Interim Decision #3004
MATTER OF TUAKOI
In Deportation Proceedings
A-19857975
Decided by Board October a, 1985
(1) An alien who did not come to the United States to receive graduate medical
training, but who was admitted to the United States as an exchange alien under
section 101(aX15XJ) of the Immigration and Nationality Act, 8 U.S.C.
§ 1101(aX15XJ) (1982), would not be barred from applying for suspension of deportation if he was not subject to the 2-year requirement of section 212(e) of the Act,
8 U.S.C. § 1182(e) (1982), ur if he had fulfilled the requirements, or if ho had obtained a waiver thereof.
(2) The respondent, who came to the United States to obtain a college degree and
not to obtain a graduate medical education, is subject only to the provisions of
section 244(fX3) of the Act, 73 U.S.C,. § 1254(0(3) (1982); hence, the facts in this Lase
are distinguishable from those in Matter of Mangaser,
19 I&N Dec. 28 (BIA 1983),
in which we held that the alien, who was a physician coming to the United States
to receive graduate medical training, was subject to the provisions of section
244(0(2) of the Act and, therefore, ineligible for suspension of deportation regardless of whether he was subject to or had fulfilled the 2-year residence requirement
of section 212(e) of the Act. Matter of Mangaser, supra, distinguished.
(3) The respondent, who was reinstated to exchange visitor ("J-1") status after admission to the United States and at his own request in 1979, became subject to the
requirements of the Act and regulations in effect on the date of his reinstatement
and, therefore, the 2-year foreign residence requirement applies to him. Matter of
Baterina, 16 I&N Dec. 127 (BIA 1977), followed.
(4) Assuming arguendo that the doctrine of estoppel is applicable against the Government in immigration cases, the respondent has failed to establish affirmative
misconduct on the part of the Government or reasonable reliance upon the decision of an immigration inspector_
CHARGE:
Order: Act of 1952—Sec. 241(aX2) [
8 U.S.C. § 1251(aX2)]—Nonimmigrant—remined longer than permitted
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Lawrence N. DiCostanzo, Esquire Ronald R LeFevre
Simmons & Ungar District Counsel
517 Washington Skeet,
San Francisco, California 94111
BY: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members
Rdl
Interim Decision #3004
On January 18, 1985, the respondent submitted a motion to
reopen to apply for suspension of deportation under section 244(a)
of the Immigration and Nationality Act, 8 U.S.C. § 1254(a) (1982),
which was denied by the immigration judge on April 24, 1985, because he found that the respondent failed to make a prima facie
case in that he concluded that the respondent was statutorily ineligible for the requested relief. He did reopen the proceeding to
grant the respondent a further period of voluntary departure. The
respondent has appealed the decision. The Immigration and Naturalization Service has appealed the reopening of the proceeding to
grant voluntary departure. Both appeals will be dismissed.
The respondent is a 41-year-old native and citizen of Tonga who
entered the United States as an exchange visitor on April 8, 1972.
The respondent was found deportable on November 19, 1984, as an
overstayed nonimmigrant after a hearing held March 21, 1984, and
November 19, 1984, and was granted voluntary departure to January L9, 1985. He did not appeal that decision. In his motion to
reopen he claims that he attempted to submit an application for
suspension of deportation to the immigration judge who presided at
the deportation hearing, but that the judge permitted him to withdraw his suspension application. He reports that the immigration
judge found that the application was insufficiently supported.
Rather than deny the application outright or grant the respondent
a continuance to produce evidence in support of his application, the
immigration judge rendered his decision on deportability and informed the respondent he could renew his request in a motion to
reopen prior to the expiration of the voluntary departure period.'
With his motion to reopen the respondent submitted evidence relating to his good moral character, 7 years' continuous residence,
and extreme hardship. A second immigration judge denied the
motion to reopen to apply for suspension of deportation because he
found the respondent to be barred by section 244(0 of the Act from
applying for suspension of deportation.
The respondent obtained a visa as an exchange visitor on March
9, 19'72. lie entered the United States at Hawaii on April 24, 1972,
to attend the Church College of Hawaii, Laie, Hawaii, with the
intent to study a pre-medical course and eventually obtain a medical degree. He received an extension of his stay until December 19,
The immigration judge who denied the motion to reopen noted in his decision
that the record contains a notation by the first immigration judge that the respondent would apply for auapcneion of deportation prior to the expiration of his period
for voluntary departure. Also, the respondent's original Form I-256A (Application
for Suspension of Deportation) was stamped by the Service on March 21, 1984, and
signed by the immigration judge on November 19, 1984 (signature stricken).
342
Interim Decision #3004
1973. After this date, the respondent was out of status. He obtained
a B.A. degree in June 1977 from Brigham Young University,
Hawaii Campus, Laie, Hawaii. In 1978 he applied to the Service for
reinstatement to exchange visitor status and a transfer of prograins in order to get a degree in biology at the University of Utah
by submitting Form DSP-66 (Certificate of Eligibility for Exchange
Visitor Status) to the Service. 2 On the reverse of the form there is
a statement indicating that the respondent is aware that an immigration officer will determine if he is subject to the 2-year residence requirement and agreeing to abide by that decision. The copy
of the form in the record does not appear to have been signed by
the respondent The front of the form is stamped "transfer approved" with the authorized stay noted to expire January 2, 1980.
An immigration examiner on May 11, 1979, checked on the form
the box marked, "I have determined that this alien in the above
program is not subject to the two year residence requirement," and
signed his name to the form. The respondent did not finish his program at the University of Utah, and by August 1979 the respondent was living in San Francisco, California, and was working in a
food store as night manager. The respondent's wife, who entered
the United States as the wife of an exchange alien in 1972, anti his
five United States citizen children are living with him. None of
these children speak Tongan. The respondent also has a child who
is a citizen of Tonga. The respondent admits that he has been arrested three times for drunk driving in California. He has proffered
on appeal an affidavit in support of his application for suspension
of deportation.
A prima facie case of eligibility for the relief sought must be established before a motion to reopen will be granted. Matter of Martinez-Romero, 18 I&N Dec. 75 (BIA 1981), aff'd, Martinez Romero v.
MS,
692 F.2d 595 (9th Cir. 1982); Matter of Lanz,
14 I&N Dec. 98
(BIA 1972); see also Matter of Garcia, 16 MN Dec. 653 (BIA 1978);
Matter of Sipus,
14 I&N Dec. 229 03IA. 1972). The grant or denial of
a motion to reopen is itself strictly discretionary. INS v. .Rios-Pineda,
471 U.S. 444 (1985); Matter of Reyes,
18 I&N Dec. 249 (BIA
1982); Matter of Rodriguez-Vera,
17 I&N Dec. 105 (BIA 1979). A
motion to reopen will not be granted where the respondent has not
2 This form is presently denoted Form IAP-66. We note that the respondent did
not obtain his college degree from the Church College of Hawaii. The program
mauler given on the Form DSP 66 filed in 1978 in the section which was completed
-
by the designated representative officer of the college from which the alien transferred, that is, Brigham Young University, was the same exchange program number
for which the respondent was approved in 1972 at the Church College of Hawaii. It
appears these two colleges may be connected.
Interim Decision #3004
reasonably explained his failure to assert the claim prior to completion of the deportation hearing. 8 C.F.R. § 208.11 (1985); Matter .
of Escobar,
18 I&N Dec. 412 (l3IA 1983).
In order to establish eligibility for section 244(a)(1) relied an
alien must prove that he has been physically present in the United
States for the 7 years immediately preceding his application, that
he has been a person of good moral character for the same period,
and that his deportations will result in extreme hardship to himself
or to his United States citizen or permanent resident spouse, child,
or parent. This form of relief is discretionary. Section 244(a) of the
Act. The alien carries the burden of demonstrating both statutory
eligibility and equities meriting the favorable exercise of discretion.
8 C.F.R. § 242.17(e) (1985); Osuchukwu v. INS,
744 F.2d 1136 (5th
Cir. 1984); Israel v. INS,
710 F.2d 601 (9th Cir. 1983), cert. denied,
465 U.S. 1068 (1984); Marcella v. INS,
694 F.2d 1033 (5th Cis.), cert.
denied,
462 U.S. 1132 (1983); Chadha v. INS,
634 F.2d 408, 426-27
(9th Cir. 1980), aff'd,
462 U.S. 919 (1983); Villena v. INS,
622 F.2d
1352 (9th Cir. 1980) (en bane). A narrow interpretation of the term
"extreme hardship" is consistent with the statutory language,
which indicates the exceptional nature of the suspension remedy.
INS v. Wang,
450 U.S. 139 (1981),, Sanchez v. INS,
755 F.2d 1158
(5th Cir. 1985).
Under section 101(a)(15)(J) of the Act,
8 U.S.C. § 1101(aX15)(J)
(1982), as applicable, an exchange alien is
en alien having a residence in a foreign country which he has no intention of
abandoning who is a bona fide student, scholar, trainee, teacher, professor, research assistant, specialist, or leader in a field of specialized knowledge or skill, or
other person of similar description, who is coming temporarily to the United
States as a participant in a program designated by the Secretary of State, for the
purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, or receiving training .. . .
Section 212(e) of the Act,
8 U.S.C. § 1182(e) (1982), provides:
No person admitted under section 101(aX15)(J) of this title or acquiring such
status after admission (i) whose participation in the program for which he came to
the United States was financed in whole or in part, directly or indirectly, by an
agency of the Government of the United States or by the government of the country of his nationality or his last residence, (ii) who at the time 'of admission or
accr *sition of status under section 101(aXI5XJ) of this title was a national or resident of a country which the Director of the United States Information Agency,
pursuant to regulations prescribed by him, had designated as clearly requiring the
services of persons engaged. in the field of specialized knowledge or skill in which
the alien was engaged, or (iii) who came to this United States or acquired such
status in order to receive graduate medical education or training, shall be eligible
to apply for an immigrant visa, or for permanent residence, . . . until it is established that such person has resided and been physically present in the country of
344
Interim Decision *3004
his nationality or his last residence for an aggregate of at least two years following departure from the United States. . . .3
Under sections 244(f) (2) and (3) (A), (B), and (C) of the Act, an
alien is not eligible for suspension of deportation if he
(2) was admitted to the United States as a nonimmigrant exchange alien as defined in section 101(aX15)(J) of this title, or has acquired the status of such a nonimmigrant exchange alien after admission, in order to receive graduate medical
education or training, regardless of whether or not the alien is subject to or has
fulfilled the two year foreign residence requirement of section 212(e) of this title;
-
or
(3XA) was admitted to the United States as a nonimmigrant exchange alien as defined in section 101(aX15XJ) of this title or has acquired the status of such a nonimmigrant exchange alien after admission other than to receive graduate medical
education or training, (S) is subject to the two-year foreign residence requirement
of section 212(e) of this title, and (C) has not fulfilled that requirement or received
a waiver thereof.
The Service contends that the motion to reopen should have been
denied by the immigration judge who ruled on the motion on the
basis of the failure of the respondent to allege new facts which
could not be proved at the original hearing. S C.F.R. § 3.2 (1985).
The first immigration judge either should have denied the respondent's suspension application for failure to demonstrate eligibility
for suspension of deportation or granted the respondent a continuance. Because it is clear on the record that the respondent did attempt to apply for relief at his hearing but was not allowed the opportunity to present his case at that time, we will uphold the
second immigration judge's decision to consider the motion on the
merits.
The respondent alleges that he is not barred from applying for
suspension of deportation by section MOO of the Act in that he is
not subject to the 2-year residence requirement of section 244(e) because the Department of State had not yet published an ExchangeVisitor Skills List ("Skin,: List") at the time of his entry into the
United States. See 37 Fed. Reg. 8099 (1972). He also claims he was
not made subject to the Skills List by reason of his extension of
status and transfer of programs in 1979, citing Immigration and
Naturalization Service Operations Instructions 212.8(e)(iii). Furthermore, he claims that the Service's approval of the Form DSP-
66 with the explicit determination that he is not subject to the 2-
year residence requirement estops the Government from asserting
now that he is subject to the requireinent. He also points out that
no notice of his being subject to the requirement was given to him
3 This same section of the Act provides for waiver of this requirement by the district director in certain cases. The respondent apparently has not applied for such a
waiver.
Interim Decision #3004
as required by Operations Instructions 212.8(e)(vii). In his first brief
on appeal, the respondent argued through prior counsel that he
had made a de facto application for a waiver of the 2-year foreign
residence requirement under section 212(e) of the Act. As neither
the immigration judge nor the Board has jurisdiction over requests
for a waiver of the cited requirement, we will not consider this argument. See Matter of Baterina,
16 I&N Dec. 127 (BIA 1977); Matter
of Irie,
10 I&N Dec. 372 (BIA 1963). The argument that the Service's failure to object to the respondent's application for suspension
of deportation at an earlier stage of the proceeding constitutes a
waiver of the bar as authorized by section 212(e) of the Act or an
estoppel of the Service is without merit.
The Immigration and Naturalization Service does not claim that
the respondent's education was government financed or that he entered to acquire graduate medical education. The Service also does
not maintain that the respondent was subject to the 2-year foreign
residence requirement at the time he entered the United States.
The Service does argue that the respondent became subject to the
2-year foreign residence requirement when he obtained an extension of his stay in connection with his transfer to another program.
The Service also argues that the immigration judge should not
have granted the respondent a further period of voluntary departure, because the respondent had not explained his failure to
depart under the first grant of voluntary departure or adequately
supported his application.
As is pointed out by the respondent in his first brief on appeal,
certain language in our most recent precedent decision concerning
the eligibility of exchange visitors to apply for suspension of deportation needs to be explained. In Matter of Mangaser,
19 I&N Dec.
28 (BIA 1983), we stated that, because the alien was admitted to
the United States as a nonimmigrant exchange alien, he was statutorily ineligible for suspension of deportation despite the granting
to the alien of a waiver of the 2-year foreign residence requirement
under section 212(e) of the Act. In that case, the alien was a physician who had come to the United States to receive graduate medical training and was subject to the provisions of section 244(1)(2) of
the Act. Our statement was made in that context and should not be
taken to apply to aliens who are subject only to the provisions of
section 244(f)(3) of the Act. If the alien in this case, who did not
come to receive graduate medical training, were to show that he
was 'admitted to the United States as an exchange alien under section 101(a)(15XJ) of the Act, but he was not subject to the 2-year
requirement of section 212(e) of the Act, or he had fulfilled the requirement, or he had obtained a waiver thereof, he would not be
346
Interim Decision #3004
barred from applying for suspension of deportation. See Newton v.
INS, 736 F.2d 336, 339 n.4 (6th Cir. 1984).
As set forth above, the respondent, an exchange alien, will not be
eligible for suspension of deportation if his education was financed
either by the Tongan Government or the United States Government, he entered or acquired the status of a "J" nonimmigrant at a
time when the skill in which he was engaged was listed on the
Skills List as needed in his country, or he entered for the purpose
of acquiring graduate medical education. The respondent came to
the United States to obtain a college degree, not to obtain graduate
medical education; therefore, section 244(0(2) does not apply to
him. The respondent has presented evidence that the programs
under which he acquired and extended his status were not financed
either by the Tongan or the United States Governments; he admits
that the skills he studied are on the Skills List as published by the
Secretary of State on April 25, 1972.
Immigration and Naturalization Service Operations Instructions
212.8(e)(iii) provides:
A J alien who is not governmentally financed and who obtained a J visa or acquired J status under section 248 before the alien's skill and country appeared on
the Skills List, does not become subject to the requirement if granted an extension of stay to pursue the initial objective, even if the .kill has bean added to that
list subsequent to visa issuance.
Operations Instructions 212.8(e)(vii) states:
Before granting an extension of stay or change to J status under section 248
which makes the applicant subject to the foreign residence requirement, the alien
shall be notified in writing that the approval of the change will subject the alien
to the requirement. The alien shall be required to submit a signed statement that
the change Is still desired.
The alien claims he was granted "an extension of stay to pursue
the initial objective" because he intended to study biology, a course
compatible with a pre -medical course of study. He also claims he
would not have been allowed to transfer unless he was pursuing
his initial objective, citing
22 C.F.R. § 514.22(cXl) (1979), which says
in reference to exchange aliens: "A request for a program transfer
shall be denied unless the transfer is clearly consistent with the
original or a closely related objective."
Whether the respondent is subject to the 2-year foreign residence
requirement turns on whether he acquired exchange visitor status
after admission to the United States. Section 212(e) of the Act;
8
C.F.R. § 212.7(c)(2) (1985). The respondent argues that one can only
acquire exchange visitor status after admission to the United
States through the change of status procedures provided by section
248 of the Act,
8 U.S.C. § 1258 (1982). We have already determined
that the reinstatement of an exchange alien to "J" status subjects
0,07
Interim Decision #3004
the alien to the requirements of the Act and regulations in effect
on that date. Matter of Baterina, supra; see also Matter of Wojcik,
11 I&N Dec. 603 (BIA 1966). The respondent was out of status when
he applied for the transfer of program and the extension of his
stay; therefore, he was reinstated to "J" status in 1979 when his
application was stamped approved and his Form 1-94 (Arrival-Departure Record) was noted as reinstated to "J-1" status. The
reason a mere extension of stay will not result in an alien becoming subject to the 2-year residence requirement is because the initial admission and any later extensions of stay for an exchange visitor are not authorized under any circumstances for increments of
more than 12 months.
8 C.F.R. § 214.2(j)(1)(ii) (1985). 4 Every exchange alien whose program extends for more than 12 months regularly applies for an. extension of stay. Any other rule would result
in all exchange visitors becoming subject to the requirement of section 212(e) of the Act if their skill or country was added to the
Siring List while the alien was in the United States. However, this
rule regarding extension of status does not apply to the respondent
who was reinstated to exchange visitor status at his own request in
1979.
The respondent has argued that the Government is estopped by
the notation made on the Form DSP-66 submitted in 1978 from arguing that he is not eligible for suspension of deportation by reason
of the requirement of section 212(e) of the Act. It has not been determined that estoppel will lie against the Government in immigration cases. See INS v. Miranda,
459 U.S. 14 (1982) (per curiam); INS
v. Hibi,
414 U.S. 5 (1973) (per curiam); Montana v. Kennedy,
366
U.S. 308 (1961); but see Heckler v_ Community Health. Services of
Crawford County, Inc.,
467 U.S. 51 (1984). Even if we assume that
estoppel would apply to the Government in some cases, the respondent here has failed to show the elements necessary for equitable estoppel. In order to show estoppel, the respondent would have
to prove affirmative misconduct on the part of the Government or
its agent, that he reasonably relied on the action or representation
of the Government, and that he was prejudiced thereby. Heckler v.
Community Health Services of Crawford County, Inc., supra, at 59.
Assuming, without deciding, that the respondent would not have
applied for reinstatement of exchange visitor status if he had been
informed that he would be required as a result to return to Tonga
for 2 years, the respondent could argue that he had suffered preju-
4 Effective November 18, 1985, the cited regulation has been amended to allow the
admission of an exchange alien for the period specified on Form 1AP-66, plus a
period of 30 days.
50 Fed. Reg. 42,006 (1985) (to be codified at
8 C.F.R. § 214.2(jX1XiM.
348
Interim Decision #3004
dice because he was eligible to apply for suspension of deportation
at the time of the decision on his application for reinstatement;
however, we find the respondent has failed to establish that the
Service is estopped by the determination of the inspector because
the respondent cannot show he relied on that inspector's decision.
Also, there has been no affirmative misconduct shown. A failure
to inform the respondent of all the legal consequences of his actions is not sufficient to establish affirmative misconduct. See Santiago v. INS, 526 F.2d 488 (9th Cir. 1975), cert. denied,
425 U.S. 971
(1976). The failure of the inspector to follow O.I. 212.8(e)(vii) does
not establish affirmative misconduct because the Service would not
be legally bound to follow an Operations Instruction as it would be
in the case of its own regulations. See Dong Sik Kwon v. INS,
646
F.2d 909 (5th Cir. 1981); Yan Wo Cheng v. Rinaldi,
389 F. Supp. 583
(D.N.J. 1975); but see Nicholas v. INS,
590 F.2d 802 (9th Cir. 1979)
(construing 0.1. 103.1(aX1)(ii)). In Corniel-Rodriguez v. INS,
532 F.2d
301 (2d Cir. 1976), cited by the respondent, the Government was
held estopped because the Department of State had violated an affirmative duty established by a mandatory regulation. In some
cases, the courts have offered relief to an alien who was misled by
information obtained from the Government. Hetzer v. INS,
420 F.2d
357 (9th Cir. 1970); In Re Petition of La Voie, 249 F. Sapp. 68
(D.V.I. 1972); Campbell v. Esperdy,
287 F. Supp. 92 (S.D.N.Y. 1968);
see also Moser v. United States,
341 U.S. 41 (1951). In these cases,
unlike the one presently before us, the alien was directly given
misinformation on which he relied. The proper form of relief for
the respondent is to apply for a waiver of the requirement under
section 212(e) of the Act.
It is correct, as argued by the Service, that the mere filing of a
motion to reopen or an application for relief from deportation does
not allow the alien to remain in the United States pending the decision on his application or motion. 8 C.F.R. §§ 3.2, 242.22 (1985); see
also Ahwazi v. INS,
751 F.2d 1120 (9th Cir. 1985); Riasati v. INS,
738 F.2d 1115 (10th Cir. 1984); Matter of Irk, supra. The respondent
had previously convinced the immigration judge at his deportation
hearing that he was willing and able to leave the United States
when ordered. The second immigration judge's determination that
the respondent, under the circumstances of this case, had sufficient
reason to remain in the United States beyond the period initially
grantad for voluntary departure is supported by the facts in the
record. Without evidence from the Service that either immigration
judge's determination was incorrect, we will not disturb the decision to reopen the proceeding and grant voluntary departure.
ORDER: The appeals are dismissed.
349
Interim Decision #8004
FURTHER ORDER: Pursuant to the immigration judge's
order of April 25, 1985, and in accordance with our decision in
Matter of Onyedibia, 15 I&N Dec. 37 (BIA 1974), the respondent is
permitted to depart from the United States voluntarily within a
time to be set by the district &rector; in the event of failure so to
depart, the respondent shall be deported as provided in the immigration judge's order of November 19, 1984.
350
