Seihoon v. LevySeihoon v. Levy
This is an action for judicial review of an administrative decision of the U. S. Immigration and Naturalization Service denying an Iranian alien’s requested change of nonimmigrant status from “visitor” to “student”, as those respective statuses are described in
Subsequent to the filing of this suit, this Court on June 25, 1975, with the consent of all parties, preliminarily enjoined the defendants from enforcing the voluntary departure order issued to Seihoon on June 16, 1975, by the District Director of the Immigration and Naturalization Service (INS), requiring his departure from the United States by June 28, 1975. The case was remanded by this Court on July 22, 1975, to INS for reopening of the administrative appeal process, upon the motion of thе United States Attorney. Upon further review, the INS Regional Commissioner clarified and affirmed his previous order upholding the INS District Director’s denial of status change as requested by Seihoon. A supplemental complaint was then filed herein reviving the action for judicial review, as the Regional Commissioner’s clarifying decision and dismissal of plaintiff’s administrative appeal constituted a final decision. The Court оrdered cross motions for summary judgment to be filed at which time the case was considered submitted. Those motions plus supporting memoranda and a certified copy of the administrative record arе now before the Court for our limited review thereof.
The scope of this Court’s review in this matter is accurately stated in
Fong Sen v. U. S. Immig. & Nat.
Service,
“Unless, upon the record of the administrative hearing afforded petitioner, the рroceedings were manifestly unfair, discretion manifestly abused, error of law committed, or unless these proceedings contain no substantial evidence, considering the record as a whole, to suрport the administrative finding, that finding must stand.”
We have carefully reviewed the administrative record herein and conclude that the administrative proceedings were fairly conducted with ample oppоrtunity afforded plaintiff to present his evidence. We further conclude that no error of law was committed nor was discretion abused, and that there is substantial evidence in the record to support thе administrative decision to deny plaintiff’s requested nonimmigrant status change. The government’s motion for summary judgment will be granted, and the injunction previously issued by this Court will be vacated and set aside, and this suit will be dismissed.
The record reveals that plaintiff, a citizen of Iran, arrived in the United States on January 6, 1975, at Kennedy Airport in New York, accompanied by his wife. He was admitted to this country by INS officials as a nonimmigrant visitor for pleasure, with authorized stay through February 28, 1975. Plaintiff’s stated intention upon admission was to visit his aunt and uncle in Yonkers, New York. However, unable to locate his relatives, plaintiff instead traveled with his wife and a Mr. Grami to Washington, D. C., for one or two days of sightseeing, and then continued via Greyhound Bus to Baton Rouge, Louisiana, where all three *1210 took residence with Mr. Grami’s nephews. Shortly after his arrival in Baton Rouge, on or about January 15, 1975, Seihoon applied for admission, was accepted, and enrolled in the English Language & Orientation Program at Louisiana State University, without prior approval of INS authorities.
Plaintiff immediately undertoоk to comply with the procedural prerequisites of
The INS District Director concluded that plaintiff “obtained a visitor’s visa to come to the United States when [his] actual purpose . . . was to seek acceptance to a school for an extended period of study”, and that plaintiff was “statutorily ineligible for change of non-immigrant classification in that [he] failed to maintain [his] status as a visitor by remaining in the United Statеs beyond [his] authorized stay.” A timely appeal was taken to the Regional Commissioner of INS.
In his original opinion, the Regional Commissioner, too, found that, based upon the evidence, plaintiff intended only tо come to the United States to be a student, and thus was not a bona fide visitor for pleasure as he was classified. The Regional Commissioner also found that plaintiff “was not maintaining that status when the apрlication [for change of status] was filed”.
Upon this Court’s remand for further administrative appellate proceedings, and after the receipt of additional evidence, the Regional Commissioner rendered a clarifying opinion. While acknowledging that the District Director and he both had concluded that plaintiff’s ineligibility for status adjustment was partially due to the receipt of the application four days after plaintiff’s visa had expired, he stated that his decision was principally based upon more substantive grounds rather than upon this technical reason. The Regional Commissioner then recited the rapid sequence of events following plaintiff’s entry into the U. S., and drew the inference that plaintiff’s sole intention in gaining entry to this country was to find a university which would accept him for enrollment as a student. This finding оf implicit bad faith on plaintiff’s part in securing the nonimmigrant “visitor for pleasure” visa compelled the Regional Commissioner to conclude that plaintiff was ineligible for a status change.
The Regional Commissioner also concluded that, assuming
arguendo
that plaintiff was а bona fide visitor for pleasure upon entry, he failed to maintain that status due to his enrollment as a student at LSU, and thus was ineligible for status adjustment under Title
“The Attorney General may, under such conditions as he may prescribe, authorize а change from any nonimmigrant classification to any other non-immigrant classification in the case of any alien lawfully admitted to the United States as a nonimmigrant who is continuing to maintain that status, . ” (Emphasis added.)
Thus, even if a nonimmigrant alien meets the requisitе conditions and maintains his current nonimmigrant status, the Attorney General may authorize an adjustment, but certainly is not mandated to do so. Where the nonimmigrant has failed to so maintain his existing status, he is not even eligible for сonsideration of a status change.
Counsel for plaintiff rely heavily on the cases of
Brownell v. Gutnayer,
94
*1211
U.S.App.D.C. 90,
“plaintiff is not to be denied adjustment of status as a displaced person upon the theory that an intention to remain permanently in thе United States made his entry unlawful.”212 F.2d 464 .
In Carija, a family of Yugoslavian citizens bound for Paraguay entered the United States on nonimmigrant visas for travel to and through the U. S. Because of developing political conditions in Pаraguay, they applied for adjustment of status under the Displaced Persons Act, supra, which was denied by the Attorney General. The District Court granted declaratory relief to the Yugoslavians, and on apрeal by the Attorney General, the Court of Appeals, in affirming, held that
“ . . . an alien actually and in good faith in transit through the United States does not become an unlawful entrant because he entertains a dеsire, purpose or intent to remain here if the laws of the country permit him to do so. Such a purpose, so limited, could at best be only a hope.”254 F.2d at 80 .
In the case at bar, counsel for plaintiff arguе that the Regional Commissioner committed an error of law because he did not apply this jurisprudential “dual intent” doctrine to the facts as he found them to be. We agree that the doctrine was not аpplied, but no legal error was committed.
The Regional Commissioner’s principal ground for dismissing plaintiff’s appeal was that he believed plaintiff not to be a bona fide visitor for pleasure when he entered the United States on January 6, 1975. The basis for his opinion was the rapid course of events immediately following plaintiff’s entry into this country which led to his expeditious enrollment at LSU. The Regional Commissionеr certainly considered the applicability of the “dual intent” doctrine, but found it inapplicable since he concluded that plaintiff’s sole intent in gaining entry to the U. S. was to enroll in an American university. As was stated in Brownell v. Carija, supra:
“It is quite true that, if an alien enters the United States on a temporary permission but with a determination to stay here if possible — meaning by any means possible, — so that his representations to the authorities are false or fraudulent or misrepresentative, he has not lawfully entered this country. * * * The permit upon which such an alien enters, reciting that he is visiting the United States temporarily, is an invalid document in that it was issued upоn false information.”254 F.2d at 80 .
This essentially is what the Regional Commissioner concluded in this case.
Even though we might disagree, this Court cannot reevaluate the evidence as there is substantial evidence to support both bases of the administrative decision.
Chi-Wai Lui v. Pilliod,
For these reasons, the plaintiff’s motion for summary judgment will be denied, and the preliminary injunction issued by this Cоurt on June 25, 1975, enjoining the enforcement of the voluntary departure order issued to plaintiff *1212 by INS will be vacated and set aside, and the United States’ motion for summary judgment will be granted, dismissing this suit in its entirety. Judgment will be entered accordingly.