Alexander Orden Olivar v. U.S. Immigration and Naturalization Service

Alexander Olivar, a citizen of the Philippines, appeals the decision of the Board of Immigration Appeals (“BIA”) not to reopen, his deportation proceedings. An immigration judge found Olivar deportable in June 1986, and the BIA affirmed this determination. In December 1989, Olivar moved the BIA to reopen deportation proceedings on the ground that he had married a United States citizen, who had obtained an immediate relative visa for him. After Olivar filed the motion, however, the INS District Director revoked the visa under the Immigration Marriage Fraud Amendments of 1986, Pub.L. No. 99-639, 100 Stat. 3541 (codified at 8 U.S.C. §§ 1154 (h), 1255(e) (1988)). The BIA then refused to reopen proceedings. We have jurisdiction under 8 U.S.C. § 1105a(a), and stay this petition as described below.

Olivar asks us to reverse the BIA’s decision not to reopen and to remand the matter so that the INS can reinstate approval of his immediate relative visa petition. Oli-var relies on the Immigration Act of 1990, enacted after the BIA decision, in which Congress amended § 245(e) so that it would not apply if the alien establishes by clear and convincing evidence, among other things, that the…