Opoka v. I.N.S., No. 95-3552
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
| Writing for the Court | Before CUDAHY, KANNE, and DIANE P. WOOD; CUDAHY |
| Citation | 94 F.3d 392 |
| Docket Number | No. 95-3552 |
| Decision Date | 30 August 1996 |
| Parties | 45 Fed. R. Evid. Serv. 740 Stanislaw OPOKA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
Page 392
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
Seventh Circuit.
Decided Aug. 30, 1996.
Page 393
Stanley J. Horn, Horn & Villasuso, Chicago, IL, (argued), for Petitioner.
Janet Reno, U.S. Attorney General, Washington, DC, Samuel Der-Yeghiayan, Immigration & Naturalization Service, Chicago, IL, James B. Burns, Office of the United States Attorney, Chicago, IL, William J. Howard, Allen W. Hausman, David M. McConnell, Stephen W. Funk, Lorri L. Shealy, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, Kristal A. Marlow (argued), Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.
Before CUDAHY, KANNE, and DIANE P. WOOD, Circuit Judges.
CUDAHY, Circuit Judge.
Stanislaw Opoka moved the Board of Immigration Appeals (BIA) to reopen his deportation proceedings so that he could move for suspension of deportation. The BIA denied the motion, and Mr. Opoka appeals.
I.
Stanislaw Opoka, a native and citizen of Poland, entered the United States on October 27, 1987, under a visa admitting him as a nonimmigrant visitor for pleasure. He did not leave the country before the visa expired in April 1988, and in October 1989 the Immigration and Naturalization Service (INS) charged him with deportability. Mr. Opoka, who during that period had married a Polish native and citizen who also overstayed a visitor visa, conceded deportability, but he applied for asylum/withholding of deportation. The petition was denied on April 19, 1990, and Opoka was granted voluntary departure. Opoka appealed. His appeal was dismissed on September 27, 1991, and the BIA granted him thirty days (subject to extensions) for voluntary departure. Opoka failed to leave the United States and, until voluntary departure was reinstated, was in this country in violation of the BIA's orders. Opoka's voluntary departure, however, was reinstated in
Page 394
March 1993, indicating that the BIA had decided to overlook the violation. After the reinstatement of voluntary departure, he applied for and was granted extensions because of his wife's ill health. Two daughters were born to the couple, the elder on April 25, 1989, and the younger on December 16, 1994.On March 24, 1995, two days after the date on which his last extension expired, Mr. Opoka filed a motion to reopen his deportation proceedings so that he could apply for suspension of deportation. The BIA denied the motion on September 7, 1995, concluding that Opoka had not established a prima facie case because he had not shown that his deportation would result in extreme hardship to himself or to his two United States citizen daughters. Mrs. Opoka, as an illegal resident, was not eligible for consideration. Alternatively, the BIA concluded that even if Mr. Opoka had presented a prima facie case it would deny his motion because of his continued failure to depart the country.
After Mr. Opoka's proceedings were concluded by the BIA, Mrs. Opoka was granted a suspension of deportation. Mr. Opoka informs this court that his wife is now a lawful permanent resident of the United States and argues that these changed circumstances support a determination that the BIA erred in declining to find extreme hardship in his case.
II.
The decision to reopen deportation proceedings is committed by federal regulation to the discretion of the Attorney General and the BIA. INS v. Doherty, 502 U.S. 314, 322, 112 S.Ct. 719, 724, 116 L.Ed.2d 823 (1992); see Achacoso-Sanchez v. INS, 779 F.2d 1260, 1264 (7th Cir.1985). Accordingly, this court reviews the BIA's decision only for abuse of discretion. Doherty, 502 U.S. at 323, 112 S.Ct. at 724-25. It will affirm unless the decision "was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a...
To continue reading
Request your trial
-
Carl Follo, Follo Hospitality, Inc. v. Morency (In re Morency), Case No. 10-13666-JNF
...F.3d 1108, 1114 n.5 (9th Cir. 2003), opinion withdrawn, 315 F.3d 1108 (9th Cir. 2002), cert. denied, 540 U.S. 810 (2003), Opoka v. I.N.S., 94 F.3d 392, 394 (7th Cir. 1996); and Colonial Leasing Co. of N.E., Inc. v. Logistics Control Group Int'l., 762 F.2d 454, 459 (5th Cir. 1985). Finally, ......
-
In re Kjk Const. Co., Inc., Bankruptcy No. 07 B 21749.
...resolving a motion to dismiss, a court can take judicial notice of matters of public record); Opoka v. Immigration & Naturalization Serv., 94 F.3d 392, 394 (7th Cir.1996) (holding that the decision of another court is "a proper subject of judicial notice"). Therefore, the Gussin Affidavit a......
-
In re Meltzer, No. 13 B 31151
...and Peterson matters. Courts are entitled to take judicial notice of the records of proceedings in related matters, see Opoka v. I.N.S., 94 F.3d 392, 394 (7th Cir.1996) ; Philips Med. Sys. Int'l, B.V. v. Bruetman, 982 F.2d 211, 215 n. 2 (7th Cir.1992), and in deciding whether to impose fili......
-
U.S. v. Gutierrez-Casada, No. 07-40154-01-SAC.
...1491, 1496 (10th Cir.1996) (finding administrative regulations subject to judicial notice); Opoka v. Immigration & Naturalization Service, 94 F.3d 392, 395 (7th Cir.1996) (taking judicial notice of immigration service's decision); Tran v. Com. of Northern Mariana Islands, 780 F.Supp. 709 (D......
-
Carl Follo, Follo Hospitality, Inc. v. Morency (In re Morency), Case No. 10-13666-JNF
...F.3d 1108, 1114 n.5 (9th Cir. 2003), opinion withdrawn, 315 F.3d 1108 (9th Cir. 2002), cert. denied, 540 U.S. 810 (2003), Opoka v. I.N.S., 94 F.3d 392, 394 (7th Cir. 1996); and Colonial Leasing Co. of N.E., Inc. v. Logistics Control Group Int'l., 762 F.2d 454, 459 (5th Cir. 1985). Finally, ......
-
In re Kjk Const. Co., Inc., Bankruptcy No. 07 B 21749.
...resolving a motion to dismiss, a court can take judicial notice of matters of public record); Opoka v. Immigration & Naturalization Serv., 94 F.3d 392, 394 (7th Cir.1996) (holding that the decision of another court is "a proper subject of judicial notice"). Therefore, the Gussin Affidavit a......
-
In re Meltzer, No. 13 B 31151
...and Peterson matters. Courts are entitled to take judicial notice of the records of proceedings in related matters, see Opoka v. I.N.S., 94 F.3d 392, 394 (7th Cir.1996) ; Philips Med. Sys. Int'l, B.V. v. Bruetman, 982 F.2d 211, 215 n. 2 (7th Cir.1992), and in deciding whether to impose fili......
-
U.S. v. Gutierrez-Casada, No. 07-40154-01-SAC.
...1491, 1496 (10th Cir.1996) (finding administrative regulations subject to judicial notice); Opoka v. Immigration & Naturalization Service, 94 F.3d 392, 395 (7th Cir.1996) (taking judicial notice of immigration service's decision); Tran v. Com. of Northern Mariana Islands, 780 F.Supp. 709 (D......