Majid Ghorbani v. Immigration and Naturalization Service

CHOY, POOLE, Before HUG and Circuit Judges.

HUG, Judge: Circuit Ghorbani, Majid a native and citizen of Iran, petitions for review of a decision of Immigration Appeals (“BIA”). the Board of BIA dismissed Ghorbani’s from immigration judge’s decision that Ghor- nonimmigrant bani was as a stu- violation of the conditions of his status. Ghorbani (1) raises several issues: violations were “technical” and “not substantial” jus- and therefore did not tify deportation; (2) the District abused his discretion in reinstate Ghorbani’s student and the immigration judge and the BIA erred judge had no decision; authority to review (3) that this court has to review the decision the District Di- rector even it was not reviewed in deportation hearing. We affirm the decision of the BIA and hold that this court lacks to review the discretion- ary the District Director. I Ghorbani entered the United States August, 1978, student in applied in to the District Director for rein- remain subsequently authorized to was his student That ap- duration of statement of his student status. country for the November, 1979, re- Ghorbani plication In was denied. status. pursuant to office in Reno ported the INS judge found Ghorbani non- reg- Proclamation and INS to a Presidential of immigrant student in violation his status. had was then that he discovered ulation. to the BIA was denied Ghorbani’s Community Col- from Lassen transferred filed and Ghorbani then re- College without first lege to Sierra Nevada view in this court. of 8 receiving permission, violation INS 214.2(f)(4)(1982).1 It also was dis- C.F.R. § II been at this time that Ghorbani had covered reg- Ghorbani admits the violation of the permis- part-time without employed argues that ulations but his is sion, of C.F.R. 214.- violation unjustified because his violations of status is- 2(f)(6)(1982).2 A show cause order was were “technical” and “not substantial.” He Prior to the hear- shortly sued thereafter. cites Mashi v. immigration judge, Ghorbani ing before week; per regulation provides session will not exceed 1. The that: 20 hours (v) has eligible student submitted to an au- not to transfer to student shall be [a] by approved thorized official a school he valid of another school unless submits a Attorney completed by Form 1-20 that school and a form General and this form permission grants him to transfer. Service has been certified that all official that Application be made on for transfer shall requirements aforementioned been met. filed in the Form 1-538 and shall be Service The authorized official of the will school sub- having jurisdiction office over the school containing mit the certified form 1-538 was last authorized the Service which he together recommendation with the student’s however, attend; if the student has failed to form 1-94 to the Service office which has to commence or continue full-time attend- place over the where the school school, may ance application such he instead file at permission is located. student has to having juris- in the Service office accept employment when he/she receives the diction over the school to which he wishes to form 1-94 endorsed the Service to that Permission to be transfer. transfer granted para- effect. under this Permission granted only applicant that if the establishes graph allows a student to work full time student, nonimmigrant he is fide that a bona session, including when the school is not in study to course of he intends take full eligible if the summer the student is transfer, to to the school which he wishes register following intends to the next and that he in fact was a full-time student On-campus employment pursuant term. to the school which he was last authorized scholarship, fellowship, the terms of a or attend, to unless failure to com- the Service assistantship part is deemed to be mence or continue full-time attendance program academic of a student otherwise beyond his control or due circumstances to taking study, a full course of if related there- justified. The name of the was otherwise A is to. on-campus employment, student who offered this kind of is shall school to which transfer authorized any or other on- Form 1-94. be endorsed on the student’s campus employment displace will not regulation provides 2. The that: resident, require United does States not nonimmigrant has a classification who [a] permission engaged Service to such 101(a)(15)(F)(i) the Act is of employment. granted Permission which is to off-campus permitted engage in not to em- any employment engage in a student to shall States, ployment in either for an the United beyond the of not extend date his/her autho- employer independently, or unless all' of the stay employ- rized ment, for all authorization following (i) met: conditions are student part any whether or not of academic carry- good standing is in as a student who is program, automatically suspended upon ing a of defined in full course studies as Secretary certification of Labor or his section; (f)(la) (ii) paragraph stu- of this designee Commissioner necessity dent has demonstrated economic designee or his that a Naturalization arising sub- due to unforeseen circumstances sequent dispute involving or strike other labor work subsequent change entry stoppage progress of workers classification; (iii) the student employment. occupation place at the As acceptance employ- demonstrated section, “place employment” carrying used ment will not interfere with his/her employer joint study; (iv) or a shall mean wherever the student has a full course of employer agreed employment is in does while school business. Mashi, 1978) proposition that it was decided held in curiam opinion subject Congress nonimmigrant intent 214.2(f)(6) that a violation of 8 C.F.R. § t students to for minor violations (employment permission) without INS of status. The Mashi decision does not justify deportation itself sufficient to proposition. stand for case student. BIA had found an Iranian student agree We with Tashnizi court’s ble comply for failure to with his nonimmi- engaging conclusion that in unauthorized grant student status. Mashi had enrolled employment not a technical or insubstan for fourteen credit he hours the school tial Nonimmigrant violation of status. stu However, had been authorized to attend. dents are admitted to the United States for he unavoidably because missed six classes purpose pursuing limited the educa exam, dropped and he a four credit opportunities tional Engag available here. physics physics course on the advice of his ing off-campus employment may often professor. The Board found that he had be inconsistent with purpose. The INS pursue a study failed to full course of and forms that the alien clearly receives indi had lost his student com- status because he cate that a nonimmigrant only student is not to pleted ten credits the semester. Board, engage in however, employment prior erroneously without apply- INS ing regulation approval. student to take a twelve hour to schedule maintain Ghorbani asserts that because his regulation was, by student status. That its funds were cut off as a result of the revolu terms, inapplicable own to Mashi because he Iran, tion in granted INS would have had prior been admitted to its effective permission him to work had requested he it. Although date. language there is Thus, argues, he he penalized should not be opinion that should look each INS now having prior failed to obtain ap case on its own facts and strike “a fair proval. justification After the fact does balance between the character of the act not excuse his to comply failure with INS the consequences committed and will prior approval regulations, of which he had it,” flow from id. at actual clear notice. To rule otherwise would cre of the case is that the BIA deport cannot ate an incentive to permission work without comply student failure to regula- present justification and to only if dis tions inapplicable that were him. to conclude, covered. We as immigra did the We need not decide in this case whether tion and that Ghorbani vio there could be circumstances when a viola- important lated regulations governing his tion would be justify so technical as not to which consti case, deportation. In this Ghorbani violated tuted a failure to and, maintain status specific two significant regulations.' and therefore, resulted deportability First, he failed to approval secure advance 241(a)(9), 1251(a)(9). 8 U.S.C. § transferring before to a different college, a 214.2(f)(4)(1982). violation 8 C.F.R. § approval

This advance has been identified Ill tool, the INS as an essential the lax The second and third issues raised enforcement of severely which would ham- present Ghorbani difficult obligation its to keep track of the thou- questions concerning of the sands of alien students within our borders. Immigration Act, Nationality 8 U.S.C. Yazdani, Matter (BIA 17 I&N Dec. 626 1105a(a). acknowledges § Ghorbani his transfer college to another em- Furthermore, ployment, both without employed permis- Ghorbani was INS sion, securing without were permission, advance violations of the regulations. He contends, 214.2(f)(6)(1982). however, violation of 8 C.F.R. the District Di- Tashnizi v. rector’s refusal to reinstate his student sta- panel days the same that four later tus was an abuse of ways. discretion in two inquiry is whether this decision must improp- the District claims that He immigration judge reviewed guidelines of INS apply to erly failed deportation hearing, and if it not re- Immigrant Operating Instructions viewed, considering rein- whether court Inspector’s Handbook appeal. review it He also claims on his status.3 statement Director discriminated the District This to review the de- court’s He Iranian. him he is an against because solely is based cision of District Director sought to introduce evidence upon concerning these matters. tion 1105a(a).4 Nationality 8 U.S.C. Sec- 106(a) provides that of appeal he no tion courts judge held had sole re- discretionary deci- have and exclusive review the Director, “all orders ... and refused view final of the District sions pursuant pro- ... administrative on these claims. made permit evidence ceedings [242(b) immi- under section held neither the appeal, on U.S.C.] jurisdic- 1252(b) The the authority to extent of the BIA had gration judge nor phrase Dis- is the focus of of the tion conferred discretionary the review inquiry.5 our Director. 242(b) proceedings, The section referred is doubt that the There no 106(a), proceedings in section are those decision of the to was affected the special (now inquiry Ghorbani’s conducted a officer not to reinstate District Director immigration judge)6 as an Had the Dis- known deter- nonimmigrant student status. may alien mining deported. whether an reinstated his trict Director 242(b) deportable. provides The for detailed admin- would have been Section he not ceedings 1252(b) particular Operating In- under section of this title or in Petitioner cites 3. 242.1(a)(21) page Act, comparable provisions any prior and a statement on ex- struction of Immigrant Inspector’s cept of the 9-15 that— Handbook- 242.1a(21) (4) petition states: OI ... shall be determined sole- ly upon upon is alien located who the administrative record When a of, seeking continuing pursuit pursue, or to and based the Attor- in, study fact, ney findings supported a course of academic is enrolled of if General’s learning, approved substantial, his case reasonable, an institution of probative and evi- as the shall be handled the same manner whole, on as a dence the record considered in a of B-l or B-2 case conclusive; shall be situation, taking all similar into consideration Sections to 1042 Title 5 referred to of factors, including the violation whether judicial procedures enacted for review are excusable, progress witting was or agencies of of orders federal Hobbs study position. and academic financial 2341- now codified as amended at 28 §§ page of the The statement on Handbook quoted, exception pre- The 2353. above upon relied is: application procedures cludes of the or If there has been technical nonwillful permit Act Hobbs transfer of case to period status or if the of autho- violation of hearing, circumstanc- district court for expired stay file a rized and failure to 2347(b)(3). es set forth at 28 U.S.C. Were excusable, timely reasonably application was the Hobbs Act available it of to us applicant may be and restored status appear appropriate in to be this case. stay.... granted extension of present regulations specifically with The deal jurisdiction appellate In situations where the 5. at 8 reinstatement of student status C.F.R. 106(a) applicable, the is not alien’s however, 214.2(f)(8) (1982); regulation brought lie in first recourse would an action effect at the time of the District appropriate Cheng Fan district court. in this case. Director’s decision 206, 210, 392 U.S. Kwok S.Ct. 106(a) pertinent part: provides Section n.16, (1968). See infra. prescribed by, procedure and all the provisions sections to 1042 of Title 1.1(1) (1982) provides: 8 C.F.R. to, apply be the shall and shall sole “immigration judge” spe- The term means for, procedure exclusive inquiry cial officer and be used inter- heretofore of all final orders special inquiry changeably with term offi- against aliens within the hereafter made chapter. appears it in this cer wherever pro- pursuant to administrative United States procedures istrative that assure alien of Fan. Kwok had been found counsel, evidence, rights present ble in a section hearing and had been to cross examine witnesses. The statute permission granted depart voluntarily. also the Attorney authorizes General to He did not do so and was ordered to surren- grant discretionary certain forms of relief deportation. requested der stay He part 242(b) proceeding. of a section deportation from a pend- District Director Any deportation upon order must be based ing submission disposition aof developed the record in that adjustment in status. The District Di- rector he ineligible concluded for the spoken Court has three requested relief stay denied the of de- times on extent of the con- portation. ferred to review section 242(b) deportation orders. The first was in holding on the facts in Foti v. Kwok is that of appeals court did not L.Ed.2d The Court there held that the of the courts of review the District Director’s denial dis- solely was not limited to the bare determi- cretionary relief, which occurred after deportability, nation of but extended also to However, hearing. language a review of the final administrative orders generally would indicate a nar- respect relief row construction of the grant. sought during deportation hearing. Id.

. The Court stated: at 309. In the second We hold that provi- case, Rosenberg, 18, Giova v. 379 85 U.S. sions of § embrace only those de- 156, (1964), 13 S.Ct. L.Ed.2d 90 the Court during terminations made proceeding a a held in brief opinion curiam that 242(b), conducted including under § those 106(a) jurisdiction extended to the determinations made a incident to motion review of reopen deportation motions to to reopen proceedings.16 such proceedings. 216, Id. at 88 (footnote at 19767 S.Ct. 16 signal Any given these eases have original text). reference in Footnote 16 of 106(a) jurisdiction that section would be Cheng Fan Kwok states: expansively interpreted quashed when We intimate no views on the possibility Supreme Cheng Court decided Fan that a court might “pen- INS, 1970, Kwok v. 88 S.Ct. 20 jurisdiction” over denials of discre- Kwok, Cheng L.Ed.2d 1037 In Fan relief, tionary where it already has before argued had all INS that determinations it petition a for review proceeding from a directly affecting the execution of the basic 242(b). conducted under § Foti v. See order, deportation to, prior whether made Service, supra at [375 U.S.] during, subsequent to the n.14 S.Ct. at [84 n.14]. proceeding, should be included direct Id. at 88 S.Ct. 1976.8 106(a). review under section Id. at explicitly rejected at 1973. The There has been some considerable disa- interpretation. petitioner The in greement as to the possible extent of the revealing wording Appeals It is 106(a). note that cho- 375 U.S. at [84 express holding sen to is somewhat more S.Ct. at 313]. wording quoted Cheng restrictive than the U.S. at from Foti. S.Ct. at 1973. The Cheng opinion opinion quotes Fan Fan Kwok Kwok uses the words the Foti “determina- during proceeding.” drops tions as made follows: It phrase “and incident to” the during all determinations made and incident proceeding to the administrative conducted encompassed 8. For a clarification of what special officer, inquiry and reviewable jurisdiction” “pendent within we are referred together by Immigration Ap- the Board of In Foti. Foti the Court noted that even peals ... ... are included within the ambit deportabil- the alien there had conceded ity, of the exclusive preclude that fact did not review of the requested denial relief in the no deportation hearings. “Congress made ap court of jurisdiction” “pendent Rosenfeld, catalogue such issues. admin- effort Immi 2 Gordon peals. process is better suit- rule-making 8.9Ab, istrative and Procedure Law gration at 218. to that task.” Id. ed an indication (1982). There is n.54 8-81 juris “pendent limit the Court Court, in Foti and both quasi-judicial in which situations diction” this, Kwok, recognized Fan Cheng Fan hearings been conducted. had difficulty no in the fact found n.11, & 215-16 Kwok, 212-13 U.S. at 106(a) might scope of review under n.11, n.15. 1975-76 & n.15, at 1974 88 S.Ct. regulations modifying affected of what encom is the determination agency heard within type of orders jurisdiction” “pendent passed within Kwok, Cheng Fan proceeding. See analysis diffi that makes 1976, n.17; 216, n.17, U.S. at 88 S.Ct. at cult. n.16, & at 229-30 U.S. & n.16.9 in this circuit

We turn jurisdiction under concerning the extent cases, two one before and one after In Cheng Fan 106(a), interpreted by as Kwok, we have held that our Yamada v. Kwok. In depor- to review a final order of predating and noted (9th case 106(a) includes the tation under section approval an validity to examine the power Di- with the District status, alien filed rescinding permanent resident when after the or- reclassify his status rector to order lies at the base of the hearing had der Bachelier v. 625 F.2d 902 tion order. jur- that we lacked 1980); We held become final. Waziri v. of the Dis- review the decision

isdiction to each of these cases there legisla- noted that Director. We indicated that history of section affirmed that rescinded tive piecemeal liti- Congress permanent eliminate alien’s resident there- wished to issues, immediately subject de- making but also that him gation quasi-judi- a scope of direct There had been full Congress portation. that the intended hearing immigration ex- before an dependent to some cial review be appellate required by an as the Id. with upon regulations the of INS. tent regulations.10 pro- are the same the the These acknowledged that It was at 216-18. 242(b) in as are involved a section appellate of cedures expand scope the INS could noted, previously the including proceeding. As Su- 106(a) by section review under Cheng in 242(b) gave an indication preme in section for review the more issues Court, nothing the fact that a 242(b) see anomalous about the In that context Kwok) change regulations (referred administrative to in Fan in the in footnote scope effectively narrow of re- broaden or the stated: (Em- Appeals.” of here, view available Courts holding of it of the effect our Because added.) Although recognized phasis the Court unnecessary the to consider is of course litiga- Congress piecemeal that, to limit deport- intent of the where contention Government’s by enacting deportation Ap- issues section actually adjudicated, tion of ability a Court of is 106(a), it within the “pendent jurisdiction” Court did find peals the review require discretionary pro- congressional ex- the the same intent relief in denial of pand in ceeding. issues available review section reasonably interpreted 242(b) proceedings. This could determination footnote 242(b) encompassed is if relief reviewa- in the section mean that to be issues deportability 242(b) proceeding is proceedings in when ble was left to the administrative fortiori, then, conceded, it when is reviewable agency. However, adjudicated. deportability is Kwok in Fan reference footnote 16 Rosenfeld, generally, Im- See Gordon something imply more. seems to 7.7f, Procedure, migration Law and —116, concerning procedures for rescission significant is adjustment of status. 313-14, 229-30, “We stated: U.S. at 84 S.Ct. jurisdiction” “pendent could statute. Kwok Hernandez-Bivera proceedings (9th quasi-judicial include upon deportation proceeding was We held that dependent.11 106(a) extended to the review of legal question issue. The whether the one-house In Chadha v. 634 F.2d 408 suspension veto of is con- 1980), appeal pending, 454 U.S. purely stitutional is a matter of law and (1981), we also held Thus, requires findings no of fact. in re- “pendent jurisdiction” existed. In that issue, solving this the lack of consideration case, deportability, the alien conceded but by immigration judge and the BIA was granted discretionary suspen- relief of Chadha, inconsequential.12 In the constitu- sion of tionality of section the very statute judge, pursuant 244(a)(1), to section under which granted by the relief was 1254(a)(1), pending congressional U.S.C. § immigration judge, integral part an required 244(c)(2), action as the section proceedings.13 1254(c)(2). Repre- The House of are, thus, There two areas in which we disapproved suspension, sentatives thus have specifically utilizing pen- found that overriding immigration judge’s decision. justified: when there deportation hearing was reconvened issue, has been a factual hearing on the and the final order of was en- equivalent to that by section appeal, challenged tered. On Chadha 242(b), or when such a is unneces- constitutionality the one-house veto. sary. This issue was not considered the immi- gration judge or they the BIA because presents Ghorbani’s case a decision no to decide the constitutionality District which there has been no court, 11. The Court stated in raised first in district review this “Possibly, atU.S. 88 S.Ct. at 1975-76. court would be de novo. cogently urges, Congress as amicus wished to petitions limit to the courts of to situa upon 13. Three other cases in our circuit touch quasi-judicial hearings tions which had been the issue of the review the District Director’s apparent A conducted.” similar indication 106(a). decisions None of these legislative history when the Court is inconsistent with our in this case. Congressman Doug Circuit, Recently resident applying status. Id. at the Third a more Kwok, reading restrictive criti- opinion relating a brief curiam to deni- finding jurisdiction cized our even in this requirement, al waiver of visa we stated circumstance. See Dastmalchi v. 660 F.2d Wei-Ming Chang in (9th 418 F.2d 1335 (3rd analogy Cir. A relevant 1969), “[a]ssuming deciding without provi- result we reached in Chadha is seen in a petitioners may question that in a 2347(b)(2). sion of the Hobbs § proceeding separate the denial of a waiver in a Although provision of the Hobbs Act proceeding, prop- we find that waiver was appear incorporated by would not to be refer- erly (Emphasis added.) denied.” 106(a) (see 4, supra), ence section footnote In Nicholas v. reasoning employed parallels in the section petitioner sought to overrule a deci- provides that of Chadha. It that the court of denying sion of the District Director appeals required “pass present- on issues deportation indefinitely. to defer The issue ed, hearing when a is not law it appellate jurisdiction whether we had under appears pleadings from the 106(a) and affidavits filed parties was never raised parties genuine that no issue of fact or considered opinion, the court. We construe that presented.” appear It denying petitioner, be frustration relief to the to have congressional piecemeal intent to avoid Wei-Ming been on made the same basis as litigation is, Chang; to refuse to review 106(a) the existence of section purely legal question; even if the issue were was assumed but not decided. quasi-judicial hearing develop ney the facts. States, General for the United normally (D.C. Cir.), denied, Ghorbani’s claim is that the Dis- cert. would have reinstated his stu- by retroactively approving

dent status his We have no basis to find this construction unreasonable, employment. school transfer and his He particularly with the defer grant- contends that the reason he was not ence that is due to an agency construing its Iranian, regulations. ed reinstatement was because he is own It argued could also be ap- congressional normal criteria were not intent to eliminate plied piecemeal because of then-current sentiment appeals required the Attorney against Iranian students. regulations General to enact that would draw 242(b) into the section properly Before we could review this con hearing type a review of this dis appeal, tention on a factual record would cretionary the District Director. developed. sought have to be Ghorbani However, as recognized supporting facts charge introduce Fan Kwok and legisla deportation hearing, immigra but the history tive imposes no such requirement. judge permit it, tion refused to on the acknowledged that the Attorney ground he authority had no to review the expand General could or narrow the section discretionary decisions of the District Di 106(a) appellate jurisdiction by modifying agreed rector. The BIA that no such au the matters to be included within the sec existed, thority citing Halabi, Matter of 242(b) tion proceedings.15 (BIA 1974), Dee. I&N and Matter of Geronimo, (BIA 1971). 13 I&N Dec. 680 It would be most anomalous to conclude that, concluded it and the judge pass are not authorized to on certain final orders resulting Attorney matters in which the General has from section proceedings, we could authority conferred on District Directors. remand the case to the BIA or the immigra- Yazdani, (BIA Matter of 17 I&N Dec. 626 judge tion for a on factual matters 1981) citing Teberen, Matter of 15 I&N Dec. that they lacked to hear initially. (BIA 1976); Hosseinpour, Matter of 15 It equally would be by-pass anomalous to (BIA 1975), mem., I&N Dec. 191 aff’d 520 the BIA and immigration judge and re- 1975); Gallares, F.2d 941 Matter of directly mand Director, to the District when (BIA 1972); I&N Dec. 250 Matter of his expressly decision is excluded from con- Sourbis, (BIA 1965). 11 I&N Dec. 335 sideration in the section Rosenfeld, 1A Gordon and We therefore conclude ap that our Law and Procedure> 5.7b 5-84 and pellate jurisdiction under 1.10c, p. (1982).14 1-65—69 does not extend to a review of the discre The courts of tionary do have au decision of the District Director in thority to determine immigra whether the refusing to reinstate correctly tion and BIA have inter status. Such relief as be available to preted regulations governing jur their Ghorbani on this issue originate must isdiction. See Unification Church v. Attor- the district court.16 Rosenfeld, Immigra- 14. See also 1 Gordon 15. See 392 U.S. at Procedure, 1.10(a) (b), p. 229-30, tion Law and and §§ S.Ct. 1976 and 375 U.S. at 84 1A, 5.7(a) (b), 9, p. supra. 1-60 —64 and S.Ct. at 313-14. §§ 5-76— See also footnote (1982), helpful general for a review of the Ancillary administrative actions of the Dis- functions of the BIA and immi- subject gration trict Director are perspective. to review in declara- in historical tory judgment requests injunc- actions or Department also Johns v. of Justice of United tions in States, 884, the district courts under (5th the Adminis- 653 F.2d 889-92 Cir. trative Procedure § 702 under 8 capsulization an excellent of functions of the 1329, corpus. U.S.C. § means of habeas Director, immigration judge District and BIA in Immigration See Gordon and Rosenfeld Law deportation proceedings. connection with Procedure, 8.5, 8.6, 8.8, p. 8.7 §§ 8-33 during proceeding the terminations made The decision of Board Appeals 242(b), including is AFFIRMED. conducted under those determinations made incident to a motion POOLE, Judge, concurring spe- Circuit reopen proceedings. such cially. 216, 392 U.S. at at 1976. majority opinion’s conclu- I concur in the INS, Subsequently, Chadha v. 634 F.2d jurisdiction are without sion that we (9th 1980), appeal pending, Cir. discretionary the review the decision of Dis- 87, 812, 70 L.Ed.2d 102 S.Ct. U.S. to reinstate Ghorba- (1981), this court asserted under nonimmigrant student status. How- ni’s 106(a) section to review the constitutionali- ever, majority’s the I am unable to endorse ty permitting congres- of a federal statute attempt explain prior our decisions in disapproval sional of decisions of the immi- using gloss “pendent juris- this area gration judge suspending deportation. Re- diction.” Waziri, lying on the court observed that INS, (9th In Waziri v. 392 F.2d 55 Cir. although challenged congressional ac- 1968), we held that section conferred place tion took outside the context of a jurisdiction on this court to review the va- 242(b) hearing, it “nevertheless di- lidity rescinding petitioner’s of an order rectly deportation.” leads to a final order of permanent resident status even It concluded that existed to re- petition- determination was made “legal validity view the of determinations hearing. deportation er’s section 242 There deportation on which the final order of in Waziri that the court is no indication contingent.” 634 F.2d at 413. jurisdic- concept pendent relied on the Although Supreme Chadha followed the Instead, it concluded that the recis- tion. Court’s decision in it does “logical sion of Waziri’s status was rely on the dicta in that case which the predicate” of the order and majority discussing possibility here cites meaningful therefore review of the order Instead, pendent jurisdiction. as indi- require that court examine the cated, this meaningful court concluded that earlier decision. 392 F.2d at 56-57. See review of the INS, Bachelier v. 625 F.2d 902 also review of underlying decisions the order. 1980). That rationale is in fact inconsistent with afterwards, Shortly generally recognized definition of a narrowly scope limited pendent claim “separate parallel but 106(a). In Fan Kwok v. claim for relief” which a court reach at 20 L.Ed.2d 1037 U.S. its discretion. United Mine Workers v. (1968), petitioner appealed the denial of Gibbs, 715, 722, 726, 86 S.Ct. request stay filed 1136, 1139, 16 L.Ed.2d 218 after he had been found in a 242(b) proceeding. The Court held jurisdictional holding Chadha’s has been juris- that the court of did not have criticized as inconsistent with denying diction to review the decision permitting Kwok in review of decisions stating: stay, made outside the section provi- We hold that See Dastmalchi v. (3d 1981).1 only my

sions of embrace those de- view that criticism is tioner, Johns, right —58. See also 653 F.2d at 892. Be- confer a on the alien. See Nicho- las v. cause we conclude that we lack review the decision of the District Indeed, issue, jurisdictional as well as the Director, question we do not reach the whether question, veto one-house are before the Su- Instructions, provisions Operating of the OI preme pending appeal. See 454 242.1a(21) provisions Immigrant or the (1981) U.S. 102 S.Ct. Handbook, by peti- Inspector’s cited (ordering parties to address the argument). issue at oral Nevertheless, apt. Chadha remains the law changed Phyllis COHEN,

of the circuit until I do not Hopkins, Danielle Bires, majority’s believe that attempt to ra- Marianne on behalf of themselves similarly situated, and all others example tionalize its as an pen- Plain- tiffs-Appellees, aids our determination here. v.

Applying Chadha, the standard set out in MEYER, INC., FRED order here “contingent Defendant-Appellant. upon” the District Director’s Phyllis COHEN, al., Plaintiffs, et decision not to reinstate Ghorbani’s student Yet, status. as the majority opinion points out, objections Ghorbani’s to the Director’s Bires, Plaintiff-Appellant, Marianne decision were not addressed in a factual hearing before immigration judge as in MEYER, INC., FRED and Local Waziri, they purely questions nor are Employees Union, Retail law, Chadha, as in this court Defendants-Appellees. directly. reach opinion Thus the is correct Nos. 81-3226. in concluding that the circumstances here do not fit into either of the situations which United Appeals, States Court of this court has identified as appropriate for Ninth Circuit. review of discretionary decisions outside of Argued 4,May and Submitted a section It is for those Sept. Decided

reasons, only, that we have no to review the District Director’s decision to reinstate

Ghorbani’s status. In sum I reach the same

terminus as majority opinion without

taking what I unnecessary consider is an

detour. notes Yup Walter’s assurance that a Lee v. review under would be based on after final a section record, adequate noting 242(b) pro hearing, we held we could not review deci- cedures. Id. at 1975. See sion of the District Director reclassifi- 212-13, n.11, 1974, n.11, preference 88 S.Ct. at quota immigrant, similar cation aas al- indications. special we did review a denial inquiry application permanent officer anof

Case Details

Case Name: Majid Ghorbani v. Immigration and Naturalization Service

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 8, 1982

Citation: 686 F.2d 784

Docket Number: 80-7509

Court Abbreviation: 9th Cir.