Motions to reopen in deportation proceeding shall not be granted unless it appears to the Board that the evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing. . . ."
Petitioner's ground for reopening is her new marriage to a U.S. citizen and she seeks adjustment of her status on this basis. This marriage is evidence that could not have been presented at the former hearing because it was not entered into until after the order of deportation issued from the original hearing. However, the Board of Immigration has wide discretion in deciding whether to grant the motion to reopen.
"The regulation [8 C.F.R. § 3.2 (1977)] does not require the Board to grant a motion to reopen merely because some new circumstances are recited; rather, the regulation bars reopening if relief is not sought on the basis of changed circumstances. . . . At most, the regulation dictates that the Board consider any new circumstances advanced in support of a motion to reopen, and that the Board not abuse its discretion in determining whether the circumstances are sufficient to justify granting of the motion." Au Yi Lau v. U.S. Immigration and Naturalization Service, 181 U.S. App. D.C. 99, 555 F.2d 1036, 1044 (D.C. Cir. 1977)
The Board denied the motion*fn6 on the ground that the petitioner was not the beneficiary of a visa petition and therefore she has not established prima facie eligibility for adjustment of status -- the core of her motion. The statute clearly requires that three prerequisites be met in order to be eligible for an adjustment of status. They are: ". . . (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". 8 U.S.C. § 1255(a). There is no immigrant visa immediately available to petitioner, in fact her husband's petition on her behalf for an immigrant visa still has not been finally acted upon. Therefore, the Board did not abuse their discretion in denying the motion to reopen. Since our scope of review is limited to whether the ...