Kiranchandra Bhakta and Tara Bhakta v. Immigration & Naturalization Service

Kiranchandra Bhakta and his wife entered the United States in June 1973. They overstayed their visas, and after a deportation hearing in November 1977, they were told to depart from the country on or before April 22, 1978. Subsequent to the deportation proceeding, Bhakta’s brother’s Immigrant Visa Petition was approved, and Bhakta became the beneficiary of a fifth preference visa. Accordingly, on May 1, 1979, he filed a Motion to Reopen Deportation Proceedings, in order to apply for a change to permanent resident status. On October 1, 1979, his motion was denied by the Immigration Judge on the ground that Bhakta was ineligible to adjust his status because he had engaged in unauthorized employment. This appeal is from the Board of Immigration Appeals’ affirmance of that decision.

According to 8 U.S.C. § 1255 (c), the section of the Immigration and Nationality Act which governs adjustments in an alien’s status, “[t]he provisions of this section shall not be applicable to ... an alien ... who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status.” The disqualification provision in § 1255(c) became effective on January 1,…