Majid Ghorbani v. Immigration and Naturalization Service

686 F.2d 784 Majid GHORBANI, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 80-7509. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 11, 1981. Decided Sept. 8, 1982. Robert D. Baizer, Younemura & Yasaki, Oakland, Cal., for petitioner. Lawrence Lippe, Washington, D. C., argued, for respondent; Jimmy Gurule, Atty., Washington, D. C., on brief. Petition for Review of an Order of the Immigration and Naturalization Service. Before CHOY, HUG and POOLE, Circuit Judges. HUG, Circuit Judge: 1 Majid Ghorbani, a native and citizen of Iran, petitions for review of a decision of the Board of Immigration Appeals ("BIA"). The BIA dismissed Ghorbani's appeal from an immigration judge's decision that Ghorbani was deportable as a nonimmigrant student in violation of the conditions of his status. Ghorbani raises several issues: (1) that his violations were "technical" and "not substantial" and therefore did not justify deportation; and (2) that the District Director abused his discretion in refusing to reinstate Ghorbani's student status, and the immigration judge and the BIA erred in holding that the immigration judge had no authority to review…

Majid Ghorbani, a native and citizen of Iran, petitions for review of a decision of the Board of Immigration Appeals (“BIA”). The BIA dismissed Ghorbani’s appeal from an immigration judge’s decision that Ghorbani was deportable as a nonimmigrant student in violation of the conditions of his status. Ghorbani raises several issues: (1) that his violations were “technical” and “not substantial” and therefore did not justify deportation; and (2) that the District Director abused his discretion in refusing to reinstate Ghorbani’s student status, and the immigration judge and the BIA erred in holding that the immigration judge had no authority to review that decision; and (3) that this court has jurisdiction to review the discretionary decision of the District Director even though it was not reviewed in the deportation hearing. We affirm the decision of the BIA and hold that this court lacks jurisdiction to review the discretionary decision of the District Director.

I

Ghorbani entered the United States as a nonimmigrant student in August, 1978, and *785 was subsequently authorized to remain in this country for the duration of his student status. In November, 1979, Ghorbani reported to…

concurring specially.

I concur in the majority opinion’s conclusion that we are without jurisdiction to review the discretionary decision of the District Director refusing to reinstate Ghorbani’s nonimmigrant student status. However, I am unable to endorse the majority’s attempt to explain our prior decisions in this area using the gloss of “pendent jurisdiction.”

In Waziri v. INS, 392 F.2d 55 (9th Cir. 1968), we held that section 106(a) conferred jurisdiction on this court to review the validity of an order rescinding the petitioner’s permanent resident status even though that determination was made prior to petitioner’s section 242 deportation hearing. There is no indication in Waziri that the court relied on the concept of pendent jurisdiction. Instead, it concluded that the recission of Waziri’s status was the “logical predicate” of the deportation order and therefore meaningful review of the order would require that the court examine the earlier decision. 392 F.2d at 56-57 . See also Bachelier v. INS, 625 F.2d 902 (9th Cir. 1980).

Shortly afterwards, the Supreme Court narrowly limited the scope of appeal under section 106(a). In Cheng Fan Kwok v. INS, 392 U.S. 206 , 88…