Chudshevid v. Immigration & Naturalization Service

Decision Date06 April 1981
Docket NumberNo. 79-7641,79-7641
Citation641 F.2d 780
PartiesRam CHUDSHEVID, and Dongtip Chudshevid, Petitioners, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

M. Rito Corrales, Santa Ana, Cal., on brief, for petitioners.

Dzintra I. Janavs, Los Angeles, Cal., for respondent.

Petition to Review a Decision of The U.S. Immigration & Naturalization Service.

Before HUG and BOOCHEVER, Circuit Judges, and RICHEY *, District Judge.

HUG, Circuit Judge:

Ram and Dongtip Chudshevid seek review of a deportation order and the Board of Immigration Appeals' denial of their motion to reconsider. 1 We lack jurisdiction to review the deportation order, and we affirm the denial of the motion to reconsider.

BACKGROUND

The Chudshevids, who are natives and citizens of Thailand, entered the United States on March 18, 1972 as a nonimmigrant student and spouse. They were authorized to remain in this country until September 18, 1972. In June 1974 Mrs. Chudshevid applied for adjustment of status to permanent resident pursuant to section 245 of the Immigration and Nationality Act, 8 U.S.C. § 1255, and requested that she be considered exempt from the Act's labor certification requirement, 8 U.S.C. § 1182(a)(14), 2 by virtue of her investment in a commercial enterprise, under 8 C.F.R. § 212.8(b)(4). Mr. Chudshevid claimed exemption as the spouse of an alien investor under 8 C.F.R. § 212.8(b)(2). The application for adjustment of status was denied in February 1976.

Following the issuance of a show cause order which charged that the Chudshevids were deportable because they had remained in the United States longer than permitted, a deportation hearing was held in February 1977. The Chudshevids conceded deportability at the hearing, but renewed their application for adjustment of status on the basis of Mrs. Chudshevid's business investment. The regulation in issue, 8 C.F.R. § 212.8(b)(4), was amended in 1976. 3 The pre-1976 regulation required a showing that the alien had invested or was actively in the process of investing $10,000 in a commercial enterprise. The regulation as amended required a showing that the alien had invested or was actively in the process of investing $40,000 in a commercial enterprise. The immigration judge held that the amended regulation with the $40,000 requirement was applicable and that Mrs. Chudshevid had failed to make the required showing. Alternately, he held that even if the pre-1976 version applied, she had failed to establish that she had made the required $10,000 investment. Finally, as a third alternate holding, the immigration judge held that the investment did not meet the additional requirements imposed by the Board of Immigration Appeals in Matter of Heitland, 14 I. & N. Dec. 563 (1974), aff'd, 551 F.2d 495 (2nd Cir.), cert. denied, 434 U.S. 819, 98 S.Ct. 59, 54 L.Ed.2d 75 (1977). 4 The immigration judge granted voluntary departure in lieu of deportation on February 16, 1977.

On appeal, the Board of Immigration Appeals (Board) stated that 8 C.F.R. 212.8(b)(4) as amended in 1976 was not applicable in Mrs. Chudshevid's case because her original application for adjustment of status occurred before the amendment. Thus, she only had to meet the $10,000 requirement imposed by the pre-1976 regulation. The decision of the immigration judge was upheld, however on the other two grounds: first, that she had failed to establish that she had met the $10,000 investment requirement; and second, that the Heitland requirements had not been met. The Board dismissed the appeal in June 1978.

In May 1979 the Chudshevids filed a motion to reconsider with the Board based on this court's decision in Ruanswang v. INS, 591 F.2d 39 (9th Cir. 1978), which held that the Heitland criteria were not applicable to an investment made prior to the Heitland decision. Mrs. Chudshevid argued that she, like the investor in Ruanswang, had made her investment prior to the time Heitland was decided. 5 The Board denied this motion in August 1979, however on the basis that even if the application of the Heitland criteria to her case was erroneous, the prior finding that Mrs. Chudshevid failed to establish that she had made the required $10,000 investment would justify the deportation order. On December 1, 1979, the Chudshevids filed a petition for review in this court.

DISCUSSION
A. Appellate Jurisdiction

A petition for review of a final deportation order of the Board of Immigration Appeals must be filed in this court not later than six months following the date of the order. 8 U.S.C. § 1105a(a)(1). Such a petition was not filed within the six-month period. The Board of Immigration Appeals may, however, reopen or reconsider any case in which it has rendered a decision either on its own motion or on the motion of the affected alien. 8 C.F.R. §§ 3.2, 3.8(a). 6 A motion to reopen and a motion to reconsider are two separate and distinct motions with different requirements, although they are discussed together in the same regulations.

A motion to reopen must be based upon new material evidence which was not available and which could not have been discovered or presented by the alien at the prior hearing, 8 C.F.R. § 3.2. The regulation specifies no time limit within which the motion may be brought except that it may not be brought on behalf of a person subsequent to his or her departure. Id.

A motion to reconsider "shall state the reasons upon which the motion is based and shall be supported by such precedent decisions as are pertinent." 8 C.F.R. § 3.8(a). There is no requirement for allegations of new facts or even new precedent. There is no time limit specified in the regulations for bringing the motion except that it may not be brought after the departure of the person involved. Id.

The motion brought in this case is not based upon any new facts which were not available at the time of the hearing and is thus not a motion to reopen the proceedings. It is a motion for reconsideration, requesting the Board to review its decision in light of a change in interpretation of the applicable regulation.

The Supreme Court has held that orders on motions to reopen are reviewable as final orders. See Giova v. Rosenberg, 379 U.S. 18, 85 S.Ct. 156 13 L.Ed.2d 90 (1964). The inquiry on review is whether the denial of the motion constituted an abuse of discretion by the Board. Urbano de Malaluan v. INS, 577 F.2d 589, 592 (9th Cir. 1978). We hold that a denial of a motion to reconsider is similarly reviewable, and the inquiry on review is whether the denial was an abuse of discretion.

The order of deportation in this case became final when the appeal was dismissed by the Board of Immigration Appeals on June 30, 1978. The Chudshevids then had six months within which to file a petition for review in this court. Alternatively, if the Chudshevids had filed a motion to reconsider within the six month time period, and subsequently had filed a petition for review of the denial of that motion within six months following the denial of the motion, this court would have retained jurisdiction to review both the initial deportation order and the subsequent denial of the motion. See Bregman v. INS, 351 F.2d 401 (9th Cir. 1965) (motion to reopen). Since the Chudshevids filed neither a petition for review nor the motion to reconsider within six months of the Board's dismissal of their appeal in June 1978, our jurisdiction in this case is limited to reviewing the Board's denial of the motion, which was appealed in a timely manner on December 1, 1979.

B. The Merits

This court recently held that the Board improperly circumvented the appropriate rule-making procedures when it enunciated the additional requirement for alien investor status in Heitland. Bahat v. Sureck, 637 F.2d 1315 (9th Cir. 1981); Patel v. INS, 638 F.2d 1199 at 1203 (9th Cir. 1980). However, the Board concluded in this case, that even if the Chudshevids were correct in asserting that the Heitland requirements could not be applied, Mrs. Chudshevid had failed to carry her burden of proving that she had made the required $10,000 investment under 8 C.F.R. 212.8(b)(4). The Board noted that the sole basis for the motion to reconsider was the contention that it was erroneous to apply the Heitland requirements and that nothing had been presented to disturb the alternate ground that Mrs. Chudshevid had failed to prove she had made the required $10,000 investment. This failure of proof was a sufficient ground to deny the adjustment in status, and thus there was no abuse of discretion in denying the motion to reconsider.

AFFIRMED.

* The Honorable Mary Anne Richey, United States District Judge for the District of Arizona, sitting by designation.

1 While petitioners alternately have labelled their motion as a motion to reopen and a motion to reconsider, it is more accurately characterized as a motion to reconsider, and we treat it as such. See 8 C.F.R. §§ 3.2, 3.8...

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