PETITION FOR REVIEW BOARD OF IMMIGRATION APPEALS Orders Dated August 29, September 3, and September 4, 1980
Before Adams, Hunter and Sloviter, JJ.
Petitioners in this appeal, nonimmigrant Iranian students found deportable by the Immigration and Naturalization Service (INS), attack on constitutional grounds the regulation which led to discovery of their illegal immigration status. In addition, petitioners contend that the INS abused its discretion both in implementing that regulation and in refusing to restore them to nonimmigrant student status. Because we conclude that this Court lacks jurisdiction under section 106(a) of the Immigration and Nationality Act to entertain such challenges, we are unable to address petitioners' claims and thus dismiss their petitions for review.
As one of a number of responses to the takeover by Iranian militants of the United States Embassy in Tehran, President Carter directed the Attorney General to "identify any Iranian students in the United States who are not in compliance with the terms of their entry visas, and to take the necessary steps to commence deportation proceedings against those who have violated applicable immigration laws and regulations." 15 Weekly Compilation of Pres.Doc. 2107 (Nov. 10, 1979). On November 14, 1979, the Attorney General, acting pursuant to the Immigration and Nationality Act,*fn1 promulgated Regulation 214.5, requiring all nonimmigrant alien post-secondary students from Iran to report to a local Immigration and Naturalization Service representative and to provide that representative with "information as to residence and maintenance of nonimmigrant status."*fn2 The regulation, which became effective immediately, provided that a nonimmigrant student's failure to comply with the reporting requirement would subject him or her to deportation proceedings under section 241(a)(9) of the Act.*fn3
Each of the three petitioners in this appeal reported to the Pittsburgh office of the INS and provided the information required under Regulation 214.5. With respect to each petitioner, the INS ultimately issued an order to show cause, charging that student with specified violations of the Act. Petitioner Ali Akbar Dastmalchi was alleged to have remained in the United States beyond the period authorized by his stay;*fn4 petitioner Hossein Saliminia was charged with violating conditions of his status by transferring from one educational institution to another without receiving prior approval from the INS;*fn5 petitioner Mohsen Tarassoly was alleged to have abridged both the stay and the transfer provisions.*fn6
Separate deportation hearings were conducted for each petitioner by an Immigration Judge in the Pittsburgh INS office. Dastmalchi admitted the factual allegations in the order applicable to him, but refused to concede deportability and challenged the constitutionality of the reporting regulation. The Immigration Judge found Dastmalchi deportable as charged and granted him the privilege of voluntary departure in lieu of deportation. Saliminia, too, was found at a hearing to be deportable as charged and was given the opportunity to depart voluntarily. The Immigration Judge rejected Saliminia's efforts to terminate deportation proceedings on the ground that the INS impermissibly had singled out for review only students of Iranian nationality. A similar motion was denied at Tarassoly's hearing. Tarassoly was adjudged deportable for having remained in the United States longer than permitted by his visa and was granted an opportunity for voluntary departure. In light of the determination that he was deportable because of an overstay, the Immigration Judge did not decide whether Tarassoly also had violated the school transfer restrictions.
The Board of Immigration Appeals dismissed the appeal of each petitioner. In so doing, the Board rejected various challenges to the constitutionality of Regulation 214.5, and refused to review the discretionary refusals by the INS to reinstate petitioners to nonimmigrant student status despite their stay and transfer violations. Each petitioner subsequently filed with this Court a petition for review of his deportation order. Jurisdiction was alleged to lie under section 106(a) of the Immigration and Nationality Act, 8 U.S.C. § 1105a(a).
Petitioners advance three related challenges to the validity of their deportation orders. Even though we decline to consider the merits of these contentions, they must be set forth in some detail in order to understand why we dismiss for lack of jurisdiction.
First, petitioners contend that Regulation 214.5 on its face and in its implementation constitutes a denial of equal protection in violation of the due process clause of the Fifth Amendment. Petitioners assert that the regulation and accompanying orders draw an arbitrary and impermissible distinction between Iranian and non-Iranian nonimmigrant alien students, in that only the former were subjected to an intensive status review by the INS. Such discrimination on the basis of national origin is improper, petitioners claim, in light of the absence of a compelling connection between their own activities and the Tehran hostage incident.
Second, petitioners argue that Regulation 214.5 and subsequent INS implementing orders in effect served to deny to Iranian students discretionary relief "customarily afforded to students who have violated a condition of admission."*fn7 The INS, petitioners charge, acting in accordance with formal or informal internal instructions, mechanically and inflexibly applied the regulation to result in a deportation order even for a "minor" or "technical" infraction by an Iranian student. Petitioners assert that the arbitrary and discriminatory refusal on the part of the INS to exercise discretion constituted an abuse of discretion, in violation of the Administrative Procedure Act. By denying all discretionary relief to Iranian nonimmigrant students, they assert, the INS prejudged deportation proceedings on the basis of nationality instead of considering the merits of each case.*fn8 Petitioners base their contention in large part on the existence of an instruction issued by the INS on January 4, 1980, which reminded agency officials that Iranian students were to be treated "in the same manner as students of all other nationalities."*fn9 They conclude that, had there not been previous discriminatory treatment of Iranians by the INS, such a "curative" memorandum would not have been necessary.
Third, each petitioner challenges the refusal by the INS to grant him discretionary relief and reinstate him to nonimmigrant student status. Prior to the Iranian episode, "it was the common and regular practice of the Service to restore to status students who had committed technical violations of a de minimus nature."*fn10 Thus, each petitioner alleges, INS actions with respect to determination of his status were both inconsistent ...