Hossein Berahmand v. Immigration & Naturalization Service

Berahmand, a citizen of Iran, entered this country in 1969, as a student. He married an American citizen, and on June 26, 1972, his wife filed a visa petition on his behalf to accord him preference as an immediate relative. Her petition was approved on July 20, 1972. In February, 1973, Berahmand filed an application for permanent resident status. After an interview with Immigration Examiner Luken, on October 25, 1973, his application was completed and sworn to, and apparently approved. An approval stamp appears on his INS Form 1-181, which is the original record of lawful admission as a permanent resident. 1 See 2 Gordon and Rosenfield, Immigration Law and Procedure, § 6.17a (1976). Berahmand testified that the Immigration Examiner told him at the interview that his application was granted. Some marks, however, have been drawn through the approval stamp, and Berahmand had never received written notification of any approval of his application.

On December 2, 1974, Berahmand’s wife, who was divorcing him, wrote to INS saying that she wished to withdraw her visa petition. On December 4, 1974, the District Director of INS notified the wife that approval of her visa…

dis-

senting:

The majority appears to have turned the burden of proof around in this case. It is uncontested that at all times prior to the date on which the approval stamp was allegedly placed in the file, the petitioner was an alien in this country on student status. Any alien seeking an adjustment in his status has the burden of proof. 8 C.F.R. § 242.17 (d); C. Gordon and H. Rosenfeld, Immigration Law and Procedure, § 7.7f(2) (Rev. ed. 1976). I believe this burden was never met. The judge of the Immigration Service made such a finding in ordering deportation, and I see no reason to disturb and this finding on appeal.

An INS Form 1-181 is merely evidence of admission as a permanent resident. It hardly constitutes conclusive proof that any change in status has occurred. See id., § 6.17a. Although a crossed-out approval stamp appears on this form, it was never signed by any official, as is the standard practice of the Immigration Service. Less than one month after permanent resident status was purportedly granted by this document, petitioner and an agent of the Immigration Service conferred on matters relating to his application for permanent status. This meeting is documented…

549 F.2d 1343 Hossein BERAHMAND, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. No. 75-3524. United States Court of Appeals, Ninth Circuit. March 15, 1977. Harry R. Kraus, Portland, Or., submitted brief for petitioner. Sidney I. Lezak, U. S. Atty., Portland, Or., Henry Petersen, Asst. Atty. Gen., Crim. Div., Dept. of Justice, Washington, D. C., Brian H. Simpson, Immigration & Nat. Service, San Francisco, Cal., Bernard S. Karmiol, Regional Counsel, Immigration & Nat. Service, San Pedro, Cal., Lyle H. Dahlin, Dist. Director, Immigration & Nat. Service, Portland, Or., B. Franklin Taylor, Acting Chief Govt. Regs., Dept. of Justice, James P. Morris, Robert E. Courtney, Washington, D. C., submitted brief for respondent. Petition to Review a Decision of the U. S. Immigration & Naturalization Service. Before DUNIWAY, CARTER and CHOY, Circuit Judges. OPINION DUNIWAY, Circuit Judge: 1 Berahmand, a citizen of Iran, entered this country in 1969, as a student. He married an American citizen, and on June 26, 1972, his wife filed a visa petition on his behalf to accord him preference as an immediate relative. Her petition was approved on July 20, 1972. In…