interim vectsion gnoza

interim vectsion gnoza

MATTER OF BANARIA

In Deportation Proceedings

A-21425016

A-19320146

A-2142501'7

Decided by Board December 6, 1977

Board of Immigration Appeals dismissed appeal for lack of jurisdiction to extend voluntary departure time in deportation case where the Service had, without formal notice,

rescinded an operations instruction which previously granted extended voluntary departure to an alien with an approved third-preference visa petition; Board, however,

noted a recent change of Immigration and Naturalization Service policy (42 Fed. Reg.

49459-49461) whereby such aliens will receive extended voluntary departure from the

District Director if their visa priority dates precede the date the rescission of the

instruction becomes effective by publication in the form of a new regulation, 8 C.F.R.

242.5(a)(2)•

CHARGE:

Orden Act of 1952—Section 241(a)(2), I. & N. Act [8 U.S.C. 1251(a)(2)]--Temporary

nonimmigrants—remained longer than permitted '

ON BEHALF OF RESPONDENTS:

ON BEHALF OF SERVICE:

Edward L. Dubroff, Esquire

Barst & Mukamal

127 John Street

New York, New York 10038

Mary Jo Grotenrath

Appellate Trial Attorney

BY: Milhollan, Chairman; Wilson, Maniatis, Appleman, and Maguire, Board Members

The respondents have appealed from an immigration judge's order of

March 21, 1977, denying a motion to reopen their deportation proceeding. The appeal will be dismissed.

The respondents are a family from the Philippines who were admitted

to the United States on May 29, 1972, as temporary nonimmigrants

pursuant to section 101(a)(15)(H) of the Immigration and Nationality

Act. The "H" status of Francisco Banaria and Riel Banaria was dependent upon the "H" status of Luzviminda Banaria, a registered nurse.

See 8 C.F.R. 214.2(h)(1). Her original employer and sponsor was

Saratoga Hospital in Saratoga, New York.

On August 2, 1972, Mrs. Banaria filed a third-preferenec visa petition

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with the Immigration and Naturalization Service, pursuant to section

203(a)(3) of the Act. The petition was approved by the Service on July

16, 1973.

On March 21, 1975, Mrs. Banaria gave birth to a child who is a United

States citizen.

The respondents neglected to seek an extension of their "H" nonimmigrant status after April 30, 1975. Mrs. Banaria has urged that alleged

complications surrounding the birth of her second child should excuse

her neglect to seek a further extension of the family's nonimmigrant

status at the proper time.

After several months during which she stayed home and cared for her

baby, Mrs. Banaria went back to work as a nurse. On March 4, 1976, her

present employer, St. Clare's Hospital in Schenectady, New York,

submitted a new "H" visa petition in her behalf to the Immigration

Service.' The hospital's petition was approved by the District Director

on April 29, 1976, with the express condition that Mrs. Banaria was

scheduled for a deportation hearing on May 5, 1976, because of her

lapsed nonimmigrant status.

On March 30, 1976, the Acting Officer in Charge of the Immigration

and Naturalization Service Office in Albany, New York, had issued

Orders to Show Cause alleging that the Danarias should be deported

pursuant to section 241(a)(2) of the Act for remaining in the United

States beyond April 30, 1975, without the authority of the Service.

On April 6, 1976, the respri-mients asked the Service to place them

back into their lapsed nonimmigrant "H" visa status. Alternatively,

they requested a grant of indefinite (extended) voluntary departure

because of Mrs. Banaria's approved third-preference visa.petition.

On May 4, 1976, the Acting Officer in Charge denied the respondents'

request to reinstate their "H" status since Mrs. Banaria did "not appear

to be a bona fide nonimmigrant, in that it has not been established that

she intends to depart from the United States within a definite time and

that she has a residence abroad to which she intends to return." See

section 101(a)(15)(11) of the Act. This decision of May 4 appears to

contradict the District Director's approval of a new "II" visa petition for

the Banarias five days before.

On June 1, 1976, the District Director denied the respondents' alterriative request for indefinite voluntary departure pending availability of

a third-preference immigrant visa within the oversubscribed Philippine

quota. 2 The District Director's denial was apparently based squarely on

' Mrs. Banaria had begun working at St. Clare's in August, 1973, without prior authorization from the Immigration and Naturalization Service. See 8 C.F.R. 214.2(11)(11).

2 The Visa Office in the Department of State, which maintains records and publishes a

bulletin on a visa availability, shows approximately a six-year waiting period before a visa

can he issued to a Filipino who files a third-preference immigrant visa petition.

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the fact that section 242.10(a)(6) of the Service's Operations and Instructions Manual had been rescinded on July 31, 1972, that is, just two

days before Mrs. Banaria filed her third-preference visa petition.

Under an Immigration and NatUralization Service policy in effect at

least from August 1956, until July 31, 1972, a nonimmigrant, physically

present in the United States, who was subject to deportation but who

filed a satisfactory third-preference visa petition, was eligible for "extended (indefinite) voluntary departure." See former. Operations Instruction 242.10(a)(6)(i). 3

The respondents did not depart by September 7, 1976, and a Warrant

respondents challenged the Service's refusal to reinstate their "H"

status. The immigration judge properly held that he tad no jurisdiction

to review that Service determination, and therefore found the respondents deportable as overstays. The respondents applied for relief under

section 243(h) of the Act, claiming they would be persecuted if they

returned to the Philippines. The immigration judge denied that relief as

there was clearly no substance to the claim. The respondents were

granted the privilege of departing voluntarily on or before September '7,

1976. No appeal was taken from the immigration judge's decision.

The respondents did not depart by September 7, 1976 and a Warrant

of Deportation was issued pursuant to 8 C.F.R. 243.2. At this point, the

respondents entered United States District Court in the Northern

District of New York and requested a preliminary injunction and a

declaratory judgment against the Immigration. and Naturalization SerOne purpose of the Immigration and Nationality Amendment Act of October 20, 1976,

Public Law 94-571, 90 Stet. 2703, is to shorten this wait for a preference immigrant visa

for oversubscribed countries. See section 3(3) of Public Law 94-571. As a result of the

amendment to 8 U.S.C. section 1152(e), Filipino petitioners with lower preferences should

now move up the waiting lists more quickly. •

' In pertinent part, the Operations Instructions read:

242.10 Voluntary departure prior to commencement of hearing. (a) Authorization.

Voluntary departure may be granted. . . .

2. A "PSA" [professional, scientist, or artist] alien in the United States on July 31, 1972,

for whom an approved third or sixth preference petition was filed on 'or before that date.

. Nothing in this memorandum is intended to affect the grant of voluntary departure

to any alien eligible fur that privilege on other grounds . . .

[Milder OI 242.10(a)(8)

fa] careful review is to be made of each case presented

to determine whether or not compelling factors are present.

***

The aspects of the memorandum omitted in the preceding excerpt refer to Operations

Instruction 242.10(a)(6)(B), also rescinded effective duly 31, 1972, which announced a

similar policy of extended voluntary departure, but with respect to certain Western

Hemisphere aliens, a provision not involved in this case. See Noel v. Chapman, 508

F.2d 1023 (2 Cir.), cert. denied 423 U.B. 824 (1975), discussed tnfra.

423

vice. The Government agreed to defer further action on the deportation

warrant until the motion for the preliminary injunction could be heard

and a decision rendered.

The respondents based their motion on essentially two grounds. They

argued that the Service's refusal to reinstate their "H" status was

arbitrary and capricious. The court had no trouble disposing of this

argument, both on procedural grounds and on the merits.

The second issue raised by the respondents was a difficult one. They

argued that the District Director's denial of their request for indefinite

voluntary departure was invalid because the Service had revoked Operations Instruction 242.10(a)(6)(i) without complying with the requirements of the Administrative Procedure Act.

Neither Operations Instruction 242.10(a)(6)(i) nor the 1972 memorandum rescinding it was published in the Federal Register.

The court found that there was little likelihood that the respondents

would succeed in their APA claim. It relied on Noel v. Chapman,

supra; Dimaren v. INS, 398 F. Supp. 556, 559 (S.D.N.Y. 1974); and

Ya -n Wo Cheng v. Rinaldi, 389 F. Supp. 583, 588 589 (D. N.J. 1975).

Since the court found that the respondents were not likely to obtain

ultimate relief, it denied their request for a preliminary injunction on

October 21, 1976, but stayed its order until October 28, 1976, to allow the

respondents time to appeal to the United States Court of Appeals and to

apply for a further stay of deportation.

The United States Court of Appeals for the Second Circuit did grant a

further stay of deportation so that it could hear the respondents' appeal.

On January -13, 1977, it affirmed the decision of the District Court

denying the respondents' request for a preliminary injunction, and

vacated the stay of deportation.

After failing to obtain a preliminary injunction, the respondents

asked the District Director for a new grant of voluntary departure for

the purpose of selling their home, an automobile, and their personal

belongings. The District Director agreed to allow them to depart voluntarily within 45 days of the decision of the United States Court of

-

Appeals. They did not depart within that period.

On February 24, 1977, the respondents filed a motion to reopen their

deportation proceedings. They essentially sought to relitigate the two

issues which they had raised in the Federal District Court and the Court

of Appeals. On the APA issue, they relied on a case recently decided by

Judige Becker in the Federal District Court for the Eastern District of

Pennsylvania, U.S. ex rel. Farce v. Morris, Civ. No. 73-2496 (January

28, 197'7).

In a decision dated March 21, 1977, the immigration judge denied the

motion to reopen on the ground that this case arises in the Second

Circuit, and that therefore Noel v. Chapman, supra, is controlling. The

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Interim Decision #xtizo

immigration judge also relied upon the facts that the law of the case had

been tentatively determined by the Second Circuit's affirmance of

Banaria v. INS, Civ. No. 76—CU-352 (N.D.N.Y. October 21, 1976).

The immigration judge did not deal with the question of whether he

had jurisdiction to review the Service decisions denying the respondents' requests for reinstatement of their "H" status and for extended

voluntary departure.

After hearing oral argument in this case, we granted the respondents

a stay of deportation on June 14, 1977, pending our decision of their

appeal from the immigration judge's order.

We find that we do not hav e jurisdiction to decide either of the issues

presented. Matter of Teberen, Interim Decision 2498 (BIA. 1976); Matter

of Hosseinpour, Interim Decision 2349 (BIA 1975), aff'd, 520 F.2d 941 (5

Cir. 1975) (table); Matter of Flalabi, Interim Decision 2322 (BIA 1974);

Matter of Sourbis, 11 I. & N Dec. 335 (BIA 1965).

Although we must dismiss the appeal for lack of jurisdiction, we note

that the Federal Register of September 27, 1977, contains a statement of

Immigration and Naturalization Service policy which is crucial to the

resolution of this case. See 42 Fed. Reg. 49459-49461. The essential part

of the Immigration and Natuu-alization Service announcement states:

On January 28, 1977, in U.S. ex rel. Parco v. lifonis, Civil Action No. 73-2496

(U.S.D.C.E.D. Pa.) it was held that failure of the Service to publish its change of policy

respecting the grant of extended voluntary departure to third-preference aliens pending

availability of a visa number in the FEDERAL REGISTER, was a violation of the

Administrative Procedure Act and that this change' in policy could not be applied

against the relators to compel their departure from the United States. Although the

Service might have chosen to appeal, this decision came at a time when the Service was

embracing a policy of greater openness, characterized by publishing more operations

instructions in the FEDERAL REGISTER as rules, and this operations instruction

was deemed to be one which ought to be so published, whether or not required by law.

For this reason the Service is publishing this notice of proposed rule making to place the

public and interested parties on notice that it remains the policy of the Service that

extended voluntary departure pending availability of a visa number is not to be

routinely granted third-preference aliens or the others in classes specified in the above

quoted operations instruction which was rescinded effective July 31, 1972. Third-preference aliens with a priority date earlier than the effective date of this regulation [i.e., the

new 8 C.F.R. 242.5(a)(2)] . . . will continue to receive extended voluntary departure

until visa numbers become available. Third-preference aliens with priority dates later

than the effective date of this regulation will not receive extended voluntary departure

unless they are accorded it under some other policy expressed in the new version of 8

C.F.R. 242.5(a)(2). Id. at 49460.

Thus, because of the new Immigration and Naturalization Service

policy, it appears that the respondents will be granted relief. They

must, however, apply to the District Director for that relief, not to this

Board.

ORDER: The appeal is dismissed.

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