Arias-Uribe v. Immigration and Naturalization Service, 71-2545.
| Decision Date | 18 September 1972 |
| Docket Number | No. 71-2545.,71-2545. |
| Citation | 466 F.2d 1198 |
| Parties | Jesus Roberto ARIAS-URIBE, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
William A. Herreras (argued), of Hathaway, Clabaugh & Perrett, Ventura, Cal., for petitioner-appellant.
Dzintra Janaus, Asst. U. S. Atty. (argued), Frederick M. Brosio, Jr., Alan W. Peryam, Asst. U. S. Attys., William D. Keller, U. S. Atty., Los Angeles, Cal., Steve Williams, District Director, Stephen Suffin, Atty., Immigration & Naturalization Service, San Francisco, Cal., Joseph Surreck, Reg. Counsel of I & NS, San Pedro, Cal., Will Wilson, Asst. Atty. Gen., Washington, D. C., George K. Rosenberg, District Director, I & NS, Los Angeles, Cal., for respondent-appellee.
Before KOELSCH, CARTER and WRIGHT, Circuit Judges.
The sole question presented on this petition to review a decision of the Board of Immigration Appeals is whether an alien who has been rendered deportable by reason of his conviction for a narcotics offense is entitled to seek, in a deportation proceeding, advance permission to re-enter the United States pursuant to the provisions of § 212(c) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1182(c).
Petitioner is a Mexican citizen who has lived continuously in the United States as a permanent resident alien since 1954. In 1969, shortly after he was convicted in a state court for possession of heroin, the Immigration and Naturalization Service, on the basis of such conviction, instituted deportation proceedings against him, under § 241(a) (11) of the Act, 8 U.S.C. § 1251(a) (11).1
At the deportation hearing, Petitioner conceded his deportability, but sought to avoid expulsion. To that end, he filed an "Application for Advance Permission to Return to an Unrelinquished Domicile" I.N.S. Form I-191, 8 C.F.R. § 212.3 under the provisions of § 212(c), which provides:
"Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to the provisions of paragraphs (1)-(25), (30), and (31) of subsection (a) of this section. * * *"2
The Special Inquiry Officer ruled that § 212(c) discretionary relief was unavailable to a respondent in a § 241(a) (11) deportation proceeding, and found Petitioner deportable. The Board of Immigration Appeals affirmed the decision.
Petitioner relies upon a series of Board decisions which hold that discretionary relief may be available in deportation proceedings. Matter of S----, 6 I&N Dec. 393 (1954); Matter of G---- A----, 7 I&N Dec. 274 (1956); Matter of Smith, 11 I&N Dec. 324 (1965); Matter of Eng, 12 I&N Dec. 855 (1968). These decisions are not in point. With the exception of Matter of Smith, supra,3 each of them involved an alien who was excludable at the time he last entered the United States. 8 U.S.C. § 1251(a) (1). The Board held that discretionary relief was available and might be granted to effect a retroactive waiver of the ground of excludability existing at the time of the subject's entry and that if such relief was granted, then the basis for his deportation was entirely eliminated. Petitioner, however, is in a different situation. His deportation is sought, not because he was excludable at the time he last entered the United States, but because he was convicted of a narcotics offense after entering the United States. The Attorney General is not given discretion by the immigration laws to waive or suspend deportation for narcotics offenders, nor is he authorized, once proceedings under § 241(a) are begun, to allow such persons to leave the country voluntarily in lieu of deportation. See 8 U.S.C. § 1254(a), (e). To hold that the Attorney General may consider an application for permission to reenter, made by a person...
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Morel v. I.N.S.
...clearly did not apply to Francis. Indeed, the Francis court, following the Court of Appeals for the Ninth Circuit in Arias-Uribe v. INS, 466 F.2d 1198 (9th Cir.1972), acknowledged that "the Board's interpretation is consistent with the language of Section 212(c)." Francis, 532 F.2d at 271-7......
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...actually traveled abroad after becoming deportable. Matter of Arias-Uribe, 13 I. & N. Dec. 696, 698 (BIA 1971) aff'd by Arias-Uribe v. INS, 466 F.2d 1198 (9th Cir.1972). In Arias-Uribe, an alien faced deportation for a narcotics conviction under § 241(a)(11)—a ground that had long been esta......
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...States sought a § 212(c) waiver from the Board. See Matter of Arias-Uribe, 13 I & N Dec. 696 (BIA 1971), aff'd sub nom. Arias-Uribe v. INS, 466 F.2d 1198 (9th Cir.1972). The Board, while recognizing that it had already expanded the scope of § 212(c) beyond that authorized by Congress, refus......
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