Nicholas v. Immigration and Naturalization Service

• Decision Date: 02 February 1979
• Docket Number: No. 77-3506,77-3506
• Citation: 590 F.2d 802
• Parties: George Bernard NICHOLAS, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 802

590 F.2d 802

George Bernard NICHOLAS, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee.

No. 77-3506.

United States Court of Appeals, Ninth Circuit.

Feb. 2, 1979.

George Haverstick, San Diego, Cal., for petitioner-appellant.

Philip Wilens, Chief, Dept. of Justice, Washington, D. C., for respondent-appellee.

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

Before HUFSTEDLER and TANG, Circuit Judges, and TAKASUGI, ^* District Judge.

TAKASUGI, District Judge.

George Bernard Nicholas, the petitioner herein, is a forty-three year old native and citizen of the Bahamas. He has remained in this country at all times since his last entry in 1967, having since married a United States citizen. They have two children, both United States citizens.

On June 26, 1974, the United States Immigration and Naturalization Service ¹ served an order to show cause and notice of hearing upon petitioner, charging him with deportability arising from a series of events commencing in the early 1950's. ² 8 U.S.C. § 1251(a)(1). ³ The order was based upon his alleged violation of § 241(a)(17) of the Immigration and Nationality Act, in that he was excludable as an alien who had been arrested and deported at the time of his entry in 1967, and that he had not been granted consent to apply for readmission by the proper authority. 8 U.S.C. § 1182(a)(17). ⁴ During the deportation hearing, petitioner was further charged with deportability as an alien who had been convicted of a crime relating to drugs or narcotics, arising from a 1975 conviction of conspiracy to possess a controlled substance with the intent to distribute, in violation of 21 U.S.C. §§ 841, 843, and 846. 8 U.S.C. § 1251(a)(11). ⁵

Prior to the hearing on the order to show cause, petitioner, through counsel, orally requested the District Director of the San Diego office of the INS to grant petitioner non-priority status, deferring action upon the deportation indefinitely. Immigration and Naturalization Service Operations Instruction ⁶ 103.1(a)(1)(ii). The request was verbally denied at that time.

During the pendency of the hearing, plaintiff sought relief in the form of a petition for permission to reapply for admission after deportation. ⁷ The Immigration Judge found petitioner deportable on both grounds charged and denied the petition for permission to re-apply.

Petitioner then went before the Board of Immigration Appeals, seeking discretionary relief from deportation under 8 U.S.C. § 1182(c), dismissal of the judgment under 8 C.F.R. § 242.8, and remand to allow petitioner to show eligibility for non-priority status and to present an application for political asylum. The Board dismissed petitioner's appeal.

If aggrieved by a final order of deportation by the Board of Immigration Appeals, the alien in a deportation proceeding has direct recourse to the Court of Appeals and an automatic stay of deportation under the statutory form of judicial review provided by 8 U.S.C. § 1105a(a). Maldonado-Sandoval v. United States Immigration and Naturalization Service,518 F.2d 278, 280 n. 3 (9th Cir. 1975). Such a petition for review is now before us.

Petitioner challenges the final order of deportation on three grounds: (1) That the District Director's verbal denial of Nicholas' request for non-priority status represented such a departure from established patterns as to constitute a reversible abuse of discretion; (2) That petitioner is eligible for and should be granted discretionary relief from deportation pursuant to 8 U.S.C. § 1182(c); and (3) That the INS, by failing to provide the alien with copies of exhibits, violated 8 C.F.R. § 292.4(b), so as to deny him due process. We shall consider each of these contentions separately.

A.

Petitioner first asks us to overrule the District Director's decision denying non-priority status ⁸ under O.I. 103.1(a)(1)(ii). ⁹ It is first necessary to determine the standard of review which this court must apply to the denial before the propriety of the District Director's decision may be examined. To do this, we analyze the Instruction's purpose and effect, taking into account its language and its prior treatment by the courts.

In urging us to adopt a standard with a wider scope of discretion, the INS points out that O.I. 103.1(a)(1)(ii) is an intra-agency administrative guideline, rather than a Statute passed by Congress. The INS feels that the granting of non-priority status, therefore, should be viewed as comparable to a prosecutor's discretion in deciding whether to initiate a criminal prosecution. As such, it is argued, for reversal, a showing must be made not only that an established pattern of treatment of others similarly situated was departed from without reason, but also that the decision was based upon impermissible considerations, such as race or religion. See U. S. v. Ortega-Alvarez, 506 F.2d 455 (2nd Cir. 1974); U. S. v. Berrios, 501 F.2d 1207 (2nd Cir. 1974); U. S. v. Swanson, 509 F.2d 1205 (8th Cir. 1975); U. S. v. Bell, 165 U.S.App.D.C. 146, 506 F.2d 207 (1974). No such impermissible considerations have been alleged.

A stricter standard is advocated by petitioner, who contends that the test utilized to review discretionary suspension of deportation under § 244(a) of the Immigration and Nationality Act, 8 U.S.C. § 1254(a) should be applied here. This would require us to find only that the decision of the District Director was arbitrary or capricious, so as to constitute an abuse of discretion. Rassano v. INS, 492 F.2d 220, 227 (7th Cir. 1974).

Resolution of this divergence of opinion lies in the nature of the Operations Instruction involved. We must determine whether its purpose and effect are more like those of an internal administrative convenience or those of a procedure conferring a substantive right. Our sister circuits appear to be divided in their interpretations.

The Fifth Circuit, expanding upon a footnote appearing in a Second Circuit decision, is clearly of the opinion that the Operations Instruction under scrutiny here is for the administrative convenience of the INS:

"The Second Circuit has described non-priority status as an 'informal administrative stay of deportation' during which the deportation order remains suspended and may be executed at any time, and there is no effect on the substantive ruling by the INS. Lennon v. Immigration & Naturalization Service, 527 F.2d 187, 191 n. 5 (2nd Cir. 1975). An examination of the Lennon opinion suggests that unlike the other forms of relief enumerated in (8 C.F.R.) § 242.17, for which a respondent may apply, non-priority status is in the nature of a voluntary stay of the agency's mandate Pendente lite, issued in large part for the convenience of the INS. Such a suspension is . . . inappropriate where, as here, deportability is conceded and only delay is desired . . . . The decision to grant or withhold non-priority status therefore lies within the particular discretion of the INS, and we decline to hold that the agency has no power to create and employ such a category for its own administrative convenience without standardizing the category and allowing applications for inclusion in it." Soon Bok Yoon v. INS, 538 F.2d 1211, 1213 (5th Cir. 1976).

Two recent Eighth Circuit cases, however, have taken an approach to the employment of non-priority status which appears directly at odds with the function attributed to the Operations Instruction by the Fifth Circuit. In Vergel v. INS, 536 F.2d 755 (8th Cir. 1976), and David v. INS, 548 F.2d 219 (8th Cir. 1977), the court upheld deportation orders, denying the petitioners relief, but stayed their mandate ninety days To allow the aliens to apply to their District Directors for "deferred action category," or non-priority status, under O.I. 103.1(a)(1)(ii). The Eighth Circuit felt the Operations Instruction to be appropriate and advisable For the very purpose of delay, in the form of an indefinite stay of deportation. Vergel, supra, 536 F.2d at 757-58; David, supra, 548 F.2d at 223. These recommendations were based upon the existence of compelling humanitarian factors and not upon administrative convenience.

Seeing such direct conflict between the two circuits ¹⁰ which have considered the granting of non-priority status, we turn to the Instruction's language. Three points become readily apparent upon examination: (1) The Sole basis for granting relief is the presence of humanitarian factors; (2) The Instruction is directive in nature; and (3) The effect of such relief upon a deportation order is To defer it indefinitely.

Humanitarian factors, including five express criteria, are set forth as the only basis upon which the District Director is to weigh the propriety of non-priority status (deferred action category):

"(ii) Deferred action. In every case where the district director determines that adverse action would be Unconscionable because of the existence of humanitarian factors, he shall recommend consideration for deferred action category . . . .

"When determining whether a case should be recommended for deferred action category, consideration should include the following: (1) advanced or tender age; (2) many years' presence in the United States; (3) physical or mental condition requiring care or treatment in the United States; (4) family situation in the United States effect of expulsion; (5) criminal, immoral, or subversive activities or affiliations recent conduct." O.I. 103.1(a)(1)(ii), Supra. (Emphasis added).

It is obvious that this procedure exists out of consideration for the convenience of the petitioner, and not that of the INS. In this aspect, it far more closely resembles a substantive provision for relief than an internal procedural guideline.

The Instruction provides that, "In Every case" where relief is appropriate, the District Director "Shall recommend" deferred action category. O.I. 103.1(a)(1)(ii), Supra. The directive nature...