Lihati Lui Unga v. Immigration and Naturalization Service

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation404 F.2d 48
Docket NumberNo. 21911.,21911.
Decision Date25 November 1968

Phelan, Simmons & Unger, San Francisco, Cal., for appellant.

Cecil F. Poole, U. S. Atty., Stephen Suffin, San Francisco, Cal., Joseph Sureck, I.N.S., San Pedro, Cal., for appellee.

Before KOELSCH and DUNIWAY, Circuit Judges, and *FOLEY, District Judge.


Petitioner Lihati Lui Unga, a native and citizen of Tonga, entered the United States at Honolulu, Hawaii on March 26, 1963 as a non-immigrant student with permission to remain until March 26, 1964. On or about July 7, 1964 he applied for status as a permanent resident under § 245 of the Immigration and Nationality Act, 8 U.S.C. § 1255.1 This petition was denied and he was given until May 22, 1965 to leave the country. He failed to leave by this date and deportation proceedings were initiated. At the hearing petitioner appeared with his attorney and conceded his deportability but renewed his application for adjustment of status.

Two hurdles had to be cleared by the petitioner in order to obtain an adjustment of status. First he had to establish his eligibility for permanent resident status.2 Second he had to secure the favorable exercise of the Attorney General's discretion allowing him to remain in the country.

The special inquiry officer found that the petitioner was eligible for permanent resident status. However, believing that petitioner would not soon be able to bring his family to the United States, the officer denied petitioner's application as a matter of discretion and ordered him deported. He appealed to the Board of Immigration Appeals, which remanded the matter to the special inquiry officer for further consideration in the light of a newly promulgated regulation (8 C.F.R. 212.8(b) (4)).3

After a further hearing the special inquiry officer ruled that under this new regulation petitioner was not eligible for admission. Petitioner again appealed. This time the Board did not rule on the petitioner's eligibility for permanent resident status. Instead, it dismissed the appeal on the ground that the application did not warrant the favorable exercise of discretion. The Board believed that the petitioner could not properly support his wife and seven children and found no "outstanding equities" in his favor.

Petitioner now seeks a review in this Court of the final order of deportation (8 U.S.C. § 1105a).

Petitioner concedes that, under ordinary circumstances, the facts before the Board would be sufficient to justify an adverse ruling on an application for an adjustment of status. But he argues that since the Board, on the first appeal, did not deny the petitioner's application as a matter of discretion, the exercise of discretion on the second appeal was without "rational explanation." See Wong Wing Hang v. Immigration and Naturalization Service, 360 F.2d 715, 719 (2d Cir. 1966). His argument assumes that the Board's failure on the first appeal to discuss the factors relating to the exercise of discretion was tantamount to a finding that no reason existed to deny the application as a matter of discretion, and that this finding was binding upon the Board on the second appeal.

It is unnecessary to pass on the validity of the legal proposition. By regulation 8 C.F.R. 3.1(d) (2) the Board "may return a case to the Service for such further action as may be appropriate, without entering a final decision on the merits of the case." As we read this administrative...

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2 cases
  • Ameeriar v. Immigration and Naturalization Service, 18038.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • February 16, 1971, and (2) he must convince the Attorney General to exercise favorable discretion in his case. Lihati Lui Unga v. Immigration and Naturalization Service, 404 F.2d 48, 49 (C.A.9, 1968); Chen v. Foley, 385 F.2d 929, 935 (C.A. 6, 1967). Adjustment of status is therefore a matter of administ......
  • DeAngelis v. United States
    • United States
    • U.S. Court of Appeals — Third Circuit
    • December 3, 1968

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