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Keywords

jurisdictionhearingtestimonymotionsummary judgmentregulationvisadeportationnaturalizationrescission
jurisdictionhearingtestimonymotionsummary judgmentregulationdivorcevisadeportationnaturalizationrescission

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Baria v. Reno

Facts

Baria, a native and citizen of the Philippines, entered the United States in June 1984 on a visitor's visa. After divorcing his first wife, he married a U.S. citizen, Bibiana Patoc, one day after his visa expired, and his status was adjusted to lawful permanent resident. However, after separating from Bibiana, the INS initiated proceedings to rescind his status, claiming the marriage was a sham. The BIA ultimately agreed, leading to the district court's summary judgment in favor of the INS.

Baria, a native and citizen of the Philippines and a traveling musician, entered the United States in June 1984 as a visitor authorized to remain until June 13, 1985. Two months after his arrival, he filed for divorce in Nevada. In December 1984 he began living in Hawaii with a United States citizen, Bibiana Patoc. Two weeks after his divorce became final, he married her; it was a day after the expiration of his visitor's visa. On September 20, 1985 on Bibiana's application, his status was adjusted to that of a lawful permanent resident.

Issue

Did the district court have jurisdiction to consider the INS's deportation case while Baria had filed a motion to reopen the Board's order of rescission?

Did the district court have jurisdiction to consider the Service's deportation case when Baria had filed his motion to reopen the Board's order of rescission?

Rule

Under 8 C.F.R. 3.2(f), the filing of a motion to reopen or reconsider does not stay the execution of any decision made in the case.

Under 8 C.F.R. 3.2(f), the filing of a motion to reopen or a motion to reconsider shall not stay the execution of any decision made in the case.

Analysis

The court applied the regulation stating that a motion to reopen does not stay the execution of the rescission order. It found that the BIA's decision to rescind Baria's status was final, and the district court had jurisdiction to grant summary judgment. The court noted that Baria did not testify at his hearing to oppose the evidence presented against him, which included credible testimony from his ex-wife.

The court applied the regulation stating that a motion to reopen does not stay the execution of the rescission order. It found that the BIA's decision to rescind Baria's status was final, and the district court had jurisdiction to grant summary judgment. The court noted that Baria did not testify at his hearing to oppose the evidence presented against him, which included credible testimony from his ex-wife.

Conclusion

The court affirmed the judgment granting summary judgment to the INS and upholding the rescission of Baria's status as a lawful permanent resident.

The court affirmed the judgment granting summary judgment to the INS and upholding the rescission of Baria's status as a lawful permanent resident.

Who won?

The Immigration and Naturalization Service (INS) prevailed in the case because the court found that Baria did not provide sufficient evidence to counter the claims that his marriage was a sham.

The Immigration and Naturalization Service (INS) prevailed in the case because the court found that Baria did not provide sufficient evidence to counter the claims that his marriage was a sham.

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