Oluyemi v. I.N.S., 89-2057
| Decision Date | 06 April 1990 |
| Docket Number | No. 89-2057,89-2057 |
| Parties | Peter Olusanya OLUYEMI, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
James M. Langan, Jr., Boston, Mass., with whom Langan, Dempsey & Brodigan, was on brief, for petitioner.
Ellen Sue Shapiro, Boston, Mass., with whom Stuart M. Gerson, Asst. Atty. Gen., Civ. Div., Washington, D.C., Robert Kendall, Jr., Asst. Director, and Karen L. Fletcher, Attorney, Office of Immigration Litigation, Civ. Div. Dept. of Justice, were on brief, for respondent.
Before BREYER, Chief Judge, TORRUELLA and CYR, Circuit Judges.
The petitioner, Peter Olusanya Oluyemi, a citizen of Nigeria, entered the United States on July 18, 1987, as a "visitor for pleasure." His visa expired on October 12, 1987. He remained in the country. The Immigration and Naturalization Service has ordered him deported. See 8 U.S.C. Sec. 1251(a)(2) (). He pointed out to the immigration judge, however, that his American wife had asked the INS to reclassify him as an "immediate relative" and to grant him a visa that would allow him to "adjust" his "status" to that of a permanent resident. See 8 U.S.C. Secs. 1154(a)(1), 1255(a). He asked for permission to stay here pending the outcome of that petition, or, at the least, for permission to depart from the country voluntarily, instead of being "deported." See 8 U.S.C. Sec. 1254(e). The immigration judge denied both these requests; the Board of Immigration Appeals found the judge's decision proper; and petitioner now argues to us that the Board's and the immigration judge's decisions were not lawful.
We can find nothing unlawful about the immigration judge's decision not to permit the petitioner to stay in this country pending the outcome of his wife's visa request. That is because the likelihood that the INS will grant that request is very small. The statute says that the Attorney General "may ..., in his discretion " adjust the status of an alien to one of "permanent residence" if, among other things, the alien is "admissible" for permanent residence, and "an immigrant visa is immediately available to him at the time his application is filed." 8 U.S.C. Sec. 1255(a) (emphasis added). Not only is there no "immigrant visa ... immediately available" to the petitioner, but there is also little reason to think that such a visa will ever become available. The petitioner was ordered deported in 1986; he returned in 1987, with a counterfeit passport issued in a different one of his several names, and without the necessary governmental permission, and was excluded and deported; and he returned yet another time (again without permission), using a passport issued in yet another of his names. See 8 U.S.C. Sec. 1182(a) (). Even were petitioner to overcome these statutory obstacles, given the history that the record reveals, a history that includes these efforts to return using different names, and which also includes evidence of three marriages, one of which was bigamous and (in the view of the INS) possibly entered into in order to obtain the right to stay in this country, there is no reason to think the Attorney General would exercise his "discretion " to permit petitioner to stay.
Petitioner argues that the immigration judge, nonetheless, should have postponed the deportation proceedings against him until the district director decided whether to grant his wife's visa petition. The Board of Immigration Appeals has held that, while "an alien does not have an absolute right" to such an...
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