Hyun Joon Chung v. I.N.S., 82-7723

Citation720 F.2d 1471
Decision Date26 March 1984
Docket NumberNo. 82-7723,82-7723
PartiesHYUN JOON CHUNG, Yang Ja Chung, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Hiram W. Kwan, Los Angeles, Cal., for petitioners.

Ian Fan, Asst. U.S. Atty., Los Angeles, Cal., for respondent.

Petition for Review of a Decision of the Board of Immigration Appeals.

Before HUG and NELSON, Circuit Judges, and HOFFMAN, * District Judge.

HUG, Circuit Judge:

Hyun Joon Chung and Yang Ja Chung appeal the Board of Immigration Appeals' (BIA) order denying their applications for suspension of deportation. The BIA concluded that the Chungs had failed to show extreme hardship and that they did not merit a favorable exercise of administrative discretion. The Chungs also appeal the BIA's 1975 order denying their applications for adjustment of status under 8 C.F.R. Sec. 212.8(b)(4) as investors. The Immigration and Naturalization Service (INS) contests this court's jurisdiction to review the earlier order.

FACTS

Mr. and Mrs. Chung were admitted to the United States as nonimmigrant treaty traders in 1968. In 1969, Mr. Chung applied for permanent resident status as a chemical engineer. The application was not supported by a valid labor certification and was denied. Mr. Chung then obtained employment as a chemical engineer and successfully moved to reopen his application. While this motion was pending, in April, 1972, he applied for exemption from the labor certification requirements on the ground that he was an investor in a grocery business. On February 20, 1973, the District Director denied the application, finding that Mr. Chung had obtained his initial visa through misrepresentation and fraudulent documentation.

In September, 1973, deportation proceedings were commenced. The Chungs conceded deportability but renewed their application for adjustment of status as investors. This application was also denied, and on August 27, 1975, the BIA dismissed the Chungs' appeal. The BIA found that Mr. Chung was not qualified for investor status because of his outside employment. The BIA also found that Mrs. Chung had not carried her burden of proof in demonstrating the requisite degree of managerial responsibility over the business. The Chungs did not petition for judicial review of this decision but moved, instead, on February 11, 1976, to reopen the deportation proceedings to apply for suspension of deportation. This motion was denied on July 12, 1976. On January 10, 1977, the Chungs moved for reconsideration of the motion to reopen. The BIA granted this motion on March 24, 1977, finding that the Chungs had made a prima facie showing of extreme hardship.

In subsequent hearings before an immigration judge, the Chungs presented medical evidence showing that Mrs. Chung periodically required surgery for a throat condition, and that laser surgery, allegedly more effective than conventional treatment, was available in the United States but not in Korea. The Chungs presented testimony that their four United States citizen children would have difficulty adjusting to Korean schools, language, and culture. They also presented evidence of their success in several business ventures. On February 26, 1982, the immigration judge denied the applications for suspension of deportation, finding that the Chungs had not established extreme hardship. He found that Mrs. Chung's medical condition was manageable with conventional surgical techniques available in Korea. He also found that deportation would not result in extreme hardship to the Chungs' four children. Finally, he declined to exercise administrative discretion in the Chung's favor, finding that they had engaged in a deceitful course of conduct to enter and remain in this country, that they had given false testimony, and that they had knowingly and persistently employed illegal aliens in their home and businesses. The BIA dismissed their appeal of this decision, and the Chungs then filed a petition with this court, seeking review of both the denial of suspension and the earlier denial of adjustment of status.

A. Appellate Jurisdiction

In this appeal, the Chungs contest both the BIA's earlier ruling of 1975 refusing adjustment of status and the 1982 decision denying suspension of deportation. The INS challenges this court's jurisdiction to review the 1975 denial of adjustment of status, asserting that the Chungs' petition was untimely.

Section 106(a)(1) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1105a(a)(1), requires that a petition for review by this court be filed "not later than six months from the date of the final deportation order...." In Reyes v. INS, 571 F.2d 505 (9th Cir.1978), this court said that a "final order of deportation" under section 106(a) is one "which effectively terminates the proceeding." Id. at 507 (citing Foti v. INS, 375 U.S. 217, 224, 84 S.Ct. 306, 311, 11 L.Ed.2d 281 (1963)).

Section 106(a)(1) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1105a(a)(1), requires that a petition for review by this court be filed "not later than six months from the date of the final deportation order...." 1 The six-month limitations period is tolled, however, where the alien files a motion to reopen before the BIA rather than a petition for judicial review within that six months. A new six-month limitations period for judicial review does not begin until that motion is denied or the proceedings are reopened and concluded. Reyes v. INS, 571 F.2d 505, 507 (9th Cir. 1978); Santiago v. INS, 526 F.2d 488, 489 n.3 (9th Cir. 1975)(en banc), cert denied, 425 U.S. 971, 96 S.Ct. 2167, 48 L.Ed.2d 794 (1976). When an appeal is taken within that second six-month period, this court has jurisdiction to review both the denial of the motion to reopen and the original order of deportation. Bregman v. INS, 351 F.2d 401, 402-03 (9th Cir. 1965). The same is true where the alien files a motion to reconsider before the BIA within six months of a final deportation order. 2 When that motion is denied, or when reconsideration still produces an adverse result, the alien has six months from the date of the order disposing of the motion within which to file an appeal to this court; and both the order disposing of the motion to reconsider and the original order are reviewable. Chudshevid v. INS, 641 F.2d 780, 783-84 (9th Cir. 1981).

This tolling of the limitations period can be explained in terms of the congressional purpose underlying section 106. Congress was concerned with the widespread abuse of the process of judicial review of deportation orders. Successive, piecemeal appeals had been used as a dilatory tactic to postpone the execution of deportation orders. See H.R. No. 1086, 87th Cong., 1st Sess., reprinted in 1961 U.S. Code Cong. & Admin.News 2950, 2967. In response to this problem, "Congress visualized a single administrative proceeding in which all questions relating to an alien's deportation would be raised and resolved, followed by a single petition in a court of appeals for judicial review. ..." Yamada v. INS, 384 F.2d 214, 218 (9th Cir. 1967). Congress expressly provided in section 106(c) that an order of deportation could not be reviewed by any court unless the alien had exhausted the administrative remedies available to him under the immigration laws and regulations . 8 U.S.C. Sec. 1105a(c).

The rule of Bregman and Chudshevid is in keeping with the intention of Congress to create a process in which there is a single judicial review of all questions relating to an alien's deportation. Where either a motion to reopen or a motion to reconsider has been filed not later than six months from the date of the final deportation order, an otherwise appealable final order becomes no longer appealable in this court until the motion is denied or the proceedings have been effectively terminated. Accordingly, the limitations period does not run...

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