Achacoso-Sanchez v. I.N.S.

Decision Date13 December 1985
Docket NumberP,No. 85-1528,ACHACOSO-SANCHE,85-1528
Citation779 F.2d 1260
PartiesVirginia Ragonetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
CourtU.S. Court of Appeals — Seventh Circuit

Mary L. Sfasciotti, Kilberg, Sfasciotti & Wood, Chicago, Ill., for petitioner.

Mary Reed, Alison R. Drucker, Office of Immigration Litigation, Civ. Div., Dept. of Justice, Washington, D.C., for respondent.

Before FLAUM and EASTERBROOK, Circuit Judges, and WILL, Senior District Judge. *

EASTERBROOK, Circuit Judge.

Virginia Achacoso-Sanchez, a citizen of the Philippines, entered the United States in February 1979 as a visitor for pleasure. Her visa authorized a month's stay. She did not depart at the end of the month. In September 1979 her two children (then ages 6 and 8) joined her in the United States. On January 14, 1980, she married an alien admitted to permanent residence in the United States. Her husband became a citizen in November 1984. This enabled the children to apply for adjustment of status to that of lawful permanent residents; they did, and their petitions were granted.

I

Meanwhile Achacoso-Sanchez was resisting the government's efforts to enforce the time limit of her visa. The Immigration and Naturalization Service charged her with overstaying her welcome, and it set a deportation hearing for January 15, 1980. She attended the hearing, announced her marriage the previous day, and admitted the facts necessary to demonstrate that she was deportable. The immigration judge found her deportable. She requested the privilege of voluntary departure, and the immigration judge accommodated her, allowing her until April 15, 1980, to leave. She did not appeal this decision to the Board of Immigration Appeals. She also did not depart.

In March 1980 she asked the immigration judge to reopen her case, contending that she feared persecution should she return to the Philippines. See 8 U.S.C. Sec. 1253(h); INS v. Stevic, 467 U.S. 407, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). Achacoso-Sanchez's brother was elected to a political office in the Philippines in January 1980, and someone (he believed a political enemy) tried to kill him. Achacoso-Sanchez said that she feared that the Philippine government would not protect her adequately if she returned. The immigration judge disagreed, concluding that no evidence demonstrated that the Philippine government was unwilling or unable to protect her. This decision was rendered in August 1981. Achacoso-Sanchez appealed, and the Board affirmed on February 24, 1982.

This left Achacoso-Sanchez under a final order of deportation, although she was entitled to seek judicial review within six months. 8 U.S.C. Sec. 1105a(a)(1). She did not seek judicial review, and again she did not depart. The INS apparently concluded that despite the final order of deportation, Achacoso-Sanchez was not going to leave unless carted away physically. In January 1983 the INS decided to do just that; it issued a warrant of deportation. Achacoso-Sanchez responded by filing in this court a petition for judicial review of the February 1982 decision. This petition was some five months out of time; nonetheless it invoked the automatic stay of deportation under 8 U.S.C. Sec. 1105a(a)(3). Foiled again, the INS asked us to dismiss the petition or vacate the stay. In May 1983 this court dismissed the petition for want of jurisdiction.

Twelve days later Achacoso-Sanchez was back before the Board. She filed a motion to reconsider the decision of February 1982, urging the Board to reinstate the privilege of voluntary departure she had enjoyed in 1980. She also pointed out that a decision the immigration judge had mentioned in 1981 had been reversed by a court of appeals later that year. McMullen v. INS, 658 F.2d 1312 (9th Cir.1981). In October 1983 the Board denied the motion to reopen. It pointed out that it had not relied on the administrative decision in McMullen and that the reversal had been on factual rather than legal grounds. The Board also elaborated on its earlier conclusion that Achacoso-Sanchez did not have a reasonable fear of persecution in the Philippines, observing that the government was attempting to prosecute the people who had attacked her brother and that no member of her brother's family had been threatened since 1980. Finally, the Board refused to reinstate the privilege of voluntary departure, stating that Achacoso-Sanchez had not shown a good reason why she did not take advantage of the privilege when she had it in 1980.

For a third time Achacoso-Sanchez was under a final order to leave the country. For a third time she neither departed nor sought judicial review of the order. In December 1984 she filed with the Board still another motion to reopen. This time she requested the reopening so that she could apply for adjustment of status to that of an alien admitted for permanent residence. Her husband had been naturalized the previous month, making her eligible for adjustment of status as the spouse of a citizen. Ordinarily permission to become a permanent resident means a visa, and visas are usually available only at embassies abroad. After leaving to obtain a visa, the alien confronts the obstacle of 8 U.S.C. Sec. 1182(a)(17), which provides that deported aliens may not reenter the United States for five years unless the Attorney General permits an earlier return.

The Board declined to decide whether Achacoso-Sanchez had made out a prima facie case for reopening to permit an adjustment of status in the United States. Because reopening and adjustment are discretionary, the Board explained, it was entitled to exercise its discretion against Achacoso-Sanchez whether or not she had satisfied the statutory requirements. It concluded that although Achacoso-Sanchez had not "necessarily" entered the United States in 1979 with intent to remain, her "conduct after her entry into the United States weighs against her application." The Board gave several reasons: (1) she "did not depart voluntarily pursuant to the immigration judge's final order of deportation; " (2) she neither departed in 1982 nor appealed from the Board's decision but instead "she waited until an order of deportation issued and then filed a patently frivolous appeal; " (3) when she asked the Board to reopen in 1983 "she made no new arguments in support" of her position; (4) although she is married to a citizen, she "married her husband only one day before the hearing at which the outstanding order of deportation was entered. When an alien marries in the shadow of an order of deportation, the equities gained are reduced." The Board also observed that Achacoso-Sanchez had not met the procedural requirements for reopening, because her motions papers in 1984 neglected to inform the Board of the petition for judicial review in 1983. See 8 C.F.R. Sec. 3.8(a).

Although the Board recognized that adjustment of status in the United States is designed in part to keep families together, it stated that because Achacoso-Sanchez "is immediately eligible for a visa, she will only be separated from her family as long as the processing of her visa takes." It took a hard-nosed position: "The normal procedure is for an alien in the United States to obtain a visa at a consulate abroad. To relieve hardships the Attorney General is allowed in some cases to adjust the status of an alien already here. [Achacoso-Sanchez] was required by law to leave the United States by April 15, 1980. We see no reason why she should not be required to leave at this time."

II

Achacoso-Sanchez concedes, as she must, that adjustment of status is a discretionary remedy and that the Board may deny relief even to aliens who satisfy the statutory requirements of eligibility. United States ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72, 77, 77 S.Ct. 618, 621, 1 L.Ed.2d 652 (1957); Yahkpua v. INS, 770 F.2d 1317 (5th Cir.1985); Patel v. INS, 738 F.2d 239 (7th Cir.1984). Nonetheless, her principal argument is that the Board should have afforded her a hearing and made factual findings on all of the elements affecting her eligibility for adjustment of status. The Board, she maintains, may not exercise its discretion until it has first determined her eligibility.

This is incorrect. INS v. Bagamasbad, 429 U.S. 24, 97 S.Ct. at 200, 50 L.Ed.2d 190 (1976), considered and rejected this argument. Bagamasbad asked for an adjustment of status to that of lawful permanent resident. The Court held that because his application would have been denied whether or not he met the statutory requirements for adjustment, the Board was entitled to consider the discretionary factors and stop. "As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach." 429 U.S. at 25, 97 S.Ct. at 200.

Achacoso-Sanchez apparently seeks to distinguish Bagamasbad on the ground that it was a "mere" application for adjustment of status, while hers is an application for reopening of a deportation proceeding to permit adjustment. This is a distinction without a difference. The Board may reject applications for reopening on discretionary grounds, INS v. Rios-Pineda, --- U.S. ----, 105 S.Ct. 2098, 2102, 85 L.Ed.2d 452 (1985), so an application for reopening to permit adjustment calls for discretion piled on discretion. The Board was entitled to deny Achacoso-Sanchez's motion to reopen without issuing an advisory opinion on her eligibility for adjustment of status.

The Board did not take mercy on Achacoso-Sanchez, but it has the discretion to be cold-blooded. INS v. Jong Ha Wang, 450 U.S. 139, 101 S.Ct. 1027, 67 L.Ed.2d 123 (1981). To say that an agency has discretion to act implies that it may be stern as well as generous. The Board may be concerned about consistency in the treatment of aliens. Many aliens have applied for visas in the Philippines and are waiting their turns in a very long line....

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