Au Yi Lau v. U.S. Immigration and Naturalization Service, 76-1048

• Decision Date: 28 April 1977
• Docket Number: No. 76-1048,76-1048
• Citation: 555 F.2d 1036,181 U.S.App.D.C. 99
• Parties: AU YI LAU et al., Petitioners, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1036

555 F.2d 1036

181 U.S.App.D.C. 99

AU YI LAU et al., Petitioners, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 76-1048.

United States Court of Appeals, District of Columbia Circuit.

Argued March 17, 1977.

Decided April 28, 1977.

David Carliner, Washington, D. C., for petitioners.

Richard I. Chaifetz, Atty., Dept. of Justice, Washington, D. C., for respondent.

Before McGOWAN, ROBINSON and WILKEY, Circuit Judges.

Opinion for the Court filed by Circuit Judge McGOWAN.

McGOWAN, Circuit Judge:

Petitioners are three Chinese crewmen who deserted their ships in American ports and have been residing as unauthorized aliens in this country since 1967. Following evidentiary hearings in 1968, deportation orders were issued against petitioners by a Special Inquiry Officer of the Immigration and Naturalization Service (INS), and affirmed by the Board of Immigration Appeals. Over six years ago, these deportation orders were upheld by this court. Au Yi Lau v. United States Immigration and Naturalization Service, 144 U.S.App.D.C. 147, 445 F.2d 217 (Au Yi Lau I), cert. denied, 404 U.S. 864, 92 S.Ct. 64, 30 L.Ed.2d 108 (1971).

On November 1, 1971, after this court's decision and the Supreme Court's denial of certiorari, petitioners moved the Board of Immigration Appeals to reopen their deportation proceedings to enable them to apply for permission to depart voluntarily from the United States in lieu of being deported. See 8 U.S.C. § 1254(e) (1970). Although application for voluntary departure had not previously been made, petitioners alleged that at the time of the prior deportation proceedings it was not clear that they could apply for voluntary departure while simultaneously challenging their deportability. In addition, petitioners asserted that circumstances had changed since entry of the deportation orders, inasmuch as INS had granted each of them "sixth preference" status, under 8 U.S.C. § 1153(a)(6), in the applicant pool for immigration visas.

Oral argument was heard by the Board on February 3, 1972. On July 21, 1975, over three years and five months later, the Board denied the motions to reopen. Petitioners challenge this decision on two grounds: first, that the Board was not properly constituted during the decisionmaking process; and second, that the Board's action contravened the regulations governing reopening of proceedings and deprived petitioners of a fair opportunity to apply for voluntary departure. For the reasons set forth hereinafter, we find these arguments unpersuasive, and affirm the decision of the Board.

I

Section 244(e) of the Immigration and Nationality Act, 8 U.S.C. § 1254(e) (1970), provides that

The Attorney General may, in his discretion, permit any alien under deportation proceedings, (with exceptions not relevant here), 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.

Special Inquiry Officers of the INS have been delegated power to authorize voluntary departure, ¹ in their discretion, in cases in which the alien satisfies the "moral character" requirement of section 244(e) and "establishes that he is willing and has the immediate means with which to depart promptly from the United States." ²

INS regulations have at all relevant times provided that applications for voluntary departure "shall be made only during the (deportation) hearing and shall not be held to constitute a concession of alienage or deportability in any case in which the respondent does not admit his alienage or deportability." 8 C.F.R. § 242.17(d). Both the Special Inquiry Officer and the Board of Immigration Appeals have the authority to reopen the deportation hearing for the purpose of providing an opportunity to apply for voluntary departure. But the governing regulations make clear that proceedings may not be reopened for that purpose if (1) the right to apply for voluntary departure was fully explained to the prospective deportee and (2) an opportunity to make application for such relief was afforded at the original hearing, unless (3) the relief is sought on the basis of circumstances which have arisen subsequent to that hearing. ³

In the case at bar, petitioners did not apply for voluntary departure at the deportation hearings before the Special Inquiry Officer. Upon the advice of counsel, they stood mute and presented no evidence. ⁴

Petitioners' written motions to reopen proceedings did not contain any allegations that their rights to apply for voluntary departure had not been fully explained to them. The motions stated that counsel had advised petitioners to remain silent at the deportation hearings on the grounds that a substantial issue was presented regarding the legality of their arrests, see note 4 supra, and that "it (had) not . . . been clearly established at the time of the proceedings that (petitioners) could simultaneously apply for voluntary departure while challenging (their) deportability." As to circumstances arising subsequent to the hearings, the submissions noted only that the deportation orders had been upheld upon judicial review, and that petitioners had each qualified to be considered for immigrant visas under the "sixth preference" portion of the immigration quota. ⁵

Oral argument was heard by the Chairman of the Board of Immigration Appeals at that time, Maurice Roberts, and Board Members Marianne R. McConnaughy and Louis Maniatis. ⁶ The case was argued for the INS by Irving A. Appleman, then an appellate trial attorney under the supervision of the General Counsel of INS; petitioners were represented by their current counsel.

Petitioners' counsel expressly indicated that no claim was being made that petitioners had not received a full and timely explanation of their right to apply for voluntary departure. ⁷ Instead, counsel elaborated on the argument in the written motions to the effect that petitioners' ability to apply for voluntary departure while challenging deportability was not clear. He represented that his clients did not file for voluntary departure at the earlier hearings out of fear that their testimony on that matter might be used against them on the question of deportability. While 8 C.F.R. § 242.17(d) clearly bars the use of an application for voluntary departure as evidence of deportability, counsel argued that the regulation is ambiguous with respect to the use of supporting testimony. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), was cited for the proposition that petitioners could not be compelled to surrender their fifth amendment privilege against self-incrimination, as they allegedly would have been forced to do by testifying in these circumstances, in order to obtain the statutory benefit of voluntary departure.

In the inordinately lengthy period of time between oral argument and decision of the case, Mr. Roberts and Ms. McConnaughy retired from the Board. David Milhollan, who had been an attorney in the office of the INS General Counsel at the time of argument, was appointed to the Board and replaced Mr. Roberts as Board Chairman on February 3, 1975; Irving A. Appleman, who had argued the case for INS before the Board, replaced Ms. McConnaughy. Thus, of the three members who heard oral argument, only one Mr. Maniatis was still on the Board when the case was finally decided.

Mr. Appleman abstained from consideration of the case, but Chairman Milhollan, Mr. Maniatis, two other Board members, and one alternate member participated in the Board's decision of July 21, 1975. ⁸ Chairman Milhollan's opinion for the Board, J.A. 2-4, noted first that "(i)t is not contended that (petitioners') right to apply for voluntary departure was not fully explained to (them) at their hearings." The opinion went on to hold that petitioners "had no valid reason for their failure to make applications for the privilege of voluntary departure" inasmuch as the evidence which would be required to demonstrate eligibility for voluntary departure is wholly unrelated to the issue of deportability. The holding of Simmons, see 390 U.S. at 394, 88 S.Ct. 967 that when a criminal defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted over his objection at trial on the merits, since a contrary rule would require him in effect to waive his fifth amendment privilege against self-incrimination in order to assert his fourth amendment rights was distinguished on the ground that in their deportation proceedings petitioners would in no sense have been compelled to surrender one constitutional right in order to assert another. Finally, the opinion concluded that "(t)here are no circumstances which have arisen which warrant a reopening of the proceedings." ⁹

On January 16, 1976, five days before the expiration of the statutory period for seeking judicial review, petitioners filed this challenge to the Board's order denying their motions to reopen proceedings. We have jurisdiction under 8 U.S.C. § 1105a. See Giova v. Rosenberg, 379 U.S. 18, 85 S.Ct. 156, 13 L.Ed.2d 90 (1964), rev'g 308 F.2d 347 (9th Cir. 1962).

II

Petitioners contend that the Board was unlawfully constituted in three respects. First, the fact that only three members of the Board heard oral argument, it is asserted, violated a regulation promulgated by the Attorney General stating that the Board "shall consist of a Chairman and four other members . . . ." 8 C.F.R. § 3.1(a). We think it clear, however, that the common law rule under which a simple majority constitutes a quorum of a collective body in the absence of a specific limitation to the contrary provided ample authority for conducting hearings before...