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Keywords

jurisdictionattorneyappealvisadeportationnaturalizationrespondent
jurisdictionattorneyappealvisadeportationnaturalizationrespondent

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Elbez v. Immigration and Naturalization Service

Facts

Jean-Marc Elbez, a 25-year-old native and citizen of France, entered the United States in September 1980, as a non-immigrant visitor with authority to remain until October 18, 1980. In November 1980, the INS denied his application for an extension of stay. In December 1981, Elbez married a United States citizen, who filed a visa petition for him in March 1982. At the interview regarding the petition in June 1982, Elbez and his wife were separately interrogated. Elbez alleged that an INS officer threatened his wife with five years imprisonment if she did not withdraw her petition. Elbez's wife withdrew her petition, and Elbez was arrested and processed for deportation.

Jean-Marc Elbez, a 25-year-old native and citizen of France, entered the United States in September 1980, as a non-immigrant visitor with authority [**2] to remain until October 18, 1980. In November 1980, the INS denied his application for an extension of stay. In December 1981, Elbez married a United States citizen, who filed a visa petition for him in March 1982. At the interview regarding the petition in June 1982, Elbez and his wife were separately interrogated. Elbez alleged that an INS officer threatened his wife with five years imprisonment if she did not withdraw her petition. Elbez's wife withdrew her petition, and Elbez was arrested and processed for deportation.

Issue

Whether the Immigration and Naturalization Service (INS) is estopped from deporting Elbez due to its alleged affirmative misconduct in coercing his wife to withdraw her visa petition.

Whether the Immigration and Naturalization Service (INS) is estopped from deporting him because of its [*1314] affirmative misconduct in allegedly forcing his wife, a United States citizen, to withdraw her 'immediate relative' visa petition.

Rule

Matters relating to the withdrawal of visa petitions are not within the scope of a deportation proceeding and therefore are not reviewable by the court of appeals.

Matters relating to the withdrawal of visa petitions, however, are not within the scope of a deportation proceeding, and therefore are not reviewable by the court of appeals.

Analysis

The court found that even if Elbez's allegations of misconduct were true, his argument that he would have been eligible for adjustment of status was mere conjecture. The Attorney General has discretion to deny adjustment of status regardless of statutory eligibility. Furthermore, the court lacked jurisdiction to consider the issues raised by Elbez, as they pertained to visa petition procedures which must be initially raised in the district court.

Even if it is assumed, arguendo, that Elbez's allegations of misconduct are correct, there are two flaws in his argument. First, Elbez's contention that his status would have been adjusted to that of lawful permanent resident if the INS had not engaged in affirmative misconduct is mere conjecture. Even if he were statutorily eligible for adjustment of status, the Attorney General could deny adjustment of status in the exercise of his discretion.

Conclusion

The court affirmed the district court's judgment that denied Elbez's request to stop the respondent from deporting him. The court held that it lacked jurisdiction to hear his visa petitions.

The court affirmed the district court's judgment that denied Elbez's request to stop the respondent from deporting him.

Who won?

The Immigration and Naturalization Service prevailed in the case because the court affirmed the district court's judgment, stating that it lacked jurisdiction to consider the petitioner's claims regarding the visa petition procedures.

The Immigration and Naturalization Service prevailed in the case because the court affirmed the district court's judgment, stating that it lacked jurisdiction to consider the petitioner's claims regarding the visa petition procedures.

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