Majid Ghorbani, Petitioner, v. Immigration and Naturalization Service, Respondent, 686 F.2d 784 (9th Cir. 1982)

Majid Ghorbani, a native and citizen of Iran, petitions for review of a decision of the Board of Immigration Appeals ("BIA"). The BIA dismissed Ghorbani's appeal from an immigration judge's decision that Ghorbani was deportable as a nonimmigrant student in violation of the conditions of his status. Ghorbani raises several issues: (1) that his violations were "technical" and "not substantial" and therefore did not justify deportation; and (2) that the District Director abused his discretion in refusing to reinstate Ghorbani's student status, and the immigration judge and the BIA erred in holding that the immigration judge had no authority to review that decision; and (3) that this court has jurisdiction to review the discretionary decision of the District Director even though it was not reviewed in the deportation hearing. We affirm the decision of the BIA and hold that this court lacks jurisdiction to review the discretionary decision of the District Director.

* Ghorbani entered the United States as a nonimmigrant student in August, 1978, and was subsequently authorized to remain in this country for the duration of his student status. In November, 1979, Ghorbani reported to the INS office in Reno pursuant to a Presidential Proclamation and INS regulation. It was discovered then that he had transferred from Lassen Community College to Sierra Nevada College without first receiving INS permission, in violation of 8 C.F.R. § 214.2(f) (4) (1982).¹  It also was discovered at this time that Ghorbani had been employed part-time without INS permission, in violation of 8 C.F.R. § 214.2(f) (6) (1982).²  A show cause order was issued shortly thereafter. Prior to the hearing before the immigration judge, Ghorbani applied to the District Director for reinstatement of his student status. That application was denied. The immigration judge found Ghorbani deportable as a nonimmigrant student in violation of his status. Ghorbani's appeal to the BIA was denied and Ghorbani then filed a petition for review in this court.

II

Ghorbani admits the violation of the regulations but argues that his deportation is unjustified because his violations of status were "technical" and "not substantial." He cites Mashi v. INS, 585 F.2d 1309 (5th Cir. 1978) for the proposition that it was not the intent of Congress to subject nonimmigrant students to deportation for minor violations of status. The Mashi decision does not stand for that proposition. In that case the BIA had found an Iranian student deportable for failure to comply with his nonimmigrant student status. Mashi had enrolled for fourteen credit hours in the school he had been authorized to attend. However, because he unavoidably missed six classes and an exam, he dropped a four credit physics course on the advice of his physics professor. The Board found that he had failed to pursue a full course of study and had lost his student status because he completed only ten credits for the semester. The Board, however, was erroneously applying a regulation that required a student to take a twelve hour schedule to maintain student status. That regulation was, by its own terms, inapplicable to Mashi because he had been admitted prior to its effective date. Although there is language in the opinion that the INS should look at each case on its own facts and strike "a fair balance between the character of the act committed and the consequences which will flow from it," id. at 1317, the actual holding of the case is that the BIA cannot deport a student for failure to comply with regulations that were inapplicable to him.

We need not decide in this case whether there could be circumstances when a violation would be so technical as not to justify deportation. In this case, Ghorbani violated two specific and significant regulations. First, he failed to secure advance approval before transferring to a different college, a violation of 8 C.F.R. § 214.2(f) (4) (1982). This advance approval has been identified by the INS as an essential tool, the lax enforcement of which would severely hamper its obligation to keep track of the thousands of alien students within our borders. Matter of Yazdani, 17 I&N Dec. 626 (BIA 1981).

Furthermore, Ghorbani was employed without securing advance INS permission, a violation of 8 C.F.R. § 214.2(f) (6) (1982). In Tashnizi v. INS, 585 F.2d 781 (5th Cir. 1978), the same panel that four days later decided Mashi, held in a per curiam opinion that a violation of 8 C.F.R. § 214.2(f) (6) (employment without INS permission) was in itself sufficient to justify deportation of a nonimmigrant student.

We agree with the Tashnizi court's conclusion that engaging in unauthorized employment is not a technical or insubstantial violation of status. Nonimmigrant students are admitted to the United States for the limited purpose of pursuing the educational opportunities available here. Engaging in off-campus employment may often be inconsistent with this purpose. The INS forms that the alien receives clearly indicate that a nonimmigrant student is not to engage in employment without prior INS approval.

Ghorbani asserts that because his funds were cut off as a result of the revolution in Iran, the INS would have granted him permission to work had he requested it. Thus, he argues, he should not be penalized now for having failed to obtain prior approval. After the fact justification does not excuse his failure to comply with INS prior approval regulations, of which he had clear notice. To rule otherwise would create an incentive to work without permission and to present the justification only if discovered. We conclude, as did the immigration judge and the BIA, that Ghorbani violated important regulations governing his nonimmigrant student status, which constituted a failure to maintain status and, therefore, resulted in deportability under section 241(a) (9), 8 U.S.C. § 1251(a) (9).

II

The second and third issues raised by Ghorbani present difficult jurisdictional questions concerning section 106(a) of the Immigration and Nationality Act, 8 U.S.C. § 1105a(a). Ghorbani acknowledges that his transfer to another college and his employment, both without prior INS permission, were violations of the regulations. He contends, however, that the District Director's refusal to reinstate his student status was an abuse of discretion in two ways. He claims that the District Director improperly failed to apply the guidelines of INS Operating Instructions and the Immigrant Inspector's Handbook in considering reinstatement of his status.³  He also claims that the District Director discriminated against him because he is an Iranian. He sought to introduce evidence in the deportation hearing concerning these matters.

The immigration judge held he had no authority to review the discretionary decisions of the District Director, and refused to permit evidence on these claims. The BIA, on appeal, held that neither the immigration judge nor the BIA had authority to review the discretionary decision of the District Director.

There is no doubt that the deportation hearing was affected by the decision of the District Director not to reinstate Ghorbani's nonimmigrant student status. Had the District Director reinstated his student status, he would not have been deportable. The inquiry is whether this decision must be reviewed by the immigration judge in the deportation hearing, and if it is not reviewed, whether this court has jurisdiction to review it on appeal.

This court's jurisdiction to review the decision of the District Director is based solely upon section 106(a) of the Immigration and Nationality Act, 8 U.S.C. § 1105a(a).⁴  Section 106(a) provides that courts of appeal have sole and exclusive jurisdiction to review "all final orders of deportation ... made ... pursuant to administrative proceedings under section (242(b) 8 U.S.C.) 1252(b) ...." The extent of the jurisdiction conferred by this phrase is the focus of our inquiry.⁵ 

The section 242(b) proceedings, referred to in section 106(a), are those proceedings conducted by a special inquiry officer (now known as an immigration judge)⁶  for determining whether an alien may be deported. Section 242(b) provides for detailed administrative procedures that assure the alien of rights to counsel, to present evidence, and to cross examine witnesses. The statute also authorizes the Attorney General to grant certain forms of discretionary relief as a part of a section 242(b) proceeding. Any deportation order must be based upon the record developed in that proceeding.

The Supreme Court has spoken three times on the extent of the jurisdiction conferred by section 106(a) to review section 242(b) deportation orders. The first was in Foti v. INS, 375 U.S. 217, 84 S. Ct. 306, 11 L. Ed. 2d 281 (1963). The Court there held that the jurisdiction of the courts of appeals was not limited solely to the bare determination of deportability, but extended also to a review of the final administrative orders with respect to the discretionary relief sought during the deportation hearing. Id. at 220-21, 84 S. Ct. at 309. In the second case, Giova v. Rosenberg, 379 U.S. 18, 85 S. Ct. 156, 13 L. Ed. 2d 90 (1964), the Court held in a brief per curiam opinion that section 106(a) jurisdiction extended to the review of motions to reopen deportation proceedings.

Any signal these cases may have given that section 106(a) jurisdiction would be expansively interpreted was quashed when the Supreme Court decided Cheng Fan Kwok v. INS, 392 U.S. 206, 88 S. Ct. 1970, 20 L. Ed. 2d 1037 (1968). In Cheng Fan Kwok, the INS had argued that all determinations directly affecting the execution of the basic deportation order, whether made prior to, during, or subsequent to the deportation proceeding, should be included for direct review under section 106(a). Id. at 210, 88 S. Ct. at 1973. The Court explicitly rejected this interpretation. The petitioner in Cheng Fan Kwok had been found deportable in a section 242(b) hearing and had been granted permission to depart voluntarily. He did not do so and was ordered to surrender for deportation. He requested a stay of deportation from a District Director pending submission and disposition of a petition for adjustment in status. The District Director concluded he was ineligible for the relief requested and denied the stay of deportation.

The holding on the facts in Cheng Fan Kwok is that the court of appeals did not have jurisdiction under section 106(a) to review the District Director's denial of discretionary relief, which occurred after the 242(b) hearing. However, the language of that holding would indicate a generally narrow construction of the jurisdictional grant. The Court stated:

We hold that the judicial review provisions of § 106(a) embrace only those determinations made during a proceeding conducted under § 242(b), including those determinations made incident to a motion to reopen such proceedings.¹⁶ 

Id. at 216, 88 S. Ct. at 1976⁷  (footnote 16 reference in original text). Footnote 16 of Cheng Fan Kwok states:

We intimate no views on the possibility that a court of appeals might have "pendent jurisdiction" over denials of discretionary relief, where it already has before it a petition for review from a proceeding conducted under § 242(b). See Foti v. Immigration Service, supra (375 U.S.) at 227, n.14 (84 S. Ct. at 313, n.14).

Id. at 216, 88 S. Ct. at 1976.⁸ 

There has been some considerable disagreement as to the extent of the possible "pendent jurisdiction" in the court of appeals. See 2 Gordon and Rosenfeld, Immigration Law and Procedure § 8.9Ab, p. 8-81 n.54 (1982). There is an indication that the Court would limit "pendent jurisdiction" to situations in which quasi-judicial hearings had been conducted. Cheng Fan Kwok, 392 U.S. at 212-13 n.11, 215-16 & n.15, 88 S. Ct. at 1974 n.11, 1975-76 & n.15. It is the determination of what is encompassed within that "pendent jurisdiction" that makes the jurisdictional analysis difficult.

We turn to the authority in this circuit concerning the extent of jurisdiction under section 106(a), as interpreted by Cheng Fan Kwok. In Yamada v. INS, 384 F.2d 214 (9th Cir. 1967), a case predating and noted with approval in Cheng Fan Kwok, the alien filed a petition with the District Director to reclassify his status after the order in the 242(b) deportation hearing had become final. We held that we lacked jurisdiction to review the decision of the District Director. We noted that the legislative history of section 106(a) indicated that Congress wished to eliminate piecemeal litigation of deportation issues, but also that Congress intended that the scope of direct appellate review be dependent to some extent upon the regulations of the INS. Id. at 216-18. It was acknowledged that the INS could expand the scope of appellate review under section 106(a) by including more issues for review in the section 242(b) deportation hearings. "Congress made no effort to catalogue such issues. The administrative rule-making process is better suited to that task." Id. at 218.

The Supreme Court, in both Foti and Cheng Fan Kwok, recognized this, and found no difficulty in the fact that the scope of review under section 106(a) might be affected by INS regulations modifying the type of agency orders heard within a 242(b) proceeding. See Cheng Fan Kwok, 392 U.S. at 216, n.17, 88 S. Ct. at 1976, n.17; Foti, 375 U.S. at 229-30 & n.16, 84 S. Ct. at 313-14 & n.16.⁹ 

In two cases, one before and one after Cheng Fan Kwok, we have held that our jurisdiction to review a final order of deportation under section 106(a) includes the power to examine the validity of an order rescinding permanent resident status, when that order lies at the base of the deportation order. Bachelier v. INS, 625 F.2d 902 (9th Cir. 1980); Waziri v. INS, 392 F.2d 55 (9th Cir. 1968). In each of these cases there was a prior decision by an immigration judge affirmed by the BIA, that rescinded the alien's permanent resident status, thereby making him immediately subject to deportation. There had been a full quasi-judicial hearing before an immigration judge with an appeal to the BIA, as required by the regulations.¹⁰  These are the same procedures as are involved in a section 242(b) proceeding. As previously noted, the Supreme Court gave an indication in Cheng Fan Kwok that "pendent jurisdiction" could include prior quasi-judicial proceedings upon which the deportation proceeding was dependent.¹¹ 

In Chadha v. INS, 634 F.2d 408 (9th Cir. 1980), appeal pending, 454 U.S. 812, 102 S. Ct. 87, 70 L. Ed. 2d 80 (1981), we also held that "pendent jurisdiction" existed. In that case, the alien conceded deportability, but was granted discretionary relief of suspension of deportation by the immigration judge, pursuant to section 244(a) (1), 8 U.S.C. § 1254(a) (1), pending congressional action as required by section 244(c) (2), 8 U.S.C. § 1254(c) (2). The House of Representatives disapproved suspension, thus overriding the immigration judge's decision. The deportation hearing was reconvened and the final order of deportation was entered. On appeal, Chadha challenged the constitutionality of the one-house veto. This issue was not considered by the immigration judge or the BIA because they have no authority to decide the constitutionality of the statute. See Hernandez-Rivera v. INS, 630 F.2d 1352, 1355 (9th Cir. 1980).

We held that jurisdiction under section 106(a) extended to the review of this legal issue. The question whether the one-house veto of a suspension of deportation is constitutional is purely a matter of law and requires no findings of fact. Thus, in resolving this issue, the lack of consideration by the immigration judge and the BIA was inconsequential.¹²  In Chadha, the constitutionality of section 244, the very statute under which the relief was granted by the immigration judge, was an integral part of the section 242(b) proceedings.¹³ 

There are, thus, two areas in which we have specifically found that utilizing pendent jurisdiction is justified: when there has been a factual hearing on the issue, equivalent to that required by section 242(b), or when such a hearing is unnecessary.

Ghorbani's case presents a decision by the District Director in which there has been no quasi-judicial hearing to develop the facts. Ghorbani's claim is that normally the District Director would have reinstated his student status by retroactively approving his school transfer and his employment. He contends that the reason he was not granted reinstatement was because he is Iranian, and that the normal criteria were not applied because of the then-current sentiment against Iranian students.

Before we could properly review this contention on appeal, a factual record would have to be developed. Ghorbani sought to introduce facts supporting this charge at the deportation hearing, but the immigration judge refused to permit it, on the ground he had no authority to review the discretionary decisions of the District Director. The BIA agreed that no such authority existed, citing Matter of Halabi, 15 I&N Dec. 105 (BIA 1974), and Matter of Geronimo, 13 I&N Dec. 680 (BIA 1971). It concluded that it and the immigration judge are not authorized to pass on certain matters in which the Attorney General has conferred authority on District Directors. Matter of Yazdani, 17 I&N Dec. 626 (BIA 1981) citing Matter of Teberen, 15 I&N Dec. 689 (BIA 1976); Matter of Hosseinpour, 15 I&N Dec. 191 (BIA 1975), aff'd mem., 520 F.2d 941 (5th Cir. 1975); Matter of Gallares, 14 I&N Dec. 250 (BIA 1972); Matter of Sourbis, 11 I& N Dec. 335 (BIA 1965). See 1A Gordon and Rosenfeld, Immigration Law and Procedure, § 5.7b p. 5-84 and 1, § 1.10c, p. 1-65-69 (1982).¹⁴ 

The courts of appeals do have authority to determine whether the immigration judge and BIA have correctly interpreted the regulations governing their jurisdiction. See Unification Church v. Attorney General for the United States, 581 F.2d 870, 878 (D.C. Cir.), cert. denied, 439 U.S. 828, 99 S. Ct. 102, 58 L. Ed. 2d 122 (1978). We have no basis to find this construction unreasonable, particularly with the deference that is due to an agency construing its own regulations. It could also be argued that the congressional intent to eliminate piecemeal appeals required the Attorney General to enact regulations that would draw into the section 242(b) deportation hearing a review of this type of prior discretionary decision by the District Director. However, as the Supreme Court recognized in Cheng Fan Kwok and Foti, the legislative history imposes no such requirement. The Court acknowledged that the Attorney General could expand or narrow the section 106(a) appellate jurisdiction by modifying the matters to be included within the section 242(b) proceedings.¹⁵ 

It would be most anomalous to conclude that, under section 106(a) jurisdiction to review final deportation orders resulting from section 242(b) proceedings, we could remand the case to the BIA or the immigration judge for a hearing on factual matters that they lacked authority to hear initially. It would be equally anomalous to by-pass the BIA and immigration judge and remand directly to the District Director, when his decision is expressly excluded from consideration in the section 242(b) proceeding.

We therefore conclude that our appellate jurisdiction under section 106(a) does not extend to a review of the discretionary decision of the District Director in refusing to reinstate nonimmigrant student status. Such relief as may be available to Ghorbani on this issue must originate with the district court.¹⁶

The decision of the Board of Immigration Appeals is AFFIRMED.

POOLE, Circuit Judge, concurring specially.

I concur in the majority opinion's conclusion that we are without jurisdiction to review the discretionary decision of the District Director refusing to reinstate Ghorbani's nonimmigrant student status. However, I am unable to endorse the majority's attempt to explain our prior decisions in this area using the gloss of "pendent jurisdiction."

In Waziri v. INS, 392 F.2d 55 (9th Cir. 1968), we held that section 106(a) conferred jurisdiction on this court to review the validity of an order rescinding the petitioner's permanent resident status even though that determination was made prior to petitioner's section 242 deportation hearing. There is no indication in Waziri that the court relied on the concept of pendent jurisdiction. Instead, it concluded that the recission of Waziri's status was the "logical predicate" of the deportation order and therefore meaningful review of the order would require that the court examine the earlier decision. 392 F.2d at 56-57. See also Bachelier v. INS, 625 F.2d 902 (9th Cir. 1980).

Shortly afterwards, the Supreme Court narrowly limited the scope of appeal under section 106(a). In Cheng Fan Kwok v. INS, 392 U.S. 206, 88 S. Ct. 1970, 20 L. Ed. 2d 1037 (1968), the petitioner appealed the denial of his request for a stay of deportation filed after he had been found deportable in a section 242(b) proceeding. The Court held that the court of appeals did not have jurisdiction to review the decision denying the stay, stating:

We hold that the judicial review provisions of § 106(a) embrace only those determinations made during a proceeding conducted under § 242(b), including those determinations made incident to a motion to reopen such proceedings.

392 U.S. at 216, 88 S. Ct. at 1976.

Subsequently, in Chadha v. INS, 634 F.2d 408 (9th Cir. 1980), appeal pending, 454 U.S. 812, 102 S. Ct. 87, 70 L. Ed. 2d 80 (1981), this court asserted jurisdiction under section 106(a) to review the constitutionality of a federal statute permitting congressional disapproval of decisions of the immigration judge suspending deportation. Relying on Waziri, the court observed that although the challenged congressional action took place outside the context of a section 242(b) hearing, it "nevertheless directly leads to a final order of deportation." It concluded that jurisdiction existed to review the "legal validity of determinations on which the final order of deportation is contingent." 634 F.2d at 413.

Although Chadha followed the Supreme Court's decision in Cheng Fan Kwok, it does not rely on the dicta in that case which the majority here cites discussing the possibility of pendent jurisdiction. Instead, as indicated, this court concluded that meaningful review of the deportation order required review of decisions underlying the order. That rationale is in fact inconsistent with the generally recognized definition of a pendent claim as a "separate but parallel claim for relief" which a court may reach at its discretion. United Mine Workers v. Gibbs, 383 U.S. 715, 722, 726, 86 S. Ct. 1130, 1136, 1139, 16 L. Ed. 2d 218 (1966).

Chadha's jurisdictional holding has been criticized as inconsistent with Cheng Fan Kwok in permitting review of decisions made outside the section 242(b) proceeding. See Dastmalchi v. INS, 660 F.2d 880, 888-89 (3d Cir. 1981).¹  In my view that criticism is apt. Nevertheless, Chadha remains the law of the circuit until changed and I do not believe that the majority's attempt to rationalize its holding as an example of pendent jurisdiction aids our determination here.

Applying the standard set out in Chadha, the deportation order here was "contingent upon" the District Director's discretionary decision not to reinstate Ghorbani's student status. Yet, as the majority opinion points out, Ghorbani's objections to the Director's decision were not addressed in a factual hearing before an immigration judge as in Waziri, nor are they purely questions of law, as in Chadha, which this court may reach directly. Thus the opinion is correct in concluding that the circumstances here do not fit into either of the situations which this court has identified as appropriate for review of discretionary decisions outside of a section 242(b) proceeding. It is for those reasons, only, that we have no jurisdiction under section 106(a) to review the District Director's decision refusing to reinstate Ghorbani's status. In sum I reach the same terminus as the majority opinion without taking what I consider is an unnecessary detour.