Nademi v. Immigration and Naturalization Service, SADEGH-POU
| Decision Date | 12 May 1982 |
| Docket Number | 81-1418,SADEGH-POU,P,Nos. 81-1097,s. 81-1097 |
| Citation | 679 F.2d 811 |
| Parties | 4 Ed. Law Rep. 1055 Mohammad NADEMI, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Faragollahetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Kenneth H. Stern of Karp, Goldstein & Stern, Denver, Colo., for petitioners-appellants Nademi and Sadegh-Pour.
James P. Morris and Robert Kendall, Jr., Attys., Dept. of Justice, Washington, D. C., for respondent-appellee in No. 81-1097; and Lauri Steven Filppu and Robert Kendall, Jr., Attys., Dept. of Justice, Washington, D. C., for respondent-appellee in No. 81-1418.
Before SETH, Chief Judge, McKAY and LOGAN, Circuit Judges.
Petitioners bring this appeal to challenge the promulgation by the Commissioner of the Immigration and Naturalization Service (the Service) of a rule limiting the grant of voluntary departure to Iranian nationals to fifteen days. Both petitioners are natives and citizens of Iran who originally entered the United States as nonimmigrant students.
After a hearing before an immigration judge, petitioner Mohammad Nademi was found to be deportable, pursuant to § 241(a)(9) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1251(a)(9), on the ground that he failed to comply with the conditions of his nonimmigrant status. Specifically, Mr. Nademi had failed to attend the college authorized by the Service and had instead attended an unauthorized college. Mr. Nademi stipulated to the charges in return for an assurance that he would be eligible for voluntary departure in lieu of deportation. He requested 90 days voluntary departure to allow him to finish the semester at college. The immigration judge denied this request and limited voluntary departure to 15 days on the basis of the regulation here challenged, 8 C.F.R. § 244.1 (1981). The Board of Immigration Appeals dismissed his appeal and he then filed a petition in this court for review of the Board's order.
Petitioner Faragollah Sadegh-Pour was found after a hearing to be deportable, pursuant to § 241(a)(2) of the Act, 8 U.S.C. § 1251(a)(2), on the ground that he remained in the United States for a longer time than permitted by the Service. Mr. Sadegh-Pour admitted to the charge and requested voluntary departure at the end of the school semester. The immigration judge granted voluntary departure but limited it to 15 days, again pursuant to 8 C.F.R. § 244.1. The Board of Immigration Appeals dismissed his appeal and petition for review was filed in this court.
On appeal, petitioners raise identical contentions. They argue that the Commissioner exceeded his authority in promulgating the regulation; that the regulation was promulgated in violation of § 553 of the Administrative Procedure Act, 5 U.S.C. § 553; that the regulation denies them equal protection of the laws in violation of the Fifth Amendment to the United States Constitution; and that the regulation constitutes an impermissible prejudgment of their applications for discretionary relief. 1
The challenged regulation provides:
Pursuant to Part 242 of this chapter and section 244 of the Act a special inquiry officer in his discretion may authorize the suspension of an alien deportation; or, if the alien establishes that he is willing and has the immediate means with which to depart promptly from the United States, a special inquiry officer in his discretion may authorize the alien to depart voluntarily from the United States in lieu of deportation within such time as may be specified by the special inquiry officer when first authorizing voluntary departure, and under such conditions as the district director shall direct. In the case of a national of Iran, the amount of time within which he/she may be granted to depart voluntarily by the special inquiry officer shall not exceed 15 days from the date the special inquiry officer renders his/her decision in the case ....
8 C.F.R. § 244.1 (1981), as amended at 45 Fed.Reg. 27,917 (Apr. 25, 1980) (emphasis added). Only the emphasized sentence of the regulation is challenged here.
The first issue is whether the Commissioner exceeded his authority in promulgating the limitation on voluntary departure for Iranian nationals. In § 244 of the Act, 8 U.S.C. § 1254(e), Congress gave the Attorney General power to grant voluntary departure in lieu of deportation to any alien. That section provides that "(t)he Attorney General may, in his discretion, permit any alien under deportation proceedings ... to depart voluntarily from the United States at his own expense in lieu of deportation ...." Id. The Attorney General, in turn, gave the Commissioner of the Service broad authority to enforce the Act:
Without divesting the Attorney General of any of his powers, privileges, or duties under the immigration and naturalization laws, and except as to the Board, there is delegated to the Commissioner the authority of the Attorney General to direct the administration of the Service and to enforce the act and all other laws relating to the immigration and naturalization of aliens. The Commissioner may issue regulations as deemed necessary or appropriate for the exercise of any authority delegated to him by the Attorney General, and may redelegate any such authority to any other officer or employee of the Service.
8 C.F.R. § 2.1 (1981). Since Congress gave the Attorney General the power to grant discretionary relief in the nature of voluntary departure, and since the Attorney General delegated to the Commissioner his power "to enforce the act," id., we hold that the Commissioner did not exceed his authority under the Act in promulgating the challenged regulation.
We find further authority for the Commissioner's action in the entire course of events surrounding the November 4, 1979 seizure of American hostages in Iran, and, more specifically, in Executive Order No. 12172 (Nov. 26, 1979), reprinted in (1979) U.S.Code Cong. & Ad.News 3363. In that order the President delegated to the Attorney General and the Secretary of State his authority under 8 U.S.C. § 1185(a)(1) to govern the entry and departure of aliens into and from the United States, with specific reference to Iranians holding nonimmigrant visas. On April 7, 1980, in response to the failure of the Iranian government to release the hostages, the President severed diplomatic relations with Iran. Eighteen days later the Commissioner promulgated the challenged amendment to 8 C.F.R. § 244.1. 45 Fed.Reg. 27,917 (Apr. 25, 1980). The stated purpose of the amendment was to expedite the departure of Iranians who were unlawfully present in the United States. Id. at 27,916.
Title 8 C.F.R. § 2.1, quoted above, delegates to the Commissioner "the authority of the Attorney General ... to enforce the act and all other laws relating to the immigration and naturalization of aliens." 8 C.F.R. § 2.1 (1981) (emphasis added). We view the reference to "all other laws" as encompassing Executive Order No. 12172. Since there is a proper chain of delegation from the President to the Attorney General and from the Attorney General to the Commissioner, we are convinced that the Commissioner did not exceed his authority in promulgating the challenged amendment. The amendment does no more than implement the President's foreign policy of severing relations with Iran. It was entirely rational for the Commissioner to alter immigration policy so as to bring it into conformity with the President's foreign policy toward Iran. It is clear that the Commissioner did not develop this foreign policy; he merely...
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