United States v. 2012-01-17 | 08-70035 | CHETTIAR V. HOLDER | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 VENKATRAMAN CHETTIAR,
Petitioner, No. 08-70035
v.  Agency No.
ERIC H. HOLDER JR., Attorney A078-050-369
General,
Respondent. 
 VENKATRAMAN CHETTIAR,
Petitioner, No. 08-73865
v. Agency No.
 A078-050-369ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent. 
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
December 1, 2011—San Francisco, California
Filed January 17, 2012
Before: Sidney R. Thomas and Richard R. Clifton,
Circuit Judges, and James G. Carr, Senior District Judge.*
Opinion by Judge Thomas
*The Honorable James G. Carr, Senior District Judge for the U.S. Dis-
trict Court for the Northern District of Ohio, sitting by designation.
347

-- 1 of 7 --

COUNSEL
Saad Ahmad, Fremont, California, for the petitioner.
Tony West, Assistant Attorney General, Civil Division; John
S. Hogan, Senior Litigation Counsel; Robbin K. Blaya, Trial
Attorney; Michael C. Heyse, Trial Attorney, Office of Immi-
gration Litigation, Civil Division, U.S. Department of Justice,
Washington, D.C., for the respondent.
OPINION
THOMAS, Circuit Judge:
This case presents the question of whether the Citizenship
and Immigration Service (“CIS”or “Service”) loses jurisdic-
tion of a petition to remove conditions placed on residence if
it does not adjudicate the petition within ninety days, as
required by 8 U.S.C. § 1186a(c)(3)(A). Under the circum-
349 CHETTIAR v. HOLDER

-- 2 of 7 --

stances presented here, we conclude that it does not, and we
deny the petition for review.
I
Venkatraman Chettiar, a native and citizen of India, was
admitted to the United States as a conditional permanent resi-
dent in 2001, on the basis of his marriage to Lourdes A. Soto,
an American citizen. 8 U.S.C. § 1186a(a). Chettiar’s condi-
tional permanent resident status authorized him to remain in
the United States for two years and seek removal of the condi-
tions placed on his residency by submitting a petition to the
CIS during the 90-day period immediately preceding the expi-
ration of his two-year conditional residence period. 8 U.S.C.
§ 1186a(c)(1)(A). Chettiar and Soto submitted an I-751 Peti-
tion to Remove the Conditions on Residence to the CIS Cali-
fornia Service Center shortly before the end of Chettiar’s
conditional residence period. The Service forwarded the peti-
tion to a CIS district office in Reno, Nevada after concluding
that Chettiar failed to provide adequate evidence that he and
Soto were engaged in a bona fide marital relationship.
A CIS officer interviewed Chettiar and Soto in Reno on
December 13, 2004 and concluded that the documents sub-
mitted by the couple were insufficient to demonstrate a valid
marital relationship. On March 31, 2005, approximately three
and a half months after this initial interview, the CIS
requested that Chettiar and Soto appear for another interview
in Reno, scheduled for April 8, 2005. Two days before this
second interview, Chettiar sent a written request to the CIS
asking to reschedule the interview and forward his petition to
a CIS office in California, as he had recently relocated to Fre-
mont, California. The CIS rejected Chettiar’s request.
After Chettiar and Soto failed to appear for their interview
in Reno on April 8, 2005, the CIS concluded that their mar-
riage was fraudulent and denied Chettiar’s petition to remove
the conditions on his residency. Chettiar did not contest the
350 CHETTIAR v. HOLDER

-- 3 of 7 --

merits of the Service’s decision to terminate his conditional
lawful permanent resident status in immigration court.
Instead, Chettiar moved to terminate proceedings or, in the
alternative, “administratively close the matter until the agency
issues a proper determination in compliance with the Immi-
gration and Nationality Act.” Chettiar argued, inter alia, that
the CIS violated 8 U.S.C. § 1186a(c)(3)(A) by failing to make
a determination on his I-751 petition within 90 days of its ini-
tial interview. He contended that “termination [of proceed-
ings] is appropriate,” because “failure to comply with the
statute renders the proceeding infirm.”
The Immigration Judge (“IJ”) denied Chettiar’s motions to
terminate, continue, or administratively close proceedings.
The immigration court did not consider Chettiar’s claim that
the Service’s decision was “wrong, improper, [and] violated
due process” as he had never filed a request asking the court
to review his I-751 Petition, even though the court had
advised him to do so “on at least two occasions . . . . [I]n light
of the termination of his Conditional Lawful Permanent Resi-
dence status,” Chettiar was determined by the IJ to be in the
United States in violation of 8 U.S.C. § 1227(a)(1)(B) and
“removable as charged.”
Chettiar appealed the IJ’s decision to the Board of Immi-
gration Appeals (“BIA”). On appeal, Chettiar again argued
that the Service lacked jurisdiction to review his I-751 peti-
tion because it did not reach a determination until more than
90 days after the date of its initial interview. The BIA rejected
this argument, concluding “[i]nasmuch as the first scheduled
interview was not intended by CIS to be the final interview,
we decline to find that the 90 day deadline started running
after the first scheduled interview.”
The BIA also dismissed Chettiar’s claim that the Service’s
refusal to grant his request to reschedule and change the
venue of his second interview constituted a “gross abuse of
discretion.” The BIA found that the CIS is directed to hold
351 CHETTIAR v. HOLDER

-- 4 of 7 --

interviews at a local office “convenient to the parties
involved.” 8 U.S.C. § 1186a(d)(3). Given that Chettiar’s
spouse “resided in Nevada at the time of both scheduled inter-
views” and Chettiar “was willing and able to attend the first
interview in Nevada” even though evidence indicated that he
resided in California, the BIA determined there was “no rea-
son to find that the second scheduled interview would incon-
venience the parties by being held in Nevada.”
The BIA concluded that the CIS properly terminated Chett-
iar’s lawful permanent resident status and dismissed his appeal.1
Chettiar timely petitioned for review. We review the BIA’s
conclusions of law de novo. See, e.g., Lim v. INS, 224 F.3d
929, 933 (9th Cir. 2000).
II
[1] When an alien submits an I-751 Petition to Remove the
Conditions on Residence and appears with his spouse for an
interview regarding that petition, 8 U.S.C. § 1186a(c)(3)(A)
requires that “the Attorney General shall make a determina-
tion, within 90 days of the date of the interview, as to wheth-
er” the information presented in the joint petition is true.
Chettiar argues that the plain language of § 1186a(c)(3)(A)
imposes a mandatory 90-day deadline on the Service’s adjudi-
cation of petitions to lift conditions on residence. He also con-
tends that failure to abide by this 90-day deadline results in
a lack of jurisdiction over the petition and automatically con-
fers lawful permanent resident status upon an alien by opera-
tion of law. Applying this reasoning to his case, Chettiar
suggests that by not reaching a determination on his I-751
petition within 90 days of its initial interview, the CIS lost
jurisdiction to adjudicate his petition.
1The BIA also issued another order in this case denying Chettiar’s
motion to reopen its original decision on an ineffective assistance of coun-
sel claim. Chettiar does not raise any arguments in support of this claim
in his appeal to this Court, and therefore, has waived the issue. See Ind.
Towers v. Washington, 350 F.3d 925, 929 (9th Cir. 2003).
352 CHETTIAR v. HOLDER

-- 5 of 7 --

[2] The statutory language of § 1186a(c)(3)(A) states that
the CIS must make a determination on a petition to remove
conditions on residence “within 90 days of the interview,” not
90 days of an initial interview (emphasis added). The most
logical interpretation of this provision measures the 90-day
period to render a decision on an I-751 petition as beginning
from the conclusion of the interview process, rather than the
commencement. Chettiar’s interview with the CIS began on
December 13, 2004, but it did not conclude until the next
interview, scheduled for April 8, 2005. The CIS thus did not
violate § 1186a(c)(3)(A) by returning a determination on
Chettiar’s petition on the same day as its final scheduled inter-
view with Chettiar.
[3] The structure of the Immigration Marriage Fraud
Amendments of 1986, Pub. L. No. 99-639, 100 Stat. 3537
(“IMFA”), which enacted the provisions of INA
§ 216(c)(3)(A)(ii), later codified at 8 U.S.C. § 1186a(c)(3)(A),
supports the conclusion that the CIS does not lose jurisdiction
over the case if it fails to adjudicate within the statutory
period. Although Congress clearly enacted § 1186a(c)(3)(A)
to motivate timely adjudication of I-751 petitions, it “did not
provide for the alien to be granted benefits regardless of merit
where the Service did not comply with the deadlines. To do
so would have sacrificed the central purpose of the IMFA,
namely, preventing the acquisition of immigration benefits by
fraudulent marriages to the cause of efficiency.” Matter of
Nwokoma, 20 I. & N. Dec. 899, 903 (BIA 1994).
[4] Stripping the CIS of jurisdiction to adjudicate an I-751
petition whenever it fails to return a determination within 90
days of an initial interview, as Chettiar suggests, would be
contrary to the central intent of the IMFA and threaten the
agency’s ability to effect other provisions in the statute.
“[T]he proper construction of section 1186a(c)(3)(A)(ii)
requires that flexibility be built into this statutory scheme,
rather than a rigid adherence to the 90-day provision.” Id. at
902; see also Brock v. Pierce County, 476 U.S. 253, 260
353 CHETTIAR v. HOLDER

-- 6 of 7 --

(1986) (finding statutory language providing that the Secre-
tary of Labor “shall” issue a final determination within 120
days of receiving a complaint not to preclude the Secretary
from taking action even after the 120-day period had expired).
Moreover, it is completely rational—and certainly not clearly
contrary to the plain meaning of § 1186a(c)(3)(A)—to inter-
pret the 90-day post-interview limit on adjudicating applica-
tions to remove conditions on permanent residency to begin
only after the conclusion of the last interview scheduled with
Chettiar. The BIA was correct to conclude that the 90-day
deadline imposed by § 1186a(c)(3)(A) did not start “running
after the first scheduled interview” because this interview
“was not intended by CIS to be the final interview.”
III
Chettiar also claims that the CIS violated his right to proce-
dural due process by failing to provide a reasonable opportu-
nity to participate in a second interview. Because he did not
raise this issue at the administrative level, the adequacy of the
opportunity afforded to Chettiar to participate in another inter-
view with the CIS is not before us. 8 U.S.C. § 1252(d)(1)
(courts may review final orders of removal “only if the alien
has exhausted all administrative remedies available to the
alien as of right.”).2 Therefore, we lack jurisdiction to con-
sider Chettiar’s due process argument.
PETITION DENIED IN PART AND DISMISSED IN
PART.
2There is no administrative exhaustion requirement for constitutional
due process challenges, but this exception is available only where the due
process claim involves “more than mere procedural error that an adminis-
trative tribunal could remedy.” Barron v. Ashcroft, 358 F.3d 674, 678 (9th
Cir. 2004) (internal quotation marks omitted). Thus, this exception is inap-
plicable here.
354 CHETTIAR v. HOLDER

-- 7 of 7 --