US ex rel. Marcello v. DIST. DIRECTOR, ETC.

• Citation: 472 F. Supp. 1199
• Decision Date: 13 July 1979
• Docket Number: Civ. A. No. 76-957.
• Court: U.S. District Court — Eastern District of Louisiana
• Parties: UNITED STATES of America ex rel. Carlos MARCELLO v. DISTRICT DIRECTOR OF the IMMIGRATION & NATURALIZATION SERVICE, NEW ORLEANS, LOUISIANA.

472 F. Supp. 1199

UNITED STATES of America ex rel. Carlos MARCELLO v. DISTRICT DIRECTOR OF the IMMIGRATION & NATURALIZATION SERVICE, NEW ORLEANS, LOUISIANA.

Civ. A. No. 76-957.

United States District Court, E. D. Louisiana.

July 13, 1979.

Jack Wasserman, Wasserman, Orlow, Ginsburg & Rubin, Washington, D.C., Virgil M. Wheeler, Jr., New Orleans, La., for plaintiff.

John P. Volz, U. S. Atty., Eastern District of Louisiana, New Orleans, La., for defendant.

OPINION AND ORDER

JACK M. GORDON, District Judge.

This is a petition for Habeas Corpus review of a January 20, 1976, decision by the Board of Immigration Appeals ("Board"), denying to the petitioner, Carlos Marcello, relief from a 1961 order of deportation in the form of suspension of deportation. The Board denied relief for the reasons, first, that petitioner was statutorily ineligible for failure to show good moral character in the ten years preceding application, and second, that alternatively the Board would deny relief as a matter of discretion. Since petitioner is presently under an order of supervised parole pursuant to 8 U.S.C. § 1252(d), this Court has already held that he is "in custody" so as to entitle him to Habeas Corpus review of the Board's decision under 8 U.S.C. § 1105a(a)(9). See, Memorandum and Order dated June 11, 1976. In a subsequent hearing held January 3, 1979, after thorough briefing by counsel, this Court also held that the scope of review under 8 U.S.C. § 1105a(a)(9) was identical to that of direct review by the Court of Appeals in that both constitutional and nonconstitutional issues were reviewable, but that the review was limited to the administrative record, and therefore, there could be no evidentiary hearing before this Court.¹

The merits of this appeal in Habeas Corpus were then briefed, and oral argument had, on April 25, 1979. At that time the Court orally stated to counsel for both parties, in open court, the tentative conclusions which it had reached regarding disposition of this matter. Those conclusions were reached after a thorough review of the record, as well as the many briefs filed by counsel. After informing the parties of its tentative conclusions, the Court invited counsel to file final briefs on the merits, addressing those conclusions which counsel might feel were in error, before the Court issued its written reasons for ruling. Final briefing occurred on May 18, 1979, and the matter was taken under submission.

After reviewing the comments of counsel on its tentative conclusions, the Court is not convinced that those conclusions were in error. Therefore, in accordance with the analysis presented orally on April 25, 1979, the Court now reduces its findings to writing.

Petitioner was originally ordered deported in 1953 as a result of a 1938 marijuana conviction. In 1961 the government succeeded in deporting petitioner to Guatemala, from which he subsequently reentered the United States without authority. A second deportation order was issued in 1961, based on the illegal reentry as well as the 1938 drug conviction. Petitioner's main contention is that the 1961 deportation was illegally carried out by the government, thus rendering the 1961 deportation order invalid. The Board failed to consider this argument in its decision of January 20, 1976. Petitioner contends that this was error because, had the Board voided the 1961 incident, petitioner could have been considered for suspension relief as one with permanent residence from 1910 (when he entered this country), rather than only from 1961, and thus have been more likely to obtain relief. Although it appears that the Board's ultimate denial of relief to petitioner was based on the very long term record he sought to have them review, the peculiar facts surrounding the history of this case require thorough ventilation in order to prevent the Board's latest decision concerning petitioner from sweeping under the rug allegations of government misconduct of the worst sort.

HISTORY

Petitioner was born in Tunis, Africa, on February 6, 1910, of Italian parents. At the age of 8 months, on October 7, 1910, he was lawfully admitted to the United States for permanent residence. He is married to an American citizen, has four American-born children, as well as citizen grandchildren, brothers and sisters.

In 1953, petitioner was ordered deported under 8 U.S.C. § 1251(a)(11) as a native of Tunis, Africa, who had been convicted in 1938 of a marijuana violation under 26 U.S.C. § 2591. This deportation order was affirmed in Marcello v. Bonds, 349 U.S. 302, 75 S.Ct. 757, 99 L.Ed. 1107 (1954). However, it was not executed until 1961.

In 1961, petitioner was deported to Guatemala on the basis of a Guatemalan birth certificate issued in the name of Calogers Minacore. Petitioner, Carlos Marcello, is also known as Calagore Minacore. Using this Guatemalan birth certificate, the Immigration Service obtained from the Guatemalan government an entry permit for petitioner on March 15, 1961. The permit described petitioner as a citizen of Guatemala. Petitioner alleges that with this document, the Immigration Commissioner deported him on April 4, 1961 in less than one hour after he reported to the District Director pursuant to the terms of his supervised parole. Just prior to actual departure, petitioner was served with a warrant of deportation and a written notice of the designation of Guatemala as his place of deportation. Petitioner also alleges that copies of these documents were never served on his attorney of record in the Immigration proceedings, Mr. Jack Wasserman. Petitioner reentered the United States in May, 1961, and on June 5, 1961, a second deportation proceeding was initiated which resulted in a second order of deportation based on illegal reentry into the United States, as well as on the 1938 drug conviction.

Petitioner does not contest that he is deportable on the 1938 marijuana conviction, or that in April, 1961, there existed a valid outstanding 1953 order of deportation to support actually deporting him. However, he does allege that the 1961 deportation was fatally defective for several reasons, and that therefore, there was no illegal reentry such as to support the 1961 order of deportation. Specifically, petitioner contends that first, the Guatemalan birth certificate was a forgery, and the United States government knew it was a forgery and a false document when the Immigration Service used it to obtain the entry permit from Guatemala; second, that the failure to give the required notice to both petitioner and his attorney violated both his right to due process and his right to counsel, as provided for in 8 U.S.C. § 1252(b). See, Mendez v. I.N.S., 563 F.2d 956 (9th Cir. 1977). Indeed, petitioner has been trying since 1961 to get either an administrative or a judicial determination of the validity of his 1961 deportation, as based on these arguments, but has been effectively thwarted at every turn by almost fifteen years of judicial and administrative "side-stepping" of the issue. The Court will now relate that history.

The day after petitioner was removed to Guatemala, his attorney filed suit on his behalf in the United States District Court for the District of Columbia, seeking a declaration that the deportation was illegal, and permission to reenter the United States. On cross-motions for summary judgment, the district court entered a judgment for the government and dismissed the complaint. The district court entered written reasons for the judgment which stated a finding that the deportation was legal. However, by the time the reasons were issued, petitioner had already reentered the United States, and a criminal prosecution for illegal reentry had begun. Therefore, on appeal, the District of Columbia Circuit reversed the district court, and vacated the judgment, ordering the complaint be dismissed for the reasons, first, that the request for permission to reenter was moot since petitioner was already back in the country, and second, that the declaration that the deportation was legal should never have been made by the district court, since that factual determination would be tried by a jury in the pending criminal proceeding. Marcello v. Kennedy, 114 U.S.App. D.C. 147, 312 F.2d 874 (1962), cert. den., 373 U.S. 933, 83 S.Ct. 1536, 10 L.Ed.2d 692.

Meanwhile, on July 11, 1961, petitioner was ordered deported on charges of illegal reentry, 8 U.S.C. 1182(a)(17), and marijuana violations, 8 U.S.C. § 1251(a)(11). Petitioner appealed that order to the Board of Immigration Appeals, seeking to have the order set aside and the case remanded, or that voluntary departure be granted. On December 20, 1961, the Board issued an opinion denying the requested relief for the following reasons.

First, the Board noted that the Special Inquiry Officer who had issued the 1961 deportation order, had refused to hear any evidence on the possible illegality of the deportation, stating that the district court decision in Marcello v. Kennedy (reported at 194 F.Supp. 750) was res judicata. The Board affirmed this ruling, not on the ground of res judicata, but under the principle of collateral estoppel.²

The district court had stated that ". . . the deportation has been in accordance with statute and is not tainted with any illegality." (194 F.Supp. at 753). Concluding that the same arguments for illegality were being raised in the appeal from the deportation order, the Board stated at p. A-5 of its decision:

. . . We hold that the Court's decision that the deportation was in accordance with the statute and was not tainted with any illegality must be taken as conclusively established in this proceeding so long as that judgment remains unmodified. . . . However, if the Court's decision should be reversed, the respondent may file a motion for reconsideration or reopening of this deportation proceeding. (emphasis supplied)

The Board then went on to deny relief in the form of...