Menezes v. Immigration and Naturalization Service
| Decision Date | 29 May 1979 |
| Docket Number | No. 78-2074,78-2074 |
| Parties | Ashok Peter MENEZES, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert O. Wells, Jr. (argued), Moriarty, Long, Mikkelborg & Broz, Seattle, Wash., for petitioner-appellant.
Lawrence W. Chamblee, Crim. Div., Washington, D. C., for respondent-appellee.
On Appeal to Review a Decision of the Board of Immigration Appeals.
Before WRIGHT and GOODWIN, Circuit Judges, and WILLIAMS, District Judge. *
Menezes petitions for review of a deportation order for failure to comply with the conditions of the nonimmigrant status under which he was admitted. We affirm.
On August 15, 1972, Menezes entered the United States from India as a nonimmigrant temporary visitor for pleasure. He was later permitted to remain until February 28, 1973, by adjusting his status to that of nonimmigrant student.
On March 7, 1973, the Immigration and Naturalization Service (INS) initiated deportation proceedings because Menezes' permission to remain had expired. At a deportation hearing on March 29, he admitted that he was no longer a full time student as required by his nonimmigrant status, but denied deportability because, on March 24, 1973, he had married a United States citizen. Because of the marriage, the immigration judge continued the case to allow Menezes' wife to petition the INS for issuance of an immigration visa for her husband.
In April 1973, Menezes' wife filed an immediate relative visa petition on his behalf, which was finally approved in April, 1975. 1 In the meantime, an order of deportation had issued against him but, in May 1975, the Board of Immigration Appeals (BIA) granted a motion to reopen the deportation proceedings.
The final deportation hearing took place in October, 1975. The immigration judge on June 11, 1976, found that Menezes met the statutory requirements for adjustment of status from nonimmigrant to permanent resident, but denied adjustment of status because of the deterioration of the marriage, purporting to exercise discretion which he believed he had under the Immigration and Nationality Act (the Act) § 245, 8 U.S.C. § 1255 (1976). The judge noted that Menezes' marriage had "not been a smooth one to say the least." There were at least six separations and, at the time of the final deportation hearing, the couple had been separated since mid-July, 1975. 2
On June 22, 1976, Menezes appealed the order and, on June 25, he and his wife were divorced. Consequently, the Board of Immigration Appeals dismissed the appeal and affirmed the order of deportation on the grounds that under 8 C.F.R. § 205.1(a)(4) (1978), approval of his visa petition had been revoked by the divorce, 3 making him ineligible for adjustment of status.
On appeal, Menezes first contends that the immigration judge had no discretion to deny his application for adjustment of status. He argues that, once his wife's petition for an immediate relative visa on his behalf had been approved and the immigration judge found that he was not ineligible for adjustment of status on other grounds, approval of his application was mandatory under § 201(b) of the Act, 8 U.S.C. § 1151(b) (1976). That section provides:
The "immediate relatives" . . . shall mean the children, spouses, and parents of a citizen of the United States: . . . The immediate relatives specified in this subsection who are otherwise qualified for admission as immigrants shall be admitted as such, without regard to the numerical limitations in this chapter.
Menezes applied for adjustment under § 245 of the Act. The section expressly confers discretion to adjust status upon the Attorney General who delegates that discretion to the INS. See Fulgencio v. INS, 573 F.2d 596, 597 (9th Cir. 1978). Menezes contends that, although he applied for adjustment under § 245, that section does not govern adjustments of status for immediate relatives of citizens because § 201(b) not only authorizes, but mandates adjustment for such aliens.
To support this argument, he quotes § 245:
Upon the approval of an application for adjustment made under . . . this section, the Attorney General shall record the alien's lawful admission for permanent residence as of the date the order of the Attorney General approving the application for the adjustment of status is made, and the Secretary of State shall reduce by one the number of the preference or non-preference visas authorized to be issued under sections 1152(e) or 1153(a) of this title within the class to which the alien is chargeable . . . .
8 U.S.C. § 1255 (1976) (emphasis added). This language, he argues, means that § 245 applies only to aliens grouped within the preference or non-preference visa categories mentioned. Because immediate relatives are admitted without regard to numerical limitations, Menezes contends that § 245 discretion to adjust status does not apply to them.
He also cites Matter of Dixon, Interim Decision No. 2615 (BIA 1977), in which the Board of Immigration Appeals discussed applications for permanent residence status made by fiances of United States citizens. The Board stated:
While the regulation, . . . , requires the filing of an application for permanent resident status pursuant to § 214(d) to be made on form I-485, and is included in the regulations generally relating to adjustment of status, it is in fact adjustment under a separate and distinct provision of the statute, carrying its own requirements, and having no relationship to the requirements of § 245.
Interim Decision No. 2615 at 4. See also Whetstone v. INS, 561 F.2d 1303, 1307, 1309 (9th Cir. 1977). Menezes contends that § 201(b) is similarly "separate and distinct."
We disagree with his interpretation of §§ 201 and 245. The quoted language in § 245 does not limit the application of that section to aliens who fall within the numerical limitations of the Act. It merely provides that If aliens applying for adjustment of status fall within the categories mentioned, and their applications are approved, then the number of visas available in that category shall be reduced accordingly.
It is clear from the original version of § 245 and from the legislative history of that section that Congress intended it to apply to immediate relatives. As originally enacted in 1952, § 245 specifically referred to aliens "claiming a nonquota status under section 101(a)(27)(A)" which at that time included immediate relatives of citizens. Act of June 27, 1952, Pub.L. No. 82-414, 66 Stat. 217. Such aliens were required to have completed a year of residence before acquiring their nonquota status in order to qualify for § 245 adjustment of status.
In 1956, Congress amended § 245 to remove the one-year residence requirement for aliens claiming nonquota status. Act of Aug. 21, 1958, Pub.L. No. 85-700, 72 Stat. 699. The amendment deleted references to quota or nonquota immigrants, referring only to "immigrants." The term clearly was meant to encompass both categories of immigrants.
The purpose of the legislation was not to remove nonquota immigrants from the purview of the statute, but to eliminate the residence requirement and to end the practice of requiring eligible aliens to depart the country in order to be admitted for permanent residence. S.Rep. No. 2133, 85th Cong., 2d Sess. Reprinted in (1958) U.S.Code Cong. & Admin.News, p. 3698. The report mentions "spouses of United States citizens" as among the primary beneficiaries of the legislation. (1958) U.S.Code Cong. & Admin.News at 3699.
Finally, § 245(c), added in 1976, contains a reference to spouses of citizens which indicates that Congress intended § 245 to apply to them. 4
Menezes also misreads § 201(b). Unlike § 214(d), which clearly does mandate admission for permanent residence of fiances 5 who marry within 90 days of entry and otherwise meet the admission requirements, § 201(b), does not contain mandatory language. Matter of Dixon is therefore inapposite.
Section 201 is entitled "Numerical limitations on lawful admissions." The statement that "immediate relatives . . . otherwise qualified for admission as immigrants shall be admitted as such, without regard to the numerical limitations," 8 U.S.C. § 1151(b) (1976), does not authorize automatic admission of immediate relatives, but merely exempts them from the numerical limitations. It does not evidence congressional intent either to limit the agency's discretion or to bypass the requirements of § 245.
The immigration judge, acting for the agency, had discretion to deny Menezes' application for adjustment of status. Menezes argues, however, that even if this is so, the agency abused its discretion and violated equal protection principles by treating him differently than it treats similarly situated fiances of citizens who marry within the 90-day time limit.
To analyze Menezes' equal protection argument, we must spell out the processes by which fiances of citizens and spouses of citizens obtain visas and secure permanent resident status. The procedures for the two groups differ, in part because fiances are generally not in this country when they apply for visas. Spouses often are.
The Statutory Scheme.
Issuance of visas to fiances of citizens is governed by the Act § 214(d); 8 U.S.C. § 1184(d) (1976). An alien fiance must first apply for a visa to the United States consular officer in his country. The officer will not grant the application until he or she receives a petition filed by the sponsoring United States citizen and approved by the Attorney General. The latter will approve the petition:
only after satisfactory evidence is submitted by the petitioner to establish that the parties have a bona fide intention to marry and are legally able and actually willing to conclude a valid marriage in the United States within a period of ninety days after the...
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