De Bilbao-Bastida v. Immigration and Naturalization Serv.

• Decision Date: 15 April 1969
• Docket Number: No. 23154.,23154.
• Parties: Jose de BILBAO-BASTIDA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

409 F.2d 820 (1969)

Jose de BILBAO-BASTIDA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 23154.

United States Court of Appeals Ninth Circuit.

April 15, 1969.

Philip Barnett (argued), Los Angeles, Cal., for petitioner.

Carolyn M. Reynods (argued), Asst. U. S. Atty., Wm. Matthew Byrne, Jr., U. S. Atty., Frederick M. Brosio, Asst. U. S. Atty., Los Angeles, Cal., Joseph Sureck, Regional Counsel, San Pedro, Cal., Stephen Suffin, INS, San Francisco, Cal., John N. Mitchell, Atty. Gen., Washington, D. C., for respondent.

Before BARNES and CARTER, Circuit Judges, and BYRNE,^* District Judge.

BARNES, Circuit Judge:

This is an appeal from a final order of deportation issued by the Board of Immigration Appeals. Our jurisdiction arises under 8 U.S.C. § 1105a.

Petitioner is an alien, a native and citizen of Spain. He was admitted to the United States as an immigrant and permanent resident on June 23, 1959 at Blaine, Washington. He registered as an alien and was issued an alien registration, or "green" card. (8 U.S.C. § 1103 and 8 C.F.R. § 299.1) Printed on the back of this card was the following statement:

"This card will be honored in lieu of a visa and passport on condition that the rightful holder is returning to the United States after a temporary absence of not more than one year and is not subject to exclusion under any provision of the immigration laws."

In each of the years 1959, 1960, 1961 and 1963 petitioner left the United States on vacations. On each occasion, he was admitted back into the United States upon showing his alien registration card. In each instance, petitioner's visit was to Mexico, with the exception of his trip in 1961. That year, petitioner went first to Mexico, but also visited Cuba and Guatemala. He stayed about two weeks in Cuba, and testified that he had planned on spending only one week there, but that his departure was delayed by transportation difficulties in Cuba. Petitioner also testified that the purposes of his trip were to visit the sister of a friend and to see Cuba.

Petitioner gave the above testimony with regard to his visit to Cuba in 1963 in the course of proceedings relating to his application for naturalization. Thereafter, on March 22, 1965, an Order to Show Cause was issued by the Immigration and Naturalization Service, charging that petitioner was subject to deportation pursuant to 8 U.S.C. § 1251 (a) (1), as an alien who, at the time of entry, was within the class of aliens excludable by the law existing at the time of such entry, i. e., that petitioner was excludable under 8 U.S.C. § 1182(a) (20), as an immigrant who at the time of application for admission was not in possession of a valid entry document. This was because his alien registration card was not valid for re-entry after travel in Cuba, according to 8 C.F.R. § 211.1, as amended in January 1961.

Pursuant to the above Order to Show Cause, a deportation hearing was held in Los Angeles, California. Petitioner was represented by counsel, and, unlike at his naturalization hearing, chose not to testify. To support its charges, the Immigration Service presented petitioner's sworn application to file a petition for naturalization, two sworn statements of the petitioner to the naturalization examiner before whom the application to file a naturalization petition was sworn, and the two stenographers who recorded the statements testified.

On October 5, 1965, the special inquiry officer rendered a written decision denying petitioner's application for termination of proceedings, ordering that in lieu of deportation petitioner be granted voluntary departure, and further ordering that if petitioner failed to depart as required, he be deported to Spain on the charge stated in the Order to Show Cause. Petitioner thereafter filed a notice of appeal to the Board of Immigration Appeals. The Board dismissed the appeal. Petitioner filed a Motion to Reopen and Remand, along with an affidavit, contending that he relied upon his registration card and did not know that a trip to Cuba was improper. The Board denied his motion on the ground that it raised no new issue.

Petitioner next filed a petition for review in this court, and we remanded the case to the Board of Immigration Appeals by order filed February 16, 1967, for reconsideration in light of Woodby v. Immigration & Nat. Serv., 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966). Woodby held that the Government in deportation proceedings must establish the facts supporting deportability by "clear, unequivocal, and convincing evidence." The deportation proceeding was then reopened, but no further evidence was submitted by petitioner or the Service. On February 29, 1968 the special inquiry officer found that petitioner's deportability had been established by clear, unequivocal and convincing evidence, which evidence was admittedly true and uncontroverted.

On March 12, 1968, petitioner filed a notice of appeal to the Board of Immigration Appeals, and on July 16, 1968, the Board issued its decision dismissing the appeal. The petition for this court to review that decision was then filed.

This would appear to be the first time a court of appeals has reviewed the validity of a deportation order issued as a result of an alien's re-entering the United States with an alien registration card, following a trip to a prohibited area.

In support of the decision below, the Immigration Service has made the following contentions. First, in response to petitioner's argument that he did not know at the time of his trip to Cuba that he could not re-enter the United States with his alien registration card, the Service takes the position that petitioner had legal notice of the restriction because the January 1961 amendment to 8 C.F.R. § 211.1 was published in the Federal Register, citing Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 385, 68 S.Ct. 1, 92 L.Ed. 10 (1947) and Wei v. Robinson, 246 F.2d 739, 743 (7th Cir. 1957). 44 U.S.C. § 307 established that proper publication in the Federal Register gives "notice of the contents * * * to any person subject thereto or affected thereby."

The Immigration Service next points out that 8 U.S.C. § 1103 gives the Attorney General broad authority to establish regulations to carry out his authority under the Immigration and Nationality Act, and that regulations issued pursuant to such statutory authority are presumptively valid. Edwards v. Madigan, 281 F.2d 73, 77 (9th Cir. 1960); Cuesta v. United States, 230 F.2d 704, 707 (5th Cir. 1956). Further, the Service maintains that the particular regulation here in question is valid, for it is established that "the alien's right to travel temporarily outside the United States is subject to restrictions not applicable to citizens." Harisiades v. Shaughnessy, 342 U.S. 580, 586-587, 72 S.Ct. 512, 517, 96 L.Ed. 586 n. 10 (1952).

In another context, the court in Swissair v. Kennedy, 117 U.S.App.D.C. 162, 327 F.2d 860 ...