MATTER OF TUAKOI
A-19857975
In Deportation Proceedings
Decided by Board October 23, 1985
Interim Decision #3004
(2) The respondent, who came to the United States to obtain a college degree and not to obtain a graduate medical education, is subject only to the provisions of section 244(f)(3) of the Act,
(3) The respondent, who was reinstated to exchange visitor (“J-1“) status after admission to the United States and at his own request in 1979, became subject to the requirements of the Act and regulations in effect on the date of his reinstatement and, therefore, the 2-year foreign residence requirement applies to him. Matter of Baterina, 16 I&N Dec. 127 (BIA 1977), followed.
(4) Assuming arguendo that the doctrine of estoppel is applicable against the Government in immigration cases, the respondent has failed to establish affirmative misconduct on the part of the Government or reasonable reliance upon the decision of an immigration inspector.
CHARGE:
Order: Act of 1952—Sec. 241(a)(2) [
ON BEHALF OF RESPONDENT:
Lawrence N. DiCostanzo, Esquire
Simmons & Ungar
517 Washington Street
San Francisco, California 94111
ON BEHALF OF SERVICE:
Ronald E. LeFevre
District Counsel
BY: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members
The respondent is a 41-year-old native and citizen of Tonga who entered the United States as an exchange visitor on April 8, 1972. The respondent was found deportable on November 19, 1984, as an overstayed nonimmigrant after a hearing held March 21, 1984, and November 19, 1984, and was granted voluntary departure to January 19, 1985. He did not appeal that decision. In his motion to reopen he claims that he attempted to submit an application for suspension of deportation to the immigration judge who presided at the deportation hearing, but that the judge permitted him to withdraw his suspension application. He reports that the immigration judge found that the application was insufficiently supported. Rather than deny the application outright or grant the respondent a continuance to produce evidence in support of his application, the immigration judge rendered his decision on deportability and informed the respondent he could renew his request in a motion to reopen prior to the expiration of the voluntary departure period.1 With his motion to reopen the respondent submitted evidence relating to his good moral character, 7 years’ continuous residence, and extreme hardship. A second immigration judge denied the motion to reopen to apply for suspension of deportation because he found the respondent to be barred by section 244(f) of the Act from applying for suspension of deportation.
The respondent obtained a visa as an exchange visitor on March 9, 1972. He entered the United States at Hawaii on April 24, 1972, to attend the Church College of Hawaii, Laie, Hawaii, with the intent to study a pre-medical course and eventually obtain a medical degree. He received an extension of his stay until December 19,
A prima facie case of eligibility for the relief sought must be established before a motion to reopen will be granted. Matter of Martinez-Romero, 18 I&N Dec. 75 (BIA 1981), aff‘d, Martinez-Romero v. INS, 692 F.2d 595 (9th Cir. 1982); Matter of Lam, 14 I&N Dec. 98 (BIA 1972); see also Matter of Garcia, 16 I&N Dec. 653 (BIA 1978); Matter of Sipus, 14 I&N Dec. 229 (BIA 1972). The grant or denial of a motion to reopen is itself strictly discretionary. INS v. Rios-Pineda, 471 U.S. 444 (1985); Matter of Reyes, 18 I&N Dec. 249 (BIA 1982); Matter of Rodriguez-Vera, 17 I&N Dec. 105 (BIA 1979). A motion to reopen will not be granted where the respondent has not
In order to establish eligibility for section 244(a)(1) relief, an alien must prove that he has been physically present in the United States for the 7 years immediately preceding his application, that he has been a person of good moral character for the same period, and that his deportation will result in extreme hardship to himself or to his United States citizen or permanent resident spouse, child, or parent. This form of relief is discretionary. Section 244(a) of the Act. The alien carries the burden of demonstrating both statutory eligibility and equities meriting the favorable exercise of discretion.
Under section 101(a)(15)(J) of the Act,
an alien having a residence in a foreign country which he has no intention of abandoning who is a bona fide student, scholar, trainee, teacher, professor, research assistant, specialist, or leader in a field of specialized knowledge or skill, or other person of similar description, who is coming temporarily to the United States as a participant in a program designated by the Secretary of State, for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, or receiving training . . . .
Section 212(e) of the Act,
No person admitted under section 101(a)(15)(J) of this title or acquiring such status after admission (i) whose participation in the program for which he came to the United States was financed in whole or in part, directly or indirectly, by an agency of the Government of the United States or by the government of the country of his nationality or his last residence, (ii) who at the time of admission or acquisition of status under section 101(a)(15)(J) of this title was a national or resident of a country which the Director of the United States Information Agency, pursuant to regulations prescribed by him, had designated as clearly requiring the services of persons engaged in the field of specialized knowledge or skill in which the alien was engaged, or (iii) who came to the United States or acquired such status in order to receive graduate medical education or training, shall be eligible to apply for an immigrant visa, or for permanent residence, . . . until it is established that such person has resided and been physically present in the country of
his nationality or his last residence for an aggregate of at least two years following departure from the United States. . . .3
Under sections 244(f) (2) and (3) (A), (B), and (C) of the Act, an alien is not eligible for suspension of deportation if he
(2) was admitted to the United States as a nonimmigrant exchange alien as defined in section 101(a)(15)(J) of this title, or has acquired the status of such a nonimmigrant exchange alien after admission, in order to receive graduate medical education or training, regardless of whether or not the alien is subject to or has fulfilled the two-year foreign residence requirement of section 212(e) of this title;
or
(3)(A) was admitted to the United States as a nonimmigrant exchange alien as defined in section 101(a)(15)(J) of this title or has acquired the status of such a nonimmigrant exchange alien after admission other than to receive graduate medical education or training, (B) is subject to the two-year foreign residence requirement of section 212(e) of this title, and (C) has not fulfilled that requirement or received a waiver thereof.
The Service contends that the motion to reopen should have been denied by the immigration judge who ruled on the motion on the basis of the failure of the respondent to allege new facts which could not be proved at the original hearing.
The respondent alleges that he is not barred from applying for suspension of deportation by section 244(f) of the Act in that he is not subject to the 2-year residence requirement of section 212(e) because the Department of State had not yet published an Exchange Visitor Skills List (“Skills List“) at the time of his entry into the United States. See 37 Fed. Reg. 8099 (1972). He also claims he was not made subject to the Skills List by reason of his extension of status and transfer of programs in 1979, citing Immigration and Naturalization Service Operations Instructions 212.8(e)(iii). Furthermore, he claims that the Service‘s approval of the Form DSP-66 with the explicit determination that he is not subject to the 2-year residence requirement estops the Government from asserting now that he is subject to the requirement. He also points out that no notice of his being subject to the requirement was given to him
The Immigration and Naturalization Service does not claim that the respondent‘s education was government financed or that he entered to acquire graduate medical education. The Service also does not maintain that the respondent was subject to the 2-year foreign residence requirement at the time he entered the United States. The Service does argue that the respondent became subject to the 2-year foreign residence requirement when he obtained an extension of his stay in connection with his transfer to another program. The Service also argues that the immigration judge should not have granted the respondent a further period of voluntary departure, because the respondent had not explained his failure to depart under the first grant of voluntary departure or adequately supported his application.
As is pointed out by the respondent in his first brief on appeal, certain language in our most recent precedent decision concerning the eligibility of exchange visitors to apply for suspension of deportation needs to be explained. In Matter of Mangaser, 19 I&N Dec. 28 (BIA 1983), we stated that, because the alien was admitted to the United States as a nonimmigrant exchange alien, he was statutorily ineligible for suspension of deportation despite the granting to the alien of a waiver of the 2-year foreign residence requirement under section 212(e) of the Act. In that case, the alien was a physician who had come to the United States to receive graduate medical training and was subject to the provisions of section 244(f)(2) of the Act. Our statement was made in that context and should not be taken to apply to aliens who are subject only to the provisions of section 244(f)(3) of the Act. If the alien in this case, who did not come to receive graduate medical training, were to show that he was admitted to the United States as an exchange alien under section 101(a)(15)(J) of the Act, but he was not subject to the 2-year requirement of section 212(e) of the Act, or he had fulfilled the requirement, or he had obtained a waiver thereof, he would not be
As set forth above, the respondent, an exchange alien, will not be eligible for suspension of deportation if his education was financed either by the Tongan Government or the United States Government, he entered or acquired the status of a “J” nonimmigrant at a time when the skill in which he was engaged was listed on the Skills List as needed in his country, or he entered for the purpose of acquiring graduate medical education. The respondent came to the United States to obtain a college degree, not to obtain graduate medical education; therefore, section 244(f)(2) does not apply to him. The respondent has presented evidence that the programs under which he acquired and extended his status were not financed either by the Tongan or the United States Governments; he admits that the skills he studied are on the Skills List as published by the Secretary of State on April 25, 1972.
Immigration and Naturalization Service Operations Instructions 212.8(e)(iii) provides:
A J alien who is not governmentally financed and who obtained a J visa or acquired J status under section 248 before the alien‘s skill and country appeared on the Skills List, does not become subject to the requirement if granted an extension of stay to pursue the initial objective, even if the skill has been added to that list subsequent to visa issuance.
Operations Instructions 212.8(e)(vii) states:
Before granting an extension of stay or change to J status under section 248 which makes the applicant subject to the foreign residence requirement, the alien shall be notified in writing that the approval of the change will subject the alien to the requirement. The alien shall be required to submit a signed statement that the change is still desired.
The alien claims he was granted “an extension of stay to pursue the initial objective” because he intended to study biology, a course compatible with a pre-medical course of study. He also claims he would not have been allowed to transfer unless he was pursuing his initial objective, citing
Whether the respondent is subject to the 2-year foreign residence requirement turns on whether he acquired exchange visitor status after admission to the United States. Section 212(e) of the Act;
The respondent has argued that the Government is estopped by the notation made on the Form DSP-66 submitted in 1978 from arguing that he is not eligible for suspension of deportation by reason of the requirement of section 212(e) of the Act. It has not been determined that estoppel will lie against the Government in immigration cases. See INS v. Miranda, 459 U.S. 14 (1982) (per curiam); INS v. Hibi, 414 U.S. 5 (1973) (per curiam); Montana v. Kennedy, 366 U.S. 308 (1961); but see Heckler v. Community Health Services of Crawford County, Inc., 467 U.S. 51 (1984). Even if we assume that estoppel would apply to the Government in some cases, the respondent here has failed to show the elements necessary for equitable estoppel. In order to show estoppel, the respondent would have to prove affirmative misconduct on the part of the Government or its agent, that he reasonably relied on the action or representation of the Government, and that he was prejudiced thereby. Heckler v. Community Health Services of Crawford County, Inc., supra, at 59.
Assuming, without deciding, that the respondent would not have applied for reinstatement of exchange visitor status if he had been informed that he would be required as a result to return to Tonga for 2 years, the respondent could argue that he had suffered preju-
Also, there has been no affirmative misconduct shown. A failure to inform the respondent of all the legal consequences of his actions is not sufficient to establish affirmative misconduct. See Santiago v. INS, 526 F.2d 488 (9th Cir. 1975), cert. denied, 425 U.S. 971 (1976). The failure of the inspector to follow O.I. 212.8(e)(vii) does not establish affirmative misconduct because the Service would not be legally bound to follow an Operations Instruction as it would be in the case of its own regulations. See Dong Sik Kwon v. INS, 646 F.2d 909 (5th Cir. 1981); Yan Wo Cheng v. Rinaldi, 389 F. Supp. 583 (D.N.J. 1975); but see Nicholas v. INS, 590 F.2d 802 (9th Cir. 1979) (construing O.I. 103.1(a)(1)(ii)). In Corniel-Rodriguez v. INS, 532 F.2d 301 (2d Cir. 1976), cited by the respondent, the Government was held estopped because the Department of State had violated an affirmative duty established by a mandatory regulation. In some cases, the courts have offered relief to an alien who was misled by information obtained from the Government. Hetzer v. INS, 420 F.2d 357 (9th Cir. 1970); In Re Petition of La Voie, 349 F. Supp. 68 (D.V.I. 1972); Campbell v. Esperdy, 287 F. Supp. 92 (S.D.N.Y. 1968); see also Moser v. United States, 341 U.S. 41 (1951). In these cases, unlike the one presently before us, the alien was directly given misinformation on which he relied. The proper form of relief for the respondent is to apply for a waiver of the requirement under section 212(e) of the Act.
It is correct, as argued by the Service, that the mere filing of a motion to reopen or an application for relief from deportation does not allow the alien to remain in the United States pending the decision on his application or motion.
ORDER: The appeals are dismissed.