BERNARD KAHLENBERG, PETITIONER,
v.
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT
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The court recalled its prior mandate and remanded the case for reconsideration based on a subsequent Board of Immigration Appeals decision.
The court previously held Mr. Kahlenberg ineligible for adjustment of status as an investor due to a missed deadline. The Board of Immigration Appeals…
The full statement of facts, procedural history, and disposition for this case are member content.
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In our opinion Kahlenberg v. Ins., 763 F. 2d 1346 (11th Cir.1985), we held that Mr. Kahlenberg was statutorily ineligible for adjustment of status as an investor since his application for adjustment of status was not approved on or before June 1, 1978, so as to qualify him as a non-preference immigrant thereby exempting him from the labor certification requirements of Section 212(a)(14) of the Immigration and Naturalization Act.
Our holding was influenced, to a large extent, by our reliance upon the Immigra tion Service’s interpretation of its own regulations. The Board of Immigration Appeals recently had the opportunity to address this issue in light of 8 C.F.R. § 245.1(C)(2)(iv) (1986). In Matter of Amornvootiskul, Case Nos. 5 [ A-XXXXXXXX ] and [ A-XXXXXXXX ], Board of, Immigration Appeals Interim Decision No. 3009 (April 1, 1986), the Board held that an alien will have qualified as a non-preference immigrant if the application for investor status was subsequently approved with a priority date on or before June 1, 1978.
Upon reconsideration of the matter, we hereby RECALL OUR MANDATE and remand this case to the Board of Immigration Appeals for review and reconsideration in light of Matter of Amornvootiskul, supra and 8 C.F.R. § 245.1(c)(2)(iv)(1986). Accordingly, a stay of deportation will issue until such time as the Board of Immigration Appeals has reviewed the same pursuant to this remand.
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Erskine Alleyne v. United States Immigr. & Naturalization Serv., 879 F.2d 1177 (3d Cir. 1989)….Ed.2d 53 (1987); Florez-De Solis v. INS, 796 F. 2d 330, 335 (9th Cir.1986); Kohlenberg v. INS, 763 F. 2d 1346, 1352 (11th Cir.1985), cert. denied, 475 U.S. 1120, 106 S.Ct. 1636, 90 L.Ed.2d 182 (1986), mandate recalled and remanded on other grounds, 796 F. 2d 1327 (11th Cir.1986); Chung Young Chew v. Boyd, 309 F. 2d 857, 861 (9th Cir.1962); see Cisternas-Estay v. INS, 531 F. 2d 155, 160 (3d Cir.) (“if counsel wishes to preserve an issue on appeal, he must raise it in the proper administrative forum”), cert. d…
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Florida Key Deer v. Stickney, 864 F. Supp. 1222 (S.D. Fla. 1994)…t. 790, 797, 63 L.Ed.2d 22 (1980). The agency’s construction may be discounted “only if clearly unreasonable,” Kohlenberg v. Immigration and Naturalization Service, 763 F.2d 1346, 1349 (11th Cir. 1985), mandate recalled on other grounds, 796 F.2d 1327 (11th Cir.1986), or “is plainly erroneous or inconsistent with the language *1236 and purposes of the regulation.” Parker v. Bowen, 788 F.2d 1512, 1518 (11th Cir.1986) (en banc) (citing United States v. Larionoff, 431 U.S. 864, 872…
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- Kahlenberg v. Immigr. & Naturalization Serv., 763 F.2d 1346 (11th Cir. 1985)