Maksim Milutin Kalezic v. Immigration and Naturalization Service

Maksim Milutin Kalezic appeals from a deportation order on the grounds that the Immigration and Naturalization Service (INS) (1) erroneously failed to terminate proceedings against him as required by statute, and, (2) wrongfully denied him an adjustment of status as a permanent resident. We affirm the denial of an adjustment of status and conclude that Kalezic is not entitled to have his deportation proceeding terminated. We also hold that the INS did not abuse its discretion in denying voluntary departure.

I.

FACTS

Petitioner, a citizen of Yugoslavia, was admitted to the United States as a permanent resident in 1973 on the basis of his marriage to Joy Daniels, a U.S. citizen. In March 1974, the couple divorced. In July, Kalezic was found deportable for willfully concealing material facts of his personal history on his visa application. 1 In November 1975, Kalezic and Daniels remarried. In March 1977, Daniels filed a petition for an immediate relative visa on behalf of her husband. 2 The visa petition was approved in July 1977. Kalezic then requested the Board of Immigration Appeals (BIA) to reopen his deportation proceedings to enable him to file for an adjustment of status as…

concurring and dissenting:

I concur with the majority that Kalezic was ineligible for an adjustment of status under 8 U.S.C. § 1255 (a). I disagree, however, with the majority’s refusal to give Kalezic the benefit of section 1251(f) which provides in pertinent part, “the provisions of this section ... shall not apply to an alien ... who is the spouse ... of a United States citizen .... ”

I do not quarrel with the majority’s selection of the date of the Immigration Law Judge’s decision as the appropriate time to assess marital status for purposes of determining whether deportation proceedings should be terminated under 8 U.S.C. § 1251 (f). However, at the time of the Immigration Judge’s decision in this case, Kalezic was still married. To avoid the literal application of section 1251(f), the majority allows the Immigration Judge to assess the viability of the marriage and to allow deportation proceedings to go forward even though the alien is “technically” married. This is without justification. Cf. Whetstone v. INS, 561 F.2d 1303, 1306-07 (9th Cir. 1977) (where alien is admitted as a fiancee or fiance of citizen, viability of marriage cannot be considered for purposes of statute…

647 F.2d 920 Maksim Milutin KALEZIC, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 79-7410. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 11, 1980. Decided June 8, 1981. Steve Fredrickson, Seattle, Wash., argued, for petitioner. Daniel E. Fromstein, Atty., Washington, D. C., for respondent. Petition to Review a Decision of the U.S. Immigration and Naturalization Service. Before SNEED and FLETCHER, Circuit Judges, and JAMESON * , District Judge. SNEED, Circuit Judge: 1 Maksim Milutin Kalezic appeals from a deportation order on the grounds that the Immigration and Naturalization Service (INS) (1) erroneously failed to terminate proceedings against him as required by statute, and, (2) wrongfully denied him an adjustment of status as a permanent resident. We affirm the denial of an adjustment of status and conclude that Kalezic is not entitled to have his deportation proceeding terminated. We also hold that the INS did not abuse its discretion in denying voluntary departure. I. FACTS 2 Petitioner, a citizen of Yugoslavia, was admitted to the United States as a permanent resident in 1973 on the basis of his marriage to Joy Daniels, a…