Sang Seup Shin v. I.N.S.

• Decision Date: 14 December 1984
• Docket Number: No. 84-1097,84-1097
• Parties: SANG SEUP SHIN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 122

750 F.2d 122

242 U.S.App.D.C. 274

SANG SEUP SHIN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 84-1097.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 1, 1984.

Decided Dec. 14, 1984.

Thomas A. Elliot, Washington, D.C., for petitioner.

Michael P. Lindemann, Washington, D.C., for respondent. Richard K. Willard, Acting Asst. Atty. Gen. and Thomas W. Hussey, Asst. Director, Dept. of Justice, Washington, D.C., were on the brief, for respondent.

Before GINSBURG and STARR, Circuit Judges, and JACKSON, ^* District Judge.

Opinion for the Court filed by Circuit Judge GINSBURG.

Dissenting opinion filed by Circuit Judge STARR.

GINSBURG, Circuit Judge:

Sang Seup Shin, a Korean citizen, seeks review of an order of the Board of Immigration Appeals (BIA or Board). The order under review denied Shin's motion to reopen his deportation proceeding to allow him to apply for adjustment of his status to that of a permanent resident. The Board regarded the application at issue as repetitive of a prior motion to reopen Shin had made. In denying the instant motion, the BIA referred solely to the reasons already stated in its rejection of Shin's earlier reopening request. But Shin featured two linked events occurring after the Board's prior ruling: his wife's attainment of United States citizenship; and approval by the Immigration and Naturalization Service (INS) of an "immediate relative" visa petition she filed on his behalf. Because the Board failed to acknowledge the existence of these new circumstances and thus did not address their significance, we are unable to affirm the Board's order. We remand the case so that the BIA may supply a reasoned, evenhanded response to Shin's altered situation--his current status as an "immediate relative" of a citizen of the United States.

I.

Shin entered the United States in November 1972, as a nonimmigrant visitor for business. He did not depart upon the expiration of his visa in March 1973. On the petition of a company that sought to engage Shin as a truck mechanic, the INS, on September 19, 1973, accorded him sixth preference immigrant classification. Based on this preference, on December 14, 1973, Shin applied for status as a permanent resident. Twenty-two months later, on September 17, 1975, the INS denied his application because the agency's inquiries impugned a representation Shin had made concerning his employment when he applied for his nonimmigrant business visa. On October 21, 1975, Shin was found deportable and was granted permission to depart voluntarily by January 5, 1976. On the same day, October 21, 1975, Shin filed a motion to reopen his application for permanent residence; in this filing, he sought to substantiate further the veracity of his representations about prior employment. Shin requested, but did not receive, a stay of deportation pending disposition of this motion. He did not depart on the appointed day. The INS denied the motion to reopen on February 7, 1977.

Shin married a naturalized United States citizen, his second wife, ¹ in January 1977. She filed a petition for an "immediate relative" visa, but withdrew it in July 1978, after the marriage failed. The INS issued a warrant of deportation on August 11, 1978, and ultimately ordered Shin to report for deportation on July 5, 1979. Shin failed to appear.

Shin married his present wife, then a lawful permanent resident, in June 1980. She filed a petition for second preference immigrant status on his behalf in July 1980. See 8 U.S.C. Sec. 1153(a)(2) (1982). The INS granted her petition on June 23, 1981. On June 15, 1981, Shin was taken into custody under a warrant of deportation, but was released under an order of supervision. Shin thereupon filed an application to stay deportation pending consideration of his simultaneously filed motion to reopen to permit him to apply for political asylum, suspension of deportation, and reinstatement of voluntary departure. The immigration judge granted the stay. Eventually, on March 11, 1982, the judge denied reopening, citing Shin's failure to submit affidavits or other evidence demonstrating either the "extreme hardship" that might qualify him for suspension of deportation, see id. Sec. 1254(a)(1), or the "well-founded fear of persecution" that might warrant asylum. See id. Secs. 1101(a)(42)(A), 1158(a). The BIA affirmed on June 15, 1982.

From August 1981 through June 1982, Shin reported in person each month to an INS deportation officer pursuant to his order of supervision. In July 1982, INS ordered Shin to report for deportation on August 2, 1982. Prior to that date, Shin again moved to reopen, this time limiting requested relief to suspension of deportation. On August 11, 1982, the District Director stayed Shin's deportation pending resolution of this motion.

The BIA denied reopening on January 18, 1983. It gave two reasons for its decision. First, the Board found that Shin had failed to make a prima facie showing of "extreme hardship" to himself or his spouse, a statutory prerequisite for suspension of deportation under 8 U.S.C. Sec. 1254(a)(1). Second, the Board denied Shin's request for relief as a matter of discretion because he had "flouted the immigration laws." In re Sang Seup Shin, No. A20-484-414, slip op. at 3 (BIA Jan. 18, 1983) ("Shin I "). ² Shin did not appeal this decision. He was ordered to report for deportation on May 24, 1983.

Some months after the BIA's January 1983 decision, on May 13, 1983, Shin's spouse became a naturalized United States citizen. On June 7, 1983, she petitioned for Shin's classification as an "immediate relative," a status that would exempt him from numerical limitations on immigration visas. 8 U.S.C. Sec. 1151(b) (only "children, spouses, and parents of a citizen of the United States" can qualify for "immediate relative" status). Shin simultaneously applied for adjustment of status. The INS approved "immediate relative" immigrant classification for Shin. The BIA, however, treating Shin's request for adjustment as a motion to reopen his deportation proceeding, ³ summarily denied relief in an October 31, 1983, order. Shin's petition for review challenges the Board's October 1983 disposition as an abuse of discretion.

II.

Shin has applied for discretionary relief--adjustment of his status--under the Immigration and Nationality Act. See 8 U.S.C. Sec. 1255; infra note 6. Regulations promulgated under the Act permit reopening his deportation proceeding, so that he may apply for such relief, on a showing of "circumstances which have arisen subsequent to the [deportation] hearing." 8 C.F.R. Sec. 3.2 (1984); see also id. Sec. 242.22. Shin rests his claim on two such circumstances--his wife's attainment of United States citizenship and the attendant INS determination of his "immediate relative" status. The material documenting these circumstances "was not available and could not have been ... presented" earlier. 8 C.F.R. Secs. 3.2, 242.22.

The BIA unquestionably has wide discretion in determining what circumstances warrant reopening a deportation proceeding. See INS v. Jong Ha Wang, 450 U.S. 139, 143 n. 5, 101 S.Ct. 1027, 1030 n. 5, 67 L.Ed.2d 123 (1981) (per curiam). We review Board dispositions in cases of this kind ⁴ only to ensure that administrative discretion has not been abused. E.g., Chae Kim Ro v. INS, 670 F.2d 114, 116 (9th Cir.1982); Sida v. INS, 665 F.2d 851, 854 (9th Cir.1981). Broad as the BIA's discretion is, however, that tribunal may not act arbitrarily or irrationally. It may not proceed at whim, shedding its grace unevenly from case to case. It must explain departures from settled policies, see Wing Ding Chan v. INS, 631 F.2d 978, 983-84 (D.C.Cir.1980) (citing Wong Wing Hang v. INS, 360 F.2d 715, 719 (2d Cir.1966) ), cert. denied, 450 U.S. 921, 101 S.Ct. 1371, 67 L.Ed.2d 349 (1981); and it may not unaccountably disregard on one day considerations it held relevant on another day. E.g., Luna v. INS, 709 F.2d 126 (1st Cir.1983); Batoon v. INS, 707 F.2d 399, 401-02 (9th Cir.1983); Chae Kim Ro, 670 F.2d at 116; Sida, 665 F.2d at 854-55; Prapavat v. INS, 662 F.2d 561 (9th Cir.1981) (per curiam) (on rehearing in light of Wang ). ⁵

The BIA's exercise of discretion in ruling on reopening motions is linked to its projection of the likelihood that the applicant would be granted the relief sought if reopening were permitted. In re Rodriguez-Vera, 17 I. & N. Dec. 105, 106 (BIA 1979). In this case, the Board pretermitted consideration of Shin's statutory eligibility for status adjustment; ⁶ the BIA found it could bypass "threshold issues of eligibility for relief" because it was "satisfied that [Shin's status adjustment] application would be denied in the exercise of discretion whether or not eligibility is established." In re Sang Seup Shin, No. A20-484-414 (BIA Oct. 31, 1983) ("Shin II "). In so ruling, the Board relied solely and explicitly upon the "reasons stated" in its January 18, 1983, opinion denying reopening to afford Shin an opportunity to gain suspension of deportation. ⁷

In its January 1983 ruling, the BIA did not question Shin's satisfaction of the statutory requirements of presence in the United States for the last seven years and good moral character for the same period, see 8 U.S.C. Sec. 1254(a)(1), but it rejected his claim that deportation to Korea would occasion "extreme hardship." ⁸ The Board observed that Shin's skills as a mechanic should help him to find employment in Korea; that sale of the couple's home and car should, together with bank accounts and other assets, lessen economic detriment; that a letter from his wife's physician, although stating that she should avoid stressful conditions, failed to detail the seriousness of her malady (hypertension) or show that adequate medical care was unavailable in Korea; and that, in light of the INS's approval of second preference visa status, even if Shin were deported to Korea, any...