Balani v. Immigration and Naturalization Service

• Decision Date: 08 February 1982
• Docket Number: No. 79-3624,79-3624
• Citation: 669 F.2d 1157
• Parties: Kishin Ramchand BALANI, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1157

669 F.2d 1157

Kishin Ramchand BALANI, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 79-3624.

United States Court of Appeals Sixth Circuit.

Argued April 13, 1981.

Decided Feb. 8, 1982.

David Carliner, Carliner & Gordon, Washington, D. C., for petitioner.

James C. Cissell, U. S. Atty., Patrick J. Hanley, Asst. U. S. Atty., Cincinnati, Ohio, Dewey Wotring, Deportation Officer, INS, Louisville, Ky., Edwin Chauvin, Jr., Dist. Director, INS, New Orleans, La., James P. Morris, Robert Kendall, Jr., Gen. Lit. & Legal Advise Sect., Crim. Div., Dept. of Justice, Washington, D. C., for respondent.

Before WEICK and ENGEL, Circuit Judges, and RICE, District Judge. ^*

PER CURIAM.

This matter is before the Court on the petition of Kishin Ramchand Balani for review of an order of the Board of Immigration Appeals, dated September 24, 1979, denying his motion to reopen his deportation proceedings in order that he could apply for a suspension of deportation.

The issue in this proceeding is whether the Board of Immigration Appeals abused its discretion by denying Petitioner's motion to re-open his deportation proceedings in order to apply for discretionary relief of suspension of deportation pursuant to 8 U.S.C. § 1254(a)(1), upon the ground that Petitioner had failed to present new facts which would establish a prima facie case of extreme hardship as required by the law. We hold that the Board did not abuse its discretion and, accordingly, affirm the decision of the Board of Immigration Appeals.

The Petitioner, a native and citizen of India, first entered the United States in 1968 as a non-immigrant visitor for business purposes. He overstayed his visa, but departed on July 30, 1969, prior to the commencement of deportation proceedings, after the Service had issued a show cause order directing the Petitioner to show why he should not be considered an "overstay."

Balani re-entered the United States as a visitor for business purposes on May 30, 1970, with authorization to stay until October 4, 1970. He again overstayed his visa, finally departing on December 30, 1970, after the Service had issued a warrant of arrest and after he had been found deportable by the Service.

Petitioner last entered the United States as a visitor for business purposes on January 19, 1971, with authorization to remain until May 18, 1971. His application for an extension beyond that date was denied and he was granted the privilege of departing the United States on a voluntary basis on or before July 14, 1971. This date was extended several times until September 22, 1972, in lieu of the initiation of deportation proceedings. The Petitioner did not depart and has remained in the United States without authority from the Service since that date.

Through various dilatory actions, ¹ some of which are the responsibility of the Service, Balani has remained in the United States since the time of his final re-entry.

On August 24, 1979, after a lengthy and time consuming series of procedural steps, the Petitioner moved to re-open his deportation proceedings in order to apply for the discretionary relief of suspension of deportation under 8 U.S.C. § 1254(a)(1). He was granted a stay of deportation until September 24, 1979. On that date, the Board denied his motion to re-open his deportation matter. The instant appeal followed the denial of this motion.

In support of his application for discretionary relief of suspension of deportation, the Petitioner has set out the following facts: that he has had for seven years an ongoing business in Louisville, Kentucky; ² that he has been married and has sired a son who is an American citizen; that all of his close relatives live in the United States, either as permanent residents or as citizens; that he has no close relatives in India; that his brother has obtained approval of a visa petition according Balani a preference under the Fifth Preference portion of the immigration quota (reserved for siblings of United States Citizens); that his business, solely owned and operated by him in Louisville, Kentucky, since 1972, provides sole support for himself and his family, employs three persons who are either permanent residents or citizens, and grosses approximately $160,000 annually; and that he owns a home in the United States. ³

Petitioner's application for suspension of deportation is controlled by Section 244(a) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1254(a)(1), which states:

As hereinafter prescribed in this section, the Attorney General may, in his discretion, suspend deportation and adjust the status to that of an alien lawfully admitted for permanent residence, in the case of an alien who applies to the Attorney General for suspension of deportation and-

(1) is deportable under any law of the United States except the provisions specified in paragraph (2) of this subsection; has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of such application, and proves that during all of such period he was and is a person of good moral character; and is a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or to his spouse, parent or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence. (emphasis added).

An alien may move to reopen deportation proceedings to seek discretionary relief where circumstances change after a deportation order is entered. Urbano de Malaluan v. INS, 577 F.2d 589, 592 (9th Cir. 1978). The Board may not grant such a motion unless it is based upon material new facts. 8 C.F.R. § 3.2 (1979). The Board must determine whether the alien has set forth sufficient facts in his moving papers to make a prima facie case of eligibility for relief. Urbano de Malaluan v. INS, supra, at 592-93.

In denying petitioner's motion to re-open, the Board of Immigration Appeals held:

... the motion and affidavit presented do not state new facts which would establish, prima facie, the extreme hardship required to make the respondent (petitioner) eligible for suspension of deportation under Section 244(a)(1) of the Act. (8 U.S.C. § 1254(a)(1))

Specifically, the Board held that the Petitioner had not made out a prima facie case of hardship. It found that he had managed to escape deportation and to accrue the statutory minimum for continuous presence under 8 U.S.C. § 1254(a)(1) (seven years) by resorting to dilatory tactics. The fact that he had a United States citizen son, according to the Board, was insufficient to meet the statutory requirement of extreme hardship. The Board also held that the following facts did not serve to make out a prima facie showing of extreme hardship: (1) that Balani might suffer some economic hardship if he sells his business, or (2) that Balani's United States citizen son might have better economic and educational opportunities in the United States. ⁴

The proper inquiry on review before this Court is whether the Board abused its discretion in denying Petitioner's motion to reopen deportation proceedings. Lee v. INS, 550 F.2d 554, 555 (9th Cir. 1977); Luna-Benalcazar v. INS, 414 F.2d 254 (6th Cir. 1969); Tupacyupanqui-Marin v. INS, 447 F.2d 603 (7th Cir. 1971); Hun Chak Sun v. INS, 415 F.2d 791 (9th Cir. 1969), cert. denied, 397 U.S. 908, 90 S.Ct. 905, 25 L.Ed.2d 89 (1970).

" 'Abuse of discretion' is a phrase which sounds worse than it really is. All it need mean is that, when judicial action is taken in a discretionary matter, such action cannot be set aside by a reviewing court unless it has a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors."

McBee v. Bomar, 296 F.2d 235, 237 (6th Cir. 1961), quoting, In re Josephson, 218 F.2d 174, 182 (1st Cir. 1954). There is no exact measure of what constitutes abuse of discretion. It is more than the substitution of the judgment of one tribunal for that of another. Judicial discretion is governed by the situation and circumstances affecting each individual case. "Even where an appellate court has power to review the exercise of such discretion, the inquiry is confined to whether such situation and circumstances clearly show an abuse of discretion, that is, arbitrary action not justifiable in view of such situation and circumstances."

N.L.R.B. v. Guernsey-Muskingum Electric Co-op, Inc., 285 F.2d 8, 11 (6th Cir. 1960), quoting, Hartford-Empire Co. v. Obear-Nester Glass Co., 95 F.2d 414, 417 (8th Cir. 1948).

In determining whether the Board abused its discretion, this Court must decide whether the denial of Petitioner's motion to reopen deportation proceedings was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group. Hang v. INS, 360 F.2d 715, 719 (2d Cir. 1966). Upon due consideration, we conclude that the Board did not abuse its discretion in concluding that Petitioner had failed to make a prima facie showing of eligibility for suspension of deportation by a showing of extreme hardship which would justify a re-opening of his deportation proceedings, under the discretionary review provided the Board in 8 U.S.C. § 1254(a)(1).

An application to re-open deportation proceedings is addressed to the sound discretion of the Attorney General which is unassailable except upon a clear showing of abuse of discretion. Williams v. Sahli, 271 F.2d 228 (6th Cir. 1959), cert. denied, 361 U.S. 966, 80 S.Ct. 588, 4 L.Ed.2d 547 (1960); Williams v. Sahli, 292 F.2d 249 (6th Cir. 1961), cert. denied, 368 U.S. 977, 82 S.Ct. 482, 7 L.Ed.2d 439 (1962). The Board did not abuse its discretion in denying Petitioner's motion to re-open the deportation proceedings in this case. The denial of Petiti...