Fazelihokmabad v. I.N.S., 85-7107

• Decision Date: 24 July 1986
• Docket Number: No. 85-7107,85-7107
• Parties: Aliakbar FAZELIHOKMABAD, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1470

794 F.2d 1470

Aliakbar FAZELIHOKMABAD, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 85-7107.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 10, 1986.

Decided July 24, 1986.

Terry J. Helbush, Simmons & Ungar, San Francisco, Cal., for petitioner.

David J. Kline, Donald E. Keener, Washington, D.C., for respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before DUNIWAY, SCHROEDER and CANBY, Circuit Judges.

SCHROEDER, Circuit Judge.

Petitioner Aliakbar Fazelihokmabad petitions for review of the Board of Immigration Appeal (BIA)'s denial of his motions to reopen. In the motions he sought to apply for adjustment of status, pursuant to section 245 of the Immigration and Nationality Act, 8 U.S.C. Sec. 1255, based on his recent marriage to a United States citizen, and also for suspension of deportation based on extreme hardship pursuant to section 244(a) of the Act, 8 U.S.C. Sec. 1254(a).

Petitioner is a citizen of Iran who entered the United States on a student visa in January 1977. In 1979, he was tardy in filing a routine request for extension of time of permitted stay. Therefore, his student status was not reinstated and he was ordered deported on May 22, 1980. He appealed to the BIA, which dismissed his appeal. Petitioner then sought review in this court on March 17, 1981. That appeal was dismissed for lack of prosecution, apparently due to his counsel's failure to contact him at the correct address.

In June, 1984, the Immigration Service contacted petitioner by mail and ordered petitioner to surrender for deportation on July 11, 1984.

Petitioner married Laurie Thoms, an American citizen, on July 9, 1984. According to affidavits of petitioner's friends, the couple had been planning to marry for several months before the marriage took place. When petitioner and his wife went to the Immigration Service on October 4, 1984, to apply for permanent residence, the INS took petitioner into custody based on the deportation order for deportation July 11, 1984.

Petitioner's wife then filed an immediate relative visa petition based on her United States citizenship, and petitioner submitted motions to reopen the deportation proceedings in order to apply for the adjustment of status and for suspension of deportation.

In his motions to reopen, petitioner submitted evidence aimed at establishing three principal matters: first, that his marriage was bona fide; second, that responsibility for the lack of prosecution of his earlier appeal to this court lay with his former attorney and not with him; and finally, that he and his wife would endure extreme hardship if he were deported to Iran, because of the conditions in that country and because of his practical inability to obtain the visa to which his marriage would entitle him.

With respect to the marriage, the petitioner submitted his own affidavit and those of his wife, friends, and a neighbor, attesting to the strength and commitment of the marriage. He also submitted photographs, the marriage announcement, his life insurance policy giving his wife's name as beneficiary, and a letter from his bank confirming the couple's joint account. In addition, other affidavits stated that the couple had lived together for several months before their marriage and had begun to plan their marriage before petitioner received the order to surrender to the INS.

On the matter of his 1981 appeal to this court which was dismissed for lack of prosecution, the petitioner submitted his detailed affidavit. It explained that when petitioner's original attorney in the appeal gave up his immigration practice, the case was assumed by another attorney. That attorney tried to communicate with petitioner by writing to the wrong address. The appeal was dismissed after that attorney advised this court that he could not locate the petitioner.

Petitioner's evidence on hardship covered several areas. It documented profound social changes in Iran that occurred since petitioner left as a teenager in 1977, and it explained the detrimental effect life there would have on him in view of his adoption of American social practices and his lack of familiarity with the fundamentalist Islamic religion now practiced in Iran. The evidence also showed the hardship that his wife, as an American, would suffer as a social outcast if she were to accompany him to Iran. Finally, the evidence showed that because there was no United States consulate in Iran to process an immigrant visa, and because petitioner would be subject to two years of mandatory Iranian military service, he would not be able to leave Iran for at least two years to find a consulate which could process his immigrant visa application. There is no dispute that as the spouse of an American, he would be legally entitled to reenter this country. See section 201 of the Immigration and Nationality Act, 8 U.S.C. Sec. 1151. As a practical matter, however, if deported to Iran he would not be able to obtain the visa for at least two years.

The BIA denied petitioner's motions to reopen. Without discussing any of the affidavits, the Board concluded that the motion to reopen for adjustment of status based on the marriage should be denied in the exercise of its discretion, because the marriage was so recent and because petitioner had been negligent in prosecuting his appeal to this court in 1981.

In exercising its discretion to deny the motion to reopen to apply for suspension of deportation because of extreme hardship, the Board again relied on petitioner's negligence in prosecuting the earlier appeal. The Board also rejected the claim on the merits, concluding that petitioner faced no permanent prospect of hardship in view of his marriage to a United States citizen. The Board observed that petitioner possesses a "ready means to lawfully and permanently return to this country, if he so chooses, on account of his marriage to a United States citizen." The Board did not discuss the difficulties the petitioner would encounter in obtaining such a visa because of the lack of a consulate in Iran and because of Iranian conscription requirements.

We review the BIA's denial of petitioner's motions to reopen for abuse of discretion. INS v. Rios-Pineda, --- U.S. ----, 105 S.Ct. 2098, 2102-03, 85 L.Ed.2d 452 (1985); Vasquez v. INS, 767 F.2d 598, 600 (9th Cir.1985). The BIA's denial of a motion to reopen will be upheld unless it is arbitrary, irrational, or contrary to law. Gonzalez-Batoon v. INS, 791 F.2d 681, 684 (9th Cir.1986); Ahwazi v. INS, 751 F.2d 1120, 1122 (9th Cir.1985); Ramon-Sepulveda v. INS, 743 F.2d 1307, 1309 (9th Cir.1984). In denying a motion to reopen, the BIA must weigh both favorable and unfavorable factors, De La Luz v. INS, 713 F.2d 545, 546 (9th Cir.1983), and the BIA must state its reasons when weighing equities and denying relief. See Prapavat v. INS, 662 F.2d 561, 562 (9th Cir.1981).

In a recent en banc opinion, we held that the Board...