Sadegh-Nobari v. Immigration and Naturalization Service, SADEGH-NOBAR

• Decision Date: 04 May 1982
• Docket Number: H,81-2222,SADEGH-NOBAR,Nos. 81-2168,s. 81-2168
• Citation: 676 F.2d 1348
• Parties: Afsanehossein Ghanavizchian, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1348

676 F.2d 1348

Afsaneh SADEGH-NOBARI, Hossein Ghanavizchian, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Nos. 81-2168, 81-2222.

United States Court of Appeals Tenth Circuit.

May 4, 1982.

Gary L. Barnett, Salt Lake City, Utah, for petitioners.

Lauri Steven Filppu and Robert Kendall, Jr., Attys. Gen., Litigation and Legal Advice Section, Crim. Div., Dept. of Justice, Washington, D. C., for respondent.

Before SETH, Chief Judge, and McKAY and LOGAN, Circuit Judges.

SETH, Chief Judge.

These proceedings seek review of final decisions of the Board of Immigration Appeals. The decisions dismissed appeals from deportation orders which were directed to petitioners who are husband and wife who are Iranian nationals. Both had entered the United States as visitors for pleasure and were so authorized to remain until December 26, 1979. This court has jurisdiction to review the deportation decisions pursuant to 8 U.S.C. § 1105a(a).

The petitioners also seek review of certain rulings by the Regional Commissioner on applications for change of status. We must conclude that we have no jurisdiction over the change of status rulings sought to be brought here separately or here advanced as a matter which should have been considered in the deportation proceedings.

Change of Status Applications :

On December 13, 1979 Afsaneh Sadegh-Nobari filed a petition with the District Director to change her status from a visitor to a student under 8 C.F.R. § 248.3. On April 14, 1980 the District Director denied her application because of the then current situation in Iran. A timely appeal was filed. The Regional Commissioner dismissed the appeal citing 8 C.F.R. § 248.2 which made nonimmigrant Iranian aliens ineligible for any change in nonimmigrant classification. This petitioner sought to have her change of status application considered in her deportation proceedings but this was refused.

On May 30, 1980 Hossein Ghanavizchian filed with the District Director an application for an extension of stay pursuant to 8 C.F.R. § 214.1(c)(1). He cited urgent medical reasons for remaining in the United States. He has not received a response to that request. The petitioners then filed a motion with the Regional Commissioner to reconsider the change of status application of May 21, 1980 in light of the amendment to 8 C.F.R. § 248.2. The Regional Commissioner denied their motion.

The petitioners claim that the Regional Commissioner abused his discretion by denying their motion to reconsider Afsaneh Sadegh-Nobari's application for a change of nonimmigrant status from visitor to student. The Regional Commissioner denied their motion even though 8 C.F.R. § 248.2 was amended to allow Iranian nationals eligibility for nonimmigrant change of status. This change of status proceeding was not a proceeding under section 242(b) nor did it challenge a final order of deportation. See Lad v. Immigration and Naturalization Service, 539 F.2d 808 (1st Cir. 1976); Colato v. Immigration and Naturalization Service, 531 F.2d 678 (2d Cir. 1976); Arreche-Barcelona v. Immigration and Naturalization Service, 310 F.2d 690 (9th Cir. 1962). Thus we are without jurisdiction to review the District Director's denial of the application and the Regional Commissioner's denial to reopen those proceedings. Review of the status application determination was with the appropriate district court. Cheng Fan Kwok v. Immigration and Naturalization Service, 392 U.S. 206, 88 S.Ct. 1970, 20 L.Ed.2d 1037 (1968).

The petitioners further contend that the Board of Immigration Appeals abused its discretion by denying their motion to reopen the deportation order in light of the amendment to 8 C.F.R. § 248.2. We must conclude that the Board rightfully denied jurisdiction to review the District Director's denial of the application and the applicability of 8 C.F.R. § 248.2. The propriety of the District Director's decision on a change of status application cannot be reviewed as part of the deportation proceeding. Both the Immigration Judge and the Board of Immigration Appeals lack jurisdiction to review separate orders of the District Director. Matter of Rios-Carrillo, 10 I. & N. Dec. 291. Since the denial of a change of status application is not within the scope of the deportation hearing, it is not reviewable by a court of appeals under section 106(a). De Figueroa v. Immigration and Naturalization Service, 501 F.2d 191 (7th Cir. 1974).

The Deportation Proceedings :

On June 9, 1980 Afsaneh Sadegh-Nobari received an Order to Show Cause and Notice of Hearing which stated she was subject to deportation pursuant to section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a) (2), for overstaying her authorized visit. On September 3, 1980, after a full hearing, the Immigration Judge found her deportable as an "overstay." In lieu of deportation she was granted fifteen days to depart voluntarily. She filed a timely appeal and on October 9, 1981 the Board of Immigration Appeals dismissed her appeal.

On September 8, 1980 Hossein Ghanavizchian received an Order to Show Cause and Notice of Hearing which stated that he had overstayed his authorized visit and was subject to deportation pursuant to section 241(a)(2) of the Immigration and Nationality Act. On November 6, 1980, after a full hearing, the Immigration Judge found him deportable as charged. He was also granted fifteen days to depart voluntarily, in lieu of deportation. He filed a timely appeal and on August 25, 1981 the Board of Immigration Appeals dismissed his appeal.

On September 18, 1981 the petitioners sought a motion to reopen their deportation orders on the grounds that 8 C.F.R. § 248.2 had been amended to allow Iranian nationals eligibility for a change of nonimmigrant classification. On October 9, 1981 the Board of Immigration Appeals determined that it lacked jurisdiction to consider the petitioners' request to reopen the denial of a change of nonimmigrant status application since status applications are outside the scope of a deportation proceeding. The petitioners filed a motion to reconsider which was denied on October 19, 1981.

This court derives its jurisdiction to hear these petitions from section 106(a) of the Immigration and Nationality Act, 8 U.S.C. § 1105a(a), as mentioned above. Under section 106(a) of the Act this court has jurisdiction to review all final orders of deportation made pursuant to administrative proceedings under section 242(b) deportation proceedings or orders of proceedings directly challenging deportation orders themselves. Cheng Fan Kwok v. Immigration and Naturalization Service, 392 U.S. 206, 88 S.Ct. 1970, 20 L.Ed.2d 1037 (1968). See also Giova v. Immigration and Naturalization Service, 379 U.S. 18, 85 S.Ct. 156, 13 L.Ed.2d 90 (1964); Foti v. Immigration and Naturalization Service, 375 U.S. 217, 84 S.Ct. 306, 11 L.Ed.2d 281 (1964).

The petitioners claim that their orders of deportation were not supported by the weight of the evidence. In a deportation hearing to prove an overstay the Immigration and Naturalization Service must show that the nonimmigrant alien was admitted into the United States for a temporary stay, that the period expired, and that the nonimmigrant has not departed. Milande v. Immigration and Naturalization Service, 484 F.2d 774 (7th Cir. 1974). The government must establish deportability by clear, unequivocal and convincing evidence. Woodby v. Immigration and Naturalization Service, 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362 (1967).

At the time of Afsaneh...