Talavera v. Pederson
| Decision Date | 10 June 1964 |
| Docket Number | No. 15252.,15252. |
| Citation | 334 F.2d 52 |
| Parties | Victoria Marquez TALAVERA, Petitioner, v. Thomas M. PEDERSON, District Director, Immigration and Naturalization Service, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Bernard Mosesson, Cleveland, Ohio, Rollins & Mosesson, Cleveland, Ohio, on the brief, for petitioner.
Donald Bennett, Dept. of Justice, Washington, D. C., Joseph P. Kinneary, U. S. Atty., Charles G. Heyd, Asst. U. S. Atty., Cincinnati, Ohio, on the brief; Kenneth C. Shelver, Don R. Bennett, Attys., Dept. of Justice, Washington, D. C., of counsel, for respondent.
Before MILLER and O'SULLIVAN, Circuit Judges, and McALLISTER, Senior Circuit Judge.
The petitioner, Victoria Marquez Talavera, seeks to review an order of the Board of Immigration Appeals of October 16, 1962, dismissing petitioner's appeal from an order of the special inquiry officer finding the respondent subject to deportation and denying her application for the discretionary relief of voluntary departure.
The petitioner is a 45-year old married woman, a native and citizen of the Philippines, and a registered nurse, who was originally admitted to the United States at Anchorage, Alaska, on April 21, 1960, as a nonimmigrant visitor, pursuant to authority in the United States Information and Educational Exchange Act of 1948, as amended, (22 U.S.Code § 1431 et seq.) for a period to expire on March 28, 1961. She was destined to the Sunny Acres Hospital, Cleveland, Ohio.
On January 11, 1961, the petitioner was served with an order to show cause why she should not be deported on the ground that at the time of her entry she was inadmissible, in that she was an alien who had procured a visa or other documentation by fraud or by wilfully misrepresenting a material fact. Sections 241(a) (1) and 212(a) (19) of the Immigration & Nationality Act of 1952, Sections 1251 (a) (1) and 1182(a) (19), Title 8, United States Code. This is hereinafter referred to as the 1961 deportation proceedings. Her counsel conceded at the deportation hearing that she was a married woman, having married a Mr. Hatton in 1950; that she had falsely stated in her visa application that she was single; that she had intentionally failed to disclose in the application that she was the mother of five minor children. There was introduced at the hearing a statement taken from the petitioner on September 30, 1960, wherein she admitted that she was still legally the wife of Hatton; that she had lived from 1946 to 1956 with a Mr. Joaquin, who was the father of her five children; that the illicit relationship was terminated in 1956 following his marriage to someone else; that she subsequently caused Joaquin to separate from his wife; that she again thereafter lived with Joaquin in a husband and wife relationship for a period ending in December 1959; and that she was aware that she had committed adultery in living with Joaquin.
On February 27, 1961, the special inquiry officer found petitioner to be deportable and directed her deportation from the United States on the charge contained in the order to show cause, but on October 23, 1961, the Board of Immigration Appeals remanded the proceeding to the special inquiry officer for further consideration in the light of a ruling by the Attorney General on the question of the materiality of misrepresentation for the purposes of Section 212(a) (19) of the 1952 Act. In a decision dated January 4, 1962, the special inquiry officer again ordered petitioner deported. On March 16, 1962, the Board of Immigration Appeals ruled that petitioner's misrepresentations were not material and ordered that the special inquiry officer's order of deportation be withdrawn and the deportation proceedings terminated. It appears that there was an administrative policy of long standing not to sustain a ground of deportation arising as a result of an alien's admission of the commission of an act of adultery in the absence of a conviction for the offense.
On April 28, 1962, the petitioner was granted permission to depart from the United States on or before May 15, 1962. She failed to depart in accordance with this authorization and an order to show cause was issued against her on June 5, 1962, charging her with being deportable, in that, after admission as a nonimmigrant, she had remained in the United States for a longer time than permitted. Section 241(a) (2) of the Act; Section 1251(a) (2), Title 8 United States Code. This is hereinafter referred to as the 1962 deportation proceedings.
At the deportation hearing on June 14, 1962, the petitioner requested a continuance because of a divorce proceeding she had pending, which was scheduled to be heard on June 29, 1962, which request was granted. The hearing was resumed on July 9, 1962. The petitioner conceded the factual allegations, but contested deportability on the ground that by reason of the order of continuance entered on June 14, 1962, she was not in the country illegally. The special inquiry officer ruled that her authorized period of admission expired on March 28, 1961, and that her subsequent presence in this country was merely one at sufferance pending her departure.
At the July 9, 1962, hearing the petitioner applied for the privilege under Section 244(e) of the Act of voluntary departure in lieu of deportation. Section 1254(e), Title 8 United States Code. This section of the Act provides that the Attorney General may in his discretion permit any alien under deportation proceedings with certain exceptions "to depart voluntarily from the United States at his own expense in lieu of deportation if such alien shall establish to the satisfaction of the Attorney General that he is and has been, a person of good moral character for at least five years immediately preceding his application for voluntary departure under this subsection." Section 101(f) (2) of the Act provides that no person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is, or was "one who during such period has committed adultery." Section 1101(f) (2), Title 8 United States Code. In a decision dated August 16, 1962, as amended September 11, 1962, the special inquiry officer ordered the petitioner deported on the charge stated in the 1962 order to show cause. He found her ineligible for voluntary departure in that her relationship with Joaquin until December 1959 precluded her from establishing the requisite good moral character during the statutory period. The Board of Immigration Appeals sustained the special inquiry officer in a decision dated October 16, 1962. This is the order now subject to review. A warrant of deportation was issued December 5, 1962.
Petitioner evidently obtained a divorce in July 1962 from Hatton and married Martin Talavera, a 59-year old Filipino and a naturalized American citizen, on July 28, 1962. By Section 212(e) of the Act of September 21, 1961, Pub.L. 87-256, 75 Stat. 535; Section 1182(e), Title 8 United States Code; it is required that exchange visitors, under which authority petitioner originally entered the United States, depart from the United States and remain in another country for two years before again becoming eligible to reside in this country, provided, however, "That upon the favorable recommendation of the Secretary of State, pursuant to the request of an interested United States Government agency, or of the Commissioner of Immigration and Naturalization after he has determined that departure from the United States would impose exceptional hardship upon the alien's spouse or child (if such spouse or child is a citizen of the United States or a lawfully resident alien), the Attorney General may waive the requirement of such two-year foreign residence abroad in the case of any alien whose admission to the United States is found by the Attorney General to be in the public interest: * * *."
On July 28, 1962, the day the petitioner married Martin Talavera, she filed an application under the provision above referred to, for a waiver of the requirement of two years residence abroad before becoming eligible to reside in the United States. In her affidavit supporting the application she stated that her husband's health was not of the best; that previously he was married to an American girl, which marriage terminated in divorce after approximately two years, and that a marriage of similar interests and background was necessary in light of his past experience; that at his age and station in life there was little or no opportunity for him to find someone of similar background and extraction; that she would be of great assistance to him in the maintenance of a residence he owned and in his business affairs; that her husband would suffer extreme and undue hardship in that he would lose a companion for two years; that he was hospitalized in an emergency some two years before and that her training as a nurse would be of tremendous benefit if any further difficulties occurred; that she had been forced to leave Sunny Acres Hospital and abandon the exchange visitor program because of a serious physical condition; that drugs she needed would not be so readily available to her outside the United States and that her weakened physical condition would make her receptive to respiratory ailments prevalent in the Philippines, and that it would impose extreme and unusual hardship upon her husband if she were to become ill there.
In a letter dated November 27, 1962, the District Director advised the petitioner that "Based upon all of the factors in your case, it has been concluded that the strict demands of the statute have not been met and facts do not warrant submitting a request to the Secretary of State for a recommendation in your case." The petition for review filed in this Court on January 7, 1963, also attacks the denial of this waiver under Section 212(...
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