Tooloee v. I.N.S.

• Citation: 722 F.2d 1434
• Decision Date: 22 December 1983
• Docket Number: No. 81-7249,81-7249
• Parties: 15 Ed. Law Rep. 112 Nezam TOOLOEE, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1434

722 F.2d 1434

15 Ed. Law Rep. 112

Nezam TOOLOEE, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 81-7249.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 8, 1983.

Decided Dec. 22, 1983.

Donald L. Ungar, Simmons & Ungar, San Francisco, Cal., for petitioner.

Joseph F. Ciolino, Joan Smiley, Dept. of Justice, I.N.S., Washington, D.C., for respondent.

Petition for Review of a Decision of the Board of Immigration Appeals.

Before TUTTLE, ^* MERRILL, and PREGERSON, Circuit Judges.

PREGERSON, Circuit Judge:

An immigration law judge found that Nezam Tooloee, an Iranian student, was deportable as an overstay. The Board of Immigration Appeals (BIA) affirmed, and Tooloee appeals to this court. Tooloee became an overstay because a District Director refused to grant him an extension of stay. Both the immigration judge and the BIA refused to re-examine the District Director's decision denying Tooloee an extension.

We affirm their refusal to review the District Director's action and hold that at this stage of the proceedings this court is likewise foreclosed from reviewing the District Director's decision. Tooloee must first litigate his claims before the district court.

I

Nezam Tooloee, an Iranian citizen, entered the United States on September 18, 1978 as a nonimmigrant student and enrolled in Stanford University. Tooloee was authorized to stay in the United States until September 17, 1979. On November 28, 1979, over two months after his nonimmigrant student authorization expired, Tooloee applied for an extension of stay. ¹ The District Director denied his application for an extension because it was untimely. ²

In April 1980, the Immigration and Naturalization Service (INS) initiated deportation proceedings against Tooloee, charging that he was deportable under 8 U.S.C. Sec. 1251(a)(2) ³ as an alien who violated the immigration laws by staying longer than permitted. At the May 1980 deportation hearing, Tooloee admitted that he had overstayed his authorization, but argued that the District Director should have excused the late filing under 8 C.F.R. Sec. 214.1(c) and granted an extension of stay. ⁴ Tooloee offered to show that the Foreign Student Office at Stanford advised him that late applications for extensions were routinely granted and that the District Director did in fact grant late extensions. Tooloee also argued that the technicality of his late filing for an extension should not have rendered him deportable because he was otherwise in compliance with the conditions of his student status.

The immigration judge refused to re-examine the District Director's decision denying Tooloee an extension, holding that an immigration judge is without authority to review such a decision. The BIA dismissed Tooloee's appeal in a decision dated March 17, 1981, ruling that a decision on an application for extension of stay is solely within the District Director's discretion and not reviewable by either the immigration judge or the BIA.

On this appeal, Tooloee contends (1) that the immigration judge and the BIA were wrong in holding that they had no jurisdiction to review the discretionary decision of the District Director denying Tooloee an extension; (2) that on an appeal from the BIA, this court has jurisdiction to review the discretionary decision of the District Director denying the extension; (3) that the District Director abused his discretion by not excusing the late filing and denying the application for an extension of stay; and (4) that he is not deportable because he is in substantial compliance with the regulations governing nonimmigrant student status. We deal with Tooloee's contentions in order.

II

Tooloee first contends that the immigration judge and the BIA had jurisdiction to review the District Director's decision denying the application for an extension of stay. Relying on a regulation providing that there is no appeal from a District Director's refusal to grant an extension of stay, ⁵ both the immigration judge and the BIA refused to review the District Director's decision to deny Tooloee's application for an extension. Both refused to consider Tooloee's proffered evidence that (1) he had been told by the Foreign Student Office at Stanford that late applications for extensions of stay were routinely granted and (2) late applications were in fact routinely granted. We hold that the immigration judge and the BIA, in refusing to review the District Director's decision, correctly interpreted their jurisdictional regulations.

In Ghorbani v. Immigration & Naturalization Service, 686 F.2d 784, 791 (9th Cir.1982), we upheld refusals by an immigration judge and the BIA to review a District Director's discretionary decision not to reinstate nonimmigrant student status. Noting the deference due an agency's construction of its own regulations, we concluded that the immigration law judge's and the BIA's interpretation of their jurisdictional regulations was not unreasonable.

Here, 8 C.F.R. Sec. 214.1(c) provides that there shall be no appeal from the District Director's decision granting or denying an application for an extension of stay. As was the case in Ghorbani, we are unable to say that the immigration judge and the BIA were unreasonable in concluding that they had no jurisdiction to re-examine the District Director's decision.

III

Tooloee next contends that this court may re-examine the District Director's decision on an appeal from the BIA. That issue was also decided against him in Ghorbani. As noted in Ghorbani, a circuit court of appeals' jurisdiction to review the decision of a District Director is based solely on section 106(a) of the Immigration and Naturalization Act, 8 U.S.C. Sec. 1105a(a). Ghorbani, 686 F.2d at 787. Section 106(a) allows the courts of appeals to review " 'all final orders of deportation ... made ... pursuant to administrative proceedings under [8 U.S.C.] section 1252(b) [242(b) of the Immigration and Nationality Act] ....' " 686 F.2d at 787. Even though the District Director's decision denying Tooloee an extension of stay led to his Sec. 242(b) deportation hearing, and ultimately to his being held deportable, the decision was not a final order of deportation made pursuant to a Sec. 242(b) proceeding.

Some cases have referred to a nebulous "pendent jurisdiction" over denials of discretionary relief where the court of appeals is considering an appeal from a Sec. 242(b) proceeding. See, e.g., Cheng Fan Kwok v. Immigration & Naturalization Service, 392 U.S. 206, 216 n. 16, 88 S.Ct. 1970, 1976 n. 16, 20 L.Ed.2d 1037 (1968); Chadha v. Immigration & Naturalization Service, 634 F.2d 408, 412 (9th Cir.1980), aff'd, --- U.S. ----, 103 S.Ct. 2764, 2777-78, 77 L.Ed.2d 317 (1983). In Chadha, we said, and the Supreme Court later agreed, that the term "final orders" in Sec. 106(a) "includes all matters on which the validity of the final order is contingent, rather than only those determinations actually made at the hearing." 634 F.2d at 412.

As we pointed out in Ghorbani, however, there are only two classes of cases in which the Ninth Circuit has exercised "pendent" jurisdiction and reviewed matters not directly decided in the Sec. 242(b) deportation proceedings: "when there has been a factual hearing on the issue, equivalent to that required by section 242(b), or where such a hearing is unnecessary." Ghorbani, 686 F.2d at 790. In Chadha, for example, there was no factual hearing, but there was no need for one because only a legal issue was involved. Id. In this case, however, there has been no factual hearing and there definitely is a need for such hearing. Thus, this is not an appropriate case for us to review a District Director's decision unsupported by a factual record on an appeal from a Sec. 242(b) proceeding.

The circumstances of the instant case are very similar to the circumstances presented in Ghorbani. There, Ghorbani contended that normally the District Director would have reinstated his nonimmigrant student status by retroactively approving his transferring schools and his finding employment. Ghorbani argued that the only reason the District Director denied reinstatement was the then-current sentiment against Iranian students arising out of the hostage crisis. 686 F.2d at 791. Our opinion noted that Ghorbani sought to introduce facts supporting his contentions at the deportation hearing, but that the immigration judge refused to consider the evidence on the ground that he had no authority to review the discretionary decision of the District Director. The BIA affirmed, also refusing to hear evidence on Ghorbani's charges. We concluded that we simply could not properly review Ghorbani's contentions on appeal absent a factual record.

In this case, Tooloee contends that he was told by the Foreign Students Office at Stanford that late applications for extension were routinely granted. He also offered to prove that late applications were in fact normally granted. Both the immigration judge and the BIA refused to consider these contentions. No factual record was produced at the proceedings below. As was the case in Ghorbani, we are convinced that we also lack jurisdiction to review the District Director's recordless decision.

Tooloee argues that if neither the immigration judge, the BIA nor this court can review the District Director's decision, he will be denied due process of law. A forum is available, however, and due process is satisfied. As we said in Ghorbani, "Such relief as may be available to [the foreign student] on this issue must originate with the district court." 686 F.2d at 791 (footnote omitted). We conclude that Tooloee must bring an original action in the district court to litigate the contention that the District Director abused his discretion in refusing Tooloee's application for an extension of stay. In Ghorbani we observed that administrative actions of the District Director are reviewable in the...