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Patel v. Immigration and Naturalization Service

decided: February 3, 1987.

MANILAL V. PATEL, PETITIONER
v.
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT; SHARDA M. PATEL, PETITIONER V. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT



Petition for Review of an Order of the Board of Immigration Appeals.

Author: Eschbach

Before WOOD and RIPPLE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge. The issue presented by these petitions is whether the Board of Immigration Appeals abused its discretion by denying petitioner Manilal Patel's application for adjustment of status under 8 U.S.C. § 1255*fn1 and by denying petitioner Sharda Patel's motion to reopen her deportation proceedings to allow her to file an application for adjustment of status derivatively based upon that of Manilal Patel, her husband. Because we find no abuse, we will deny the petitions for review.

I.

Mr. Patel is a native and citizen of India. He came to the United States in July of 1972 as a nonimmigrant student and was admitted pursuant to 8 U.S.C. §§ 1201(a) and 1101(a)(15)(F).*fn2 Pursuant to the terms of his student visa, he attended Industrial Engineering College in Chicago, Illinois. Shortly after his arrival, he began working to support himself and to pay his tuition and fees. Although required to do so by the terms of his visa, he did not inform the Immigration and Naturalization Service ("INS") that he was working.*fn3 Subsequently, he attended school on a part-time basis, working during the day and attending classes at night. During this time, he applied for and obtained three extensions of his student visa, the last of which expired in July of 1976. He ceased attending school in January of 1975.*fn4

On March 31, 1976, Mr. Patel purchased a coin-operated laundry for $10,000. The funds to purchase the business were entirely derived from his unauthorized employment in this country. On the basis of this investment, he sought adjustment of his status to that of an alien admitted for permanent residence, claiming exemption from the labor certification requirements, normally applicable to non-preference aliens, due to his status as an investor.*fn5

The District Director of the Immigration and Naturalization Service denied Mr. Patel's application for adjustment of status as a matter of administrative discretion, citing as an adverse factor the fact that the funds for his investment had come from unauthorized employment.

Mr. Patel was granted the privilege of voluntary departure, but he did not depart. Deportation proceedings were commenced against him, charging that he was deportable because he had violated the terms of his visa and overstayed it. Before the immigration judge, he renewed his application for adjustment of status, having admitted to being deportable as charged. After a five-year hiatus in the proceedings,*fn6 the immigration judge denied the application in the exercise of administrative discretion. However, he relied primarily upon an alleged bribery attempt by Mr. Patel.

Mr. Patel appealed to the Board of Immigration Appeals (the "Board"), which affirmed the denial of the application for adjustment of status, although on different grounds. First, the Board held that he was statutorily ineligible for admission into the United States (or in this case for adjustment) because he did not fall within the investor exemption to the labor certification requirement and he had no labor certification. Alternatively, the Board held that he was not entitled to adjustment of status as a matter of administrative discretion. In support of the discretionary denial, the Board cited the fact that Mr. Patel almost immediately commenced unauthorized employment, the fact that the money for his investment came solely from that employment, his early abandonment of his student status, and his lack of candor with immigration of officials. The Board concluded that Mr. Patel "managed to enter and remain here only be deceit and an expanding series of lies. This sorry record is a very significant adverse factor bearing on the exercise of discretion." The Board expressly did not rely on the bribery incident.*fn7

Petitioner Sharda N. Patel is Mr. Patel's wife. When he initially came over to this country, she remained in India with their daughter, who was then two years old. In January of 1982, she entered the United States as a visitor for pleasure. She was unauthorized to stay until February 1982. However, she did not leave when her visa expired. She was found deportable in a deprecating proceeding sometime in early 1983 and was granted the privilege of voluntary departure. She neither departed nor appealed that decision, but moved to reopen the proceedings requesting the opportunity to file an application for adjustment of status derivatively based on that of her husband. Her motion to reopen was denied by both the immigration judge and the Board because her husband's application for adjustment of status had been denied.

Following the Board's denial of relief, the Patels separately petitioned for review of the Board's decisions.

II.

Initially, we must point out those matters which are not properly before us. First, we must decline petitioners' invitation to review the Board's determination on Mr. Patel's statutory eligibility. Secondly, we do not consider the admissibility vel non at the hearing before ...


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