408 F.2d 1196 (9th Cir. 1969), 22419, Muslemi v. Immigration and Naturalization Service

Docket Nº:22419.
Citation:408 F.2d 1196
Party Name:Kazem Mohamed Abraham MUSLEMI, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
Case Date:March 17, 1969
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1196

408 F.2d 1196 (9th Cir. 1969)

Kazem Mohamed Abraham MUSLEMI, Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 22419.

United States Court of Appeals, Ninth Circuit.

March 17, 1969

Page 1197

Milton T. Simmons (argued), of Phelan, Simmons & Ungar, San Francisco, Cal., for petitioner.

John Milano (argued), Asst. U.S. Atty., Cecil F. Poole, U.S. Atty., Stephen Suffin, INS, San Francisco, Cal., Joseph Sureck, Regional Counsel, San Pedro, Cal., for respondent.

Before CHAMBERS, KOELSCH, and HUFSTEDLER, Circuit Judges.

HUFSTEDLER, Circuit Judge:

Petitioner seeks review of a final deportation order of the Board of Immigration Appeals entered against him in a proceeding under 8 U.S.C. § 1252(b). Our jurisdiction rests on 8 U.S.C. § 1105a.

Deportation proceedings were instituted against petitioner on the ground that he had entered the country without an immigrant visa and that he was therefore excludable at the time of entry, 8 U.S.C. § 1182(a)(20), and was deportable pursuant to 8 U.S.C. § 11251(a)(1).

The sole issue on appeal is whether petitioner is entitled to the benefit of 8 U.S.C. § 1251(f), as that statute has been construed by the Supreme Court in Immigration and Naturalization Service v. Errico (1966) 385 U.S. 214, 87 S.Ct. 473, 17 L.Ed.2d 318;

Petitioner is a native of India and a citizen of Iran. In late 1965, at the United States Consulate in Bombay, petitioner inquired about obtaining an immigrant visa. He was advised that the immigrant quotas for both Iran and India had been filled. Petitioner then

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obtained a temporary visitor's visa to the United States, stating that he intended to remain in this country for no more than three months. In fact, petitioner intended to reside here permanently. Petitioner entered the country on January 4, 1966. His temporary visa was extended to September 3, 1966.

On September 2, 1966, petitioner was notified that deportation proceedings were to be instituted against him. Five days later petitioner married an American citizen. Petitioner had met his wife in Bombay before he left India and the two had planned to marry as soon as she divorced her then husband.

At the hearing to show cause why he should not be deported, petitioner's wife filed a visa petition in his behalf, and petitioner applied for permanent residence on the basis of his...

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