Bitar v. United States Department of Justice
582 F. Supp. 417, 1983 U.S. Dist. LEXIS 10466 (1983)
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Rule of Law:
The Immigration and Naturalization Service (INS) does not abuse its discretion in denying a change of nonimmigrant status from visitor to student when substantial evidence supports the conclusion that the applicant had a preconceived intent to study at the time of entry. The applicant bears the burden of proof, and any doubts are resolved against them.
Facts:
- The plaintiff, a citizen of Jordan, maintained that in July 1981, he considered attending college in the United States.
- On July 13, 1981, the plaintiff's father obtained a letter from the Arab Chamber of Commerce certifying his financial ability to pay for his son's education in the U.S.
- The plaintiff stated that he subsequently abandoned the idea of studying in the U.S. and registered for Ibrahimiya College in Jerusalem.
- On August 13, 1981, the plaintiff obtained a B-2 visitor's visa to visit his brother in Boulder, Colorado.
- The plaintiff entered the United States on September 9, 1981, as a nonimmigrant visitor.
- On September 25, 1981, the plaintiff's mother allegedly informed him by phone that his college in Jerusalem would likely not open due to political problems.
- On September 29, 1981, just twenty days after his arrival, the plaintiff applied to extend his stay, expressly stating his new interest in attending college in Boulder and his intent to file for a change to student status.
- In November 1981, the plaintiff was accepted for admission to the Community College of Denver.
Procedural Posture:
- The plaintiff applied to the Immigration and Naturalization Service (INS) to change his nonimmigrant status from visitor (B-2) to student (F-1).
- On May 19, 1982, the INS District Director denied the application.
- The plaintiff appealed the denial to the INS Regional Commissioner, who dismissed the appeal on August 10, 1982.
- The plaintiff filed a motion for reconsideration, which the Regional Commissioner denied on April 21, 1983.
- On May 5, 1983, the INS issued an order to show cause why the plaintiff should not be deported.
- The plaintiff filed this action in the U.S. District Court for the District of Colorado, seeking a declaratory judgment that the INS's denial was unlawful.
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Issue:
Did the Immigration and Naturalization Service (INS) abuse its discretion by denying the plaintiff's application to change his nonimmigrant status from visitor to student, based on the finding that he had a preconceived intent to study when he entered the United States?
Opinions:
Majority - Sherman G. Finesilver, Chief Judge
No. The Immigration and Naturalization Service (INS) did not abuse its discretion because its decision to deny the plaintiff's application for a change of status was supported by reasonable, substantial, and probative evidence in the administrative record. The burden of proof is on the applicant to establish eligibility for nonimmigrant student status, and any ambiguities must be resolved against the applicant. The court's review is limited to determining whether the agency's decision was arbitrary, capricious, or an abuse of discretion. Here, two key pieces of evidence supported the INS's conclusion: the financial letter obtained in July 1981, before the plaintiff received his visitor's visa, indicated a pre-existing consideration of studying in the U.S. Additionally, the rapid sequence of events, specifically applying for an extension to pursue college studies just 20 days after entry, constitutes substantial evidence that the plaintiff intended to seek student status at the time he entered the country on a visitor's visa. It is not an abuse of discretion for the INS to find an applicant's explanations unpersuasive in light of contrary evidence.
Analysis:
This decision reinforces the high level of judicial deference granted to discretionary decisions made by immigration agencies. It establishes that an applicant's actions immediately following entry into the U.S. can serve as strong circumstantial evidence of their intent at the time of entry. The ruling solidifies the principle that attempting to circumvent normal visa procedures by entering as a visitor with a preconceived intent to study is a valid ground for denying a change of status. This precedent places a significant burden on applicants to prove a genuine change of intent after arrival and cautions against taking rapid steps toward a new immigration status that contradicts the basis of their original entry.
