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Hsiung v. Immigration and Naturalization Service


May 15, 1979


Appeal from the Board of Immigration Appeals dismissing petitioners' motion to reconsider the Board's finding that petitioners were deportable and denying administrative adjustment of status pursuant to 8 U.S.C. § 1255(a).

Present: HON. WILLIAM H. TIMBERS, Circuit Judge

HON. CHARLES H. TENNEY, District Judge

HON. LEONARD B. SAND, District Judge

This cause came on to be heard on the transcript of record from the Board of Immigration Appeals, and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged and decreed that the petition to review is denied and the order of the Board is affirmed.

Fu Chen Hsiung and her husband, Tse Hai Hsiung, bring this petition to review the BIA's denial of motions to reopen and reconsider their appeals from orders of deportation issued against them by an immigration judge on the ground they overstayed their temporary nonimmigrant visas.

The first question presented is whether petitioners can still challenge the validity of the deportation orders, issued in 1975 and affirmed by the BIA in December 1977. A six-month time limitation for judicial review of BIA actions is imposed by 8 U.S.C. § 1105a(a)(1)(1976). The Ninth Circuit has held

"that if the motion to reopen before the Board is within six months of the final order of deportation and the petition to this court is within six months of the denial of the motion..., this court has jurisdiction to review both the final order of deportation and the denial of the motion to reopen." Bregman v. INS, 351 F.2d 401, 402-03 (9 Cir. 1965); accord, Santiago v. INS, 526 F.2d 488, 489 n. 3 (9 Cir. 1975), cert. denied, 423 U.S. 971 (1975).

Other circuits have reached a similar conclusion in construing the general statutory provision for judicial review of administrative action [28 U.S.C. § 2344 (1976)], of which § 1105 is a specialized application. See, e.g., B.J. McAdams, Inc. v. ICC, 551 F.2d 1112 (8 Cir. 1977); Microwave Communications, Inc. v. FCC, 515 F.2d 385 (D.C. Cir. 1974). But see Provisioners Frozen Express, Inc. v. ICC, 536 F.2d 1303 (9 Cir. 1976) (per curiam); Northwest Marine Terminals Ass'n v. Federal Maritime Board, 218 F.2d 815 (9 Cir. 1955) (per curiam). We agree with the Ninth Circuit rule in Bregman. Otherwise, the party faces the dilemma of taking his case to the BIA, possibly losing the chance to appeal, or appealing and preventing the BIA from acting by depriving it of jurisdiction.

None of the cases above, however, involved multiple applications for review. In light of our oft-expressed concern for dilatory tactics in immigration cases, see, e.g., Chour v. INS, 578 F.2d 464 (2 Cir. 1978), and Acevedo v. INS, 538 F.2d 918 (2 Cir. 1976), however, and on the facts of this case, where there have been three applications, including an initial general one claiming insufficiency of evidence, we hold that it is not appropriate to consider the merits of the deportation orders at this late hour. As the Ninth Circuit said in a related context, "To hold otherwise would allow for the review of the Commission's action without restriction as to time by merely filing successive petitions to reopen for further hearing." Provisioners Frozen Express, Inc. v. ICC, supra, 536 F.2d at 1305.

On this reasoning, the only issue before us is whether the BIA's denial of rehearing and reconsideration was an abuse of discretion. We hold it was not. See Hibbert v. INS, 544 F.2d 17, 21-22 (2 Cir. 1977).

Moreover, there is no basis to set aside the underlying decision since administrative adjustment, even if petitioners were statutorily eligible, is "a matter of administrative grace." Ameeriar v. INS, 438 F.2d 1028, 1030 (3 Cir.), cert. denied, 404 U.S. 801 (1971). Regardless of whether the mistranslation of the answer to the Great World letter question affected Judge Emanuel's decision, there are other factors present which would lead to the same result even on a correct transaltion.

Petition denied.


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