Heitland v. Immigration and Naturalization Service

• Decision Date: 27 January 1977
• Docket Number: No. 293,D,293
• Citation: 551 F.2d 495
• Parties: Heinz H. HEITLAND (A17 587 648) and Hennelore Heitland (A19 492 601), Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. ocket 76-4141.
• Court: U.S. Court of Appeals — Second Circuit

Page 495

551 F.2d 495

Heinz H. HEITLAND (A17 587 648) and Hennelore Heitland (A19

492 601), Petitioners,

v.

IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 293, Docket 76-4141.

United States Court of Appeals, Second Circuit.

Argued Oct. 8, 1976.

Decided Jan. 27, 1977.

Jules E. Coven, New York City (Abraham Lebenkoff, Lebenkoff & Coven, New York City, of counsel), for petitioners.

Robert S. Groban, Jr., Sp. Asst. U. S. Atty. (Robert B. Fiske, Jr., U. S. Atty., Southern District of New York, Mary P. Maguire, Sp. Asst. U. S. Atty., New York City, of counsel), for respondent.

Before KAUFMAN, Chief Judge, and MANSFIELD and MESKILL, Circuit Judges.

MANSFIELD, Circuit Judge:

Pursuant to § 106 of the Immigration and Nationality Act (the "Act"), 8 U.S.C. § 1105a, Heinz H. Heitland and his wife, Hennelore, seek review of an order of deportation entered by the Board of Immigration Appeals (the "Board") on January 25, 1974, in accordance with a Board decision denying their applications, pursuant to § 245 of the Act, 8 U.S.C. § 1255(a), ¹ for adjustment of their immigration status from that of non-immigrants admitted as temporary visitors under § 241(a)(2) of the Act, 8 U.S.C. § 1251(a)(2), who had remained beyond their authorized stay, to that of aliens lawfully admitted for permanent residence. The case had been remanded to the Immigration Judge to determine whether they were eligible for discretionary relief from deportation. The Heitlands also seek review of the Board order dated April 13, 1976, denying their applications pursuant to § 244 of the Act, 8 U.S.C. § 1254(a), for suspension of deportation in the discretion of the Attorney General. ² For the reasons stated below, we affirm both orders.

Heinz H. Heitland was born in Germany in 1932 and after his first marriage moved with his wife to Canada, where his first child was born, and became a naturalized Canadian citizen. Following a divorce in Canada from his first wife in 1962, he married petitioner Hennelore Heitland, a native and citizen of Germany, in Canada in 1963.

In 1968 Heitland and his second wife were admitted to the United States as non- In July, 1969, Mrs. Heitland gave birth to their daughter in Brooklyn. Meanwhile Mr. Heitland continued operating his panel truck with its two-way radio as a one-man delivery service, obtaining most of his business from the Mid-Island Messenger Company, which paid him 60 percent of receipts realized from his deliveries. In 1970 his receipts from this business were approximately $14,000, from which he netted about $4,500. In 1971 he bought a second truck for $3,022 for use in his business, paying $250 down and financing the balance through an auto loan.

immigrant visitors, permitted to remain for not more than six months. ³ Except for approximately six weeks in December, 1970, they have without permission remained here ever since. Shortly after their arrival they moved to Brooklyn, illegally obtained employment, ⁴ and filed with the Immigration and Naturalization Service an application for adjustment of Mr. Heitland's status on the basis of his employment as a mechanic. In August, 1968, however, he left this job, purchased a Volkswagen truck ⁵ and went into the business of delivering letters and small packages, thus abandoning his first effort to obtain an adjustment of status, for which he would not have been eligible unless he could submit a certification by the Secretary of Labor to the Attorney General pursuant to § 212(a) of the Act, 8 U.S.C. § 1182(a), and 29 C.F.R. § 60.3(c), to the effect that he was needed for the job on which he was employed. ⁶

In December, 1970, the Heitlands and their daughter, a United States citizen by birth, went to Germany for six weeks on an emergency trip to see his ailing sister. On February 4, 1971, they returned, Mr. Heitland travelling on a Canadian passport he had obtained in New York in October, 1970, his wife on her German passport and their child on her United States passport. While in Germany, Mrs. Heitland obtained a non-immigrant visitor's visa authorizing her to enter the United States and remain until August, 1971, and was admitted as a temporary visitor upon their return to the United States in 1971. Mr. Heitland was admitted to the United States as a non-immigrant in transit to Canada, and their child as a United States citizen. The Heitlands then resumed residence at the Brooklyn apartment where they had previously and have since resided.

In April 1971, the Immigration and Naturalization Service instituted deportation proceedings against Mr. Heitland, alleging he had entered the United States in February 1971 with the intention of remaining here indefinitely without a valid immigration visa or permanent-entry document. He conceded his deportability by admitting these allegations but countered by filing another application for change of status, claiming that his wife and he were eligible under § 212(a)(14) of the Act for non-preference quota immigrant visas entitling them to status as permanent residents, see § 203(a)(8) of the Act, 8 U.S.C. § 1153(a)(8), on the ground that he was exempted from the requirement of obtaining a labor certification under § 212(a)(14) of the Act because he was engaged "in a commercial . . . enterprise in which he had invested . . . a substantial amount of capital" and thus had created new employment rather than having taken away an existing job opportunity. See 8 C.F.R. § 212.8(b)(4). ⁷ He claimed eligibility for his wife as his dependent. The Immigration and Naturalization Service then instituted deportation proceedings against Mrs. Heitland, alleging she had remained in the United States beyond August 3, 1971, without permission. Upon her admission that she had remained beyond the authorized period she was joined with her husband in his pending application for change of status.

On October 4, 1972, the Immigration Judge found the Heitlands deportable but eligible as investors for change of status under 8 C.F.R. § 212.8(b)(4), based on Mr. Heitland's delivery business, and recommended that the application for change of status be granted. The Board, however, on January 25, 1974, sustained the INS's position on appeal, holding that the investment made by the Heitlands in delivery vans was not sufficiently substantial to satisfy the requirements of 8 C.F.R. § 212.8(b)(4). In the light of Congress' desire to safeguard existing employment, the Board interpreted the regulation as requiring an investment that would expand existing jobs and thereby offset the adverse impact which the alien's employment might have on the job market. Although the Board thus denied the Heitlands an adjustment of status, it nevertheless remanded the case to the Immigration Judge to determine whether the Heitlands were entitled to discretionary relief from deportation under § 244(a)(1) of the Act. In the meantime, in December, 1973, Mr. Heitland was injured in an automobile accident, which forced him to terminate his delivery service.

Upon remand the Heitlands in 1975 reapplied to the INS for adjustment of status and also sought suspension of deportation pursuant to § 244(a)(1) of the Act, 8 U.S.C. § 1254(a)(1), which authorizes the INS in its discretion to grant relief from deportation upon proof (1) that the petitioners have been present in the United States for a continuous period of not less than seven years preceding their application, (2) that they are of good moral character, and (3) that their deportation would result in extreme hardship to themselves or to their citizen child. On November 18, 1975, the Immigration Judge denied the Heitlands' latest applications for adjustment of status on the ground that Mr. Heitland's accident had precluded him from continuing his delivery On April 13, 1976, the Board dismissed the Heitlands' appeal from the Immigration Judge's decision denying suspension of a deportation and held that the visit to Germany constituted a "meaningful interruption" of the continuity of their stay in the United States. On June 4, 1976, the Heitlands filed in this court their petition for review of the Board's January 25, 1974, and April 13, 1976, decisions, which automatically stayed deportation pending our review, see § 106(a)(3) of the Act, 8 U.S.C. § 1105a(a)(3).

service. The application for discretionary suspension of deportation was also denied on the ground that the Heitlands' six-week trip to Germany in 1970-71 interrupted their presence in the United States, precluding them from showing that they had "been physically present for a continuous period of not less than seven years immediately preceding the date of such application" as required by § 244(a).

DISCUSSION

A threshold question is whether we have jurisdiction to review the Board's January 25, 1974, decision reversing the Immigration Judge's decision and denying the Heitlands an adjustment of status. The Board contends that review is precluded by § 106(a)(1) of the Act, 8 U.S.C. § 1105(a)(1), which requires that the petition for review be filed not later than six months from the date of the final deportation order. See United States ex rel. Tanfara v. Esperdy, 347 F.2d 149 (2d Cir. 1965). Since the Board's January 25, 1974, decision constituted a final order in that appeal, see Foti v. Immigration and Naturalization Service, 375 U.S. 217, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963), and the Heitlands did not file their petition for review for 21/2 years thereafter, the Board argues that the petition must be dismissed. We disagree.

Although the Board's January 25, 1974, decision denied a status change, it cannot be labelled "final" because it also remanded the case to the Immigration Judge to determine whether deportation should be suspended under § 244(a)(1). Had the latter relief been granted, the effect might have been to render unnecessary any review of the earlier order. On the other hand, had suspension been denied (as actually occurred), both decisions...