Gottesman v. U.S. I.N.S.

• Decision Date: 31 August 1994
• Docket Number: No. 93-2442,93-2442
• Citation: 33 F.3d 383
• Court: U.S. Court of Appeals — Fourth Circuit
• Parties: Moshe GOTTESMAN, Petitioner, v. U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Page 383

33 F.3d 383

30 Fed.R.Serv.3d 187

Moshe GOTTESMAN, Petitioner, v. U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 93-2442.

United States Court of Appeals Fourth Circuit.

Argued July 18, 1994.

Decided Aug. 31, 1994.

ARGUED: Ira Jay Kurzban, Kurzban, Kurzban & Weinger, P.A., Miami, FL, for petitioner. Ellen Sue Shapiro, Office of Immigration Litigation, Civ. Div., U.S. Dept. of Justice, Washington, DC, for respondent. ON BRIEF: Edward Copeland, New York City, for petitioner. Frank W. Hunger, Asst. Atty. Gen., David J. Kline, Asst. Director, Office of Immigration Litigation, Civ. Div., U.S. Dept. of Justice, Washington, DC, for respondent.

Before WILKINSON and LUTTIG, Circuit Judges, and TRAXLER, United States District Judge for the District of South Carolina, sitting by designation.

Petition for review denied by published opinion. Judge WILKINSON wrote the opinion, in which Judge LUTTIG and District Judge TRAXLER joined.

OPINION

WILKINSON, Circuit Judge:

Petitioner in this case challenges both the denial of relief from a deportation order issued by the Board of Immigration Appeals ("BIA"), and a related rescission order issued by the district director of the Immigration and Naturalization Service ("INS"). Because this court lacks jurisdiction to review the INS rescission order, we do not address the merits of petitioner's claims regarding that order. With respect to the deportation order, we find that the BIA did not abuse its discretion in refusing to terminate the deportation proceedings or in denying petitioner relief from deportation. Accordingly, we deny the petition for review and affirm the decision of the BIA.

I.

Petitioner Moshe Gottesman is a citizen of Israel who entered the United States in July 1983. At that time, Gottesman was admitted as a nonimmigrant visitor authorized to remain in the country for six months. In August 1984, Gottesman married Tammie Holland, a United States citizen residing in New York City. Approximately two months later, Ms. Holland filed an immediate relative visa petition on behalf of Gottesman. On January 8, 1985, the petition was approved, and Gottesman's status was adjusted to that of a permanent resident.

Within a few months of obtaining permanent resident status, Gottesman relocated to Myrtle Beach, South Carolina. Ms. Holland did not move with Gottesman, and the two lost contact with each other in April or May of 1985. In November 1986, Gottesman filed for divorce.

On March 19, 1987, Gottesman met with two special agents of the IRS and informed them that he married Ms. Holland for the sole purpose of obtaining lawful permanent resident status in the United States. He repeated these admissions to the IRS agents on April 4, 1987, and again to an INS agent on April 18, 1987. Gottesman now claims that these admissions were false and were made solely to placate his then-girlfriend, Diane Lor, whose family considered it a disgrace for her to be involved with a previously married man. In any event, Gottesman broke up with Lor later in 1987.

On October 16, 1989, Gottesman met with INS Agent George Glass in Charlotte, North Carolina. At that meeting, Agent Glass served Gottesman with a letter indicating the Service's intention to rescind Gottesman's permanent resident status. The letter stated:

You are advised that within 30 (thirty) days of the date of this notice you may file an answer, in writing and made under oath, setting forth the reasons why your adjustment of status should not be rescinded. You may also, in support of or in lieu of a written answer and within 30 (thirty) days of this notice, request a hearing before an immigration judge.... Failure to comply with the foregoing will result in the rescission of the lawful permanent resident status granted to you on January 8, 1985.

At the meeting, Gottesman signed a statement acknowledging receipt of the notice of intent letter. Four days later, the INS mailed the notice of intent letter to Gottesman.

On November 16, 1989, thirty-one days after Gottesman's meeting with Agent Glass, the INS issued a notice of rescission of Gottesman's lawful permanent resident status. The notice explained that Gottesman was not eligible for permanent resident status because his marriage to Ms. Holland was fraudulent. The notice further stated that the rescission of Gottesman's status was necessitated by his failure to request a hearing within the allotted time. On the same day the notice of rescission was issued, the INS received Gottesman's response to its notice of intent letter. The response included a denial of the allegations in the notice of intent, an affidavit stating that the marriage to Ms. Holland was not fraudulent, and a request for a hearing pursuant to 8 C.F.R. Sec. 246.3. The INS did not grant that hearing, however, and subsequently issued an order charging Gottesman with deportability under Sec. 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1251(a)(2), which requires the deportation of nonimmigrants remaining in the country beyond their authorized stay. ¹

On November 22, 1989, Gottesman filed a motion to reopen the rescission proceedings and to reconsider the rescission of his permanent resident status. In the motion, Gottesman maintained that his late filing was "inadvertent and unintentional," and asked that his request for a hearing be considered timely. On December 11, 1989, the INS district director denied the request to allow the late filing. Nonetheless, the district director went on to consider Gottesman's affidavit and response letter, and concluded that Gottesman's current claim that his marriage was legitimate lacked credibility. Accordingly, the district director dismissed Gottesman's motion to reopen the rescission proceedings.

Gottesman's deportation hearing before an immigration judge commenced more than one year later, on June 27, 1990. Two days before the hearing was to begin, Gottesman filed a second motion to reopen the rescission proceedings with the district director of the INS. In that motion, Gottesman argued for the first time that he had orally requested a rescission hearing during his October 1989 meeting with Agent Glass. At the start of the deportation hearing, Gottesman moved to terminate the deportation proceedings on the ground that his second motion to reopen the rescission proceedings was then pending before the INS district director. Gottesman also sought voluntary departure as relief from deportation.

After a full hearing, the immigration judge issued an order denying Gottesman's request for termination of the deportation proceedings and rejecting his application for voluntary departure as a matter of discretion. The judge ordered that Gottesman be deported from the United States to Israel. Gottesman appealed the judge's decision to the Board of Immigration Appeals, seeking termination of the deportation proceedings or, in the alternative, reversal of the deportation order. Gottesman also sought suspension of deportation or voluntary departure. In an order of October 13, 1993, the BIA affirmed the immigration judge's refusal to terminate deportation proceedings. The BIA also upheld the immigration judge's denial of voluntary departure. Finally, the BIA concluded that Gottesman failed to qualify for suspension of deportation based on his inability to establish good moral character.

Gottesman now appeals. We address his various claims in turn.

II.

Petitioner first challenges the INS district director's decision rescinding his status as a lawful permanent resident in the United States. Gottesman raises a number of challenges to the district director's order, and maintains that the order was issued in violation of INS regulations. Because we lack jurisdiction to review the INS rescission order, however, we are not in a position to consider these arguments.

Section 1105a(a) of the Immigration and Nationality Act ("INA") limits appellate court review of immigration proceedings to "final orders of deportation ... made against aliens within the United States." 8 U.S.C. Sec. 1105a(a); see also Young v. United States Dep't of Justice, INS, 759 F.2d 450, 457 (5th Cir.1985). This carefully circumscribed jurisdictional grant does not allow federal circuit courts to review orders that are merely preliminary to, or associated with, a final order of deportation. See Cheng Fan Kwok v. INS, 392 U.S. 206, 215, 88 S.Ct. 1970, 1975-76, 20 L.Ed.2d 1037 (1968). It is true, of course, that in reviewing final decisions of district courts, courts of appeals ordinarily review rulings that are preliminary to the final judgment. The difference between our scope of review over district court appeals and deportation appeals owes to the different language that Congress used in conferring the different jurisdictional grants. The language "final orders of deportation" is more restrictive, for example, than the language "final decisions of the district court[ ]" found in 28 U.S.C. Sec. 1291. The language in Sec. 1291 is simply intended to distinguish "final" decisions from merely interlocutory ones, whereas the language in Sec. 1105a(a) is meant to distinguish a particular species of order from other kinds of orders which may have preceded it. It is significant that Congress did not use a broader term, such as "final decision of the Attorney General," in crafting Sec. 1105a(a). Accordingly, the decision of an INS district director to rescind the adjustment of an individual's residency status is not reviewable in a court of appeals. See Bachelier v. INS, 548 F.2d 1157, 1158 (5th Cir.1977) (holding that rescission proceedings "are not 'final orders of deportation' as specified by the statute providing for direct review"). But see Bachelier v. INS, 625 F.2d 902, 904 (9th Cir.1980) (reaching opposite conclusion).

This conclusion is not affected by the Supreme Court's decision in INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). In that case...