Chiaramonte v. Immigration and Naturalization Service

• Decision Date: 23 June 1980
• Docket Number: D,No. 800,800
• Citation: 626 F.2d 1093
• Parties: Michele CHIARAMONTE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. ocket 79-4191.
• Court: U.S. Court of Appeals — Second Circuit

Page 1093

626 F.2d 1093

Michele CHIARAMONTE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 800, Docket 79-4191.

United States Court of Appeals, Second Circuit.

Argued Feb. 19, 1980.

Decided June 23, 1980.

Noreen Quirk, New York City (Fried, Fragomen, Del Rey, Bernsen & O'Rourke, P. C., New York City, of counsel, Martin L. Rothstein, New York City, on the brief), for petitioner.

Robert S. Groban, Jr., Sp. Asst. U. S. Atty., S. D. N. Y., New York City (Robert B. Fiske, Jr., U. S. Atty., S. D. N. Y., Peter C. Salerno, Asst. U. S. Atty., S. D. N. Y., New York City, of counsel), for respondent.

Before MOORE, MULLIGAN and MESKILL, Circuit Judges.

MESKILL, Circuit Judge:

Over nine years after the Immigration and Naturalization Service first rebuffed his attempts to gain lawful permanent residence in this country on the ground that his prior convictions for crimes evincing moral turpitude rendered him permanently excludable under Section 212(a)(9) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(9), Michele Chiaramonte petitions for review of a decision of the Bureau of Immigration Appeals ("BIA") denying him a waiver of inadmissibility and adjustment of status under Sections 212(h) and 245, 8 U.S.C. §§ 1182(h) and 1255, and declining to remand the matter to the Immigration Judge for consideration of his request for a suspension of deportation under Section 244, 8 U.S.C. § 1254. Finding no error in these various administrative determinations, we dismiss the petition.

I.

Michele Chiaramonte is a citizen of Italy, where he was born on March 5, 1924, one of five children. On October 11, 1943, at the age of 19, petitioner and his minor brother were apprehended and charged with having stolen 27 kilograms (approximately 60 pounds) of olives. He was prosecuted under Article 624 of the then prevailing Italian Penal Code, which, in translation, provided:

Theft.

Whoever takes possession of the movable property of another, by taking it away from the person who holds it, for the purpose of deriving benefit from it for himself or for others, shall be punished by imprisonment for up to three years and a fine of from 12,000 to 200,000 lire. . . .

One week following his arrest, Chiaramonte was tried by an Italian civilian court located in Partinico, Sicily. In the judgment, the only contemporaneously created document submitted to us, the court noted that the identity of the owner of the olives had not been established, but concluded, "there are present all the legal requirements stipulated by the legislature . . . which all indicate violation of the decree of ownership . . .." Accordingly, petitioner was adjudged guilty of the offense, and sentenced to 15 days' imprisonment, execution of which was suspended for a five year probationary period, and a 300 lire fine.

Further details concerning this episode are scant. Petitioner, both in his briefs to this Court and in his abbreviated testimony before the Immigration Judge, averred that the theft was necessitated by his family's need for food. Historical and public records submitted to us indicate that while the Italian government had capitulated to the Allied Forces prior to the commission of this crime, fighting continued to rage on the mainland of Italy, and general conditions prevailing throughout Italy may be safely presumed to have entailed substantial privation.

Notwithstanding his term of probation, on February 10, 1944, some four months after his prior conviction, petitioner was arrested, again in the company of a minor brother, and charged under the same penal statute with having "taken possession of about 100 kg. of wood to the detriment of one Benedetto Scalia." Chiaramonte confessed his guilt and received, from the same civilian district court as had previously tried him, a sentence of five months' imprisonment and a 1,000 lire fine. For reasons which are not revealed, the Superior Court of Palermo, on appeal of petitioner's sentence, ordered its execution suspended and placed petitioner on a five year term of probation, presumably to run concurrently with that which he had received for the theft of the olives.

In 1948 petitioner married and he subsequently fathered two sons and two daughters. At about the time of his marriage, Chiaramonte's father and each of his four siblings immigrated to the United States, where they are now naturalized citizens. Some twenty years later, petitioner embarked on this same path, and in April 1970, applied at the United States Consulate in Palermo for a fourth preference immigrant visa. The request was denied on the ground that his two prior criminal convictions rendered him excludable under Section 212(a)(9), 8 U.S.C. § 1182(a)(9) ¹, which inter alia, bars from immigration to this country any alien who has been convicted of a crime deemed to involve moral turpitude.

Approximately one year later, in the spring of 1971, petitioner was issued a nonimmigrant visitor's visa to the United States, valid until June 30, 1972, on the ground that the illness of one of his brothers required his attendance. Contrary to the terms and conditions of his entry into this country, petitioner within three months of his arrival unlawfully commenced employment. Shortly thereafter, he applied to the INS for a waiver of excludability and adjustment of status under Section 212(h), 8 U.S.C. § 1182(h), ² which authorizes the Attorney General to lift the disability imposed on an alien convicted of a crime of moral turpitude upon a number of conditions, most notably a showing that the alien's exclusion would result in extreme hardship to any of several enumerated relatives who had previously obtained American citizenship or permanent resident status.

This administrative application was denied on May 31, 1972, and petitioner was ordered to depart in accordance with the original June 30 expiration of his visitor's visa. Undaunted by this setback, Chiaramonte overstayed his visa and in November arranged for the illegal entry into the United States of his wife and two sons, accomplished through a cash payment to an unidentified individual who smuggled them into the country from Canada. In 1973, petitioner resumed his illicit employment, utilizing his wages to purchase a one-third interest in the Chiaramonte family home, in which he had been residing, and also to contribute to the support of his aged father.

Several months thereafter, petitioner was served by the INS with an order to show cause on July 31, 1973, why he should not be deported. At the hearing, petitioner conceded his deportability, but again requested a waiver of inadmissibility and adjustment of status under Section 212(h), largely on the theory that his two crimes were part of a single plan of action, undertaken under extenuating circumstances. Immigration Judge Francis J. Lyons denied the application, but granted petitioner the right of voluntary departure by August 31.

While the matter was on appeal to the BIA, Chiaramonte's son Francesco married an American citizen and thereby obtained resident alien status. Since petitioner could now claim that his expulsion would cause extreme hardship to a family member specified in Section 212(h), he moved for and was granted a remand to the Immigration Judge to consider this potential ground for discretionary relief.

Inexplicably, the deportation proceeding did not reconvene until February 20, 1976, some two and one-half years after the remand, and then only briefly. After petitioner's submission of cursory affidavits from family members reciting in conclusory fashion that they would suffer extreme hardship by virtue of the absence of petitioner, the hearing was adjourned, ostensibly so that the INS could investigate the claim. This occasioned a one and one-half year delay, and the case was resumed before Immigration Judge Lyons in August 1977. By this time, petitioner's wife and unmarried son had become the subjects of a separate deportation proceeding. The Immigration Judge heard petitioner's testimony, and that of his son Francesco, then 26 years old, married, gainfully employed and living apart from his family. Francesco stated, in pertinent part, that the expulsion of his father would cause him to feel "sad" and "alone."

On March 7, 1978, the application was denied in a written opinion. Judge Lyons found, with little discussion, that petitioner was properly categorized as an excludable alien. Turning to the prayer for discretionary relief, Judge Lyons held that only the hardship accruing to Chiaramonte's son Francesco could be considered. Unmoved by Francesco's tepid plea, the Immigration Judge concluded that it did not make out a compelling case for the extraordinary remedy requested. Moreover, Judge Lyons noted, even if petitioner had qualified for discretionary consideration, such relief would be inappropriate given Chiaramonte's pattern of disregard of INS supervision and repeated violation of the immigration laws.

On appeal to the BIA, petitioner asserted four grounds of error. First, he claimed that he had been improperly categorized as excludable since his convictions did not entail moral turpitude under comparable provisions of American criminal law. Second, he argued that the Immigration Judge, in denying him discretionary relief, committed error in restricting the consideration of hardship to his son and failing to take into account the suffering that would befall others, particularly petitioner's ailing father. Third, it was claimed that Chiaramonte had been unfairly deprived of discretionary relief because the Immigration Judge was unduly swayed by the illegal entry into the United States of petitioner's wife and sons. Lastly, since by this time Chiaramonte had been in this country for seven years, he asked, for the first time, that the matter be again remanded to the Immigration Judge to entertain an application for suspension of deportation, as provided under Section 244, 8 U.S.C. §...