Patel v. I.N.S.

• Decision Date: 03 February 1987
• Docket Number: 85-2544,Nos. 85-1527,s. 85-1527
• Citation: 811 F.2d 377
• Parties: Manilal V. PATEL, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Sharda M. PATEL, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 377

811 F.2d 377

Manilal V. PATEL, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Sharda M. PATEL, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Nos. 85-1527, 85-2544.

United States Court of Appeals Seventh Circuit.

Argued April 10, 1986.

Decided Feb. 3, 1987.

Mary L. Sfasciotti, Kenosha, Wis., for petitioner.

Joseph F. Ciolino, Office Immigration Lit. Civil Div., Dept. of Justice, Washington, D.C., for respondent.

Before WOOD and RIPPLE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge.

The issue presented by these petitions is whether the Board of Immigration Appeals abused its discretion by denying petitioner Manilal Patel's application for adjustment of status under 8 U.S.C. Sec. 1255 ¹ and by denying petitioner Sharda Patel's motion to reopen her deportation proceedings to allow her to file an application for adjustment of status derivatively based upon that of Manilal Patel, her husband. Because we find no abuse, we will deny the petitions for review.

I.

Mr. Patel is a native and citizen of India. He came to the United States in July of 1972 as a nonimmigrant student and was admitted pursuant to 8 U.S.C. Secs. 1201(a) and 1101(a)(15)(F). ² Pursuant to the terms of his student visa, he attended Industrial Engineering College in Chicago, Illinois. Shortly after his arrival, he began working to support himself and to pay his tuition and fees. Although required to do so by the terms of his visa, he did not inform the Immigration and Naturalization Service ("INS") that he was working. ³ Subsequently, he attended school on a part-time basis, working during the day and attending classes at night. During this time, he applied for and obtained three extensions of his student visa, the last of which expired in July of 1976. He ceased attending school in January of 1975. ⁴

On March 31, 1976, Mr. Patel purchased a coin-operated laundry for $10,000. The funds to purchase the business were entirely derived from his unauthorized employment in this country. On the basis of this investment, he sought adjustment of his status to that of an alien admitted for permanent residence, claiming exemption from the labor certification requirements, normally applicable to non-preference aliens, due to his status as an investor. ⁵

The District Director of the Immigration and Naturalization Service denied Mr. Patel's application for adjustment of status as a matter of administrative discretion, citing as an adverse factor the fact that the funds for his investment had come from unauthorized employment.

Mr. Patel was granted the privilege of voluntary departure, but he did not depart. Deportation proceedings were commenced against him, charging that he was deportable because he had violated the terms of his visa and overstayed it. Before the immigration judge, he renewed his application for adjustment of status, having admitted to being deportable as charged. After a five-year hiatus in the proceedings, ⁶ the immigration judge denied the application in the exercise of administrative discretion. However, he relied primarily upon an alleged bribery attempt by Mr. Patel.

Mr. Patel appealed to the Board of Immigration Appeals (the "Board"), which affirmed the denial of the application for adjustment of status, although on different grounds. First, the Board held that he was statutorily ineligible for admission into the United States (or in this case for adjustment) because he did not fall within the investor exemption to the labor certification requirement and he had no labor certification. Alternatively, the Board held that he was not entitled to adjustment of status as a matter of administrative discretion. In support of the discretionary denial, the Board cited the fact that Mr. Patel almost immediately commenced unauthorized employment, the fact that the money for his investment came solely from that employment, his early abandonment of his student status, and his lack of candor with immigration officials. The Board concluded that Mr. Patel "managed to enter and remain here only by deceit and an expanding series of lies. This sorry record is a very significant adverse factor bearing on the exercise of discretion." The Board expressly did not rely on the bribery incident. ⁷

Petitioner Sharda N. Patel is Mr. Patel's wife. When he initially came over to this country, she remained in India with their daughter, who was then two years old. In January of 1982, she entered the United States as a visitor for pleasure. She was authorized to stay until February 1982. However, she did not leave when her visa expired. She was found deportable in a deportation proceeding sometime in early 1983 and was granted the privilege of voluntary departure. She neither departed nor appealed that decision, but moved to reopen the proceedings requesting the opportunity to file an application for adjustment of status derivatively based on that of her husband. Her motion to reopen was denied by both the immigration judge and the Board because her husband's application for adjustment of status had been denied.

Following the Board's denial of relief, the Patels separately petitioned for review of the Board's decisions.

II.

Initially, we must point out those matters which are not properly before us. First, we must decline petitioners' invitation to review the Board's determination on Mr. Patel's statutory eligibility. Secondly, we do not consider the admissibility vel non at the hearing before the immigration judge of the evidence of the alleged bribery attempt.

A.

As noted above, the Board's holdings were phrased in the alternative. The Board held that (1) Mr. Patel was statutorily ineligible for adjustment, and (2) even if he were eligible, he did not merit such relief as a matter of discretion. If the Board must be sustained on the latter of those grounds, then there is no need for us to inquire into the propriety of the former. Indeed, we cannot do so, for where an alien is denied relief as a matter of discretion, the inquiry into statutory eligibility is pretermitted. See INS v. Bagamasbad, 429 U.S. 24, 25-26, 97 S.Ct. 200, 201, 50 L.Ed.2d 190 (1976); see also INS v. Rios-Pineda, 471 U.S. 444, 105 S.Ct. 2098, 2102, 85 L.Ed.2d 452 (1985). Petitioners urge that by saying review of the statutory question was "pretermitted" the Supreme Court did not mean that it was "foreclosed." However, in doing so, petitioners urge a semantic hairsplitting in which we are unwilling to indulge. The substance of the Supreme Court's decision in the case is clearly that such review is foreclosed when the Board has grounded its decision on discretion. The Court specifically noted:

As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.... Here, it is conceded that respondent's application would have been properly denied whether or not she satisfied the statutory eligibility requirements. In these circumstances, absent an express statutory requirement, we see no reason to depart from the general rule and require the immigration judge to arrive at purely advisory findings and conclusions as to statutory eligibility.

Bagamasbad, 429 U.S. at 25-26, 97 S.Ct. at 201.

While we realize that in this case, unlike the situation in Bagamasbad, the Board made findings on the issue of statutory eligibility, that does not mean that we are free to review them when the Board's alternative justification, the exercise of its discretion, is adequately supported. Just as we may not ask that an immigration judge arrive at purely advisory conclusions on statutory eligibility, neither can we do so ourselves.

Petitioners cite two additional reasons which, they say, counsel that we adopt a different position. First, according to petitioners, because nearly all relief under the immigration laws is discretionary, a holding that the exercise of discretion pretermits questions of eligibility will insulate most administrative action under those laws from review. We are unwilling to adopt the assumption implicit in petitioners' argument, that the Board will deliberately use its discretion to shield errors of law from review in the United States Courts of Appeal. In any event, such a situation is not suggested by this record. Should such a circumstance manifest itself in the future, we have confidence in the ability of reviewing courts to deal with it.

Secondly, petitioners contend that they have been prejudiced by the determination of statutory ineligibility which, they say, will be binding on a United States Consul considering a new application seeking investor status for Mr. Patel. While it is true that this concern might justify our reaching the statutory issue in some cases, see Bagamasbad, 429 U.S. at 26-27, 97 S.Ct. at 201, under the peculiar circumstances of this case, it does not concern us. The finding of ineligibility for investor status was based upon a regulation which both parties agree is no longer in effect. In fact, the nub of petitioners' argument is that Mr. Patel complied with the current regulations and the Board erred by applying the regulations which were in effect at the time he applied for adjustment of status. Nowhere is it suggested that the prior regulations would apply to a new visa application, and we do not see how they could. Thus, petitioners' assertion that the decision on eligibility will prejudice any such new application is simply incorrect.

B.

Also not before us is the question of the admissibility of evidence relating to the alleged bribery attempt. Although the immigration judge admitted the evidence, and expressly based his decision on it, the Board expressly disavowed any reliance on it. We are not at liberty to reverse on the supposition that the Board in fact relied on evidence that it said it was disregarding. Were there evidence that this was the case, our analysis might be...