NWOKOMA
On February 10, 1993, an immigration judge terminated proceedings in this matter because the Immigration and Naturalization Service had not adjudicated the respondent‘s Joint Petition to Remove the Conditional Basis of the Alien‘s Permanent Resident Status (Form I-751) within 90 days of the Service interview regarding thе joint petition.2
The Service has appealed. The appeal will be sustained and the record remanded to the immigration judge for further proceedings.
The respondent is a 29-year-old native and citizen of Nigeria. On
Deportation proceedings were accordingly initiated under
On appeal, the Service submits first that it did make a “determination,” within 90 days of the interview, that the respondent had not entered into his marriage in good faith. In the alternative, the Service contends that the immigration judge erred by terminating the proceedings due to its failure to adjudicate the joint petition within 90 days of the interview. The Service relies on the Supreme Court‘s decision in Brock v. Pierce County, 476 U.S. 253 (1986), as support for the position that the Service retains authority to deny a joint petition even where the petition has not been adjudicated within 90 days of the interview. In that case, the Supreme Court stated:
This Court has frequently articulated the “great principle of public policy, applicable to all governments alike, which forbids that the public interests should be prejudiced by the negligence of the officers or agents to whose care they are confided.” [citations omitted]. We would be most reluсtant to conclude that every failure of an agency to observe a procedural requirement voids subsequent agency action, especially when important public rights are at stake.
We find no merit to the Service‘s initial argument on appeal. The Service submits that the examining officer who conducted the interviеw of the respondent and his spouse did make a “determination” concerning the joint petition within 90 days of the interview. According to the Service, the examining officer must have decided that the joint petition should be denied because she prepared a Record of Deрortable Alien (Form I-213) immediately after she conducted the interview of the respondent and his spouse. However, the regulations at
The alternative argument presented by the Service is that the immigration judge misconstrued the Act and the regulations by terminating the proceedings due to the Service‘s failure to adjudicate the joint petition within 90 days of the interview of the respondent and his spouse. The immigration judge reasoned that the 90-day requirement for the Service to adjudicate the joint petition is stated in mandatory terms and therefore is binding on the Service. The immigration judge concluded that if the Service does not adjudicate the Form I-751 within 90 days of the interview, the conditional basis of the alien‘s permanent residence should be removed, and deportation proceedings should be terminated.
Despite the language in the statute and the regulations indicating that the Service “shall” adjudicate the joint petition within 90 days of the interview, the Service contends on appeal that it retains authоrity to deny a joint petition after the 90-day period has expired. As noted earlier, the Service cites Brock v. Pierce County, supra, to support its position that the language of the Act is directory, not mandatory, and does not deprive the Service of jurisdiction over the joint petition after expiration of the 90-day time limit. The Service argues that to hold otherwise would contravene the congressional intent behind the Immigration Marriage Fraud Amendments of 1986, Pub. L. No. 99-639, 100 Stat. 3537 (“IMFA“), which enacted the provisions of section 216 of the Act. The bulk of the Service‘s argument is based on a legal opinion issuеd by the General Counsel for the Service on June 21,
We find that the proper construction of section 216 requires that flexibility be built into this statutory scheme, rather than a rigid adherenсe to the 90-day provision. We find such an approach to be consistent with the purposes of the Act, as well as with the Supreme Court‘s decision in Brock v. Pierce County, supra. Section 216 of the Act was enacted as part of the IMFA. The purpose of that act was to deter marriage fraud. See H.R. Rep. No. 906, 99th Cong., 2d Sess. (1986), reprinted in 1986 U.S.C.C.A.N. 5978. The IMFA creаted section 216 of the Act as a means of checking the validity of marriages by which aliens have attained permanent resident status. Section 216 provides that an alien spouse who is granted permanent resident status by means of marriage to a United States citizen shall be granted such status on a conditional basis. That condition must be lifted by the approval of a second petition filed within 90 days before the second anniversary of the date on which the alien obtained lawful admission for permanent residence. By requiring the alien and spouse to apply tо the Service to lift the conditional basis of the permanent residence, the IMFA was designed to ensure that aliens could not side-step the immigration laws by entering into a fraudulent marriage. See Matter of Stockwell, 20 I&N Dec. 309 (BIA 1991).
The Service argues that to preclude it from denying joint petitions when the 90-day limit has not been met wоuld contravene the purpose of the IMFA. The Service further argues that had Congress intended to bestow a benefit on conditional permanent residents who engaged in marriage fraud, merely because the Service failed to act upon their petitions within the deadline, it would hаve explicitly done so. We agree. Congress’ failure to impose a penalty on the Service for failure to abide by the 90-day deadline is in marked contrast to the consequences for an alien who fails to comply with the 90-day requirement for filing the joint petition.3 The impositiоn of a penalty on the applicant for failure to timely file the petition is consistent with the purpose of the Act in ensuring that fraudulent marriages are uncovered in a timely manner. Imposing the filing deadline, as well as consequences for failure to do so, ensures that aliens whо have entered
In contrast, while Congress clearly intended for the adjudication process to рroceed in a timely manner (as indicated by the deadlines for interviewing and for adjudicating the petitions), Congress did not provide for the alien to be granted benefits regardless of merit where the Service did not comply with the deadlines. To do so would have sacrificed the central purpose of IMFA, namely, preventing the acquisition of immigration benefits by fraudulent marriages, to the cause of efficiency.
Accordingly, we concur with the Service that the deadline imposed upon the Service falls within the holding of the Supreme Court in Brock v. Pierce County, supra. See also Saratoga Savings and Loan v. Federal Home Loan Bank, 879 F.2d 689 (9th Cir. 1989); Sierra Pacific Industries v. Lyng, 866 F.2d 1099 (9th Cir. 1989). As was the case there, the Act nowhere specifies the consequences of a failure by the government agency to meet the statutory deadline. Brock v. Pierce County, supra, at 259. Moreover, just as in Brock, the remedy suggested here for the Service‘s failure to meet the deadline (automatic lifting of the conditional basis of the permanent resident status) would run dirеctly counter to the fundamental purpose of the statutory provisions in question, namely, to prevent and deter marriage fraud. Id. at 263-64.
It is, of course, well settled that when interpreting a statute, the plain meaning of the words used in the statute should ordinarily be applied. There is a “strong presumрtion that Congress expresses its intent through the language it chooses.” INS v. Cardoza-Fonseca, 480 U.S. 412, 432 n.12 (1987); see also Matter of Lemhammad, 20 I&N Dec. 316, 320-21 (BIA 1991). In Brock v. Pierce County, supra, at 262, however, the Supreme Court declined to interpret the language in section 106(b) of the Comprehensive Employment and Training Act (“CETA“), Pub. L. No. 95-524, 92 Stat. 1909, 1926 (1978), codified at
We note finally that the Supreme Court stated in Brock v. Pierce County, supra, that “[w]hen as here, there are less drastic remedies available for failure to meet a statutory deadline, courts should not assume that Congress intended the agency to lose its power to act.” Id. at 260. One of the less drastic remedies suggested by the Court in that case was resort to a suit in federal district court to compel agency action on the basis of the Administrative Procedures Act (“APA“). Id. at 260 n.7. We point out that, while deportation proceedings are exempt from the provisions of the APA, rulemaking under the Act and other agency actions are not included within that exemption. See Matter of Anselmo, 20 I&N Dec. 25 (BIA 1989); Matter of Fedorenko, 19 I&N Dec. 57, 63-64 (BIA 1984).
We conclude that the Service‘s failure to abide by the 90-day deadline does not result in the Service‘s loss of jurisdiction over the joint petition or in the automatic removal of the conditional basis of the respondent‘s lawful permanent resident status. Whether the 90-day deadline imposed on the Service is enforceable by some other means in another forum is not for us to decide here. Accordingly, the appeal will be sustained, the decision of the immigration judge terminating proceedings reversed, and the rеcord remanded for further proceedings. On remand, the Service retains the burden of proving the respondent‘s deportability pursuant to
ORDER: The appeal is sustained.
FURTHER ORDER: The decision of the immigration judge terminating proceedings is reversed and the record is remanded to the immigration judge for further proceedings.