Grace Williams v. Immigration and Naturalization Service, 773 F.2d 8, 1st Cir. (1985)

773 F.
2d 8
Grace WILLIAMS, Petitioner, Appellant,

v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent, Appellee.
No. 85-1139.
United States Court of Appeals,

First Circuit.
Argued Aug. 6, 1985.
Decided Sept. 13, 1985.
Mark L. Galvin of Watt, Galvin & Sanchez, Providence, R.I., for

petitioner, appellant.
Morris Deutsch, Washington, D.C., with whom Michael P. Lindemann,
James A. Hunolt and Richard K. Willard, Washington, D.C., were on brief
for the Government.
Before CAMPBELL, Chief Judge, BOWNES and TORRUELLA, Circuit
Judges.
BOWNES, Circuit Judge.
We review an order of the Immigration and Naturalization Service Board of

Immigration Appeals (BIA) not to reopen a deportation proceeding. The order
prevents petitioner from applying for a stay of deportation and for adjustment
of status under 8 U.S.C. Sec. 1255 (1982).
Petitioner Grace Williams, a native and citizen of Liberia, entered the United
States on July 24, 1970, as a nonimmigrant student authorized to remain until
July 23, 1971. Petitioner overstayed her authorization by four and one-half
years. On December 18, 1975, the INS issued an order to show cause why she
should not be deported. After the hearing, petitioner was found deportable and
granted the privilege of voluntarily departing by March 1, 1976. This date was
later extended to April 21, 1976. Because she failed to depart voluntarily,
petitioner was ordered deported on June 21, 1976. She left the United States on
her own on June 19, 1976.

3
Petitioner promptly reentered the United States on June 25, 1976, as a

nonimmigrant student with permission to remain until February 15, 1977. She
had procured this student visa without having revealed the circumstances of her
earlier departure or having sought reentry permission from the Attorney
General as required by 8 U.S.C. Secs. 1325, 1326. On July 18, 1977, petitioner
requested an extension, which was denied. The INS did, however, grant her
until August 2, 1977, to depart voluntarily, which she did not do. On August 18,
1977, the INS issued an order to show cause why petitioner should not be
deported. On August 1, 1978, the show-cause deportation proceedings were
terminated when an immigration judge gave petitioner permission to reapply
nunc pro tunc for admission.
Another show cause order was issued on September 1, 1978, charging

petitioner with overstaying her student visa authorization period. Petitioner,
after a hearing, was found deportable for overstaying her visa authorization; she
was again granted voluntary departure. No appeal was taken from this decision.
Petitioner received an extension of her voluntary departure date to December 6,
1980, but, following her prior practice, she did not leave the United States on
the departure date.
On January 26, 1983, petitioner moved to reopen her deportation proceedings

so she could apply for adjustment of status to that of a lawful permanent
resident because of an earlier marriage to a United States citizen. The
immigration judge denied the motion the day it was filed because it lacked
critical supporting documentation. The BIA affirmed on December 30, 1983.
No further review was sought by petitioner. She was ordered to report for
deportation on February 23, 1984, which, of course, she did not do. The INS
could not find petitioner until May 30, 1984, when her husband (second) filed a
visa petition on her behalf. Petitioner was ordered to surrender for deportation
on November 1, 1984.
On November 6, 1984, petitioner's counsel notified INS that he would move to

reopen so as to seek adjustment of status based on her husband's visa petition,
and requested a stay of deportation pending determination of the motion.
Petitioner and her counsel appeared at the INS office on November 9. The
motion to reopen was filed on November 14. It was referred to the BIA which
denied it as a matter of discretion on January 15, 1985. The Board found that
petitioner's history of abuses of the immigration laws and repeated breaches of
privileges granted her outweighed any favorable factors. We affirm.
The decision whether to reopen deportation proceedings is committed to the

discretion of the Board. I.N.S. v. Rios-Pineda, --- U.S. ----, 105 S.Ct. 2098, 85
L.Ed.2d 452 (1985); I.N.S. v. Jong Ha Wang, 450 U.S. 139, 144-45, 101 S.Ct.
1027, 1031-32, 67 L.Ed.2d 123 (1981); I.N.S. v. Bagamasbad, 429 U.S. 24, 97
S.Ct. 200, 50 L.Ed.2d 190 (1976) (per curiam). A motion to reopen will not be
granted unless a prima facie case for relief is established. I.N.S. v. Jong Ha
Wang, 450 U.S. at 141, 101 S.Ct. at 1029; Luna v. I.N.S., 709 F.2d 126, 127
(1st Cir.1983). But "if the Attorney General decides that relief should be denied
as a matter of discretion, he need not consider whether the threshold statutory
eligibility requirements are met." Rios-Pineda, --- U.S. at ----, 105 S.Ct. at
2102. The issue, therefore, is whether the Board's refusal to reopen was
arbitrary, capricious or an abuse of discretion. Holley v. I.N.S., 727 F.2d 189,
190-91 (1st Cir.1984); Mesa v. I.N.S., 726 F.2d 39, 41 (1st Cir.1984).
In LeBlanc v. I.N.S., 715 F.2d 685 (1st Cir.1983), we applied the following
standard to the Board's refusal to reopen: "The denial will be upheld 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.' " Id. at 693 (quoting Balani v.
I.N.S., 669 F.2d 1157, 1161 (6th Cir.1982)). The BIA decision here was not
defective on any of these grounds. It relied on three factually based reasons for
denying the motion to reopen. First, on two occasions petitioner "overstayed,
by many years, the period authorized for her admission into this country as a
student." Second, petitioner "repeatedly ignored grants of voluntary departure in
her case in order to prolong her unauthorized stay." Third, "on her most recent
entry into this country [petitioner], gained admission by failing to disclose her
prior deportation from the United States."
Petitioner argues that the Board should have ignored the fact of her 1976
deportation and her omissions relative to her second entry because she was
ignorant of her status and she was granted permission to reapply nunc pro tunc.
This is a plea to ignore the facts of her blatant disregard of the INS orders. The
reality is that petitioner has been in this country illegally and, except for six
days, continuously since July 23, 1971. This, we think, bespeaks something
other than ignorance of the applicable laws.
10
We agree with the government that Rios-Pineda controls this case and reach
the same conclusion here as the Supreme Court did in that case: "This case,
therefore, does not involve the unreasoned or arbitrary exercise of discretion.
Here the BIA's explanation of its decision was grounded in legitimate concerns
about the administration of the immigration laws and was determined on the
basis of the particular conduct of the respondents." --- U.S. at ----, 105 S.Ct. at
2103.
11
Petitioner argues that Rios-Pineda is inapposite because it involved suspension

of deportation, 8 U.S.C. Sec. 1254(a)(1), not adjustment of status, id. Sec. 1255,
which is implicated here. We have held that
12 is a distinction without a difference. Both sections confer discretion on the

this
Attorney General to grant extraordinary relief. Both leave substantial room for the
Attorney General to define the substantive grounds for relief. Neither in terms
requires any findings of eligibility before the Attorney General (or his designee)
exercises his discretion to deny relief.
13
LeBlanc v. I.N.S., 715 F.2d at 690.
14
We are not unmindful of the hardship that deportation means for petitioner and
her children. Such hardship, however, does not erase or counterbalance the
persistent disregard for INS orders exhibited by the petitioner. The hardship
that petitioner and her children face are part of daily life in Liberia. We do not
think that she should be given priority over those presently in Liberia who have
been waiting patiently for legal immigration visas.
15
Affirmed.

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773 F.

Grace WILLIAMS, Petitioner, Appellant,

United States Court of Appeals,

Mark L. Galvin of Watt, Galvin & Sanchez, Providence, R.I., for

We review an order of the Immigration and Naturalization Service Board of

her own on June 19, 1976.

Petitioner promptly reentered the United States on June 25, 1976, as a

Another show cause order was issued on September 1, 1978, charging

On January 26, 1983, petitioner moved to reopen her deportation proceedings

On November 6, 1984, petitioner's counsel notified INS that he would move to

The decision whether to reopen deportation proceedings is committed to the

Petitioner argues that Rios-Pineda is inapposite because it involved suspension

12 is a distinction without a difference. Both sections confer discretion on the

LeBlanc v. I.N.S., 715 F.2d at 690.

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