Thorsteinsson v. I.N.S.

• Decision Date: 21 May 1984
• Docket Number: No. 82-7720,82-7720
• Parties: Thorsteinn Laufkvist THORSTEINSSON, Ragnheidur Qudradsdottir and Ragnheidhur Thorsteinsson, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1365

724 F.2d 1365

Thorsteinn Laufkvist THORSTEINSSON, Ragnheidur Qudradsdottir and Ragnheidhur Thorsteinsson, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 82-7720.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 11, 1983.

Decided Jan. 3, 1984.

Rehearing Denied Feb. 6, 1984.

Certiorari Denied May 21, 1984.

See 104 S.Ct. 2386.

Elliot Glicksman, Tucson, Ariz., for petitioners.

Don B. Overall, Tucson, Ariz., Michael J. Creppy, Office of Immigration Litigation, Civ. Div., U.S. Dept. of Justice, Washington, D.C., on brief and argued, for respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before WALLACE, SCHROEDER, and FERGUSON, Circuit Judges.

WALLACE, Circuit Judge:

Three Icelandic citizens (the Thorsteinssons) petition for review of an order of the Board of Immigration Appeals (the Board) denying their motion to reopen their prior deportation proceedings. Because the Thorsteinssons failed to exhaust their administrative remedies and departed from the United States before seeking judicial review of the Board's order, we conclude that we lack jurisdiction to hear this petition.

I

The Thorsteinssons are natives and citizens of Iceland. Following two vacations in the United States, the Thorsteinssons decided to immigrate to this country. They claim to have sought advice about immigration from personnel at the United States embassy in Reykjavik, Iceland. According to the Thorsteinssons, the embassy personnel told them that investing in American business would be the best way to obtain immigrant visas. In February 1978, the Thorsteinssons entered the United States with nonimmigrant visas and invested substantial sums in an Arizona business. They applied to become lawful permanent residents of the United States. The Thorsteinssons claim the embassy personnel in Iceland told them that they would obtain their immigrant visas approximately twelve to fourteen months after making their application. The Thorsteinssons state they entered the United States believing they would be able to obtain extensions of their nonimmigrant visas until they received immigrant visas. In March 1980, approximately two years after the Thorsteinssons' entry into the United States, the Immigration and Naturalization Service (INS) denied their request for further extension of stay in the United States.

The Thorsteinssons did not depart by the specified time and faced a deportation hearing in August 1980. At the hearing, their counsel conceded deportability and informed the immigration judge that the Thorsteinssons had entered into a stipulation with the INS allowing them nine months in which to depart voluntarily from the United States. The immigration judge ratified the stipulation, finding the Thorsteinssons deportable and granting them nine months to leave the United States. The Thorsteinssons did not appeal the immigration judge's decision. Following a sixty-day extension of their voluntary departure period, the Thorsteinssons left the United States.

Less than three weeks later, the Thorsteinssons attempted to reenter the United States as nonimmigrant visitors. They were paroled into the United States pending a review of their immigrant files. At an exclusion hearing, the Thorsteinssons appeared with new counsel and attempted to reopen their deportation proceedings. They claimed that their previous counsel's failure to raise a defense based on equitable estoppel denied them effective assistance of counsel in violation of their due process rights and rendered their prior deportation hearings a gross miscarriage of justice. The immigration judge held that the deportation proceedings could not be ordered reopened in the exclusion hearing because the Thorsteinssons were technically outside of the United States. ¹ The judge also held the Thorsteinssons excludable because they were immigrants without proper visas. The Board affirmed the immigration judge's actions and denied the Thorsteinssons' request to reopen their deportation proceedings.

The Thorsteinssons first sought judicial review by filing a writ of habeas corpus in the United States District Court pursuant to 8 U.S.C. Sec. 1105a(b). The district court concluded it lacked jurisdiction to reopen the deportation proceedings in its habeas corpus review of the exclusion hearing. The Thorsteinssons then filed the present petition for review of the Board's denial of their request to reopen the deportation proceedings.

II

The admission and exclusion of aliens is a matter vested almost exclusively in the executive and legislative branches of the federal government. Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1478, 52 L.Ed.2d 50 (1977); Ventura-Escamilla v. INS, 647 F.2d 28, 30 (9th Cir.1981). Accordingly, judicial review in immigration cases is limited to those matters "authorized by treaty or by statute, or ... required by the paramount law of the Constitution." Hampton v. Mow Sun Wong, 426 U.S. 88, 101 n. 21, 96 S.Ct. 1895, 1904 n. 21, 48 L.Ed.2d 495 (1976), quoting Fong Yue Ting v. United States, 149 U.S. 698, 713, 13 S.Ct. 1016, 1022, 37 L.Ed. 905 (1893). Under section 106(c) of the Immigration and Nationality Act (the Act), 8 U.S.C. Sec. 1105a(c), our review of deportation proceedings is extremely limited.

An order of deportation or of exclusion shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right under the immigration laws and regulations or if he has departed from the United States after the issuance of the order.

Id. (emphasis added). A similar administrative regulation precludes immigration judges and the Board from considering a motion to reopen deportation proceedings after an alien has departed from the United States. 8 C.F.R. Sec. 3.2 (1983).

Although the Thorsteinssons voluntarily left the United States, they were "deported" for purposes of the Act. 8 U.S.C. Sec. 1101(g). They remained technically outside of the country during their "parole" pending the resolution of their exclusion proceedings. See 1 C. Gordon & H. Rosenfield, supra note 1, at Sec. 2.54. It is also clear that they failed to exhaust their administrative remedies by not appealing the immigration judge's order in their deportation proceedings. Judicial review of their deportation order thus appears to be precluded by the plain language of 8 U.S.C. Sec. 1105a(c). See Ramirez-Juarez v. INS, 633 F.2d 174, 176 (9th Cir.1980); Hernandez-Almanza v. United States Dept. of Justice, 547 F.2d 100, 103 (9th Cir.1976); 2 C. Gordon & H. Rosenfield, supra note 1, at Sec. 8.8, pp. 8-57 to 8-58 (1983). Cf. Braude v. Wirtz, 350 F.2d 702, 706 (9th Cir.1965) (nonresident aliens have no standing to seek judicial review of administrative actions under the Act).

In Mendez v. INS, 563 F.2d 956 (9th Cir.1977), we recognized a limited exception to the general rule that nonresident aliens may not seek judicial review of their deportation proceedings. Mendez involved a "wrongful" deportation of a...