Jen Hung Ng v. I.N.S.
| Decision Date | 12 November 1986 |
| Docket Number | No. 85-7159,85-7159 |
| Citation | 804 F.2d 534 |
| Parties | JEN HUNG NG, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Edward E. Merges, Dan P. Danilov, Seattle, Wash., for petitioner.
Joan E. Smiley, Office of Immig. Litigation, Dept. of Justice, Washington, D.C., for respondent.
Petition to Review an Order of the United States Immigration & Naturalization Service.
Before WRIGHT, TANG and REINHARDT, Circuit Judges.
This appeal involves the attempts of a 53-year-old resident of Hong Kong, over a period of ten years, to secure the right to live in this country with his family. Petitioner Jen Hung Ng arrived in the United States in 1976 for the purpose of visiting his dying mother. Shortly thereafter Ng petitioned the Immigration and Naturalization Service (INS) for an adjustment of status, which, if granted, would allow Ng to remain in this country to live near his U.S. citizen father, and a brother. The Immigration Judge, and later the Board of Immigration Appeals (BIA) denied Ng's application and his appeals. The BIA most recently denied Ng's motion to reopen despite the fact that Ng, during the pendency of the appeal, was married to a U.S. citizen. The INS has denied Ng's application on the basis of Ng's fraudulent visa application in 1951 and the alleged misconduct on the part of Ng's father in attempting to secure his son's entry into the United States.
Procedurally, petitioner Jen Hung Ng seeks review of a March 13, 1985 decision by the BIA. In that decision the BIA (1) reconsidered and affirmed its prior order denying adjustment of status and (2) denied Ng's motion to reopen to apply for adjustment of status based on his marriage to a U.S. Citizen under 8 U.S.C. Sec. 1182(a)(19). We reverse and remand.
The facts are somewhat prolix and may best be summarized in chronological form.
1933 Jen Hung Ng is born. Ng is a
native of China and a resident of
Hong Kong
1937 Ng's father enters U.S. under a
false identity. The father
subsequently serves in the United
States Navy in WWII. Ng's
mother and younger brother
fraudulently enter the U.S. in 1948
as the wife and son of a U.S
citizen. Ng's father is naturalized
as a U.S. citizen in 1963
1951 Ng applies for a U.S. passport
under a false identity. The fraud
is discovered and the application
denied
1966 Ng applies for and is denied a U.S.
visa on the basis of the 1951
fraud. 8 U.S.C. Sec. 1182(a)(19).
Jan. 21, 1976 Ng applies for a nonresident visa
in order to visit his critically ill
mother. Ng is granted a waiver
of nonadmissibility on
humanitarian grounds, 8 U.S.C. Sec.
1182(d)(3)(A). Ng enters the U.S.
on Feb. 22, 1976. Ng's mother
had in fact died on Jan. 11, 1976,
but Ng was not informed of this
until his arrival in the U.S.
The record reveals that Ng's
father had submitted a letter
requesting that Ng be allowed to
visit his mother in Feb. 1976, after
the mother had died.
Ng was granted a voluntary
departure without the institution
of deportation proceedings on Apr.
20, 1976. Ng did not depart and
on Aug. 16, 1977 an Order to Show
Cause was issued.
Mar. 9, 1978 Ng applies for adjustment of
status.
Mar. 3, 1980 Immigration Judge finds Ng
statutorily ineligible for
adjustment of status because of
the 1951 fraud and thus
deportable under 8 U.S.C.Sec.
1251(a)(2). The Immigration
Judge further notes that even if
Ng were statutorily eligible for
relief, the Judge would deny the
application as a matter of
discretion on the basis of Ng and
his father's history of disregard
for U.S. immigration laws.
Apr. 10, 1981 BIA dismisses Ng's appeal from
the denial of his application for
adjustment of status on the same
grounds as the immigration judge.
BIA grants Ng thirty day
voluntary departure. Ng does not
depart.
May 4, 1981 Ng moves to reopen or,
alternatively, for reconsideration
of BIA decision. Petition is
misplaced by INS and not
considered until Mar. 13, 1985.
Aug. 3, 1983 Ng files second application for
adjustment of status based on his
Jun. 24, 1983 marriage to a U.S.
citizen. This application is treated
as a motion to reopen. 8 C.F.R. Sec.
242.22.
Mar. 13, 1985 BIA grants motion for
reconsideration and upon
reconsideration affirms its Apr.
10,1981 order denying adjustment
of status.
BIA concludes that Ng does not
merit favorable exercise of
discretion in light of Ng's prior
immigration fraud and the past
misconduct of Ng's father.
Based on Ng's marriage to a U.S.
citizen, BIA finds Ng statutorily
eligible for the adjustment of
status, 8 U.S.C.Sec. 1255(a), but
denies the motion to reopen as a
matter of discretion. The equities
the BIA considers in Ng's favor
are Ng's citizen spouse and citizen
father. The unfavorable factors
the BIA considers include the
misconduct of Ng's father and
Ng's failure to depart in
accordance with 1981 grant of
voluntary departure.
The BIA's review of an order denying adjustment of status and of a motion to reopen an application for adjustment of status is reviewed for abuse of discretion. Saldana v. INS, 762 F.2d 824, 827 (9th Cir.1985); Mattis v. INS, 774 F.2d 965, 968 (9th Cir.1985); Vasquez v. INS, 767 F.2d 598, 600 (9th Cir.1985); Ahwazi v. INS, 751 F.2d 1120, 1122 (9th Cir.1985).
An abuse of discretion will be found when the denial was arbitrary, irrational or contrary to law. Ahwazi, 751 F.2d at 1122.
To obtain adjustment of status, an alien must make out a prima facie case of eligibility. An alien must demonstrate that he or she (1) has applied for adjustment; (2) is eligible to receive an immigrant visa and is admissible for permanent residence; and (3) an immigrant visa is immediately available. 8 U.S.C. Sec. 1255(a). Ng is excludable from admission (ineligible for adjustment of status) into the United States because he willfully misrepresented a material fact when applying for a passport in 1951. 8 U.S.C. Sec. 1182(a)(19). When Ng married his present wife in 1983, Ng became eligible for a waiver of excludability under 8 U.S.C. Sec. 1182(i) as the spouse of a United States citizen. In August 1983, Ng filed a new application for adjustment of status, based on his marriage to a United States citizen, along with an application for a waiver of excludability. The approval of an application for waiver of excludability, like the approval for a petition for adjustment of status, is subject to the discretion of the Attorney General, 8 U.S.C. Secs. 1182(i), 1255(a).
The BIA has discretion to deny a motion to reopen for adjustment of status, and to affirm an order denying adjustment of status, after a prima facie case is established or without considering whether a prima facie case of statutory eligibility has been shown if the BIA would deny the ultimate application for relief as a matter of discretion. See I.N.S. v. Rios-Pineda, 471 U.S. 444, 105 S.Ct. 2098, 2102, 85 L.Ed.2d 452 (1985); Vasquez v. INS, 767 F.2d at 601; Mattis, 774 F.2d at 968. However, reliance by the BIA on improper factors in reaching a decision is an abuse of discretion that we are required to reverse.
We have construed Rios-Pineda as affording the INS considerable discretion in denying motions for reopening but we require that the BIA state its reasons and show proper consideration of all factors when weighing equities and denying such relief. Mattis, 774 F.2d at 968. The BIA must weigh both favorable and unfavorable factors. Id.
The BIA's denial of relief can be affirmed only on the basis articulated in the decision, and this court cannot assume that the BIA considered factors that it failed to mention in its decision. Id. at 967.
Marriage to a U.S. citizen is considered a favorable factor, id.; Vasquez 767 F.2d at 602; Ahwazi, 751 F.2d at 1123. In addition, gainful employment and financial responsibility are relevant, and favorable, factors. Mattis, 774 F.2d at 969.
With regard to the 1981 order denying adjustment of status, the BIA, in its March 13, 1985 decision, conceded that Ng had established prima facie eligibility for adjustment of status. The BIA relied on its discretionary power, however, to deny adjustment of status.
The BIA considered the misconduct of Ng's father as an unfavorable factor in affirming its order denying adjustment of status. The BIA stated that it would not "condone the generations of fraud" set forth in this case. Ng argues that consideration of this factor was improper. The inclusion of an improper factor in reaching a discretionary decision is grounds for remand. Siang Ken Wang v. INS, 413 F.2d...
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