Jean-Marc Elbez v. Immigr. & Naturalization Serv., 767 F.2d 1313 (9th Cir. 1985). · Go Syfert
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Jean-Marc Elbez v. Immigr. & Naturalization Serv., 767 F.2d 1313 (9th Cir. 1985). Cases Citing This Book View Copy Cite
17 citation events (12 in the last 25 years) across 6 distinct courts.
Strongest positive: Yocom v. United States Citizenship and Immigration Services (casd, 2023-03-10)
Top citers, strongest first. 13 distinct citers. How cited ↗
discussed Cited as authority (rule) Yocom v. United States Citizenship and Immigration Services
S.D. Cal. · 2023 · confidence medium
Furthermore, as held in Ching, “there is no 15 statutory right of cross-examination in I-130 visa adjudications.” 725 F.3d at 1154 . 16 Although an opportunity to cross-examination witnesses is available during removal 17 proceedings, “visa petitions are distinct from removal proceedings.” Id. (citing Elbez v. 18 I.N.S., 767 F.2d 1313, 1314 (9th Cir. 1985).
cited Cited as authority (rule) Stephen Onwuzulike v. Attorney General United States
3rd Cir. · 2022 · confidence medium
See Ruiz v. Mukasey, 552 F.3d 269 , 273–74 & nn.2 & 3 (2d Cir. 2009); Elbez v. INS, 767 F.2d 1313, 1314 (9th Cir. 1985) (per curiam). 4 review the IJ’s opinion to the extent that the BIA adopted it.
cited Cited as authority (rule) De Perio v. Gonzales
9th Cir. · 2007 · confidence medium
Nor does Elbez v. INS, 767 F.2d 1313, 1314 (9th Cir.1985), prevent us from reviewing this case.
discussed Cited as authority (rule) De Perio v. Ashcroft
9th Cir. · 2005 · confidence medium
The De Perios did not petition for review of the visa petition decision, and in any event, visa petition decisions are collateral matters “not within the scope of a deportation proceeding, and therefore are not reviewable by the court of appeals.” Elbez v. INS, 767 F.2d 1313, 1314 (9th Cir.1985).
discussed Cited as authority (rule) Evangelical Lutheran Church in America v. Immigration & Naturalization Service
D.D.C. · 2003 · confidence medium
From there the court merely notes that “[t]he disposition of a visa petition has been held to be a collateral issue not within the scope of deportation, removal, or exclusion proceedings.” Id. at 1159 (citing Hassan v. INS, 110 F.3d 490, 494 (7th Cir.1997); Pritchett v. INS, 993 F.2d 80, 82 (5th Cir.1993); Conti v. INS, 780 F.2d 698, 702 (7th Cir.1985); Elbez v. INS, 767 F.2d 1313, 1314 (9th Cir.1985); Dastmalchi v. INS, 660 F.2d 880, 891 (3d Cir.1981)).
discussed Cited as authority (rule) Shanti, Inc. v. Reno
D. Minnesota · 1999 · confidence medium
See, e.g., Hassan v. INS, 110 F.3d 490, 494 (7th Cir.1997); Pritchett v. INS, 993 F.2d 80, 82 (5th Cir.1993); Conti v. INS, 780 F.2d 698, 702 (7th Cir.1985); Elbez v. INS, 767 F.2d 1313, 1314 (9th Cir.1985); Dastmalchi v. INS, 660 F.2d 880, 891 (3rd Cir.1981).
examined Cited as authority (rule) Ali v. Immigration & Naturalization Service (3×) also: Cited "see"
D. Mass. · 1986 · confidence medium
Conti v. INS, 780 F.2d 698, 701-702 (7th Cir.1985); Elbez v. INS, 767 F.2d 1313, 1314 (9th Cir.1985); Sadegh-Norbari v. INS, 676 F.2d 1348, 1350 (10th Cir.1982); Stokes 393 F.Supp. at 28 .
discussed Cited "see" Mohamed Lahmar v. Matthew Whitaker
9th Cir. · 2019 · signal: see · confidence high
See Elbez v. INS, 767 F.2d 1313, 1314 (9th Cir. 1985) (visa petition decisions are collateral matters not within the scope of a removal proceeding, and therefore not reviewable by the court of appeals).
discussed Cited "see" Ibrahim Aoun v. Loretta E. Lynch
9th Cir. · 2016 · signal: see · confidence high
See Elbez v. INS, 767 F.2d 1313, 1314 (9th Cir. 1985) (visa petition decisions are collateral matters not within the scope of a deportation proceeding, and therefore not reviewable by the court of appeals).
cited Cited "see" Teresita Ching v. Alejandro Mayorkas
9th Cir. · 2013 · signal: see · confidence high
See Elbez v. I.N.S., 767 F.2d 1313, 1314 (9th Cir.1985) (“Any determination regarding INS conduct during a visa petition proceeding is collateral to a deportation order.... ”).
cited Cited "see" Chang Young Jung v. Holder
9th Cir. · 2010 · signal: see · confidence high
See Elbez v. INS, 767 F.2d 1313, 1314 (9th Cir.1985) (visa petition process is collateral to a deportation order and must be raised initially in the district court).
discussed Cited "see" Dimitrov v. Mukasey
9th Cir. · 2008 · signal: see · confidence high
See Elbez v. INS, 767 F.2d 1313, 1314 (9th Cir.1985) (visa petition decisions are collateral matters “not within the scope of a deportation proceeding, and therefore not reviewable by the Court of Appeals”).
cited Cited "see" Velazquez v. Gonzales
9th Cir. · 2006 · signal: see · confidence high
See Elbez v. I.N.S., 767 F.2d 1313, 1314 (9th Cir.1985).
Retrieving the full opinion text from the archive…
Jean-Marc ELBEZ, Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent
84-7458.
Court of Appeals for the Ninth Circuit.
Aug 5, 1985.
767 F.2d 1313
1985 U.S. App. LEXIS 21044
Terrence McGuire, McGuire & Herrera, Los Angeles, Cal., for petitioner., Robert C. Bonner, U.S. Atty., Frederick M. Brosio, Jr., Dzintra I. Janavs, Asst. U.S. Attys., Los Angeles, Cal., for respondent.
Barnes, Farris, Canby.
Cited by 13 opinions  |  Published
PER CURIAM:

Petitioner contends that (1) the Immigration and Naturalization Service (INS) is es-topped 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; (2) the Immigration Judge’s rejection of his estoppel defense denied him an opportunity to present evidence as required by 8 U.S.C. § 1252(b); and (3) the Board of Immigration Appeals (BIA) erred in finding his estoppel claim to be without merit. We deny the petition.

BACKGROUND

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. [1]

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.

At the deportation hearing, Elbez admitted his overstay but contested his deportability on the ground of upon the purported misconduct of the INS interviewer. The Immigration Judge rejected this estoppel defense, and found Elbez deportable for overstaying his visitor’s visa. The BIA affirmed.

DISCUSSION

Elbez concedes that, but for the affirmative misconduct of the INS agent, he would be otherwise deportable for having overstayed his nonimmigrant visa. See 8 U.S.C. § 1251(a)(2). He contends, however, that the INS is estopped from deporting him because if the agent had not coerced his wife into withdrawing her 1-130 visa petition, his status would have been adjusted to that of lawful permanent resident and he never would have been placed in deportation proceedings.

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. See 8 U.S.C. § 1255; Dabaghian v. Civiletti, 607 F.2d 868, 871 (9th Cir.1979).

Second, we lack jurisdiction to consider Elbez’s contentions. The issues raised by Elbez pertain to visa petition procedures. 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. See De Figueroa v. INS, 501 F.2d 191, 194 (7th Cir.1974). Any determination regarding INS conduct during a visa petition proceeding is collateral to a deportation order, id., and must be initially raised in the district court. See Scalzo v. Hurney, 314 F.2d 675, 675 (3rd Cir.1963); Galvez v. Howerton, 503 F.Supp. 35, 38 (C.D.Cal.1980); Stokes v. INS, 393 F.Supp. 24, 28 (S.D.N.Y.1975).

DENIED. [2]

1

. Elbez’s wife filed, on his behalf, Immigration and Naturalization Form 1-30 (petition for designation as an "immediate relative” with consequent preferential immigration status). See 8 U.S.C. § 1151(a)-(b).

2

. Our disposition makes it unnecessary to reach the merits of petitioner’s estoppel claim.