Israel v. I.N.S.

• Decision Date: 24 March 1986
• Docket Number: No. 84-7818,84-7818
• Citation: 785 F.2d 738
• Parties: Imelda Napuli ISRAEL, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 738

785 F.2d 738

Imelda Napuli ISRAEL, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 84-7818.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 7, 1986.

Decided March 24, 1986.

Bernard Cooper, Los Angeles, Cal., for petitioner.

Linda Adams, Rose Collantes, Dept. of Justice, Washington, D.C., for respondent.

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

Before FARRIS, PREGERSON, and NORRIS, Circuit Judges.

PREGERSON, Circuit Judge:

Petitioner Imelda Napuli Israel seeks review of an order of the Board of Immigration Appeals (BIA) dismissing her appeal from a decision by an immigration judge (IJ) denying her motion to reopen her deportation proceedings. Israel sought to reopen the proceedings to apply for adjustment of status based on her marriage to a United States citizen. See 8 U.S.C. Secs. 1151(b), 1255. We have jurisdiction under 8 U.S.C. Sec. 1105a(a). We grant the petition and remand.

BACKGROUND

Israel, a Philippine national, entered the United States legally as a temporary worker in December 1982, with permission to remain and work until September 9, 1983. After repeatedly seeking an extension, Israel overstayed her visa, and the Immigration and Naturalization Service (INS) took her into custody on September 19, 1983. On September 20, in a telephonic bond-reduction and deportation hearing, Israel conceded deportability, and the IJ granted her 30 days to depart voluntarily, based partly on her promise not to marry a United States citizen during that time.

Eleven days later, on October 1, petitioner married Jose Din Israel, a serviceman in the United States Navy and a United States citizen. They had been seeing each other for several months before the deportation hearing. On October 14, Israel's husband filed a visa petition on her behalf, and Israel filed a motion to reopen her deportation hearing to allow consideration of her application for adjustment of status.

The IJ denied the motion to reopen because he considered Israel guilty of "a breach of faith and a misrepresentation to Israel contends that the BIA acted arbitrarily in dismissing her appeal because her case is not factually distinguishable from Matter of Garcia, 16 I. & N. Dec. 653 (BIA 1978), where the BIA established a policy of granting reopening in cases like hers.

                the Court."    The BIA dismissed her appeal on the ground that neither the equity inherent in her marriage nor the hardship to her citizen spouse was entitled to much weight, because the marriage took place after Israel had been found deportable
                

STANDARD OF REVIEW

We review BIA denials of motions to reopen for an abuse of discretion and will not disturb the BIA's ruling unless the BIA has acted arbitrarily, irrationally, or contrary to law. Sangabi v. INS, 763 F.2d 374, 375 (9th Cir.1985). The BIA acts arbitrarily when it disregards its own precedents and policies without giving a reasonable explanation for doing so. Sang Seup Shin v. INS, 750 F.2d 122, 125 (D.C.Cir.1984); accord Williams v. INS, 773 F.2d 8, 9 (1st Cir.1985); Balani v. INS, 669 F.2d 1157, 1161 (6th Cir.1982). ¹

DISCUSSION

The issue before us is whether the BIA's denial of Israel's motion to reopen was arbitrary because it constituted an unexplained departure from the policy the BIA established in Garcia. Like Israel, the alien in Garcia married a United States citizen and then filed a motion to reopen deportation proceedings to apply for adjustment of status based on marriage, which took place after the alien was found deportable and granted voluntary departure. ² Garcia, 16 I. & N. Dec. at 653-54. In that context, the BIA announced the following policy: "[W]e shall hereafter generally reopen the deportation proceedings in such cases unless clear ineligibility is apparent in the record." Id. at 654. The BIA went on to state: "[W]e believe that discretion should, as a general rule, be favorably exercised where a prima facie approvable visa petition and adjustment application have been submitted in the course of a deportation hearing or upon a motion to reopen." ³ Id. at 657.

The BIA in Garcia reopened the proceedings solely on the basis of the alien's last- The BIA in Garcia qualified its policy of normally granting reopening in marriage cases by stating that it did not intend

minute marriage to a citizen, and did not require Garcia to show any additional equities. Id. at 657-8. The BIA apparently considered the fact of marriage to a citizen an equity sufficient to warrant reopening. Id. ⁴

to establish an inflexible rule requiring the immigration judge in all cases ... to reopen the proceedings.... It clearly would not be an abuse of discretion for an immigration judge to summarily deny ... a motion to reopen upon his determination ... that the adjustment application would be denied ... in the exercise of discretion notwithstanding the approval of the petition.

Id. at 657. The BIA, however, cannot properly rely on that qualification in this case. The BIA acts arbitrarily when it exercises its discretion to deny a reopening in one case when it has granted a reopening in another factually similar case. The BIA "may not proceed at whim, shedding its grace unevenly from case to case." Shin, 750 F.2d at 124-25. In the instant case, the INS attorney admitted at oral argument that the legally relevant facts in Israel's case and in Garcia's case are identical.

The INS argues that the BIA amended the Garcia policy in Matter of Guiragossian, 17 I. & N. Dec. 161 (BIA 1979). This argument is unpersuasive. Guiragossian restates the Garcia rule with a slightly different emphasis, but does not change it in a way relevant here. ⁵

The INS also argues that the BIA's decision in this case is consistent with the BIA's decisions that we upheld in Obitz v. INS, 623 F.2d 1331 (9th Cir.1980) (en banc); Ahwazi v. INS, 751 F.2d 1120 (9th Cir.1985); and Vasquez v. INS, 767 F.2d 598 (9th Cir.1985). This argument is also unpersuasive.

Obitz is irrelevant to the question whether the BIA has changed its Garcia policy. The relevant BIA action in Obitz, the BIA's 1977 denial of Obitz's first motion to reopen, predated the Garcia decision.

In Ahwazi and Vasquez, the BIA denied motions to reopen to apply for adjustment of status. In each case, the BIA premised its denial on the fact that the alien had repeatedly violated immigration law, ⁶ and that these repeated violations outweighed the equity of the alien's last-minute marriage The instant case is distinguishable from Ahwazi and Vasquez in two respects. First, as in Garcia, the BIA did not find that Israel repeatedly violated immigration law. Indeed, it is difficult to imagine a more minimal violation of immigration law in the context of a motion to reopen. ⁷ In fact, the BIA failed to cite a single adverse factor relevant to its exercise of discretion in considering Israel's motion, except for the fact that she had previously been found deportable, which would be true of any alien filing a motion to reopen. ⁸

                to a citizen.    Ahwazi, 751 F.2d at 1123;  Vasquez, 767 F.2d at 600-01
                

Second, the BIA did not rely on an Ahwazi-type balancing in considering Israel's motion to reopen. Although the BIA minimized the equities inherent in Israel's marriage and the hardship to her citizen husband, it did not conclude that these equities were outweighed by Israel's violation of immigration law.

The issue whether Israel's marriage is a sham is not properly before us. That factual determination can be made when Israel's case is reopened. A factual inquiry will enable the BIA to assess more accurately the weight to ascribe to the equity of Israel's marriage and the hardship of her citizen spouse. Israel is entitled to marry, and under Garcia she is entitled to have her case reopened. Her earlier promise not to marry should not have been extracted from her in the first place, and we conclude that it is irrelevant to the determination whether to reopen the case.

CONCLUSION

Because this case is virtually identical to the Garcia case, in which the BIA granted the alien's motion to reopen, the BIA acted arbitrarily in treating Israel differently.

We GRANT the petition and REMAND this matter to the BIA to reconsider Israel's motion to reopen in light of the views expressed in this opinion.

1 As the District of Columbia Circuit stated in Shin,

The BIA unquestionably has wide discretion in determining what circumstances warrant reopening a deportation proceeding.... Broad as the BIA's discretion is, however, that tribunal may not act arbitrarily or irrationally. It may not proceed at whim, shedding its grace unevenly from case to case. It must explain departures from settled policies, ... and it may not unaccountably disregard on one day considerations it held relevant on another day.

750 F.2d at 124-25.

2 The BIA's opinion in Garcia does not give the date of Garcia's marriage, but it implies that the marriage took place after Garcia had been ordered deported. 16 I. & N. Dec. at 654. The fact that the BIA granted Garcia's motion to reopen suggests that the evidence relating to his marriage could not have been presented at his original deportation hearing. See 8 C.F.R. Sec. 3.2. Moreover, in oral argument before this court, counsel for the INS conceded that the legally relevant facts in Garcia and Israel are indistinguishable.

3 The new policy announced in Garcia was based on a change in the law and implementing regulations. An alien applying for adjustment of status under 8 U.S.C. Sec. 1255 must show that he or she: (1) is admissible for permanent residence and eligible for an immigrant visa; and (2) has an immigrant visa "immediately available." 8 U.S.C. Sec. 1255(a); Ahwazi v. INS, 751 F.2d 1120, 1122 n. 1 (9th Cir.1985). Before 1977, the INS would routinely deny adjustment applications submitted simultaneously with visa petitions because the visa in such cases would by definition not be immediately...