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Dastmalchi v. Immigration and Naturalization Service


decided: September 17, 1981.


PETITION FOR REVIEW BOARD OF IMMIGRATION APPEALS Orders Dated August 29, September 3, and September 4, 1980

Before Adams, Hunter and Sloviter, JJ.

Author: Adams


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 with past agency practices and in violation of operating instructions such as that issued on January 4, 1980.

The Immigration and Naturalization Service, in its brief filed with this Court, rebutted each of petitioners' substantive attacks on Regulation 214.5 and INS actions. At the outset, however, the INS challenged the jurisdiction of this Court to entertain these petitions for review under section 106(a). It is to the jurisdictional question that we now turn.



In 1961, Congress amended the Immigration and Nationality Act by adding section 106(a), 8 U.S.C. § 1105a(a), which vests in the courts of appeals initial and exclusive jurisdiction to review "all final orders of deportation" entered "pursuant to administrative proceedings under section (242(b), 8 U.S.C. s) 1252(b)."*fn11 In enacting section 106(a), Congress sought to remedy the "flagrant abuse of judicial review" by "aliens, mostly subversives, gangsters, immoral, or narcotic peddlers," who "skillfully exploit the judicial process" by "repetitive appeals to the busy and overworked courts with frivolous claims of impropriety in the deportation proceedings." H.R.Rep.No.1086, 87th Cong., 1st Sess. 22-23, reprinted in (1961) U.S.Code Cong. & Ad.News 2950, 2967.

Despite the seemingly straightforward language of the statute "all final orders of deportation" considerable controversy developed as to the precise contours of appellate jurisdiction under section 106(a). For example, writing shortly after the provision took effect, Judge Friendly predicted that "dozens of decisions will be needed before the workings of the statute become clear." Friendly, The Gap in Lawmaking Judges Who Can't and Legislators Who Won't, 63 Columbia L.Rev. 787, 796 (1963). In essence, problems arose because section 106(a) was subject to two conflicting interpretations. Some courts held that only questions involving the bare validity of a deportation order could be determined directly by a court of appeals. Other courts adopted a much broader position, concluding that the statute's ambit extended to some or all of a host of discretionary and underlying decisions which, if in error, would serve to void the deportation order regardless of the validity of the order standing alone.*fn12

To date, the Supreme Court has entered the section 106(a) controversy on three occasions. At first, it appeared that the Court might take a position in accord with those who broadly interpreted the scope of appellate jurisdiction under that statute. In Foti v. Immigration and Naturalization Serv., 375 U.S. 217, 84 S. Ct. 306, 11 L. Ed. 2d 281 (1963), Chief Justice Warren, writing for the Court, concluded that section 106(a) review extended not merely to the bare finding of deportability, but also to "all determinations made during and incident to the administrative proceeding conducted by a special inquiry officer, and reviewable together by the Board of Immigration Appeals." Id., at 229, 84 S. Ct. at 312. Consequently, a request for a suspension of deportation made in the course of a section 242(b) deportation proceeding fell within the exclusive jurisdiction of the courts of appeals. The following Term, in a per curiam opinion, the Court reversed a lower court's holding that the denial of a request before the Board of Immigration Appeals to reopen section 242(b) deportation proceedings was not appealable under section 106(a). Giova v. Rosenberg, 379 U.S. 18, 85 S. Ct. 156, 13 L. Ed. 2d 90 (1964).

In Cheng Fan Kwok v. Immigration and Naturalization Serv., 392 U.S. 206, 88 S. Ct. 1970, 20 L. Ed. 2d 1037 (1968), however, the Supreme Court served notice that an expansive reading of section 106(a) was unacceptable. In Cheng Fan Kwok, a Chinese seaman, found deportable after a section 242(b) proceeding, obtained discretionary permission to depart voluntarily and then failed to do so. In response to a subsequent order to surrender for deportation, Cheng requested a stay of deportation. When his request was rejected, Cheng petitioned this Court for review of the denial of a stay.

The Supreme Court affirmed our holding, 381 F.2d 542 (3d Cir. 1967), that we lacked jurisdiction to entertain the petition. After reviewing the language and legislative history of the provision, the Court concluded that "Congress quite deliberately restricted the application of § 106(a) to orders entered during proceedings conducted under § 242(b), or directly challenging deportation orders themselves." Cheng Fan Kwok, supra, at 215, 88 S. Ct. at 1975. Therefore, the Court held, "the judicial review provisions of § 106(a) embrace only those determinations made during a proceeding conducted under § 242(b), including those determinations made incident to a motion to reopen such proceedings." Id. at 216, 88 S. Ct. at 1976 (emphasis added). Since the denial of a stay under review was neither a "final order of deportation" nor entered in the course of a section 242(b) deportation proceeding, the Court declared that section 106(a) was inapplicable. Id., at 212, 88 S. Ct. at 1974. The alien instead should have sought relief in an appropriate district court. Id., at 210, 88 S. Ct. at 1973.


According to the Foti-Giova-Cheng Fan Kwok trilogy, courts of appeals have initial jurisdiction under section 106(a) only in cases seeking judicial review of: (1) a final order of deportation entered pursuant to section 242(b) deportation proceedings; (2) an order made during a section 242(b) deportation proceeding and reviewable by the Board of Immigration Appeals (Foti); or (3) a motion to reopen deportation proceedings previously conducted under section 242(b) or to reconsider a final order of deportation (Giova). Courts of appeals have no jurisdiction under section 106(a) to review a deportation-related issue that does not fall within one of these three categories, even though resolution of that issue in the alien's favor might "directly affec(t) the execution of" his final order of deportation. Cheng Fan Kwok, supra, at 213, 88 S. Ct. at 1974.*fn13 We conclude, therefore, that this Court lacks jurisdiction to consider the claims advanced by petitioners in this appeal. Petitioners here do not challenge directly a final order of deportation, an order entered in the course of their deportation hearings, or the denial of a motion to reopen deportation proceedings. Rather, they attack: (1) the constitutionality of Regulation 214.5; (2) the alleged refusal by the INS to exercise discretion with respect to any of the Iranian student cases; and (3) the denial of discretionary relief to petitioners themselves. As we read Cheng Fan Kwok, none of these arguments, however compelling on its face, is encompassed within the scope of section 106(a).

Petitioners' first contention goes to the constitutionality of the regulation underlying these deportation orders. In considering this contention, it is crucial to realize that the constitutionality of underlying statutes and regulations cannot be placed in issue at section 242(b) proceedings. 1 C. Gordon & H. Rosenfield, supra, at § 1.10e. Neither an Immigration Judge nor the Board of Immigration Appeals, in the course of a deportation proceeding, can enter an order voiding an alien's deportation in response to a constitutional objection.*fn14 Therefore, since under Cheng Fan Kwok the scope of section 106(a) jurisdiction mirrors that of the section 242(b) proceeding, it seems logical to treat constitutional challenges as not immediately appealable to courts of appeals.

Despite the force of this syllogism, a number of federal courts have concluded that a court of appeals, petitioned under section 106(a), may consider "constitutional infirmities ... which, if well taken, would void the deportation order," Riva v. Attorney General of United States, 377 F. Supp. 1286, 1288 (D.D.C.1974). In fact, two courts of appeals the Ninth and Tenth Circuits explicitly have endorsed this view in decisions that postdated Cheng Fan Kwok.*fn15 For example, in Chadha v. Immigration and Naturalization Serv., 634 F.2d 408 (9th Cir. 1980), the Court of Appeals for the Ninth Circuit, in rejecting an argument that it lacked jurisdiction to entertain constitutional questions under section 106(a), concluded that:

(i)t would be anomalous ... for Congress to provide a single form of review for deportability determinations, yet preclude from that same appeal any questions of the INA's constitutionality. We reject (such a) construction of section 106 and find that review of final deportation orders includes review of matters upon which the final order is contingent.

Id., at 414. Were we to follow Chadha and its predecessors, petitioners on this appeal would be entitled to a disposition, on the merits, of their attacks on the constitutionality of Regulation 214.5 and accompanying INS implementing orders. For the reasons set forth below, however, we decline so to proceed.

First, the decisions upholding the initial jurisdiction of a court of appeals to resolve constitutional disputes rely either upon each other or upon pre-Cheng Fan Kwok precedents.*fn16 With one exception, Chadha, they make no attempt to reconcile their basic premise that "nothing in (section 106(a)) is explicit in directing that only issues raised at the (section 242(b)) hearing may be raised on a petition for review," Pilapil, supra, at 9 with the holding of Cheng Fan Kwok.*fn17 They do not explain why an alien who challenges the Act's constitutionality should be able to obtain immediate review in a court of appeals, however implausible that claim, while, under Cheng Fan Kwok, an alien who contests a non-constitutional determination underlying but entered collateral to his or her deportation proceeding is relegated initially to a district court, however tenable that contention. In essence, the Ninth and Tenth Circuit opinions other than Chadha simply assert that section 106(a) encompasses constitutional challenges an assertion that cannot be squared with the Supreme Court's instruction that, "(a)s a jurisdictional statute, (section 106(a)) must be construed both with precision and with fidelity to the terms by which Congress has expressed its wishes," Cheng Fan Kwok, supra, 392 U.S. at 212, 88 S. Ct. at 1974.

Second, a careful examination of the reasoning offered by the Ninth Circuit in Chadha, the only decision from this line of cases that attempts to demonstrate its compatibility with Cheng Fan Kwok, serves to reinforce our view that Cheng Fan Kwok forecloses initial review at the appellate level of the constitutionality of the Immigration and Nationality Act. In Chadha, an alien who conceded his deportable status at a section 242(b) hearing requested from the INS and was granted a suspension of deportation. Subsequently, however, the House of Representatives, pursuant to section 244(c)(2) of the Act, 8 U.S.C. § 1254(c)(2), disapproved that suspension and the INS again ordered Chadha deportable. At his reconvened deportation proceedings, Chadha challenged the constitutionality of the congressional disapproval; the Board of Immigration Appeals, adhering to its policy of not entertaining constitutional claims, dismissed that argument as beyond its scope of review. Chadha then petitioned the Court of Appeals for the Ninth Circuit under section 106(a) and repeated his constitutional contention. The court concluded that it did have jurisdiction to consider the constitutionality of a one-house "legislative veto" such as that employed to overrule the INS in Chadha's case.*fn18

Chadha begins by rejecting the suggestion that the phrase "final orders of deportation ... made ... pursuant to administrative proceedings under section 1252(b)" contained in section 106(a)

limit(s) appellate review to only the actual decisions and conclusions made by the special inquiry officer during a section 242(b) hearing.... We conclude the phrase "final orders' includes all matters on which the validity of the final order is contingent, rather than only those determinations actually made at the hearing.

Id., at 412 (emphasis added). We believe that the Chadha court's interpretation of section 106(a) is fundamentally at odds with Cheng Fan Kwok. In Cheng Fan Kwok, the Supreme Court explicitly refused to approve the notion that "s 106(a) should be understood to embrace all determinations "directly affecting the execution of the basic deportation order,' whether those determinations have been reached prior to, during, or subsequent to the deportation proceeding." Cheng Fan Kwok, supra, 392 U.S. at 210, 212, 88 S. Ct. at 1973, 1974. As discussed previously, the Supreme Court, in defining the scope of section 106(a), placed exclusive emphasis on whether a determination was made in the course of a section 242(b) deportation hearing; the Chadha formulation, however, admittedly incorporates determinations not "actually made at the hearing." A faithful application of Cheng Fan Kwok compels the conclusion that, because the constitutionality of either the one-house disapproval or the Iranian-related regulation could not have been tested during administrative deportation proceedings, neither matter should be reviewable directly by a court of appeals under section 106(a).

The court in Chadha attempts to justify its broad reading of the language of section 106(a) on four grounds. First, it relies on precedent. Specifically, the court focuses on Waziri v. Immigration and Naturalization Serv., 392 F.2d 55 (9th Cir. 1968), which held that "section 106 included the power to review "logical predicates' to deportation orders that are "integrally related' to and interdependent with the final order," Chadha, supra, at 412.*fn19 Waziri, however, predates Cheng Fan Kwok by a number of months. More important, the Waziri opinion cannot be reconciled with the later Supreme Court case, essentially for the same reason as mentioned above: Waziri, like Chadha, but unlike Cheng Fan Kwok, would permit a court of appeals to void a deportation order resulting from an invalid determination made outside of the section 242(b) process.*fn20

Second, the Chadha court asserts that its broad reading of section 106(a) is not incompatible with Cheng Fan Kwok. In Cheng Fan Kwok the Supreme Court concluded that "Congress quite deliberately restricted the application of § 106(a) to orders entered during proceedings conducted under § 242(b), or directly challenging deportation orders themselves." Cheng Fan Kwok, supra, 392 U.S. at 215, 88 S. Ct. at 1975 (emphasis added). Relying on this latter clause, Chadha reaches a sweeping conclusion: "As the validity of the final deportation order is contingent upon the validity of the congressional action under section 244(c)(2), Chadha is very clearly "directly challenging (the) deportation order (itself),' ... and thus jurisdiction exists under section 106." Chadha, supra, at 413. We respectfully disagree with such an interpretation of the "directly challenging" language in Cheng Fan Kwok. We fail to see why, under Chadha's reading of that phrase, an alien in Cheng's position would not similarly be able to assert that because "the validity of (his) final deportation order is contingent upon the validity of" the INS decision denying him discretionary relief, he "is very clearly "directly challenging (the) deportation order (itself),' ... and thus jurisdiction exists under section 106." We decline to read the "directly challenging" language in a manner that, sub silentio, strikes at the heart of the Court's holding in Cheng Fan Kwok. Instead, we conclude that the Court, in adding the clause in question, meant only to acknowledge the longstanding notion that an alien, in a petition for review, can challenge the determination of his or her deportability qua deportability; that is, an alien can allege that there does not exist the requisite "reasonable, substantial and probative evidence on the record considered as a whole"*fn21 to support an administrative factfinding of deportability. Thus, review under section 106(a) extends only to agency factual determinations involving deportability and to any orders entered during the deportation proceeding itself. See Note, Jurisdiction to Review Prior Orders and Underlying Statutes in Deportation Appeals, supra, at 416-17.

Third, Chadha justifies its broad reading of section 106(a) as consonant with congressional intent " "to expedite the deportation of undesirable aliens by preventing successive dilatory appeals to various federal courts,' " Chadha, supra, at 413-14, quoting Foti, supra, 375 U.S. at 226, 84 S. Ct. at 312. We agree that, in enacting section 106(a), Congress was motivated primarily by a desire to eliminate repetitive and groundless federal appeals.*fn22 Moreover, we admit that, given our decision today, "cases where both deportability and the INA are challenged (may) require one hearing in the court of appeals on deportability and, if all appeals are taken, potentially three other hearings in the federal court system on the constitutional challenge." Chadha, supra, at 414. Such a result necessarily follows from a finding of no jurisdiction, as the Supreme Court recognized in Cheng Fan Kwok, supra, 392 U.S. at 217, 88 S. Ct. at 1976. Nonetheless, we do not believe that, for reasons of judicial economy, we should alter our interpretation either of section 106(a) or of the Supreme Court's holding in Cheng Fan Kwok. The possibility of review of a constitutional question in both a district court and a court of appeals is not an "onerous burden," particularly in light of the fact that such multi-tiered constitutional review is the norm in our judicial system. More important, "it is the result that we believe most consistent both with Congress' intentions and with the terms by which it has chosen to express those intentions," Cheng Fan Kwok, supra, at 217-18, 88 S. Ct. at 1976-77.

Finally, Chadha concludes that, in light of Riva "s holding that a district court is precluded from considering constitutional objections to the Immigration and Nationality Act, a court of appeals is bound to entertain such objections lest aliens subject to deportation never be able to raise them. Chadha, supra, at 414-15. We are unable to reconcile this assertion with the Chadha court's earlier contention that, if courts of appeals decline to exercise jurisdiction over the constitutional claims of alien-petitioners, "potentially three other hearings in the federal court system on the constitutional challenge" would result, Chadha, supra, at 414. In any event, we are not persuaded that, in the future, aliens in the same position as petitioners will be unable to attack the constitutionality of the Act in any other forum. On the contrary, "(i)n situations to which the provisions of § 106(a) are inapplicable, the alien's remedies would, of course, ordinarily lie first in an action brought in an appropriate district court," Cheng Fan Kwok, supra, 392 U.S. at 210, 88 S. Ct. at 1973. District courts remain open to individuals seeking declaratory and injunctive relief from allegedly unconstitutional statutes.*fn23

In sum, unlike the court in Chadha, we cannot read section 106(a) to encompass attacks on the constitutionality of a statute or a regulation underlying an alien's deportation order. Thus, we decline to consider the merits of petitioners' first contention in this appeal.*fn24

Petitioners' second argument, that the INS abused its discretion and violated due process by "mechanically" denying discretionary relief to Iranian nonimmigrant students, parallels a contention rejected on jurisdictional grounds in Andres v. Immigration and Naturalization Serv., 460 F.2d 287 (6th Cir. 1972). In Andres, an alien whose third preference teaching visa was not revalidated by the INS challenged that decision as a denial of due process. Additionally, the alien averred that the Secretary of Labor acted arbitrarily in promulgating the regulation upon which the INS decision was based. The court, citing Cheng Fan Kwok, dismissed the petition because "the issues raised by petitioner turn on matters collateral to the entry of the deportation order under § 1252(b)," and therefore were not within the jurisdiction of a court of appeals under section 106(a). Andres, supra, at 288.*fn25

The discretion argument advanced by petitioners on this appeal, as in Andres, is "collateral" in that it amounts to neither a direct challenge to petitioners' "final orders of deportation" nor an attack upon an order "entered during proceedings conducted under § 242(b)." To be sure, it can be argued that, had the INS exercised some sort of discretion with respect to Iranian nonimmigrant students, the deportation orders for petitioners might never have been issued. But, as we observed in disposing of the constitutional claim above, Cheng Fan Kwok does not permit appellate court jurisdiction over administrative decisions unconnected to the deportability determination. Quite simply, the INS decisions attacked here were not made in the course of a deportation proceeding and hence, according to Cheng Fan Kwok, may not be asserted before a court of appeals conformably with section 106(a). Moreover, it should be noted that petitioners' claim here raises complicated questions of fact that cannot be resolved on the basis of the barren record made available to us in this case.*fn26 The proper forum for compilation of such a record, as well as for initial determination of the abuse of discretion argument, lies in the appropriate district court.

Petitioners' final contention that the INS violated past practices and operating instructions when it refused to overlook petitioners' visa and transfer infractions and reinstate them to nonimmigrant student status can be disposed of quickly, in light of the above discussion.*fn27 Decisions by INS district directors relating to visa extensions or to school transfers cannot be appealed to an Immigration Judge or to the Board of Immigration Appeals. See 8 C.F.R. § 214.2(f)(7) (1981). Thus, the granting of such discretionary relief is a determination made wholly independent of and apart from any deportation proceeding involving an alien. Once again, Cheng Fan Kwok bars review by a court of appeals of petitioners' assertions. See Butterfield v. Immigration and Naturalization Serv., 133 U.S. App. D.C. 135, 409 F.2d 170, 173 (D.C.Cir.1969).


We conclude that we have no jurisdiction under section 106(a) of the Immigration and Nationality Act to consider the claims advanced by petitioners on this appeal. Accordingly, we dismiss without prejudice these petitions for review.

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