IMMIGRATION AND NATURALIZATION SERVICE, PETITIONER V. ALIAKBAR FAZELIHOKMABAD No. 86-1008 In the Supreme Court of the United States October Term, 1986 Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit The Solicitor General, on behalf of the Immigration and Naturalization Service, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. TABLE OF CONTENTS Opinions below Jurisdiction Statutes and regulations involved Questions presented Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F Appendix G Appendix H Appendix I OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-7a) is reported at 794 F.2d 1470. The opinion of the Board of Immigration Appeals (App., infra, 9a-15a) is unreported. JURISDICTION The judgment of the court of appeals (App., infra, 8a) was entered on July 24, 1986. On October 9, 1986, Justice O'Connor extended the time within which to file a petition for a writ of certiorari to and including November 21, 1986. On November 10, 1986, Justice O'Connor further extended the time for filing the petition to and including December 21, 1986. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTES AND REGULATIONS INVOLVED 8 U.S.C. 1254(a)(1) provides in pertinent part: As hereinafter prescribed in this section, the Attorney General may, in his discretion, suspend deportation and adjust the status to that of an alien lawfully admitted for permanent residence, in the case of an alien * * * who applies to the Attorney General for suspension of deportation and -- (1) is deportable under any law of the United States * * * ; has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of such application, and proves that during all of such period he was and is a person of good moral character; and is a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence * * * . 8 U.S.C. 1255(a) provides: The status of an alien who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed. 8 C.F.R. 3.2 provides in pertinent part: Motions to reopen in deportation proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing; nor shall any motion to reopen for the purpose of affording the alien an opportunity to apply for any form of discretionary relief be granted * * * unless the relief is sought on the basis of circumstances which have arisen subsequent to the hearing. * * * 8 C.F.R. 3.8(a) provides in pertinent part: Motions to reopen shall state the new facts to be proved at the reopened hearing and shall be supported by affidavits or other evidentiary material. * * * QUESTIONS PRESENTED 1. Whether a decision by the Board of Immigration Appeals (BIA) denying an alien's motion to reopen deportation proceedings must be affirmed if it is plausible and not arbitrary. 2. Whether the BIA, in ruling on a motion to reopen deportation proceedings, is required to address specifically every point raised by the alien or to articulate every factor bearing on its decision. STATEMENT 1. Respondent, a native and citizen of Iran, entered the United States in January 1977 as a nonimmigrant student. Although he was authorized to stay in the United States until September 1978, he stayed beyond that date. Accordingly, in January 1980, the Immigration and Naturalization Service (INS) commenced deportation proceedings against him for remaining in the United States beyond the authorized time (see 8 U.S.C. 1251(a)(2)). On May 22, 1980, the immigration judge (IJ) found respondent deportable and granted him 15 days to depart the United States voluntarily. Respondent appealed to the Board of Immigration Appeals (BIA), and on March 17, 1981, the BIA dismissed his appeal, but it again allowed respondent 15 days to depart voluntarily. App., infra, 1a-2a, 10a, 20a-22a, 24a-25a. /1/ On April 17, 1981, respondent filed a petition for review in the Ninth Circuit. The court, however, never rendered a decision on the merits. Instead, on April 20, 1984, three years after the petition for review was filed, the court dismissed the petition for lack of prosecution because respondent had "fail(ed) to apprise (the) court of his whereabouts" and because his attorney likewise was "unable to ascertain (his) present whereabouts." App., infra, 2a, 10a, 19a. On June 18, 1984, the INS ordered respondent to surrender for deportation on July 11, 1984. Respondent failed to appear for the scheduled deportation, despite his having received notice of the INS surrender order. Instead, two days prior to his surrender date, respondent married a United States citizen, Laurie Thomas. App., infra, 2a, 10a, 14a. 2. On October 4, 1984, Thomas filed an immediate relative visa petition on respondent's behalf (see 8 U.S.C. 1151). /2/ That same month, respondent filed a motion to reopen deportation proceedings, pursuant to 8 C.F.R. 3.2, in order to seek adjustment of status (under 8 U.S.C. 1255(a)) and suspension of deportation (under 8 U.S.C. 1254(a)(1)). App., infra, 2a, 9a-10a. /3/ In addition, respondent moved to reinstate his appeal in the Ninth Circuit. On October 5, 1984, the court granted respondent's motion and reinstated his petition for review (id. at 18a), thereby automatically staying his deportation pursuant to 8 U.S.C. 1105a(a)(3). On February 8, 1985, the BIA denied respondent's motion to reopen (App., infra, 9a-15a). On the issue of adjustment of status, the BIA denied the motion to reopen on discretionary grounds. It noted (App., infra, 11a) that respondent had married only two days before he was required to leave the country and that both he and his wife knew at the time of the marriage that he was subject to a final deportation order. It also pointed out (ibid.) that respondent had not adequately explained his failure to surrender for deportation. On the issue of suspension of deportation, the BIA found that respondent failed to make a prima facie showing of extreme hardship (App., infra, 12a-14a). The BIA noted that the purported hardship to respondent's wife in moving to Iran was unsupported by any claim that she would in fact accompany him there (id. at 13a). It further pointed out (ibid.) that respondent's parents and siblings lived in Iran and could assist him in his relocation. In addition, it stated (id. at 14a) that the purported loss of economic and educational advantages in this country and the possibility that he could be ordered to serve in the military in Iran did not rise to the level of extreme hardship. Moreover, it indicated (ibid.) that respondent's claim that he would be discriminated against in Iran was merely conclusory and that his hardship claim was weakened by the fact that, as the husband of an American citizen, he could lawfully return to this country. The BIA further ruled (App., infra, 14a-15a) that, wholly apart from respondent's failure to set forth a prima facie case for suspension of deportation, his motion to reopen should be denied as a matter of discretion. The BIA again indicated (id. at 14a) -- as it had in its consideration of the adjustment of status issue -- that respondent deliberately failed to surrender for deportation and was not diligent in prosecuting his appeal in the Ninth Circuit. Respondent thereafter filed a petition for review in the court of appeals. /4/ The court granted the petition and remanded the case to the BIA for further proceedings (App., infra, 1a-8a). At the outset of its analysis, the court summarized the Ninth Circuit's case law concerning the role of the BIA in ruling on a motion to reopen (App., infra, 4a-5a). Under this view, the BIA "must weigh both favorable and unfavorable factors" and "must state its reasons when weighing equities and denying relief" (App., infra, 4a). In addition, the BIA "cannot act upon assumptions unsupported in the record and contradicted by affidavits that are not inherently unbelievable" (id. at 5a). Applying those principles, the court ruled (ibid.) that the BIA "acted arbitrarily and irrationally" in denying the motion to reopen. It stated (ibid.) that "(e)ach of the factors that the Board relied upon in denying the motion() was based upon mere assumptions which were contradicted by (respondent's) evidence." The court found that the BIA erred in giving little weight to the respondent's marriage on the suspicion that it may have been contracted in order to avoid deportation. According to the court: "The Board simply ignored the wealth of evidence that the marriage was bona fide" (id. at 6a). As to the BIA's concern about respondent's lack of diligence in prosecuting his appeal, the court noted, with no explanation, that "(h)is affidavit indicates otherwise" (ibid.). The court further emphasized (ibid.) that the BIA had failed to discuss the evidence submitted by respondent on this issue. With respect to respondent's failure to surrender for deportation, the court stated (App., infra, 6a) that the BIA erred in finding that respondent "had 'not adequately explained his failure' to surrender." The court ruled that respondent "had been told that the order would not be effective after his marriage, and * * * he therefore did not knowingly violate any order of the Service * * * " (ibid.). Finally, the court took issue with the BIA's statement that respondent could reenter the United States because of his marriage to a United States citizen. It noted that respondent, "once deported, could not obtain the visa because of conditions in Iran, including the lack of an American consulate" (id. at 7a). REASONS FOR GRANTING THE PETITION This case presents important and recurring issues of immigration law concerning the BIA's authority in ruling on motions to reopen deportation proceedings. This Court has made clear in a series of cases that the Attorney General and his delegates possess broad discretion in ruling on such motions. See INS v. Rios-Pineda, 471 U.S. 444, 449-451 (1985); INS v. Phinpathya, 464 U.S. 183, 188 n.6 (1984); INS v. Jong Ha Wang, 450 U.S. 139, 143-144 n.5 (1981). The Ninth Circuit, however, has repeatedly disregarded those rulings by engaging in what amounts to de novo review of the BIA's discretionary denials of motions to reopen. The Ninth Circuit has done so in this case and in others /5/ by (i) second-guessing the reasons given by the BIA and (ii) imposing a virtually insuperable requirement that the BIA explain every factor entering into its decision and discuss at length each point raised by the alien in the motion to reopen. Moreover, the Ninth Circuit's approach in reviewing the BIA's decisions conflicts with the more deferential approach of several other circuits that have addressed the issue. See, e.g., Achacoso-Sanchez v. INS, 779 F.2d 1260, 1265 (7th Cir. 1985); Williams v. INS, 773 F.2d 8, 9 (1st Cir. 1985); Balani v. INS, 669 F.2d 1157, 1161 (6th Cir. 1982); Wong Wing Hang v. INS, 360 F.2d 715, 719 (2d Cir. 1966). Unless the court of appeals' course of decision is corrected, the immigration authorities will arguably be required to conduct evidentiary hearings in virtually every case in which an alien files a motion to reopen, even when the ultimate relief being sought is plainly unwarranted. Furthermore, as we show infra, the issues remain critically important notwithstanding the recent enactment of the Immigration Reform and Control Act of 1986 (the Reform Act), Pub. L. No. 99-603 (Nov. 6, 1986). 1. Both the relief respondent seeks (suspension of deportation and adjustment of status) and the procedural device he is using to obtain that relief (a motion to reopen) are discretionary and are designed to address only the extraordinary situation. In rendering a decision in this context, the BIA is thus exercising what has been called "discretion piled on discretion." Achacoso-Sanchez, 779 F.2d at 1263. To be eligible for suspension of deportation, an alien must have been physically present in the United States for a continuous period of seven years, must have been a person of good moral character during that time, and must satisfy the Attorney General that his deportation would cause "extreme hardship" to himself or to his spouse, parent or child who is a United States citizen or an alien lawfully admitted for permanent residence. 8 U.S.C. 1254(a)(1). Even if the alien meets those three requirements, the Attorney General may nonetheless deny relief as a matter of discretion. See 8 U.S.C. 1254(a)(1) ("Attorney General may, in his discretion, suspend deportation"); see also INS v. Hector, No. 86-21 (Nov. 17, 1986), slip op. 1-2; Rios-Pineda, 471 U.S. at 449-451; Jong Ha Wang, 450 U.S. at 144 n.5, 145; INS v. Bagamasbad, 429 U.S. 24, 26 (1976); United States ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72, 77 (1957). The adjustment of status remedy is similarly discretionary. Under 8 U.S.C. 1255(a), the status of an alien may be adjusted by the Attorney General "in his discretion" if (i) the alien so applies, (ii) he is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (iii) an immigrant visa is immediately available to him when his application is filed. As with the suspension remedy, the Attorney General may deny relief even to aliens who satisfy the statutory requirements of eligibility. See, e.g., Achacoso-Sanchez, 779 F.2d at 1263; see generally Williams v. INS, 773 F.2d at 10. Moreover, the procedure used by respondent for seeking that discretionary relief -- a motion to reopen -- is similarly discretionary. The Immigration and Nationality Act (the Act), 8 U.S.C. (& Supp. II) 1101 et seq., does not provide a vehicle for reopening deportation proceedings after a final order of deportation has been entered. Moreover, Congress did not see fit to codify such a procedure in enacting the Reform Act. /6/ That procedural device is purely a product of regulation (see 8 C.F.R. 3.2, 3.8(a)) to enable the BIA to reevaluate its prior disposition in cases where significant developments have occurred subsequent to the hearings and decision therein. See Rios-Pineda, 471 U.S. at 446; Jong Ha Wang, 450 U.S. at 140-141; see also Sang Seup Shin v. INS, 750 F.2d 122, 131 (D.C. Cir. 1984) (Staff, J., dissenting) ("The Board's discretion * * * is at its zenith in making a discretionary procedural determination which Congress did not see fit to enact."). Furthermore, the regulations are stated in the negative: "Motions to reopen * * * shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing" (8 C.F.R. 3.2 (emphasis added)). Thus, the regulation "does not affirmatively require the Board to reopen the proceedings under any particular condition." Jong Ha Wang, 450 U.S. at 143-144 n.5. 2. This Court has repeatedly made clear that the BIA has wide latitude in ruling on motions to reopen. In Jong Ha Wang, a 1981 decision, this Court summarily reversed the Ninth Circuit in a case raising an issue similar to the present one. Like the present case, the alien in Jong Ha Wang filed a motion to reopen to apply for suspension of deportation on grounds of extreme hardship. The Ninth Circuit, sitting en banc, ruled that the extreme hardship statute should be liberally construed and that, under such a construction, the alien had made a prima facie case and was entitled to reopening. 622 F.2d 1341 (1980). This Court reversed, rejecting the Ninth Circuit's conclusion that reopening was required simply because the alien appeared to have established a prima facie case. /7/ Subsequently, in Phinpathya, the Court again discussed the BIA's broad discretion in ruling on motions to reopen to seek suspension of deportation. The issue in Phinpathya was whether the alien's three-month trip abroad had broken the continuity of her physical presence in this country, making her ineligible for suspension of deportation under 8 U.S.C. 1254(a)(1). The Court, in holding that it did, rejected the alien's claim that the case was moot because, upon her return to this country, she had been continuously present here for seven years. It noted that although the alien had filed a motion to reopen her deportation proceeding, "granting of the motion is entirely within BIA's discretion" (464 U.S. at 188 n.6). /8/ Recently, in Rios-Pineda, this Court reversed an Eighth Circuit decision ordering the BIA to reopen deportation proceedings to consider the hardship claims of two aliens who had filed frivolous appeals and violated the immigration laws. In holding that the BIA did not abuse its discretion in denying the aliens' motion to reopen, the Court explained (471 U.S. at 449) that "granting a motion to reopen is a discretionary matter with the BIA" and that such a motion may be denied as a matter of discretion even if a prima facie case of eligibility for relief has been made. Upon reviewing the record in the case, the Court found (id. at 451-452) that the case "(did) not involve the unreasoned or arbitrary exercise of discretion" and that "the BIA's explanation of its decision was grounded in legitimate concerns about the administration of the immigration laws." The Court further observed (id. at 452) that "it is not for the judiciary to usurp Congress' grant of authority to the Attorney General by applying what approximates de novo appellate review." 3.a. The Ninth Circuit has repeatedly failed to follow the teachings of this Court in Jong Ha Wang, Phinpathya, and Rios-Pineda. Only two months after this Court's Jong Ha Wang decision, the Ninth Circuit reversed the BIA's ruling that the alien had not shown extreme hardship on the ground that the BIA's written decision did not reflect explicit consideration of the alien's claim that if deported, he would suffer extreme hardship because he attended church here, had close friends in this country, and had become a part of American society. Santana-Figueroa v. INS, 644 F.2d 1354, 1357 (9th Cir. 1981). The court refused to assume that the BIA considered the alien's various allegations, noting that the BIA "must give reasons for its decisions showing that it has properly considered the circumstances." Four months later, in Mejia-Carrillo v. INS, 656 F.2d 520 (9th Cir. 1981), the Ninth Circuit reversed because the BIA, in denying the alien's application for suspension of deportation, failed to "give reasons which show that it (had) properly considered the facts which bear on its decision" (id. at 522). In Prapavat v. INS, 662 F.2d 561 (9th Cir. 1981), the court again reversed the BIA, noting that "(t)he Board's disposition of th(e) case (did) not exhibit a proper consideration of the relevant factors" (id. at 563) and that "laconic statements do not discharge the Board's duty" (id. at 562). Although Santana-Figueroa, Mejia-Carrillo, and Prapavat involved direct appeals to the BIA from adverse decisions by immigration judges, the Ninth Circuit soon made clear that it would apply substantially identical standards in the context of motions to reopen. Thus, in Reyes v. INS, 673 F.2d 1087 (9th Cir. 1982), the court ruled that the BIA erred in denying the alien's motion to reopen, stating (id. at 1089) that the BIA abuses its discretion whenever it "distorts or disregards important aspects of the alien's claim * * * ." Likewise, in Mattis v. INS, 774 F.2d 965, 967-968 (9th Cir. 1985), in which the alien sought reopening to apply for adjustment of status based on an eleventh-hour marriage, the court reversed the BIA's denial of the alien's motion. The court held that "(c)ursory, summary or conclusory statements are inadequate" and that the BIA must "show proper consideration of all factors when weighing equities and denying relief." See also De La Luz v. INS, 713 F.2d 545 (9th Cir. 1983) (BIA reversed because it failed to weigh both favorable and unfavorable factors); Zavala-Bonilla v. INS, 730 F.2d 562, 568 (9th Cir. 1984) (BIA reversed for "fail(ing) to delineate its reasoning adequately"): Figueroa-Rincon v. INS, 770 F.2d 766, 767-768 (9th Cir. 1985) (remanding case to BIA for a second time, noting that "the BIA must articulate specific, detailed reasons demonstrating that it fully considered (the alien's) individualized circumstances relevant to extreme hardship"); Gonzalez Batoon v. INS, 791 F.2d 681, 686 (9th Cir. 1986) (en banc) (BIA abused its discretion because it "misapplied the principles upon which it purported to act and failed to state valid reasons for its action"). /9/ In the present case, the panel explicitly relied, inter alia, on Mattis, De La Luz, Reyes, and Gonzalez Batoon in discussing the standard of review in the context of a motion to reopen (App., infra, 6a-7a). b. Several Ninth Circuit judges have recognized that that court has improperly engaged in de novo review of the BIA's rulings. Thus, in a recent dissent from the denial of rehearing en banc in Saldana v. INS, 762 F.2d 824 (1985), amended, 785 F.2d 650 (9th Cir. 1986), Judge Sneed, writing for himself and six other judges, criticized the standards of judicial review that have been adopted by various Ninth Circuit panels in immigration cases (793 F.2d 222 (1986)). Judge Sneed observed (id. at 224) that the court has "passed beyond insisting on a sensible number of tracks that will establish that true discretion was exercised" and instead has "entered upon the task of providing the narrow pathway down which an agency must walk." He pointed out (ibid.) that "(d)iscretion so confined ceases to be true discretion." Instead, "(t)he agency in which discretion once was vested by this means becomes the puppet of the court" (ibid.). After discussing a number of specific Ninth Circuit immigration cases, Judge Sneed concluded (id. at 225) that the Ninth Circuit has "approach(ed) de novo review" and that its decisions have been contrary to the immigration statutes and Supreme Court precedents. /10/ 4. The Ninth Circuit's approach in reviewing decisions by the BIA on motions to reopen conflicts with the decisions of several other circuits that have considered the matter. Whereas the Ninth Circuit has adopted a strict "articulation" test and has essentially reviewed the BIA's decisions de novo, the First, Second, Sixth, and Seventh Circuits have adopted a standard of affirming the BIA's denial of a motion to reopen "unless it 'was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group.'" Williams v. INS, 773 F.2d 8, 9 (1st Cir. 1985), quoting Leblanc v. INS, 715 F.2d 685, 693 (1st Cir. 1983), and Balani v. INS, 669 F.2d 1157, 1161 (6th Cir. 1982). Accord, e.g., Achacoso-Sanchez, 779 F.2d at 1265; Wong Wing Hang, 360 F.2d at 719; but cf. Luna v. INS, 709 F.2d 126, 128 (1st Cir. 1983). Under that standard, the BIA's reason "need not be compelling, or even convincing to be sufficient" (Achacoso-Sanchez, 779 F.2d at 1266). /11/ Similarly, various Fifth Circuit cases require -- even in the context of direct review -- only that the Board "consider the issues raised, and announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted." Luciano-Vincente v. INS, 786 F.2d 706, 708-709 (5th Cir. 1986) (per curiam), quoting Osuchukwu v. INS, 744 F.2d 1136, 1142-1143 (5th Cir. 1984). /12/ These tests are far less intrusive than the standards used by the Ninth Circuit /13/ and are far more reflective of this Court's approach in Jong Ha Wang and Rios-Pineda. 5. The recent enactment of the Reform Act does not render the issues in this case any less important. The Reform Act provides, inter alia, for the temporary (and ultimately permanent) adjustment of status of aliens who entered the United States before January 1, 1982, and who meet various other requirements. While the Reform Act makes available to certain aliens a potential new mechanism for legalizing their status, we expect that large numbers of motions to reopen will continue to be filed notwithstanding that new legislation. a. Section 201(a) of the Reform Act adds a new Section 245A(a) to the Act. Under Section 245A, an alien is eligible for adjustment of status to lawful temporary resident if he entered the United States before January 1, 1982, and has resided here continuously since that date. /14/ In addition, under Section 245A(b), if the alien has been a lawful temporary resident for at least 18 months but not more than 30 months, he may obtain lawful permanent resident status, provided that he demonstrates basic citizenship skills and meets certain conditions similar to those for obtaining temporary resident status. Once the alien has obtained permanent resident status, he may achieve citizenship on the same basis as any other permanent resident (see generally 8 U.S.C. 1427). /15/ The legalization program embodied in Section 245A(a) and (b) is neither self-executing nor immediately effective. Section 245A(a)(1)(A) gives the Attorney General 180 days to establish the legalization program and to set in place the 12-month application period. Until such a date is set and arrives, no alien will be entitled to legalization under Section 245A(a) and (b). Moreover, various forms of relief other than legalization may provide the alien with a quicker route to permanent residency (and ultimately citizenship). /16/ Thus, aliens who qualify for legalization may still have strong reasons for continuing to pursue alternative remedies, and we expect that many of them will initiate, or continue to press, motions to reopen to seek suspension of deportation, adjustment of status, asylum (8 U.S.C. 1158(a)) or withholding of deportation (8 U.S.C. 1253(h)). Furthermore, there are aliens who entered the country prior to January 1, 1982, who, for one reason or another, will not qualify for legalization. /17/ Finally, aliens who entered the country on or after January 1, 1982, are ineligible for legalization. They may, however, be eligible for adjustment of status, asylum, or withholding of deportation, and the Reform Act will in no way curtail the number of motions to reopen filed by such aliens. In short, we believe that the issues in the case will continue to arise with great frequency. /18/ 6.a. On the merits, we submit that the court of appeals may not overturn the BIA's denial of a motion to reopen simply because it disagrees with the BIA's reasoning or because the BIA has not addressed every point raised by the alien or has not articulated every factor bearing on its decision. As this Court has made clear, the BIA must be affirmed if its decision was not "unreasoned or arbitrary." Rios-Pineda, 471 U.S. at 451. Thus, as various circuits have held (see pages 15-16, supra), the only function of the reviewing court is to ensure that the BIA's decision is rational, does not depart from established policies, and does not rest on an invidious or otherwise impermissible basis. Under such an approach, the BIA must simply give some reason for its decision; it need not consider every factor raised by the alien. And the court need not be convinced or persuaded by the reason given by the BIA; if the BIA's reasoning is plausible, its decision must be affirmed, even if the court would have reached a different result. See, e.g., Achacoso-Sanchez, 779 F.2d at 1265-1266. b. When the proper standard of review is applied, it is clear that the BIA's decision in this case should be upheld. Respondent's hardship claims are anything but compelling; his request for adjustment of status was based on a marriage that was entered into only two days before he was due to be deported; and respondent had until that time disregarded the immigration laws and had not been diligent in prosecuting his appeal. In these circumstances, the BIA was well within its discretion in denying reopening. In particular, the record reveals that respondent was ordered to surrender for deportation, and admitted having received notice of that order. He contacted his attorney, who told him that nothing could be done. He then contacted his friends, however, who told him to get married and ignore the surrender order. Based on that advice, and without consulting with the INS, respondent did not appear for his deportation. App., infra, 2a, 6a, 11a; R. 37-38. Respondent's willful failure to appear for deportation, in and of itself, is sufficient ground to justify the Board's refusal to reopen his case. See Rios Pineda, 471 U.S. at 451 (in exercising discretion, the Board may take into account the alien's disregard of immigration laws). Moreover, the Ninth Circuit seriously erred in concluding (App., infra, 6a) that since "(respondent) had been told (by friends) that the order would not be effective after his marriage," he therefore "did not knowingly violate any order of the Service." We know of no other case holding that an alien must be held blameless for violating the immigration laws as long as he is acting on the erroneous advice of (non-lawyer) friends. The BIA in no way abused its discretion in taking into account respondent's failure to appear for deportation. Although respondent's intentional failure to surrender would have been sufficient in and of itself to deny the motion to reopen as a matter of discretion, the BIA gave additional reasons that bolster its decision. For instance, the BIA cited respondent's "negligen(ce) in prosecuting his appeal." App., infra, 11a, 14a. With no analysis whatsoever, the Ninth Circuit disputed the BIA's reliance on this factor, stating simply that "(respondent's) affidavit indicates otherwise" (App., infra, 6a). The panel was apparently referring to respondent's contention that his attorney had lost touch with him. But respondent lived at five different addresses between 1982 and 1984 (R. 36-37), and there is nothing to suggest that he informed his lawyer of those changes in address. Similarly, nothing suggests that respondent made affirmative efforts to contact his lawyer or the court to learn the status of his case. Indeed, the last contact that respondent had with his attorney prior to receiving the order to surrender was in the fall of 1982 (R. 37). Thus, it was through respondent's own negligence or misconduct that his attorney did not know where to contact him. The BIA gave yet another reason for denying the motion to reopen on discretionary grounds: respondent's marriage, upon which the adjustment of status request and his hardship claim were based, was entered into only two days before his scheduled deportation date. Respondent's wife admitted that the timing of the marriage was advanced solely to avoid respondent's deportation (R. 43). And as the BIA pointed out (App., infra, 11a), the hardship caused by deportation after such a marriage is necessarily diminished in severity by the fact that the couple entered into the marriage knowing full well that respondent was subject to a deportation order. The BIA is plainly entitled to assign less weight to a last-minute marriage that was timed for the very purpose of providing an alien an excuse not to surrender for deportation. /19/ The BIA was also correct in concluding that respondent had failed to make a prima facie showing that his deportation would subject either himself or his citizen wife to extreme hardship. As the BIA noted (App., infra, 13a), respondent's family ties were in Iran, since his parents and siblings lived there. His only relevant tie in this country was to his wife, whom respondent married two days before he was due to be deported. It was obviously proper for the BIA to give little weight to respondent's assertions that the educational and financial opportunities are better in this country and that he would have trouble adjusting in Iran. Similar claims are made repeatedly in suspension cases. In the course of its opinion, the BIA indicated (App., infra, 13a-14a) that respondent's deportation could be temporary because his marriage gave him the lawful means to immigrate to the United States when a visa became available. The Ninth Circuit took issue with the BIA on this point, noting (id. at 6a-7a) that respondent, once deported, could not obtain the visa because of the lack of an American consulate in Iran. To be sure, there is no American consulate in Iran. Nonetheless, respondent could apply to a third country's consulate for a visa and obtain a United States visa upon arrival in that country. See generally 22 C.F.R. 42.110 (consular officer must take immigrant visa application from alien not residing in the consular's district if the alien is physically present therein). Alternatively, even though respondent is under an order of deportation to Iran, he may, in the discretion of the District Director, "self deport" at his own expense to a third country, and seek a visa to enter the United States. 8 C.F.R. 243.5. /20/ Thus, the BIA was correct in observing that respondent's removal from this country would not necessarily be permanent. 7. The Ninth Circuit's decisions undermining the BIA's discretionary authority to deny motions to reopen have had -- and will continue to have -- a serious adverse effect on the administration of the immigration laws. Motions to reopen are frequently used to avoid deportation and prolong an alien's stay in this country. See generally Rios-Pineda, 471 U.S. at 451 (noting incentives of aliens to "drag out the deportation process"). The decision in the present case and others like it will encourage the filing of insubstantial motions to reopen since, even in cases with very weak facts, an alien can forestall deportation for a considerable period of time. Indeed, the Ninth Circuit's numerous unwarranted reversals of the BIA have even now resulted in an increase in the BIA's already heavy workload. This case underscores the need for this Court to reaffirm the BIA's right to be selective in granting motions to reopen. CONCLUSION The petition for a writ of certiorari should be granted. /21/ Respectfully submitted. CHARLES FRIED Solicitor General RICHARD K. WILLARD Assistant Attorney General LAWRENCE G. WALLACE Deputy Solicitor General ROBERT H. KLONOFF Assistant to the Solicitor General THOMAS W. HUSSEY DAVID J. KLINE Attorneys DECEMBER 1986 /1/ The BIA rejected respondent's argument that his violation of the immigration laws was de minimis because he had in fact filed a request for extension of stay but simply did so several months late. It ruled that the INS District Director has sole jurisdiction to review applications for extension of temporary stay. App., infra, 21a. /2/ Respondent was arrested that same day when he and his wife went to the INS so he could apply for permanent residence (App., infra, 2a). /3/ Respondent filed the motion to reopen on October 4, 1984 (R. 14, 17) ("R." refers to the certified administrative record, a copy of which was lodged with the court of appeals). On October 26, 1984, after obtaining new counsel, respondent filed a supplemental motion to reopen (R. 14), which included various affidavits. According to respondent's own affidavit, respondent had lost touch with the attorney who had handled his deportation case in 1979, and he did not hear anything further until he received the order to surrender. He spoke with his attorney, who advised him that "there was nothing to be done." Thereafter, he spoke with his friends, who told him that if he and Thomas got married, he "wouldn't have to show up for the deportation." R. 37. The affidavit also stated that respondent would have difficulty returning to Iran because he would have to serve in the military, he would not fit into Iranian society, and he would not be able to finish his education (R. 39-41). It further stated that respondent's wife would have difficulty adjusting in Iran and "would be considered to be the enemy" (R. 41). Respondent acknowledged, however, that he was "not really afraid to go back to Iran" and that his family wanted him to return there (R. 39). An affidavit by Thomas was also submitted with the supplemental motion to reopen (R. 42-44). Thomas acknowledged that because of the notice of deportation, she and respondent "got married -- a little sooner than (they) expected" (R. 43). Thomas's affidavit recited her strong feelings for respondent (R. 44) but nowhere indicated whether she would be willing to go with him to Iran. In addition to those affidavits, respondent also included, inter alia, affidavits by friends and acquaintances, letters by friends and an employer, letters and a court pleading by attorneys who had represented him on his original petition for review, documents concerning respondent's marriage, and reports and articles regarding social, political, and religious conditions in Iran (R. 45-101). /4/ In addition, respondent, having obtained the benefit of the automatic stay resulting from the reinstatement of the first petition for review, moved to dismiss that prior petition. The Ninth Circuit granted his motion on March 6, 1985. App., infra, 16a. /5/ E.g., Mattis v. INS, 774 F.2d 965 (9th Cir. 1985); Figueroa-Rincon v. INS, 770 F.2d 766 (9th Cir. 1985); De La Luz v. INS, 713 F.2d 545 (9th Cir. 1983); Reyes v. INS, 673 F.2d 1087 (9th Cir. 1982); Prapavat v. INS, 662 F.2d 561 (9th Cir. 1981); Mejia-Carrillo v. INS, 656 F.2d 520 (1981); Santana-Figueroa v. INS, 644 F.2d 1354 (9th Cir. 1981). /6/ In enacting the Reform Act, Congress comprehensively reviewed this Court's recent immigration decisions. In particular, it overruled the Court's holding in Phinpathya that any absence, however, brief, breaks the continuity of physical presence for purposes of eligibility for suspension of deportation. See Hector, slip op. 6 n.7. Congress expressed no dissatisfaction, however, with this Court's decision (discussed infra) underscoring the broad discretion of the BIA in ruling on motions to reopen. /7/ The Court quoted with approval the dissent in the Ninth Circuit in a companion case to Jon Ha Wang, which explained the need for permitting the Attorney General to be selective in deciding when to grant a motion to reopen: "If INS discretion is to mean anything, it must be that the INS has some latitude in deciding when to reopen a case. The INS should have the right to be restrictive. Granting such motions too freely will permit endless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a prima facie case. It will also waste the time and efforts of immigration judges called upon to preside at hearings automatically required by the prima facie allegations." 450 U.S. at 144 n.5 (quoting Villena v. INS, 622 F.2d 1352, 1362 (9th Cir. 1980) (en banc) (Wallace, J., dissenting). /8/ Although the Reform Act overruled the holding in Phinpathya on another issue (see note 6, supra), the Court's observations about motions to reopen remain fully authoritative. /9/ But see, e.g., Vasquez v. INS, 767 F.2d 598 (9th Cir. 1985) (giving proper deference to the immigration authorities); Ahwazi v. INS, 751 F.2d 1120 (9th Cir. 1985) (same); Israel v. INS, 710 F.2d 601 (9th Cir. 1983), cert. denied, 465 U.S. 1068 (1984); Hamid v. INS, 648 F.2d 635 (9th Cir. 1981) (same). /10/ In Saldana, the panel, in a split decision, ruled that the BIA abused its discretion in denying the alien's motion to reopen to apply for suspension of deportation (762 F.2d 824, amended, 785 F.2d 650). The INS had hoped that Judge Sneed's strong dissent from the denial of rehearing en banc, joined by six other judges, would result in decisions more consonant with this Court's opinions requiring deference to the discretionary determinations of the BIA. Unfortunately, the present case was decided less than a month after Judge Sneed's dissent. Moreover, the Ninth Circuit has continued to adopt new procedural devices for undercutting the BIA's discretion. For example, in Abudu v. INS, 802 F.2d 1096 (1986), the court ruled that the BIA erred in denying the alien's motion to reopen to apply for asylum and withholding of deportation. The court justified its result by holding that motions to reopen are analytically very similar to motions for summary judgment and that all reasonable inferences must be drawn in the alien's favor. The government intends to file a petition for a writ of certiorari in Abudu, suggesting that the Court hold the case for appropriate disposition in light of its disposition in the present case. See also Jara-Navarette v. INS, 800 F.2d 1530 (9th Cir. 1986) (reversing the BIA for a second time on the ground that the BIA gave only "cursory treatment" to the alien's claims of hardship); Gandjkarimi v. INS, No. 85-7511 (9th Cir. Sept. 15, 1986) (unpublished) (reversing the BIA for failing to consider hardship to alien's citizen spouse, even though BIA denied relief on discretionary grounds because the alien repeatedly violated the immigration laws). /11/ As the court explained in Achacoso-Sanchez, there are no statutory or regulatory criteria for evaluating motions to reopen. Since there is "no law to apply," the courts cannot review the "merits" of the BIA's rulings. The BIA therefore abuses its discretion only "when it acts for a forbidden reason or for a reason that a court can determine is erroneous" (779 F.2d at 1264-1265 (emphasis in original)). /12/ Accord, e.g., Sanchez v. INS, 755 F.2d 1158, 1160 (5th Cir. 1985) (test is whether any consideration was given to a limited range of factors). But see Hernandez-Cordero v. INS, 783 F.2d 1266, 1269, reh'g en banc granted, 793 F.2d 701 (5th Cir. 1986) (requiring the BIA to "meaningfully address()" each relevant factor); Zamora-Garcia v. INS, 737 F.2d 488, 491 (5th Cir. 1984) (same); Ramos v. INS, 695 F.2d 181, 188 (5th Cir. 1983) (same). /13/ The District of Columbia Circuit and the Third Circuit arguably apply a standard that is more similar to that of the Ninth Circuit than to that of the various other circuits discussed supra. See Sang Seup Shin v. INS, supra (BIA abused its discretion in failing to discuss the fact that alien's wife had become a United States citizen); Ravancho v. INS, 658 F.2d 169 (3d Cir. 1981) (BIA reversed for failing to discuss psychological report in conjunction with other evidence). Both Sang Seup Shin and Ravancho contained vigorous dissents. The Eighth Circuit's standard is somewhat difficult to discern. In Barragan-Verduzco v. INS, 777 F.2d 424 (8th Cir. 1985), the court stated that the BIA must consider "all the factors that the petitioners present as constituting extreme hardship" (id. at 425). Nonetheless, the court there affirmed what it characterized as a "cusory" decision of the BIA on the basis of the entire record (id. at 426). See also Carrete-Michel v. INS, 749 F.2d 490 (8th Cir. 1984) (holding that the BIA failed to give adequate consideration to the alien's specific hardship claims). /14/ There are additional requirements as well. For example, an alien is ineligible for legalization if he has been convicted of a drug-related offense (Section 245A(d)(2)(B)(ii)(III)) or if he has been convicted in the United States of any felony or any three misdemeanors (Section 245A(a)(4)(B)). /15/ In addition, Section 302 of the Reform Act (amending Section 210 of the Act) contains provisions for adjustment of status for aliens who performed at least 90 man-days of seasonal agricultural services in the year that ended May 1, 1986. /16/ In addition, aliens granted legalization are ineligible for certain public welfare benefits for five years after the granting of temporary status (Section 245A(h)). That restriction does not apply to aliens obtaining permanent residence in some other way. /17/ As noted in note 10, supra, we will soon be filing a petition for a writ of certiorari in Abudu v. INS, 802 F.2d 1096 (9th Cir. 1986). The alien in Abudu entered the United States in 1973, but he appears ineligible for legalization because of his prior drug offenses. See Reform Act, Section 245A(a)(4)(B) and (d)(2)(B)(ii)(III). /18/ We note that the enactment of the Reform Act does not render this case moot. As indicated above, respondent's residence in this country began in January 1977. However, if he is to obtain legalization, he must file a timely application under the new legalization provisions and prove that he meets all of the criteria. Even if respondent files an application under Section 245A while this case is still pending, that will not moot the case if respondent continues to pursue his motion to reopen. If respondent were to prevail on his claim of entitlement to adjustment of status and suspension of deportation, he would thereby acquire the status of permanent resident under 8 U.S.C. 1254(a) and 1255(a). It is possible that he could obtain that relief sooner by pursuing his motion to reopen instead of simply applying for legalization. This would advance his eligibility date for achieving citizenship (see 8 U.S.C. 1430(a) (requiring permanent resident status for three years as a prerequisite to naturalization)). In addition, respondent might be eligible for public welfare benefits, and aliens granted legalization under Section 245A are not entitled to certain public assistance benefits for five years after obtaining temporary resident status (see note 16, supra). For these reasons, it may be advantageous to respondent to continue to pursue his motion to reopen even if he also chooses to seek legalization under Section 245A. As long as respondent continues to pursue his motion to reopen, we believe that there will remain a justiciable controversy between the parties. See generally Hector, slip op. 6 n.8; INS v. Chadha, 462 U.S. 919, 936-937 (1983). /19/ The panel errs in stating (App., infra, 6a) that the BIA "ignored" respondent's evidence that the marriage was bona fide. The BIA clearly examined such evidence (see App., infra, 12a). While respondent may have legitimate emotional attachments to his spouse, his own evidentiary materials reveal that the timing of the marriage was designed for the purpose of preventing deportation (R. 43). Indeed, the propriety of the BIA's reliance on the marriage's timing is confirmed by the fact that Congress recently enacted legislation to prevent aliens from obtaining lawful permanent residence by entering into a marriage solely for immigration purposes. See Immigration Marriage Fraud Amendments of 1986, Pub. L. No. 99-639 (Nov. 10, 1986). /20/ We note than an alien who is deported faces a five-year statutory prohibition against re-entering the United States, but he may obtain a discretionary waiver from the Attorney General. See 8 U.S.C. 1182(a)(17). /21/ In light of its recent opinions addressing the subject at issue, the Court may wish to consider summary reversal. APPENDIX