Hadayat v. Gonzales

• Decision Date: 15 August 2006
• Docket Number: No. 04-4195.,04-4195.
• Parties: Karayana HADAYAT,<SMALL><SUP>*</SUP></SMALL> Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

458 F.3d 659

Karayana HADAYAT,^* Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.

No. 04-4195.

United States Court of Appeals, Seventh Circuit.

Argued October 27, 2005.

Decided August 15, 2006.

Christopher W. Helt (argued), Chicago, IL, for Petitioner.

George P. Katsivalis, Department of Homeland Security, Chicago, IL, Jonathan F. Potter (argued), Department of Justice Civil Division, Immigration Litigation, for Respondent.

Before RIPPLE, KANNE, and WOOD, Circuit Judges.

WOOD, Circuit Judge.

Karayana Hadayat, an Indonesian national, arrived in the United States in 1999 on a visitor visa. Soon thereafter, his brother, a U.S. citizen, filed a visa petition on Hadayat's behalf. Although the petition was approved, no visa was immediately available. Once his visitor visa expired, the only legal option available to Hadayat was to return to Indonesia and await action on his brother's petition. Hadayat chose another path: he decided to stay in the United States unlawfully and wait until a permanent resident visa became available, hoping in the meantime not to attract the attention of immigration authorities. This waiting game came to an abrupt end in 2003 when Hadayat registered with the Department of Homeland Security (DHS) pursuant to the newly-promulgated National Security Entry-Exit Registration System (NSEERS) and was immediately placed into removal proceedings. Although he initially agreed to a voluntary departure order, just before his deadline to depart Hadayat filed a motion to reopen with the immigration judge (IJ), arguing that he was entitled to remain in the United States based on his now-approved petition. The IJ denied Hadayat's motion to reopen and the Board of Immigration Appeals (BIA) affirmed. Hadayat filed a motion for reconsideration with the BIA, which was also unsuccessful.

Hadayat now contends that the BIA erred in denying his motion for reconsideration. He also raises the new argument that he was unconstitutionally targeted for registration and removal based on his ethnicity and religion. Because we conclude that Hadayat's approved visa petition does not, as a matter of law, allow him to remain in the United States, and because we lack jurisdiction over Hadayat's challenge to the Attorney General's decision to commence proceedings against him, we affirm the BIA's decision.

I

Hadayat arrived in the United States on January 22, 1999. Hadayat's brother, Derry Bankston, filed an I-130 Petition for Alien Relative on Hadayat's behalf on June 23, 1999. On July 22, 1999, Hadayat's visitor visa expired. In late 2001, Bankston received notice from the then Immigration and Naturalization Service that Hadayat's petition had been approved. The notice stated, however, that Hadayat was "not eligible to file an adjustment of status application" (presumably because no visa was currently available).

In August 2002, the Department of Justice published the final rule enacting the NSEERS program, explaining that "[r]ecent terrorist incidents have underscored the need to broaden the special registration requirements for nonimmigrant aliens from certain designated countries . . . whose presence in the United States requires closer monitoring, to require that they provide specific information at regular intervals to ensure their compliance with the terms of their visas and admission, and to ensure that they depart the United States at the end of their authorized stay." Registration and Monitoring of Certain Nonimmigrants, 67 Fed.Reg. 52,584 (Aug. 12, 2002). A later notice specifically required nonimmigrant male nationals and citizens of Indonesia to register with the DHS by March 28, 2003, Registration of Certain Nonimmigrant Aliens from Designated Countries, 68 Fed.Reg. 2363 (Jan. 16, 2003), a deadline that was later extended to April 25, 2003. Registration of Certain Nonimmigrant Aliens from Designated Countries, 68 Fed.Reg. 8046 (Feb. 19, 2003). Hadayat registered on April 22, 2003, and was issued a Notice to Appear (NTA) the same day, charging that he had overstayed his visitor visa.

On September 9, 2003, Hadayat appeared before an IJ. He admitted that he was out of status and asked for and received a voluntary departure order. This order required Hadayat to leave the United States by December 9, 2003. Shortly after the hearing, Bankston filed a lawsuit in federal court seeking to enjoin the DHS from removing his brother, contending that Hadayat was entitled to remain in the United States based on the approved visa petition and challenging the constitutionality of NSEERS. In late 2003, the district court dismissed the case, concluding that Bankston lacked standing to bring these claims on behalf of his brother.

Four days before his required departure date, Hadayat filed a motion to reopen with the IJ, citing his approved visa petition and the pending federal lawsuit as grounds for a new hearing. He also filed a request for an extension of his voluntary departure date with the District Director of the Chicago office of the DHS. (The record does not reveal the District Director's response to this request.) December 9 came and went, and Hadayat did not leave the United States. Eventually, on February 20, 2004, the IJ denied Hadayat's motion to reopen, explaining that:

1. The respondent has not established prima facie eligibility for Adjustment of Status under section 245(i). The cut-off date for visa petitions filed by USC brothers is February 22, 1992. Since the petition filed by the respondent's brother was filed on January 3, 1999, he is at least seven [years] away from visa availability.

2. Under Matter of Shaar, [21 I & N Dec. 541 (BIA 1996),] when an alien requests and receives voluntary departure, he must depart within the allotted time, otherwise he is barred from Adjustment of Status. In this case, the respondent was given the appropriate warnings at his hearing on September 9, 2003 and yet has remained in the U.S. after voluntary departure expired.

Hadayat appealed. The BIA affirmed on the first ground only, explaining that "[t]he fact that he is a beneficiary of an approved visa petition, without evidence that he has a current priority date, is insufficient to support a motion to reopen." Hadayat did not file a petition for review from this order.

Instead, he filed a motion for reconsideration with the BIA, contending that our then-recent decision in Subhan v. Ashcroft, 383 F.3d 591 (7th Cir.2004), dictated a result in his favor. The BIA disagreed, distinguishing Subhan as a case concerning "the denial of a continuance motion where . . . the Immigration Judge failed to give a reasoned explanation of the denial." In Hadayat's case, the BIA explained, the IJ "gave a reasoned explanation why he denied the respondent's motion to reopen." The BIA also reiterated that Hadayat was ineligible to adjust his status because no visa was immediately available and added that his failure to comply with the voluntary departure order created a further bar. Hadayat petitioned for review of this order.

II

We have jurisdiction over Hadayat's petition for review of the BIA's denial of his motion for reconsideration pursuant to 8 U.S.C. § 1252(b). We review the BIA's denial of a motion for reconsideration for an abuse of discretion. Hernandez-Baena v. Gonzales, 417 F.3d 720, 724 (7th Cir.2005).

A

Section 245(i) of the Immigration and Nationality Act permits certain persons who entered the United States without inspection or otherwise violated their immigration status—and therefore would otherwise be ineligible to apply for adjustment of status from within the United States—to seek adjustment nonetheless if a petition was filed on their behalf prior to April 30, 2001, and they pay a $1,000 penalty. 8 U.S.C. § 1255(i)(1). If an alien satisfies these criteria, "the Attorney General may adjust the status of the alien to that of an alien lawfully admitted for permanent residence if[:] (A) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence; and (B) an immigrant visa is immediately available to the alien at the time the application is filed." § 1255(i)(2). Although beneficiaries of petitions properly filed and approved under § 245(i) were grandfathered if their visas were not immediately available, "[a]n alien's nonimmigrant status is not affected by the fact that he or she is a grandfathered alien." 8 C.F.R. § 245.10(l). What is grandfathered, in other words, is the basic eligibility for adjustment; in all other respects the individual remains a "nonimmigrant"— that is, a person with no legal right to remain in the United States unless and until an immigrant visa becomes available.

Hadayat argues that this interpretation, which means that he is still subject to removal despite the approval of his brother's petition, "defeats the very purpose and intent" of § 245(i). An approved visa petition under § 245(i), however, is "not a visa, but, rather, is merely a preliminary step in the visa application process. It does not guarantee that a visa will be issued, nor does it grant the alien any right to remain in the United States." Labojewski v. Gonzales, 407 F.3d 814, 822 (7th Cir.2005) (quotation marks omitted). In other words, as a grandfathered alien, Hadayat was eligible to adjust his status at some future date when a visa became available, but he was not sheltered from being removed from the United States in the meantime.

Admittedly, it might seem as if the government is being allowed to renege on its end of the § 245(i) "deal"—after all, it has taken the alien's money, knowing that she is, or soon will be, out-of-status, in exchange for holding her place in the visa line, and then turns around later and acts to remove her for having overstayed her visa. We have commented before on the confusing, if not misleading, nature of similar aspects of this system, as it may be perceived by foreigners who often lack a...