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Bahramizadeh v. United States Immigration and Naturalization Service

decided*fn*: September 30, 1983.

FIROUZ BAHRAMIZADEH, PLAINTIFF-APPELLANT,
v.
UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, DEFENDANT-APPELLEE



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 80 C 6684 -- Nicholas J. Bua, Judge.

Bauer, Wood and Flaum, Circuit Judges.

Author: Per Curiam

In this action Firouz Bahramizadeh seeks to recover a maintenance of status and departure bond that he posted with the Immigration and Naturalization Service. For the reasons to be discussed, we reverse the district court's entry of summary judgment in favor of the INS and remand the case to the district court for proceedings consistent with this opinion.

I.

The following factual discussion has been gathered from the pleadings and affidavits submitted by the plaintiff to the district court. For the purposes of this appeal, we will construe these factual assertions in the light most favorable to Bahramizadeh. See Lac Courte Oreilles Band, Etc. v. Voigt, 700 F.2d 341, 349 (7th Cir. 1983).

On September 9, 1974, Firouz Bahramizadeh, a native of Iran, posted a $3,000 maintenance of status and departure bond as a condition for entry into this country as a nonimmigrant student. At the time he signed the bond, Bahramizadeh agreed to two conditions. He first stipulated that he would not accept any employment in the United States without the INS's permission and second agreed to depart voluntarily from the United States at the end of his authorized period of admission. On September 24, 1974, Bahramizadeh was admitted to the United States and given permission to remain in this country until September 24, 1975. This deadline was later extended until August 6, 1976.

During the period of his stay, Bahramizadeh married a native born American citizen, Kathi Prybylo, on January 5, 1976. One month later, on February 4, 1976, Bahramizadeh's wife filed a petition on Bahramizadeh's behalf with the INS to classify him as the spouse of a United States citizen. This petition was entitled "Petition to Classify Status of Alien Relative For Issuance of Immigrant Visa."

On June 15, 1976, Bahramizadeh went to the Chicago district office of the INS to check on his current immigration status. At the office Bahramizadeh informed an INS officer of his current situation and of the fact that he had previously posted a $3,000 bond. Bahramizadeh told the officer that he desired to extend his student visa. The officer, however, told Bahramizadeh that INS was aware of his current status and that in light of his wife's pending classification petition, there was no need to apply for an extension of his student visa. The INS officer explained that it took time to process his wife's petition and that after it was approved he would receive his bond money back from the government.

In early August of 1976, before the end of his authorized stay in the United States, Bahramizadeh again went to the Chicago district office of the INS to review his immigration status. Once again, an INS official, after first reviewing Bahramizadeh's file and discussing it with him, informed Bahramizadeh that his wife's petition was sufficient to maintain his current status and that there was no need to apply for any extension of his student visa in the interim.

On August 30, 1976, Bahramizadeh went for a third time to the Chicago INS district office to check on his immigration status. At this time he was told by the office supervisor that the processing of his wife's petition had been delayed because Vietnamese refugees had been given a higher priority by INS. The supervisor told Bahramizadeh that the bond money would not be released until his status had officially changed, an event of which he would be notified when his wife's petition had been acted upon by the agency.

On October 1, 1976, Bahramizadeh's wife received a notice entitled "Notice of Approval of Relative Immigrant Visa Petition." Enclosed with the notification was an application for permanent residence which was to be completed within 30 days. On November 1, 1976, Bahramizadeh accordingly applied for permanent residence status with INS, an application which subsequently has been approved. On August 10, 1977, Bahramizadeh officially became a permanent resident of the United States.

On November 17, 1977, Bahramizadeh was notified by the INS that his maintenance of status and departure bond had been forfeited because he had breached the bond agreement by remaining in this country after August 6, 1977. After exhausting all avenues of administrative review, Bahramizadeh filed a complaint in district court under 28 U.S.C. ยง 2201.

The district court granted summary judgment in favor of the INS, ruling that Bahramizadeh had substantially violated the conditions of his bond by not leaving the country at the end of his authorized stay. The court therefore concluded that the INS had acted ...


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