Faddah v. Immigration and Naturalization Service

• Decision Date: 29 August 1978
• Docket Number: No. 78-1521,78-1521
• Citation: Faddah v. Immigration and Naturalization Service, 580 F.2d 132 (5th Cir. 1978)
• Parties: Adnan Sadik FADDAH and Laina Kaarina Faddah, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 132

580 F.2d 132

Adnan Sadik FADDAH and Laina Kaarina Faddah, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 78-1521

Summary Calendar. ^*

United States Court of Appeals Fifth Circuit.

Aug. 29, 1978.

Wallace R. Heitman, Dallas, Tex., for petitioners.

Griffin B. Bell, Atty. Gen., U. S. Dept. of Justice, Washington, D. C., Philip Wilens, Chief, Govt. Reg. & Labor Sect., James P. Morris, Eric A. Fisher, Attys., Dept. of Justice, Washington, D. C., for respondent.

Joe F. Staley, Dist. Director, Immig. & Nat. Service, San Antonio, Tex., Troy A. Adams Jr., Dist. Dir., Immig. & Nat. Ser., New Orleans, La., for other interested parties.

Petition for Review of an Order of the Immigration and Naturalization Service.

Before BROWN, Chief Judge, COLEMAN and VANCE, Circuit Judges.

PER CURIAM:

The petitioners in this case, Adnan Sadik Faddah and Laina Kaarina Faddah, petition for review of an order entered September 14, 1977 by the Board of Immigration Appeals. That order denied their motion to reopen and reconsider in which they sought an opportunity to apply for the discretionary remedies of adjustment of status under § 245 of the Immigration and Naturalization Act, 8 U.S.C. § 1255 (1970), and suspension of deportation under § 244, 8 U.S.C. § 1254 (1970). The petitioners have been ordered to report for deportation on September 15, 1978.

Two previous BIA denials of motions to reopen and reconsider in these proceedings have been sustained by this Court. Faddah v. INS, 5 Cir., 1977, 553 F.2d 491. Without attacking that decision directly, the Faddahs argue that they submitted sufficient proof with their present motions to establish prima facie entitlement to adjustment of status and suspension of deportation. The Board disagreed. Moreover, because much of the information presented in this motion for the first time could have been presented with the earlier motions, and because of the presence of "adverse factors," the Board also denied the Faddahs' motion as a discretionary matter, irrespective of their eligibility for the requested remedies. The adverse factors mentioned by the Board included: the prior finding by an immigration judge that the Faddahs came to the United States with the preconceived intention of remaining; the failure of the Faddahs to file income tax returns for the years 1969-1974 until early in 1976; the previous filing by Mr. Faddah of a labor certificate found later to contain inaccurate statements; and the fact that the Faddahs have twice moved out of town without reporting their change of address after the INS had notified them to report for deportation. We affirm the Board's decision.

Adjustment Of Status

The Faddahs assert that they qualify for adjustment of status as substantial investors under 8 CFR § 212.8(b)(4), and have submitted various documentation to support that assertion. Whatever doubt we might have whether BIA was correct in concluding that the petitioners' submissions failed to establish prima facie the amount of their investment, we have no doubt that the Board's denial of their motion to reopen was justified as an exercise of its discretion. That an applicant who meets the objective prerequisites is merely eligible for adjustment of status, and is in no way entitled to such relief, was made clear in Jarecha v. INS, 5 Cir., 1969, 417 F.2d 220, 223.

The scope of judicial review of a denial of discretionary relief incidental to a deportation proceeding is quite limited. See Jarecha,supra, at 224-25. The BIA clearly set forth the grounds on which it based its denial of relief, and we cannot say that its decision was arbitrary. For one thing, the record supports the Board's statement that much of the material now submitted could have been submitted with the prior motions, and the regulations expressly provide that motions to reopen will not be granted unless the evidence sought to be offered "was not available and could not have been discovered...