Wing Ding Chan v. Immigration and Naturalization Service
| Decision Date | 04 August 1980 |
| Docket Number | No. 79-1254,79-1254 |
| Citation | 631 F.2d 978 |
| Parties | WING DING CHAN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petition for Review of an Order of the Immigration and Naturalization service.
Mark A. Mancini, Washington, D. C., with whom Jack Wasserman, Washington, D. C., was on the brief, for petitioner.
Eric A. Fisher, Atty., Dept. of Justice, Washington, D. C., with whom Lauren S. Kahn, Atty., Dept. of Justice, Washington, D. C., was on the brief, for respondent.
Before ROBINSON and MIKVA, Circuit Judges, and JUNE L. GREEN *, United States District Judge for the District of Columbia.
Opinion for the Court filed by Circuit Judge MIKVA.
Petitioner Wing Ding Chan (Chan) seeks review of an order of the Board of Immigration Appeals denying Chan's application for adjustment of status to that of a permanent resident under Section 245 of the Immigration and Nationality Act, 8 U.S.C. § 1255 (1976), 1 and directing his deportation from the United States for overstaying his nonimmigrant visa. 2 Conceding that he is deportable, Chan claims that the Board erred in making certain factual determinations and improperly exercised its discretion in rejecting his application for adjustment of status. Therefore, the sole issue before the court is whether the Board lawfully denied the adjustment application. We uphold the Board in its findings and in its exercise of discretion, and affirm the Board's decision.
Chan is a native of the People's Republic of China who has come to the United States at least twice. One of his visits was in April, 1968, as a crewman aboard a ship which docked at a California port. Chan disembarked on a temporary shore pass, but failed to return for the vessel's departure. Instead, he remained in the United States until February, 1972, supporting himself by working as a cook in Chinese restaurants. That employment was without the permission of the Immigration and Naturalization Service (INS) and, along with his continued unauthorized presence in this country, made Chan a candidate for deportation. 3 When the INS finally met up with Chan, he was granted voluntary departure for Hong Kong, see Section 244(e) of the Act, 8 U.S.C. § 1254(e) (1976), thereby avoiding the stigma of deportation.
Chan's next visit to the United States began December 31, 1972, less than a year after he had left the country. The authority for his second entry was a three-month nonimmigrant, business visitor visa which he had obtained from the American Consulate in Hong Kong. Shortly after his arrival, he secured an offer of employment from a Washington, D. C. restaurant. The restaurant submitted a request that Chan be certified by the Department of Labor as a Chinese specialty cook. This certification was issued in March, 1973. Chan then petitioned the INS for status as a permanent resident, based on his labor certification.
Two separate interviews with immigration officials ensued. The first interview was adjourned to allow Chan an opportunity to obtain counsel. Chan returned with a friend who acted as his interpreter, and the interview resumed. During the course of the interview, an INS officer questioned Chan about his earlier visit to the United States, about his use of a fictitious name at that time, and about his failure to report that visit on his application for the three- month business visa. Chan acknowledged he had used a different name in connection with his previous stay in the United States. He also admitted that he had not noted his previous stay on his visa application, but claimed he had mentioned it orally to the consular official who had met with Chan concerning the visa. On July 23, 1975, Chan was interviewed a second time, again with an interpreter present. He acknowledged that he intended to stay in the United States permanently at the time he applied for his three-month business visa. Chan signed a statement declaring that the record of the interview was accurate and that he had answered the questions truthfully.
On April 8, 1976, Chan's application for adjustment of status was denied by the INS District Director for the District of Columbia because Chan was found to have procured his visa through misrepresentation. Chan was given until May 10, 1976, to leave the United States voluntarily. Chan did not leave and deportation proceedings began. On August 24, 1977, following a hearing and de novo consideration, an immigration judge declined to grant permanent resident status to Chan and directed that he voluntarily depart by December 8, 1977, or be deported. Chan appealed to the Board, but the Board affirmed the ruling of the immigration judge. After concluding that Chan "was correctly found deportable by evidence which is clear, convincing and unequivocal," the Board further determined, as a matter of discretion, that Chan should not be granted adjustment of status:
We conclude that adjustment of status is not warranted. The absence of a criminal record and the fact that the respondent (Chan) may have complied with United States income tax requirements are not sufficient favorable factors to outweigh the adverse evidence; 1) that he withheld information from the American Consul at the time he applied for a visa; 2) that as a crewman he had deserted his vessel while in the United States in 1968 and remained here illegally under a different name until his departure in 1972; and 3) that he has no family ties in the United States. Therefore, we will deny the respondent's application for adjustment of status in the exercise of discretion. . . . Accordingly, the appeal will be dismissed.
Rec. 7. This appeal followed that decision.
As our recitation of the background of this case indicates, complications and time delays easily arise whenever the removal of an alien is sought. These proceedings began many years ago. Some seven years after Chan's visa expired, Chan is still residing in this country.
There is no dispute that Section 245 makes the decision on permanent residence a matter within the discretion of the Attorney General. 4 The statute provides that an alien's status "may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence." 8 U.S.C. § 1255(a) (1976). Under the statutory scheme, adjustment of status is considered a matter of administrative grace, not mere statutory eligibility. Elkins v. Moreno, 435 U.S. 647, 667, 98 S.Ct. 1338, 1350, 55 L.Ed.2d 614 (1978); Ameeriar v. INS, 438 F.2d 1028, 1030 (3d Cir.) (en banc ), cert. dismissed, 404 U.S. 801, 92 S.Ct. 21, 30 L.Ed.2d 34 (1971). And since it is deemed to be "extraordinary relief," the alien bears the burden of convincing the decisionmaker to exercise its discretion favorably. Jain v. INS, 612 F.2d 683, 687 (2d Cir. 1979), cert. denied, --- U.S. ----, 100 S.Ct. 2155, 64 L.Ed.2d 789 (1980).
Judicial review of discretionary administrative action is limited. As this court has pointed out in an analogous context, our review of the Board's decision is basically a two-step process: first, the Board's findings of facts upon which its exercise of discretion is grounded must pass the substantial evidence test and, second, the Board's exercise of discretion is governed by the much less demanding "abuse of discretion" standard. Hamad v. INS, 420 F.2d 645, 646-47 (D.C. Cir. 1969) (); accord, Jarecha v. INS, 417 F.2d 220, 224-25 (5th Cir. 1969).
A. Substantial Evidence
Chan challenges the Board's factual findings as lacking sufficient evidentiary support. However, because we conclude that the Board's findings are supported by "reasonable, substantial, and probative evidence on the record considered as a whole," we are bound to accept them as correct. Section 106 of the Act, 8 U.S.C. § 1105a (1976); see Soo Yuen v. INS, 456 F.2d 1107 (9th Cir. 1972). Although the legal question here touches an alien's important interest in maintaining his residence in the United States, the court cannot turn the statutory standard of review into an obstacle course which the immigration authorities can never master.
In particular, Chan attacks the evidence underlying the Board's findings (1) that Chan withheld information when he applied for his visa and (2) that Chan had deserted his ship on his first trip to the United States. With respect to the first finding, there is sufficient evidence that Chan had, and failed to disclose, a preconceived intent to remain in the United States permanently when he applied for his temporary visa. 5 Such intent frequently has been deemed a critical factor in determining whether to grant adjustment of status. See Jain v. INS, supra, 612 F.2d at 688-89; Von Pervieux v. INS, 572 F.2d 114, 118 (3d Cir. 1978), and cases cited therein. Less than a year after Chan departed the United States, having remained here for almost four years without authorization, he applied for a temporary visa to return to the United States. The purpose of the trip was supposedly to drum up business for the trading company where he was employed. Yet both the District Director and the immigration judge found that Chan terminated his job before leaving Hong Kong. The basis for this finding is clearly established in Chan's responses to questions put to him at the second interview by an INS official:
Q. Why did you quit your employment at the Trading Co.?
A. I wanted to come to the U.S.
Q. Why did you want to come to the U.S.?
A. I wanted to come to the U.S. to get some ideas.
Q. What ideas?
A. I just wanted to see some things, the restaurant business.
Q. What did you want to see about the restaurant business?
A. I was cook, I wanted to see if I could open a restaurant here.
Q. Did you...
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