Mashi v. Immigration and Naturalization Service
| Decision Date | 11 December 1978 |
| Docket Number | No. 78-2359,78-2359 |
| Citation | 585 F.2d 1309 |
| Parties | Mehdi MASHI, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Summary Calendar. * |
| Court | U.S. Court of Appeals — Fifth Circuit |
Sauer & Hormachea, Nancy Hormachea, Houston, Tex., for petitioner.
Griffin B. Bell, Atty. Gen., Philip Wilens, Chief Government Reg. and Labor Section, Eric Fisher, James P. Morris, U.S. Dept. of Justice, Washington, D.C., for respondent.
Paul O'Neill, Dist. Director, Immigration and Naturalization Service, Houston, Tex., Troy Adams, Jr., Dist. Director, Immigration and Naturalization Service, New Orleans, La., for other interested parties.
On Petition for Review of an Order of the Immigration and Naturalization Service.
Before GOLDBERG, AINSWORTH and HILL, Circuit Judges.
In this deportation proceeding the immigration judge and the Board of Immigration Appeals found the petitioner deportable for failure to comply with the conditions of his nonimmigrant student status. The judge and the Board found this failure a violation of 8 C.F.R. § 214.2(f)(1a) and section 101(a) (15)(F)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(F)(i), and grounds for deportation under section 241(a)(9) of the Act, 8 U.S.C. § 1251(a)(9). The judge, and the Board on appeal, both issued orders granting the petitioner an opportunity to depart the United States voluntarily and further ordered the deportation of the petitioner if he failed to leave the country voluntarily in the time allotted. The petitioner appealed the Board's departure and deportation order to this court.
We reverse the Board's ruling in this case and vacate its order requiring the departure or deportation of the petitioner.
The facts of this case are as follows. The petitioner, a native and citizen of Iran, entered the United States on or about November 21, 1975 as an alien nonimmigrant student. At the time of his entry, the petitioner had been authorized to attend Galveston College in Galveston, Texas by the college itself and by the Immigration and Naturalization Service, in accordance with 8 C.F.R. § 214.2(F)(2). The petitioner subsequently enrolled at Galveston College, and registered for 12 credits of course work for the spring, 1976 semester starting in January, 1976. Following that semester he attended two consecutive terms of summer school at Galveston College. By the fall of 1976, he had earned nineteen credits and grades of two C's, one B, and three A's.
In the fall of 1976, when the semester in controversy in this proceeding began, the petitioner registered for another fourteen credits. Midway through the semester, on November 9, 1976, the petitioner participated in a political demonstration in Houston and was arrested, along with 90 other Iranian students, for demonstrating without a permit (Record p. 6). 1 The charge was a misdemeanor punishable by a $100 fine but not by imprisonment. (Record p. 4.) A bond was required by the Police Department in Houston in the amount of $27.50, which the petitioner was apparently prepared to post. (Record p. 7.) However, at that time the Immigration and Naturalization Service placed a "hold" order on the petitioner. As a result, the petitioner was kept in jail for about 12 days. 2
During this "hold" incarceration, imposed because the INS demanded it, the petitioner missed, among other classes in other courses, a total of six classes and one exam in his four credit Physics course. (Record p. 43.) When he returned to school, petitioner went to see his Physics professor, who counseled him that it would be to his advantage to drop the course. (Id.) The petitioner voluntarily withdrew from the Physics course in late November, 1976.
On December 16, 1976, the INS issued an Order to Show Cause requiring the petitioner to show why he should not be deported for being enrolled in only 10 credits of course work. (Record p. 61.)
The Board decided that the petitioner should be deported from this country because, by completing only 10 credits in his fall, 1976 semester, he was not "comply(ing) with the conditions" of his student status, as required by section 241(a)(9) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a) (9). The "conditions" of the petitioner's student status, as set by section 101(a)(15)(F)(i) of the Act, 8 U.S.C. § 1101(a)(15)(F)(i), are that he "pursue a full course of study" in this country. The Board defines "full course of study" by looking to 8 C.F.R. § 214.2(f)(1a)(ii), which specifies that a full undergraduate course of study must "consist of at least 12 hours of instruction a week, or its equivalent." A closer reading of 8 C.F.R. § 214.2(f)(1a) shows that the "12 credit" limit in § 214.2(f)(1a)(ii) does not apply to the petitioner in this case. The petitioner entered the United States on or about November 21, 1975 as an alien nonimmigrant student; both the immigration judge (Record p. 58) and the Board (Record p. 1A) found this as a fact. And yet the "12 credit" rule in 8 C.F.R. § 214.2(f)(1a) was added to the regulations by amendment in 1975 3 and does not apply to aliens admitted to the United States as nonimmigrant students before January 1, 1976. 4
On this point the regulations are quite explicit:
A nonimmigrant admitted to the United States prior to January 1, 1976 under section 101(a)(15)(F)(i) of the Act . . ., notwithstanding that he may not be taking a full course of study as defined in this subsection (i. e. a twelve hour schedule) may continue in that nonimmigrant classification until he completes the course of study at the school he was authorized to attend prior to that date: provided he continues to carry not less than what the school considered to be a full course of study prior to January 1, 1976, and he otherwise continues to maintain student status.
Since the petitioner was "admitted to the United States prior to January 1, 1976" under the nonimmigrant student classification, it is clear this sentence, rather than the 12 credit rule in § 214.2(f)(1a)(ii), controls his case. It follows that the Board erred when it ordered the petitioner deported simply because his course load briefly dropped below twelve credits.
Instead, the regulation only requires that he 1) carry not less than what the school considered to be a full course of study prior to January 1, 1976, and 2) otherwise maintain student status.
There is no evidence in this record to indicate that Galveston College was not completely satisfied with the petitioner's course of study, especially taking into account his efforts to supplement his regular year curriculum with the school's own fully accredited summer session courses.
Moreover, under 8 C.F.R. § 214.3(g) Galveston College has an affirmative duty to report immediately to the INS when a nonimmigrant student "fails to carry a full course of study as defined in § 214.2(f)(1a), (or) fails to attend classes to the extent normally required. . . ." The petitioner asserts (Petitioner's brief p. 9) and the INS concedes (Respondent's brief p. 12) that Galveston never so reported to the INS concerning the petitioner.
As for the second prong of the § 214.2(f)(1a) test whether the petitioner "otherwise maintain(ed) (his) student status" the INS all but concedes this, 5 and for good reason.
The facts in this case show that the petitioner actually is pursuing a full course of study at his college in a far more diligent and conscientious manner than is required by the Immigration and Nationality Act And by INS regulations. Between the time of the petitioner's entry into the United States in November, 1975, and his deportation hearing in February, 1977, even the newer INS regulations which, as explained above, are stricter than those applicable to this student would require the student to take only thirty-six credits. Instead the petitioner enrolled in fifty-four, and by the time of his hearing, had successfully completed or maintained a total of forty-three. (Record p. 64.) Moreover, at the time the INS issued its Order to Show Cause, the petitioner was averaging seventeen credits per semester Required by INS regulations, as opposed to the twelve credit amount required by the new INS regulations. In addition, he was averaging a Bk grade average. One key to the petitioner's ability to maintain his student status in spite of his obvious difficulties with the English language, was his willingness to attend both summer sessions at Galveston College. The I&N Act and INS regulations do not require a nonimmigrant student to attend school during the summer vacation period. 6
We can see no reason why a student who attends school full-time 12 months a year, albeit with some academic pratfalls along the way, is deportable because he is not "pursuing" a course of study as fully as an abler student who can accumulate the same number of credits in only two semesters a year.
Of course this is not to say that any alien nonimmigrant student who registers for, or even accumulates, 24 credits a year in any manner he wishes would necessarily meet the requirements of 8 C.F.R. § 214.2(f)(1a). For example, a student who deliberately compressed his year's academic work into a single semester so that he could hold a job or be a tourist the rest of the year might not be considered pursuing a full course of study in the manner intended by Congress. Similarly, a student would not be permitted to abandon his studies the second day of each semester. But these are certainly not the situation in this case. A court must view the entirety of a student's academic efforts in a fair and reasonable manner consonant with the intent of Congress and the dictates of judicial and administrative case law, and sensitive to the realities and "various handicaps" of the foreign student. See Ex parte Tsiang Hsi Tseng, 24 F.2d 213 (N.D.Calif., 1928). See pp. 1315-1317 Infra.
The Board's narrow, unrealistic, and unduly harsh approach is...
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...character of the act committed and the consequences which flow from it." Pls.' Mot. for Summ. J. at 22, 25 (quoting Mashi v. INS, 585 F.2d 1309, 1315-17 (5th Cir. 1978)). Cf. Goncalves v. Reno, 144 F.3d 110, 125 (1st Cir. 1998). The court must similarly deny plaintiffs' request that it "[d]......
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