United States Court of Appeals,
Fifth Circuit.
No. 94-40592
Summary Calendar.
Lolo MAMOKA, Yoni Mamoka and Amit Mamoka, Petitioners,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
Jan. 26, 1995.
Petition for Review of an Order of the Board of Immigration
Appeals.
Before JONES, BARKSDALE and BENAVIDES, Circuit Judges.
PER CURIAM:
Lolo Mamoka and her sons, Yoni and Amit Mamoka, challenge the
Board of Immigration Appeals' denial of Lolo Mamoka's application
for adjustment of status and all three petitioners' requests for
voluntary departure. We DENY the petition.
I.
Lolo Mamoka is a native of Iraq and a citizen of Israel; her
sons, Yoni and Amit Mamoka, are natives and citizens of Israel.
Lolo Mamoka, her sons and her then ex-husband first entered the
United States in 1984 "to make [a] better life", but on visitors'
visas. Although ordered by immigration authorities to leave the
United States within one month, Lolo Mamoka remained in the country
with her family until 1987, when her ex-husband returned to Israel
with their children. Lolo Mamoka joined them four months later.
In December 1988, Lolo Mamoka returned to the United States on
a visitor's visa; her ex-husband and their children joined her
1
shortly thereafter.1 Although she was authorized to remain in the
United States only until mid-June 1989, Lolo Mamoka has not
departed.
In the interim, Mr. Mamoka was convicted in March 1991 for
making false and misleading statements to the INS, and was
sentenced to two years in the custody of the Attorney General. He
moved to postpone surrender under the condition that the entire
family would return voluntarily to Israel before July 1, 1991. Mr.
Mamoka returned to Israel in 1991, as agreed; but, as noted, Lolo
Mamoka and her sons stayed in the United States.
In 1991, Yoni and Amit Mamoka returned to Israel to visit
their father. When they were unable to obtain visas to return to
the United States, Lolo Mamoka arranged to have them smuggled in
through Mexico. The boys were apprehended in Mexico and placed in
the custody of Mexican immigration authorities. Arrangements were
made to fly them back to Israel, but during a stopover at Kennedy
Airport in New York on their way back to Israel, they escaped from
INS custody, and called their mother in Houston; she arranged to
have a friend pick them up. The next day, Lolo Mamoka flew to New
York; and she and her sons returned to Houston. Shortly
thereafter, they were arrested by immigration authorities.
On August 21, 1992, the INS ordered Lolo Mamoka to show cause
why she should not be deported for remaining in the United States
longer than she was authorized to stay; the show cause order was
1
Lolo Mamoka and her ex-husband remarried in 1989, and were
divorced in October 1992.
2
amended to include her sons. At a hearing on November 4, 1992,
Lolo Mamoka admitted the allegations in the show cause order, and
her sons admitted entering the United States without inspection.
The hearing was continued to allow the petitioners to apply for
suspension of deportation and voluntary departure.
That December, Lolo Mamoka married Robert Mace, a United
States citizen and paraplegic, confined to a wheelchair since 1980.
On December 22, Mace filed immediate relative visa petitions for
his wife and her sons. On January 28, 1993, Lolo Mamoka applied
for adjustment of her status to that of lawful permanent resident,
based upon her marriage. The INS approved the immediate relative
visa petitions in March and April 1993.
The deportation hearing was reconvened in June 1993. The
Immigration Judge denied Lolo Mamoka's application for adjustment
of status and all three petitioners' requests for voluntary
departure, stating that she was "flabbergasted" by the petitioners'
"blatant" disregard for the immigration laws and their "outrageous"
behavior. The Board of Immigration Appeals affirmed the decision.
II.
Lolo Mamoka contends that the recent amendment to § 245 of the
Immigration and Nationality Act (INA) abolished "preconceived
intent" to remain in the United States as a basis for denying
adjustment of status, and that the BIA abused its discretion by
failing to address adequately significant equities in her case, by
attributing her sons' misconduct to her, and by departing from its
own precedent.
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A.
We address first whether we have jurisdiction to consider the
petition for review. See United States v. Garcia-Machado, 845 F.2d
492, 492 (5th Cir.1988) ("This Court must examine the basis of its
jurisdiction, on its own motion, if necessary."). The Mamokas
petitioned for review on June 24, 1994; but, on October 11, they
filed a motion with the BIA to reopen the proceedings and
reconsider its order.
Our court has not addressed the effect of filing a motion to
reopen on the finality of a deportation order. The Immigration and
Nationality Act provides that "whenever a petitioner seeks review
of an order under this section, any review sought with respect to
a motion to reopen or reconsider such an order shall be
consolidated with the review of the order." 8 U.S.C. §
1105a(a)(6). Regulations promulgated by the INS provide that
"[t]he decision of the Board shall be final except in those cases
reviewed by the Attorney General in accordance with paragraph (h)
of this section," 8 C.F.R. § 3.1(d)(2), and that "[t]he filing of
a motion to reopen or a motion to reconsider shall not serve to
stay the execution of any decision made in the case." Id. §
3.8(a).
When a motion to reopen is filed after a timely petition for
review has been filed, other circuits are in agreement that the
motion to reopen does not affect the finality of a final
deportation order. See Arango-Aradondo v. I.N.S., 13 F.3d 610, 615
(2d Cir.1994); Berroteran-Melendez v. I.N.S., 955 F.2d 1251, 1254
4
(9th Cir.1992); Alleyne v. I.N.S., 879 F.2d 1177, 1180-82 (3d
Cir.1989).2 We agree; because the Mamokas filed a timely petition
for review before moving to reopen, the deportation order is final,
and we have jurisdiction to review it.
B.
Lolo Mamoka contends that the denial of her application for
adjustment of status violates Congress' intent, expressed in the
recent amendment to § 245 of the INA, to abolish "preconceived
intent" as a basis for denial of that adjustment. The amendment
makes it possible for persons in the United States who otherwise
are entitled to apply for an immigrant visa to apply for adjustment
of status without leaving the country. Pub.L. No. 103-317, §
506(b), (c), 108 Stat. 1765 (Aug. 26, 1994).
We agree with the INS that this issue is not properly before
us. The amendment was enacted on August 26, 1994, after Mamoka
2
On the other hand, the Ninth and Eleventh Circuits have
held that a deportation order is not final and appealable when a
motion to reopen is filed prior to filing a petition for review.
See Fleary v. I.N.S., 950 F.2d 711, 713 (11th Cir.1992); Jian
Gang Chu v. I.N.S., 875 F.2d 777, 779-80 (9th Cir.1989). In
contrast, the Third, Sixth, Seventh, Eighth, and Tenth Circuits
hold that the finality of a deportation order is not affected by
the petitioner moving to reopen prior to filing a petition for
review. See Stone v. I.N.S., 13 F.3d 934, 939 (6th Cir.), cert.
granted, --- U.S. ----, 114 S.Ct. 2098, 128 L.Ed.2d 661 (1994);
Bauge v. I.N.S., 7 F.3d 1540, 1541-42 (10th Cir.), cert. denied,
--- U.S. ----, 113 S.Ct. 1605, 123 L.Ed.2d 167 (1993); White v.
I.N.S., 6 F.3d 1312, 1317 (8th Cir.1993), cert. denied, --- U.S.
----, 114 S.Ct. 2162, 128 L.Ed.2d 886 (1994); Akrap v. I.N.S.,
966 F.2d 267, 271 (7th Cir.1992); Nocon v. I.N.S., 789 F.2d
1028, 1032-33 (3d Cir.1986). Cf. Gebremichael v. I.N.S., 10 F.3d
28, 33 n. 13 (1st Cir.1993) (staying petition until BIA resolved
petitioner's motions, and consolidating initial petition with
that from BIA's denial of motion for rehearing). We express no
opinion on whether filing a motion to reopen before a petition
for review is filed affects the finality of the BIA's decision.
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sought review of the BIA's decision; in fact, the amendment is the
basis for her pending motion to reopen. Because the BIA has not
ruled on the issue, we will not consider it.3 See 8 U.S.C. §
1105a(c) ("An order of deportation ... shall not be reviewed by any
court if the alien has not exhausted the administrative remedies
available to him"); Faddoul v. I.N.S., 37 F.3d 185, 190 (5th
Cir.1994) ("The proper venue for proffering new evidence is ... the
BIA through a motion to reopen the case."); Yahkpua v. I.N.S., 770
F.2d 1317, 1320 (5th Cir.1985) (petitioner "may not introduce on
appeal issues that were not presented to or considered at the
administrative level"); Arango-Aradondo v. I.N.S., 13 F.3d at 614
(declining to address ineffectiveness of counsel claim until BIA
had considered it).
C.
Lolo Mamoka contends that the Board abused its discretion by
denying her application for adjustment of status, because it failed
to address adequately significant equities in her case, attributed
her sons' misconduct to her, and departed from its own precedent.
An applicant who meets the statutory requirements for adjustment of
status is eligible for, but not entitled to, discretionary relief.
See Patel v. I.N.S., 738 F.2d 239, 240 (7th Cir.1984) (citing
United States ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72, 77,
77 S.Ct. 618, 621, 1 L.Ed.2d 652 (1957)). "The applicant bears the
3
The petitioners assert that the recent amendment to § 245
of the INA makes Yoni and Amit Mamoka eligible for adjustment of
their status. As stated, the applicability of that amendment,
which is the subject of the pending motion to reopen, is not
properly before us.
6
burden of proving that his application merits a favorable exercise
of discretion, which is an extraordinary act and a matter of
grace." Id. at 242. It is undisputed that Lolo Mamoka satisfies
the statutory requirements for adjustment of status. The BIA's
determination that the petitioners do not warrant discretionary
relief is reviewable only for abuse of discretion. See I.N.S. v.
Bagamasbad, 429 U.S. 24, 24, 97 S.Ct. 200, 200, 50 L.Ed.2d 190
(1976); Patel, 738 F.2d at 242.
Lolo Mamoka contends that the BIA failed to address or give
appropriate weight to the following equities: (1) the reasons she
overstayed her visa and arranged to smuggle her children back into
the United States—her ex-husband's alcoholism and his conviction
for violations of United States Immigration law; (2) the
difficulties the family would encounter if her current husband, who
is a paraplegic and permanently confined to a wheelchair, were
separated from her; and (3) the fact that, except for a year and
a half spent in Israel, she and her children have lived in the
United States for ten years, and her children have attended public
school in Texas. Contrary to Lolo Mamoka's assertion, the BIA
expressly acknowledged that a "significant equity" was presented by
Mace's disability, but found that it was insufficient to outweigh
her "blatant disregard for our immigration laws".
The BIA did not abuse its discretion by failing to
specifically address Lolo Mamoka's ex-husband's alcoholism and
criminal conviction, or her long period of illegal residence in the
United States. In her brief filed with the BIA, she did not refer
7
to her ex-husband's alcoholism or criminal conviction, and she has
made no attempt to explain, either to the BIA or to this court, how
her ex-husband's alcoholism or criminal conviction excuse or
mitigate her continuous efforts to evade the immigration laws of
the United States. She mentioned her length of residence only once
in her brief to the BIA, and did not elaborate on the alleged
hardship that she would suffer if deported. The BIA did not abuse
its discretion by concluding that Lolo Mamoka's continuous and
blatant disregard for the immigration laws outweighed these
positive equities.
We reject Lolo Mamoka's contention that the BIA abused its
discretion by attributing to her the misconduct of her sons. The
BIA expressly stated that "the adverse factors in the children's
case can have reference to their case alone and cannot be
attributed to [Lolo Mamoka]." The BIA's decision was based on Lolo
Mamoka's own conduct in facilitating the illegal presence of her
sons after she had knowledge of their illegal entry.
Finally, Lolo Mamoka contends that the BIA failed to provide
a reasonable explanation for departing from established precedent
holding that preconceived intent generally will not result in the
denial of an application for adjustment of status for an immediate
relative of a United States citizen. This contention is based on
the erroneous premise that the sole basis for the BIA's decision
was her preconceived intent. The BIA noted that "preconceived
intent is only one factor to be considered in exercising discretion
on an adjustment application", and stated that Lolo Mamoka's
8
"preconceived intent was not the only adverse factor cited or
apparent in the record." The BIA's decision reflects that it also
considered as adverse factors her attempt to smuggle her children
into the United States and her complicity in their escape from
immigration authorities in New York, as part of a pattern of
continuous and voluntary circumvention of United States immigration
laws.
III.
For the foregoing reasons, the petition for review is
DENIED.
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