Nyonzele v. I.N.S.

• Decision Date: 14 May 1996
• Docket Number: No. 95-1062,95-1062
• Citation: 83 F.3d 975
• Parties: Ngwando Zele NYONZELE, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 975

83 F.3d 975

Ngwando Zele NYONZELE, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee.

No. 95-1062.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 16, 1995.

Decided May 14, 1996.

Petition for Judicial Review of an Order of the Board of Immigration Appeals.

Vard R. Johnson, Omaha, NE, argued, for appellant.

Kristin A. Cabral, Justice Dept., Washington, DC, argued, for appellee.

Before FAGG, BOWMAN, and HANSEN, Circuit Judges.

HANSEN, Circuit Judge.

Ngwando Zele Nyonzele, a citizen of Zaire, petitions for judicial review of the decision of the Board of Immigration Appeals (BIA) finding him deportable and denying his applications for discretionary relief. Nyonzele concedes that he is deportable but contends that he is entitled to discretionary relief in the form of (1) a waiver under 8 U.S.C. § 1186a(c)(4) of the joint petition requirement for seeking permanent resident status, (2) a grant of asylum, or (3) the privilege of voluntary departure in lieu of deportation. We conclude that substantial evidence on the whole record supports the BIA's denial of discretionary relief.

I. BACKGROUND

In May 1986, Nyonzele, a pilot for the Zairian air force, entered the United States for the purpose of receiving technical training offered to foreign military personnel. Rather than return to Zaire as ordered upon a visit from a Zairian military attache in December 1986, he fled to Texas and later moved to Sioux City, Iowa. On August 4, 1989, Nyonzele married a United States citizen, Betty King, whom he met through a dating service. On the basis of this marriage, Nyonzele obtained lawful permanent resident status on a conditional basis as of January 11, 1990. See 8 U.S.C. § 1186a(a) (popularly referred to as Section 216 of the Immigration Marriage Fraud Amendments).

To remove the condition and obtain complete lawful permanent resident status, Nyonzele and his wife were required to file a joint petition with the Immigration and Naturalization Service (INS) and appear together for a personal interview approximately two years after the date when he obtained the conditional status. See 8 U.S.C. §§ 1186a(c)(1) and 1186a(d)(2). However, Nyonzele's marriage ended in divorce on May 2, 1990, well before the time period when a joint petition to remove the condition from his resident status could be filed. Thus, he sought to avoid the joint petition requirement by applying for a "hardship waiver." 8 U.S.C. § 1186a(c)(4). Had it been granted, this waiver would have allowed Nyonzele to seek permanent resident status without fulfilling the joint petition requirement if, among other things, he could demonstrate that he entered into his "qualifying marriage ... in good faith." Id.

Nyonzele's waiver application prompted a personal interview with an INS examiner, who tape-recorded the interview. After the interview, the INS district director denied Nyonzele's request for a hardship waiver of the joint petition requirement and terminated his conditional permanent resident status. The INS then initiated deportation proceedings against Nyonzele.

At the deportation proceedings, Nyonzele requested review of the district director's termination of his conditional permanent resident status, as permitted by 8 C.F.R. § 216.5(f), contending that the district director abused his discretion by determining that Nyonzele had not entered into his marriage in good faith. Nyonzele also submitted an application for asylum, alleging a well-founded fear of persecution on account of political views. Alternatively, he requested the privilege of voluntary departure in lieu of deportation. Following a hearing, the Immigration Judge (IJ) concluded that Nyonzele was deportable as charged and denied all claims for discretionary relief.

In his administrative appeal, the BIA granted Nyonzele another hearing but ultimately dismissed the appeal, affirming the decision of the IJ. In a written opinion, the BIA reasoned that even crediting Nyonzele's testimony, he was not entitled to a hardship waiver of the joint petition requirement because he failed to demonstrate a good faith qualifying marriage. The BIA also determined that crediting Nyonzele's testimony concerning his request for asylum, he failed to demonstrate a well-founded fear of persecution. Finally, the BIA concluded that Nyonzele had abandoned his claim for voluntary departure. Nyonzele seeks judicial review.

II. DISCUSSION

This court has jurisdiction to review "all final orders of deportation," and "the Attorney General's findings of fact, if supported by reasonable, substantial, and probative evidence on the record considered as a whole, shall be conclusive." 8 U.S.C. § 1105a(a)(7). Our review of final orders of deportation pursuant to 8 U.S.C. § 1105a(a) includes "all determinations made during and incident to the administrative proceeding ... and reviewable together by the [BIA]," Foti v. INS, 375 U.S. 217, 229, 84 S.Ct. 306, 314, 11 L.Ed.2d 281 (1963), and "all matters on which the validity of the final order is contingent," INS v. Chadha, 462 U.S. 919, 938, 103 S.Ct. 2764, 2777, 77 L.Ed.2d 317 (1983) (internal quotations omitted).

In this case, we are not asked to review the determination that Nyonzele is deportable; instead, we are asked to review the denial of a hardship waiver, the denial of asylum, and the denial of voluntary departure. The BIA's denial of Nyonzele's application for asylum and his request for voluntary departure were "determinations made during and incident to the administrative proceeding," Foti 375 U.S. at 229, 84 S.Ct. at 314, and thus, we have jurisdiction to review them as part of the final order of deportation. The hardship waiver is in a slightly different posture as it was initially denied by the district director, not during deportation proceedings. The district director's denial of a hardship waiver is not itself appealable. 8 C.F.R. § 216.5(f). See Torabpour v. INS, 694 F.2d 1119, 1121 & n. 8 (8th Cir.1982) (holding no jurisdiction to review district director's decision to deny a stay of deportation because "those decisions do not fit within the parameters of section 1105a(a)"). Nevertheless, "[an] alien may seek review of the denial of a hardship waiver in deportation proceedings," 8 C.F.R. § 216.5(f), as did Nyonzele. Because the BIA reviewed the waiver claim during the deportation proceedings, that decision is reviewable in this court.

Each of Nyonzele's requests for relief is a matter statutorily vested in the discretion of the Attorney General; therefore, our review is limited to determining whether there has been an abuse of discretion. See 8 U.S.C. § 1186a(c)(4) (leaving to Attorney General's discretion the determination of whether to remove the conditional basis for permanent residence absent a joint petition); 8 U.S.C. § 1158(a) (leaving to Attorney General's discretion the determination of whether to grant asylum); 8 U.S.C. § 1254(e) (leaving to Attorney General's discretion the determination of whether to grant voluntary departure). "An abuse of discretion occurs if a decision was without rational explanation, departs from established policies, or invidiously discriminates against a particular race or group." Khalaj v. Cole, 46 F.3d 828, 832 (8th Cir.1995). An abuse of discretion also occurs where the agency fails to consider all factors presented by the alien or distorts important aspects of the claim. Barragan-Verduzco v. INS, 777 F.2d 424, 425 (8th Cir.1985).

A. Hardship Waiver under § 1186a(c)(4)

An alien may obtain lawful permanent resident status on a conditional basis by marrying a United States citizen. 8 U.S.C. 1186a(a)(1). See Velazquez v. INS, 876 F.Supp. 1071, 1075-76 (D.Minn.1995) (offering an overview of the operation of § 1186a). The conditional basis of this status may be removed if the alien and citizen spouse file a timely joint petition for removal of the condition and appear together for a personal interview. 8 U.S.C. § 1186a(c)(1). When no timely joint petition is filed, ¹ the Attorney General must terminate the permanent resident status of the alien on the two-year anniversary of its receipt. 8 U.S.C. § 1186a(c)(2). If the alien and citizen spouse separate within the first two years of marriage, preventing the alien from fulfilling the timely joint petition requirement, the alien may seek discretionary removal of the condition through a "hardship waiver," provided the alien can demonstrate, inter alia, that "the qualifying marriage was entered into in good faith." 8 U.S.C. § 1186a(c)(4). ²

To determine whether an alien entered into marriage in good faith, the INS considers the degree of commitment to the marriage by both parties, including any documentation concerning their combined financial assets and liabilities, the length of time during which they cohabited after the marriage and after the alien obtained conditional permanent resident status, and any other relevant evidence. 8 C.F.R. § 216.5(e)(2). Section 1186a(c)(4) explicitly provides, "The determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the Attorney General." 8 U.S.C. § 1186a(c)(4). Once the alien demonstrates that he is statutorily eligible for the waiver by showing that the marriage was entered into in good faith, the decision of whether to grant a hardship waiver of the joint petition requirement is also expressly committed to the discretion of the Attorney General. Id.

Here, the BIA held a hearing and issued a 17-page written opinion discussing the evidence and explaining its decision to dismiss the appeal. In determining that Nyonzele had not entered into his marriage in good faith, the BIA considered and gave great weight to Nyonzele's own statement concerning his intent at the time he entered into the marriage. During the interview regarding his waiver application, during which he was represented by counsel and indicated...