Tenorio-Martinez v. Immigration and Naturalization Service

Citation546 F.2d 810
Decision Date15 November 1976
Docket NumberTENORIO-MARTINE,P,No. 75-2639,75-2639
PartiesPedroetitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

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

John Harris, Trial Atty. (argued), for Dept. of Justice, Washington, D. C., for respondent.

Before WRIGHT and ANDERSON, Circuit Judges, and WOLLENBERG, * Senior District Judge.

PER CURIAM:

Pedro Tenorio-Martinez petitions for review of decisions of the Immigration Judge and the Board of Immigration Appeals (Board) that he is a deportable alien under 8 U.S.C. § 1251(a)(1) and not entitled to relief under 8 U.S.C. § 1251(f). He also claims that the Board abused its discretion in denying his motion to reopen the deportation hearings so that he could apply for suspension of deportation under 8 U.S.C. § 1254(f).

Petitioner was found to have been deportable at the time of his entry into the United States in 1958. He was excludable under 8 U.S.C. § 1182(a)(19) for having procured his visa by fraud and under 8 U.S.C. § 1182(a)(20) for having entered the United States without a valid visa. At the deportation hearing he conceded deportability. In a sworn affidavit he admitted that he was married to a Mexican citizen at the time he entered into a bigamous marriage with a United States citizen and that he had reported his marital status falsely on his visa application.

During the course of the deportation proceedings, Martinez divorced his Mexican wife and married yet a third woman, an American citizen. He has had children by all three marriages.

Martinez claims that he is entitled to relief under 8 U.S.C. § 1251(f) because he was deportable under 8 U.S.C. § 1182(a)(19) as well as § 1182(a)(20). The "fraud" exception provided for in 8 U.S.C. § 1251(f) has been interpreted by the Supreme Court in Reid v. INS, 420 U.S. 619, 95 S.Ct. 1164, 43 L.Ed.2d 501 (1975) to be applicable when § 1182(a)(19) is the ground for excludability. In Guel-Perales v. INS, 519 F.2d 1372, 1373 (9th Cir. 1975), this court interpreted Reid to require that when § 1182(a)(20) (invalid visa) was the ground for deportability, § 1251(f) was inapplicable.

Martinez would distinguish his fact situation from Reid and Guel-Perales in that he was found excludable under both subsections (19) and (20). This issue should not yet be examined however, because the Board of Immigration Appeals failed to consider an alternate ground of deportability ruled on by the Immigration Judge.

The Immigration Judge found petitioner to be excludable under 8 U.S.C. § 1182(a)(11) because he was a bigamist at the time of his entry into the United States. If the Board of Immigration Appeals affirms this holding, petitioner will not be an alien "otherwise admissible" under 8 U.S.C. § 1251(f) and must be deported. We therefore remand this case to the Board of Immigration Appeals for consideration of this issue.

We do affirm, however, the Board's rejection of petitioner's motion to reopen the proceedings under § 1254(f). In reviewing motions to reopen, this court is limited to determining whether the INS abused its discretion. Loza-Bedoya v. INS, 410 F.2d 343, 346 (9th Cir. 1969). Where an alien fails to produce factual support sufficient to meet his burden of establishing prima facie...

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4 cases
  • Wang v. Immigration & Naturalization Service
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • June 4, 1980
    ...not trigger any responsibility to reopen and afford the alien a hearing. "Notice" pleading will not suffice. See Tenorio-Martinez v. INS, 546 F.2d 810, 812 (9th Cir. 1976). Moreover, the facts must be such as would, if proved, establish eligibility and potentially affect the result of the p......
  • Garrison v. McCarthy
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • August 5, 1981
  • Powell v. Spalding
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • June 8, 1982
  • Matter of Cienfuegos
    • United States
    • U.S. DOJ Board of Immigration Appeals
    • December 20, 1979
    ...to apply for discretionary relief will not be granted unless it establishes prima facie eligibility for that relief. Tenorio-Martinez v. INS, 546 F.2d 810 (9 Cir.1976); Matter of Lam, 14 I & N. Dec. 98 (BIA The respondent requests reinstatement of voluntary departure yet he has never been a......

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