Ghorbani v. Immigration and Naturalization Service

• Decision Date: 08 September 1982
• Docket Number: No. 80-7509,80-7509
• Citation: 686 F.2d 784
• Parties: Majid GHORBANI, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 784

686 F.2d 784

Majid GHORBANI, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 80-7509.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 11, 1981.

Decided Sept. 8, 1982.

Robert D. Baizer, Younemura & Yasaki, Oakland, Cal., for petitioner.

Lawrence Lippe, Washington, D. C., argued, for respondent; Jimmy Gurule, Atty., Washington, D. C., on brief.

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

Before CHOY, HUG and POOLE, Circuit Judges.

HUG, Circuit Judge:

Majid Ghorbani, a native and citizen of Iran, petitions for review of a decision of the Board of Immigration Appeals ("BIA"). The BIA dismissed Ghorbani's appeal from an immigration judge's decision that Ghorbani was deportable as a nonimmigrant student in violation of the conditions of his status. Ghorbani raises several issues: (1) that his violations were "technical" and "not substantial" and therefore did not justify deportation; and (2) that the District Director abused his discretion in refusing to reinstate Ghorbani's student status, and the immigration judge and the BIA erred in holding that the immigration judge had no authority to review that decision; and (3) that this court has jurisdiction to review the discretionary decision of the District Director even though it was not reviewed in the deportation hearing. We affirm the decision of the BIA and hold that this court lacks jurisdiction to review the discretionary decision of the District Director.

I

Ghorbani entered the United States as a nonimmigrant student in August, 1978, and was subsequently authorized to remain in this country for the duration of his student status. In November, 1979, Ghorbani reported to the INS office in Reno pursuant to a Presidential Proclamation and INS regulation. It was discovered then that he had transferred from Lassen Community College to Sierra Nevada College without first receiving INS permission, in violation of 8 C.F.R. § 214.2(f)(4)(1982). ¹ It also was discovered at this time that Ghorbani had been employed part-time without INS permission, in violation of 8 C.F.R. § 214.2(f)(6)(1982). ² A show cause order was issued shortly thereafter. Prior to the hearing before the immigration judge, Ghorbani applied to the District Director for reinstatement of his student status. That application was denied. The immigration judge found Ghorbani deportable as a nonimmigrant student in violation of his status. Ghorbani's appeal to the BIA was denied and Ghorbani then filed a petition for review in this court.

II

Ghorbani admits the violation of the regulations but argues that his deportation is unjustified because his violations of status were "technical" and "not substantial." He cites Mashi v. INS, 585 F.2d 1309 (5th Cir. 1978) for the proposition that it was not the intent of Congress to subject nonimmigrant students to deportation for minor violations of status. The Mashi decision does not stand for that proposition. In that case the BIA had found an Iranian student deportable for failure to comply with his nonimmigrant student status. Mashi had enrolled for fourteen credit hours in the school he had been authorized to attend. However, because he unavoidably missed six classes and an exam, he dropped a four credit physics course on the advice of his physics professor. The Board found that he had failed to pursue a full course of study and had lost his student status because he completed only ten credits for the semester. The Board, however, was erroneously applying a regulation that required a student to take a twelve hour schedule to maintain student status. That regulation was, by its own terms, inapplicable to Mashi because he had been admitted prior to its effective date. Although there is language in the opinion that the INS should look at each case on its own facts and strike "a fair balance between the character of the act committed and the consequences which will flow from it," id. at 1317, the actual holding of the case is that the BIA cannot deport a student for failure to comply with regulations that were inapplicable to him.

We need not decide in this case whether there could be circumstances when a violation would be so technical as not to justify deportation. In this case, Ghorbani violated two specific and significant regulations. First, he failed to secure advance approval before transferring to a different college, a violation of 8 C.F.R. § 214.2(f)(4)(1982). This advance approval has been identified by the INS as an essential tool, the lax enforcement of which would severely hamper its obligation to keep track of the thousands of alien students within our borders. Matter of Yazdani, 17 I&N Dec. 626 (BIA 1981).

Furthermore, Ghorbani was employed without securing advance INS permission, a violation of 8 C.F.R. § 214.2(f)(6)(1982). In Tashnizi v. INS, 585 F.2d 781 (5th Cir. 1978), the same panel that four days later decided Mashi, held in a per curiam opinion that a violation of 8 C.F.R. § 214.2(f)(6) (employment without INS permission) was in itself sufficient to justify deportation of a nonimmigrant student.

We agree with the Tashnizi court's conclusion that engaging in unauthorized employment is not a technical or insubstantial violation of status. Nonimmigrant students are admitted to the United States for the limited purpose of pursuing the educational opportunities available here. Engaging in off-campus employment may often be inconsistent with this purpose. The INS forms that the alien receives clearly indicate that a nonimmigrant student is not to engage in employment without prior INS approval.

Ghorbani asserts that because his funds were cut off as a result of the revolution in Iran, the INS would have granted him permission to work had he requested it. Thus, he argues, he should not be penalized now for having failed to obtain prior approval. After the fact justification does not excuse his failure to comply with INS prior approval regulations, of which he had clear notice. To rule otherwise would create an incentive to work without permission and to present the justification only if discovered. We conclude, as did the immigration judge and the BIA, that Ghorbani violated important regulations governing his nonimmigrant student status, which constituted a failure to maintain status and, therefore, resulted in deportability under section 241(a)(9), 8 U.S.C. § 1251(a)(9).

II

The second and third issues raised by Ghorbani present difficult jurisdictional questions concerning section 106(a) of the Immigration and Nationality Act, 8 U.S.C. § 1105a(a). Ghorbani acknowledges that his transfer to another college and his employment, both without prior INS permission, were violations of the regulations. He contends, however, that the District Director's refusal to reinstate his student status was an abuse of discretion in two ways. He claims that the District Director improperly failed to apply the guidelines of INS Operating Instructions and the Immigrant Inspector's Handbook in considering reinstatement of his status. ³ He also claims that the District Director discriminated against him because he is an Iranian. He sought to introduce evidence in the deportation hearing concerning these matters.

The immigration judge held he had no authority to review the discretionary decisions of the District Director, and refused to permit evidence on these claims. The BIA, on appeal, held that neither the immigration judge nor the BIA had authority to review the discretionary decision of the District Director.

There is no doubt that the deportation hearing was affected by the decision of the District Director not to reinstate Ghorbani's nonimmigrant student status. Had the District Director reinstated his student status, he would not have been deportable. The inquiry is whether this decision must be reviewed by the immigration judge in the deportation hearing, and if it is not reviewed, whether this court has jurisdiction to review it on appeal.

This court's jurisdiction to review the decision of the District Director is based solely upon section 106(a) of the Immigration and Nationality Act, 8 U.S.C. § 1105a(a). ⁴ Section 106(a) provides that courts of appeal have sole and exclusive jurisdiction to review "all final orders of deportation ... made ... pursuant to administrative proceedings under section (242(b) 8 U.S.C.) 1252(b) ...." The extent of the jurisdiction conferred by this phrase is the focus of our inquiry. ⁵

The section 242(b) proceedings, referred to in section 106(a), are those proceedings conducted by a special inquiry officer (now known as an immigration judge) ⁶ for determining whether an alien may be deported. Section 242(b) provides for detailed administrative procedures that assure the alien of rights to counsel, to present evidence, and to cross examine witnesses. The statute also authorizes the Attorney General to grant certain forms of discretionary relief as a part of a section 242(b) proceeding. Any deportation order must be based upon the record developed in that proceeding.

The Supreme Court has spoken three times on the extent of the jurisdiction conferred by section 106(a) to review section 242(b) deportation orders. The first was in Foti v. INS, 375 U.S. 217, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963). The Court there held that the jurisdiction of the courts of appeals was not limited solely to the bare determination of deportability, but extended also to a review of the final administrative orders with respect to the discretionary relief sought during the deportation hearing. Id. at 220-21, 84 S.Ct. at 309. In the second case, Giova v. Rosenberg, 379 U.S. 18, 85 S.Ct. 156, 13 L.Ed.2d 90 (1964), the Court held in a brief per curiam opinion that section 106(a) jurisdiction extended to the review of motions to reopen deportation proceedings.

Any signal these cases may have given that section 106(a) jurisdiction would be...