Te Kuei Liu v. Immigration and Naturalization Service

Decision Date15 May 1981
Docket NumberNo. 80-1429,80-1429
Citation645 F.2d 279
PartiesTE KUEI LIU, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. . Unit A
CourtU.S. Court of Appeals — Fifth Circuit

Harry Gee, Jr., Adan G. Vega, Mark H. Onak, Houston, Tex., for petitioner,

Eric Fisher, Dept. of Justice, Washington, D. C., for respondent.

Petition for Review of an Order of the Immigration and Naturalization Service.

Before INGRAHAM, POLITZ and WILLIAMS, Circuit Judges.

INGRAHAM, Circuit Judge:

Te Kuei Liu petitions this court to reverse the Board of Immigration Appeals and order the reopening of his deportation proceedings. For the reasons developed below, we affirm the Board.

I.

Te Kuei Liu is a native of China and a citizen of Taiwan. He entered the United States on March 11, 1973, as a nonimmigrant crewman, with authority to remain no longer than twenty-nine days. See generally 8 U.S.C. § 1282(a)(1) (1976). When his vessel departed on March 23, 1973, Liu was not aboard.

In October 1976 the Immigration and Naturalization Service (INS) ordered Liu to show cause why he should not be deported pursuant to section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2) (1976). Following a hearing in December 1976, at which Liu through counsel admitted his deportability under that section of the statute, an immigration judge found Liu deportable as charged and granted him the privilege until January 1977 of voluntary departure in lieu of deportation.

Notwithstanding his concession as to deportability, Liu appealed the decision of the immigration judge to the Board of Immigration Appeals (BIA). See generally 8 C.F.R. § 3.1(b)(2) (1976). Liu contended that inasmuch as the INS had "unjustifiably refused to act" upon an immediate relative visa petition filed on his behalf, 1 the immigration judge should have corrected that injury by granting Liu a "conditional termination of (the deportation) proceedings." Liu did not point to nor could the BIA find any provision in the immigration statutes or in the pertinent regulations that would authorize an immigration judge to adjudicate a visa petition or to grant extended voluntary departure, the closest analogue to the "conditional termination of proceedings" sought by Liu. Accordingly, in April 1978 the BIA dismissed Liu's appeal by written order and reinstated the privilege of voluntary departure for an additional thirty days. Liu did not take an appeal to this court from that adverse decision.

II.

Along a second procedural route, albeit with considerable chronological overlap, Liu employed other means in his quest to remain in this country. In May 1975 he married Peggy Joyce Mitchell, a citizen of the United States. In October of that year, after some delay in acquiring divorce certificates from her three or four previous marriages, Mrs. Liu filed an immediate relative visa petition (Form I-130) on behalf of her new husband, Te Kuei Liu. See generally 8 U.S.C. §§ 1151(b), 1154, 1204 (1976); 8 C.F.R. § 204.1(a) (1975).

In September 1976, an interview was conducted by the INS with Liu and his wife. The adjudicator determined that the petitioner could speak little or no Chinese and the beneficiary could speak little or no English. An investigation was therefore ordered into the bona fides of Liu's marriage. An INS criminal investigator subsequently questioned Mrs. Liu, who was residing in Houston, Texas, and determined that Mr. Liu was living in Galveston, Texas, for the stated purpose of being closer to his work. Record memoranda also indicate some discussion of the possibility that Liu was using petitioner to gain residency in the United States, but that Mrs. Liu was unwilling to withdraw her petition because she needed his financial support.

A second formal interview of Mr. and Mrs. Liu was conducted by the INS in March 1977. Following that hearing, Mrs. Liu's Form I-130 visa petition was approved by the District Director in Houston. Since her husband had entered the United States as a crewman, however, his status could not be adjusted in this country. See 8 U.S.C. § 1255(a) (1976). Accordingly, the District Director forwarded the approved immediate relative visa petition to the American Consul in Winnipeg, Manitoba, Canada, for issuance of an immigrant visa. Because of questions concerning the bona fides of Liu's marriage, however, the Consul returned the visa petition to the INS District Director for further investigation.

Prior to June 1978, an INS criminal investigator spoke with Mrs. Liu by telephone on more than one occasion. Although Mrs. Liu did not appear for her scheduled interview on June 1, 1978, an investigative memorandum written on that date discusses the substance of previous telephone conversations between Mrs. Liu and the INS criminal investigator. It appeared to the investigator that Mrs. Liu did not consider herself the wife of Liu in the sense of traditional marital intimacy and had been unaware of his whereabouts for some time, but that she nevertheless desired to pursue further the immediate relative visa petition because she needed the money he provided for her rent. There was also the strong indication that Mrs. Liu believed that, were she to disclose everything concerning her marriage to Liu, she could get certain people in serious trouble. Other record memoranda indicate that Mrs. Liu admitted to a drinking problem.

In October 1978, Mr. and Mrs. Liu were formally interviewed by the INS for the third time. Shortly after the hearing, Mrs. Liu's immediate relative visa petition was again approved and forwarded to the American Consul in Winnipeg. Accompanying the approved Form I-130 was a memorandum indicating that the reinterview of petitioner and beneficiary yielded negative results with respect to a possible revocation or withdrawal of the petition. The memorandum further indicated that Mr. and Mrs. Liu were then living together as man and wife and apparently intended to continue doing so, at least so long as the petition was pending.

While the petition was awaiting action by the American Consul in Winnipeg, Mrs. Liu died in April 1979. Her death certificate lists the cause of death as cirrhosis of the liver. 2 Mrs. Liu's death triggered the automatic revocation mechanism of 8 U.S.C. § 1155 (1976) and 8 C.F.R. § 205.1(a)(2) (1979), and the District Director advised Liu that his wife's petition was being withdrawn. In May 1979, Liu's attorney requested of the District Director, pursuant to 8 C.F.R. § 205.1(a)(3) (1979), that the automatic revocation be withdrawn on humanitarian grounds. In July 1979, the District Director informed Liu that he did not find the automatic revocation inappropriate. Liu's attorney attempted to appeal this decision to the Regional Commissioner of the INS but by letter in October 1979, the commissioner rejected the appeal on the ground that proper jurisdiction lay in the BIA. See generally 8 C.F.R. § 3.1(b)(5) (1979). The commissioner suggested that the appeal be taken to the proper body, citing the appropriate code provisions for doing so. No such appeal, however, was taken.

In December 1979, the INS issued Liu a notice to report for deportation. In January 1980, Liu filed with the District Director an application for stay of deportation. One week after that filing, the District Director denied Liu's application for stay. In February 1980, Liu filed with the BIA a motion to reopen his deportation proceedings. On April 11, 1980, the BIA denied Liu's motion to reopen, holding that it had no jurisdiction to rule on the correctness of a visa petition revocation in the context of Liu's deportation proceedings. On April 18, 1980, Liu filed with this court a petition for review of the BIA's refusal to reopen his deportation proceedings.

III.

We hold at the outset that the only matter properly before this court is the refusal by the BIA to reopen Liu's deportation proceedings for the submission of additional evidence. Liu apparently would disagree with this holding. In his brief and at oral argument, his counsel argued the merits of the INS' allegedly unjustifiable delay in handling his wife's visa petition proceedings, and the effect of that delay on his equitable entitlement to a "conditional termination" of his deportation proceedings. For reasons to be developed hereinafter, we cannot pass on the merits of that argument in this petition for review.

This court has authority to review both final deportation orders, 8 U.S.C. § 1105a(a) (1976), and denials of motions to reopen deportation proceedings, see, e. g., Gena v. INS, 424 F.2d 227 (5th Cir. 1970). There is, however, a time limit applicable to our power of review. A petition for review must be filed within six months of the date of the entry of the order to be reviewed. 8 U.S.C. § 1105a(a)(1) (1976); Gena v. INS, 424 F.2d at 231 (and cases cited therein).

The decision of the immigration judge finding Liu deportable as charged and denying him a conditional termination of deportation proceedings pending the termination of his wife's visa petition proceedings was rendered in December 1976. The affirmance of that decision by the BIA, both as to deportability and as to the refusal to conditionally terminate the deportation proceedings, was rendered in April 1978. In the six months following the BIA's decision, Liu made no effort to appeal that decision to this court. He therefore forfeited his right to have us review that decision. See Aguilar v. INS, 638 F.2d 717, 718 n.1 (5th Cir. 1981); Gena v. INS, 424 F.2d at 231.

Even if this were a timely appeal from the BIA's affirmance of Liu's final deportation order, we could not now pass on Liu's arguments concerning the INS' handling of his wife's visa petition and any resulting equitable entitlement to a "conditional termination" of his deportation proceedings. Following his wife's death and the subsequent automatic revocation of her visa petition, Liu requested the District Director to suspend or...

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