 NEWS FROM THE COURTS
Opere v. INS, First Circuit
In this case, the court found that making false statements to an immigration examiner barred the applicant from eligibility for suspension of deportation.
Rasac Olufemi Opere, a citizen of Nigeria, came to the US as a tourist in 1982. He overstayed his visa and in 1994 was placed in deportation proceedings. In 1993 Opere had married a US citizen, who applied for a green card for him. A few months later, they were interviewed. They were no longer living together at the time of the interview, although they told the examiner that they were. Opere’s wife then recanted and withdrew the application. During the deportation hearing, Opere testified that he had lied during the INS interview, and that he had done so because he thought the application would be denied if the INS learned that he was not living with his wife. An immigration judge ordered Opere deported and found that he was not eligible for any form of relief. Opere appealed to the Board of Immigration Appeals, which affirmed the immigration judge. Opere then appealed to the First Circuit.
A person is ineligible for suspension of deportation unless they prove good moral character. The immigration judge had found that Opere’s false statements to the INS examiner were false statements made to obtain an immigration benefit and so barred him from showing good moral character. While good moral character is not defined in the Immigration and Nationality Act, there are a number of things that render a person statutorily unable to show it. One of these giving false testimony for the purpose of obtaining an immigration benefit. Opere argued that the false statements he made during the marriage interview were not material and so should not prevent him from establishing good moral character. The court disagreed, finding that the law included no requirement that the false testimony be material. Therefore, it upheld the deportation order.
The opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2001,1003-Opere.pdf.
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Iddir v. INS, Northern District of Illinois
In this case, the court ruled that there was no form of relief it could grant, despite INS delays that cost the plaintiffs the opportunity to become permanent residents.
Hakim and Hadjhira Iddir, a married couple, and Juan Arcenio Llivi filed suit against the INS seeking to compel it to complete the adjudication of their applications for adjustment of status filed under the 1998 diversity visa program. They timely filed their applications, but the INS did not call them for interviews until late 1999, at which time they were told that while their files were in order, their applications were being denied because the deadline for obtaining visas under the 1998 program had expired. They filed suit, claiming that unreasonable INS delays resulted in the denial of permanent resident status. The INS sought to have the lawsuit dismissed.
The ISN argued that the court did not have jurisdiction to review and INS denial of an application for adjustment of status. The court disagreed, finding that the INS did not make a judgmental decision, but instated failed to adjudicate the applications at all by not scheduling interviews during fiscal year 1998. A denial based on INS failure to act in a timely manner is not, the court found, sufficient to divest it of jurisdiction.
Despite finding that it retained jurisdiction, the court nonetheless dismissed the lawsuit, finding that even though the delay in adjudicating the adjustment applications was due solely to the INS, there was no relief it could grant because the INS could not issue the requested visas even if the court ordered it.
The opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2001,1003-Iddir.pdf.
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