Karim Heydari Ahwazi v. Immigration and Naturalization Service, David Marshall Sahabandu v. Immigration and Naturalization Service , 751 F.2d 1120 ( 1985 )

SNEED, Circuit Judge:

Karim Heydari Ahwazi and David Marshall Sahabandu each petition for review of the Board of Immigration Appeals’ (BIA) denial of their motions to reopen their respective deportation proceedings to apply for adjustment of status based on their marriages to United States citizens. We consolidated the petitions and deny both.

I.

FACTS AND PROCEEDINGS BELOW

A. Ahwazi

Petitioner Ahwazi, a native and citizen of Iran, was admitted to the United States as a nonimmigrant student on September 29, 1977. He was authorized to remain in this country until June 4, 1978, but he failed to leave within that time. Accordingly, deportation proceedings were brought against him. On September 4,1980 an immigration judge found Ahwazi deportable as an overstay based on his own admissions, denied his application for a suspension of deportation, and granted him the privilege of voluntary departure on or before September 15, 1980. Ahwazi appealed that decision to the BIA. The BIA dismissed that appeal on August 19, 1981. This court denied Ahwazi’s petition for review of the BIA’s decision in an order dated October 21, 1982. Following this denial of his petition for review, Ahwazi failed to leave the United States pursuant to the immigration judge’s order. Consequently, the INS ordered petitioner to report for deportation on September 1, 1983. Approximately one week before his deportation date, Ahwazi' married a United States citizen, who immediately filed a visa petition on his behalf. At this same time, Ahwazi filed a motion to reopen his deportation proceeding in order to apply for adjustment of status and reinstatement of voluntary departure. The BIA denied the motion to reopen. Ahwazi then filed this petition for review.

B. Sahabandu

Sahabandu is a native and citizen of Sri Lanka who entered this country as a non-immigrant student on February 22, 1969. He was authorized to remain here until February 21, 1973. He failed to leave by this date. On March 8, 1974, a deportation hearing was held, at which Sahabandu was found deportable as an overstay on the basis of his admissions. Petitioner appealed this decision to the BIA, asking for an indefinite continuance so that he might effectuate a reconciliation with his spouse, a United States citizen, and thereafter apply for adjustment of status. The BIA dismissed his appeal on March 4, 1975, finding that more than enough time had elapsed for Sahabandu to reunite with his wife if they were so inclined. Subsequent to the BIA’s dismissal, however, petitioner and his wife did reconcile. Accordingly, he filed a motion to reopen based on this reconciliation, and his wife simultaneously filed a visa petition on his behalf. In light of these circumstances, petitioner was granted a stay of deportation by the District Director of INS on June 10, 1975. Thereafter, the marriage apparently deteriorated. Finally, in February 1981, petitioner and his wife were divorced.

On July 22, 1981, Sahabandu filed a second motion to reopen, this time claiming that deportation to Sri Lanka would cause him extreme hardship. After extensive hearings, the BIA denied this motion to reopen because petitioner had failed to establish a prima facie case of extreme hardship. On June 24, 1983, this court affirmed the BIA’s denial of petitioner’s second motion to reopen. Consequently, Sahabandu was requested to report for deportation on August 18,1983. He failed to report at the requested time. Instead, on September 19, 1983, petitioner remarried, again to a United States citizen. His new wife filed a visa petition on his behalf, and at the same time, petitioner filed a third motion to reopen to file for adjustment of status. While this motion was pending before the BIA, petitioner also filed a petition for a writ of habeas corpus in the United States District Court. On February 2, 1984, the BIA denied Sahabandu’s third motion to reopen. On April 4, 1984, the district court dismissed the habeas petition. Sahabandu now petitions for review of the BIA’s denial of his third motion to reopen.

II.

DISCUSSION

On appeal, both petitioners argue that the BIA abused its discretion in denying their motions to reopen. Specifically, each claims that because he established his statutory eligibility for adjustment of status,¹ the BIA erred in not remanding his petition to an immigration judge for a hearing. The petitions raise a common issue, the resolution of which will dispose of both.

This court reviews denials of motions to reopen under the abuse of discretion standard. Agustin v. INS, 700 F.2d 564, 565 (9th Cir.1983) (per curiam); Ro v. INS, 670 F.2d 114, 116 (9th Cir.1982). The BIA’s denial of a motion to reopen will be upheld unless it is arbitrary, irrational, or contrary to law. Ramon-Sepulveda v. INS, 743 F.2d 1307, 1309 (9th Cir.1984); Batoon v. INS, 707 F.2d 399, 401 (9th Cir.1983).

The scope of our review of the BIA’s decisions in these cases is further circumscribed by the discretion conferred upon the Attorney General and his delegates — in this case, the BIA — to reopen deportation proceedings. 8 C.F.R. § 3.2 (1984) provides that:

Motions to reopen ... shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing; nor shall any motion to reopen for the purpose of affording the alien an opportunity to apply for any form of discretionary relief be granted ... unless the relief is sought on the basis of circumstances which have arisen subsequent to the hearing.

As the Supreme Court observed in INS v. Wang, 450 U.S. 139, 144 n. 5, 101 S.Ct. 1027, 1031 n. 5, 67 L.Ed.2d 123 (1981) (per curiam), these regulations are framed in the negative, establishing when the BIA may not reopen, but saying nothing about when it must reopen. “Thus, the regulations may be construed to provide the Board with discretion in determining under what circumstances proceedings should be reopened.” Id.; see also INS v. Phinpath-ya, — U.S.-, 104 S.Ct. 584, 589 n. 6, 78 L.Ed.2d 401 (1984) (whether to grant a motion to reopen is “entirely” within BIA’s discretion). The Court in Wang further noted that this discretion extends beyond requiring proof of a prima facie case. 450 U.S. at 144 n. 5, 101 S.Ct. at 1031 n. 5. Quoting Judge Wallace’s dissent in Villena v. INS, 622 F.2d 1352, 1362 (9th Cir.1980) (en banc), the Court explained that:

If INS discretion is to mean anything, it must be that the INS has some latitude in deciding when to reopen a case. The INS should have the right to be restrictive. Granting such motions too freely will permit endless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a prima facie case. It will also waste the time and efforts of immigration judges called upon to preside at hearings automatically required by the prima facie allegations.

450 U.S. at 144 n. 5, 101 S.Ct. at 1031 n. 5. Wang thus firmly establishes that the BIA has discretion to deny a motion to reopen without a hearing, even if the alien makes out a prima facie case of eligibility for suspension of deportation.² See Sida v. INS, 665 F.2d 851, 854 (9th Cir.1981); Mesa v. INS, 726 F.2d 39, 40-41 (1st Cir.1984).

Here, petitioners’ motions to reopen were based solely on their recent marriages to United States citizens. The Service and the BIA conceded that, on the basis of these marriages, petitioners are statutorily eligible for adjustment of status. Petitioners, however, offered no further new evidence suggesting why the BIA should exercise its discretion to adjust their status. Accordingly, the BIA determined that a hearing in these cases would be superfluous. See Obitz v. INS, 623 F.2d 1331, 1333 (9th Cir.1980) (en banc) (a motion to reopen based on a request for adjustment of status typically does not require a hearing); Riasati v. INS, 738 F.2d 1115, 1118 (10th Cir.1984) (a request for adjustment of status does not automatically entitle petitioner to a hearing). It concluded that the equities of petitioners’ recent marriages did not outweigh their violations of our immigration laws. As a result, the BIA refused to reopen their deportation proceedings, clearly stating its reasons for doing so. Under the facts of these cases, we cannot say that the BIA abused its discretion.

In petitioner Ahwazi’s case, the BIA also refused his request for reinstatement of voluntary departure because he offered no explanation for his original failure to depart. In order to warrant a second grant of voluntary departure, an alien must show compelling reasons for his failure to depart initially. Riasati, 738 F.2d at 1119; In Re Onyedibia, 15 I. & N. Dec. 37 (1974). Ahwazi’s failure to offer any explanation obviously does not meet this test. The BIA properly refused his request.

For the foregoing reasons, these petitions for review are denied.

DENIED.

1 . An alien requesting an adjustment of status must demonstrate: (1) that he has applied for an adjustment of status; (2) that he is eligible to receive an immigrant visa and is admissible to the United States; and (3) that an immigrant visa is immediately available to him at the time his application is filed. 8 U.S.C. § 1255 (1982). Once an alien has demonstrated statutory eligibility for adjustment of status, the Attorney General or his delegate then has discretion either to grant or deny the requested adjustment of status. See Obitz v. INS, 623 F.2d 1331, 1333 (9th Cir.1980) (en banc).

2 . Where an alien presents a prima facie case of statutory eligibility for suspension of deportation that requires a discretionary determination, a hearing may be necessary. Obitz v. INS, 623 F.2d 1331, 1333 (9th Cir.1980) (en banc). For example, a motion to reopen based on a prima facie case of extreme hardship, see 8 U.S.C. § 1254(a)(1) (1982), may require a hearing to determine whether the hardship is sufficiently extreme to warrant discretionary relief. See Reyes v. INS, 673 F.2d 1087 (9th Cir.1982); Ur-bano de Malaluan v. INS, 577 F.2d 589 (9th Cir.1978). Similarly, where a motion to reopen is supported by a prima facie showing that the alien is likely to be politically persecuted if deported, a hearing might be necessary to determine whether relief is appropriate. Samimi v. INS, 714 F.2d 992 (9th Cir.1983).