683 F.2d 1195 (8th Cir. 1982), 81-2202, Aiyadurai v. I. N. S.
| Citation | 683 F.2d 1195 |
| Party Name | Sunil Lotus AIYADURAI, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE and Gerald L. Coyle, District Director of Immigration and Naturalization Service, Respondents. |
| Case Date | July 28, 1982 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Eighth Circuit |
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Submitted May 17, 1982.
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Alan W. Weinblatt, St. Paul, Minn., for petitioner Aiyadurai.
Lauri Steven Filppu, Robert Kendall, Jr., Attys., Dept. of Justice, Washington, D. C., for respondents.
Before BRIGHT and McMILLIAN, Circuit Judges, and HARRIS, [*] Senior District Judge.
McMILLIAN, Circuit Judge.
Sunil Lotus Aiyadurai petitions for review of an order of the Board of Immigration Appeals (BIA) denying her motion to reopen deportation proceedings pursuant to Section 106(c) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1105a(c). For the reasons discussed below, we affirm BIA's denial to reopen but vacate the order of deportation dated October 1981, and remand to the Immigration and Naturalization Service (Service) to reinstate Aiyadurai's status of voluntary departure and determine the date of departure.
Aiyadurai, a native and citizen of Ceylon, entered the United States on August 15, 1973, as a non-immigrant exchange visitor under an employment contract with La Pepiniere Montessori School in Edina, Minnesota. Aiyadurai was initially authorized to remain in this country until August 10, 1974, but the Service granted several stays which extended her departure date to July 31, 1976. Aiyadurai continues to reside in this country and has been employed by various Minnesota Montessori schools as a teacher since her arrival to the present time.
On December 25, 1975, while employed by the Minnetonka Montessori School, Aiyadurai filed an application for adjustment of status with the Service accompanied by a sixth-preference visa petition. The Service advised her that the visa petition had to be supported by an alien employment certification 1 (labor certification) from the Department of Labor (the Department). Application for the labor certification was then filed on Aiyadurai's behalf by Minnetonka Montessori. On October 16, 1976, the Department of Labor denied the application; that decision was not appealed.
Due to Aiyadurai's failure to obtain the labor certification, Minnetonka Montessori replaced her with another teacher. Aiyadurai was subsequently hired by the Edina Montessori School where she has been employed since 1976 to the present time. In July 1976, Edina Montessori filed an application for labor certification on Aiyadurai's behalf which was denied by the Department on November 1, 1976. Shortly thereafter, deportation proceedings were initiated against Aiyadurai by an Order to Show Cause and notice of hearing. Prior to the
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hearing, Aiyadurai appealed the denial of her labor certification to the Department. The appeal was denied on December 27, 1976.
At the deportation hearing on February 17, 1977, while represented by counsel, Aiyadurai admitted her deportability as an overstay visitor and was granted the privilege of voluntary departure within ninety days under § 244(e) of the Act, 8 U.S.C. § 1254(e). Aiyadurai waived her right to an administrative appeal 2 from the deportation order to the BIA. Prior to the expiration date, Aiyadurai requested and received two extensions of her voluntary departure date to February 1, 1979. 3
On August 2, 1978, Aiyadurai filed an action in federal district court seeking injunctive and declaratory relief for the denial of her labor certification. By agreement of the parties the case was remanded for reconsideration to the Department of Labor and on September 7, 1978, the Department granted the labor certification application that had been filed on Aiyadurai's behalf by Edina Montessori. On October 31, 1978, Aiyadurai resubmitted her application for adjustment of status and sixth-preference visa petition together with the labor certification. The Service approved the visa petition and Aiyadurai was granted sixth-preference status on January 31, 1979. However, the Service informed Aiyadurai that in order to be eligible for adjustment of status she would have to make a motion to reopen her deportation proceedings.
Aiyadurai filed a motion to reopen on March 2, 1979. However, in March 1981 the motion was denied, without a hearing, based on a finding by the immigration judge that she was statutorily ineligible for adjustment of status by reason of § 245(c)(2) of the Act, 8 U.S.C. § 1255(c), as amended by Pub.L. 94-571, 90 Stat. 2703 (effective January 1, 1977), which provides in relevant part, "(t) he provisions of this section (§ 1255, Adjustment of Status) shall not be applicable to ... (2) an alien ... who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status." It was undisputed that Aiyadurai's employment with Edina Montessori constituted unauthorized work within the meaning of the statute.
The immigration judge also found that the July 18, 1977, instruction 4 of the Deputy Commissioner of the Service whereby nunc pro tunc authorization to accept employment was granted to an alien who was the beneficiary of a visa petition filed before January 10, 1977, and who could have properly filed an application for adjustment of status pursuant to the simultaneous filing provisions then in effect, 8 C.F.R. § 245.2(a)(2), did not encompass Aiyadurai's application because she was not the beneficiary of a visa filed before January 10, 1977.
The decision denying Aiyadurai's motion to reopen was affirmed without a hearing by the BIA, and on October 23, 1981, Aiyadurai was informed that she was to be deported from the United States on November 9, 1981. This appeal followed.
We hold at the outset that the only matter before this court is the denial of Aiyadurai's motion to reopen the deportation proceedings. Aiyadurai does not agree with this holding. In her brief she asserts
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that she was denied effective assistance of counsel at her February 17, 1977, deportation proceedings as evidenced by the fact that she conceded deportability and waived her right to appeal. She further asserts that she was prejudiced by Edina Montessori's failure to file a sixth-preference visa petition on her behalf prior to January 10, 1977. Aiyadurai apparently reasons that this prejudice provides an independent ground for this court to review the original deportation proceeding. Neither of these arguments has merit.
Aiyadurai failed to exhaust her administrative remedies by appealing the immigration judge's finding of deportability to the BIA. Therefore, any judicial review by this court pertaining to that order of deportation is precluded. "An order of deportation or of exclusion shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right under the immigration rules and regulations." 8 U.S.C. § 1105a(c).
Furthermore, even if Aiyadurai had exhausted her administrative remedies, we could not now review the deportation proceedings. This court does have authority to review both final deportation...
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