Cisneros-Ledesma v. I.N.S.
| Decision Date | 17 November 1994 |
| Docket Number | P,No. 93-70262,CISNEROS-LEDESM,93-70262 |
| Citation | 45 F.3d 435 |
| Parties | NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Elisioetitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before: LAY, ** PREGERSON, and O'SCANNLAIN, Circuit Judges.
Petitioner Eliseo Cisneros-Ledesma appeals the Board of Immigration Appeals' Order which found him deportable under Sec. 241(a)(1) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1251(a)(1). He was found deportable as an intended immigrant in possession of neither a valid visa under Sec. 212(a)(20) of the INA, 8 U.S.C. Sec. 1182(a)(20), nor a labor certificate under Sec. 212(a)(14) of the INA, 8 U.S.C. Sec. 1182(a)(14). We have jurisdiction under Sec. 106(a) of the INA, 8 U.S.C. Sec. 1105a(a). We vacate the Board's order and remand.
Cisneros is a native and citizen of Mexico. Cisneros was married in the United States to a U.S. citizen in February 1985. In March 1985, his wife filed an immediate relative petition in support of his application to immigrate to the United States. Cisneros' wife allegedly withdrew this petition on September 4, 1985. Cisneros heard about his wife's withdrawal of her petition from a friend, while he was in jail with the friend, and from his wife, sometime before September 19, 1985.
According to Cisneros, his wife filed a withdrawal petition because she thought Cisneros had been involved with another woman. When Cisneros' wife found out this was not true, Cisneros said she told him to continue with his application for an immigrant visa.
Further, according to Cisneros, his wife was planning to accompany him to Mexico in September when he went there to acquire his immigrant visa, but she did not do so because of lack of funds.
On September 19, 1985, Cisneros travelled to Mexico to acquire his immigrant visa. The following day, the U.S. Embassy in Mexico issued an immigrant visa to Cisneros, predicated on immediate relative status. Cisneros re-entered the United States on September 25, 1985.
An Order to Show Cause regarding deportation issued March 1986. The order alleged that Cisneros' wife had withdrawn her visa petition on September 4, 1985. The order stated that Cisneros was excludable at the time of his re-entry into the U.S. on September 25, 1985 because he did not have a valid visa. The order also stated Cisneros was excludable at entry because he entered the U.S. for the purpose of performing labor and had not received a Department of Labor certification, a requirement if he did not enter the U.S. under immediate relative status.
A deportation hearing began September 1986. When the government attempted to enter the withdrawal petition of Cisneros' wife into evidence, Cisneros objected. Cisneros contended that the withdrawal petition had to be authenticated. Cisneros also argued that his wife should be present at the hearing so she could testify to the circumstances of her filing the withdrawal petition, and so Cisneros would have the opportunity to cross-examine her.
The immigration judge continued Cisneros' deportation hearing until November because the government had made no effort to produce Cisneros' wife at the hearing. During the two-month continuance, the INS lodged a new charge against Cisneros. The INS now claimed Cisneros was excludable at entry because Cisneros had entered the U.S. by fraud or willful misrepresentation of a material fact. The INS based this claim on Cisneros' testimony that his wife had told him she had filed a withdrawal petition, and Cisneros' subsequent failure to inform U.S. Embassy officials in Mexico of this when they interviewed him.
When the deportation hearing resumed, the investigator for the INS testified about his efforts to locate Cisneros' wife. The investigator stated that he ran the wife's social security number through the Arizona Department of Economic Security and checked records for a driver's license in Arizona. While he located no address in Phoenix, he did find an address in El Mirage, about thirty-five miles from Phoenix. The investigator interviewed the individuals at the El Mirage address, and they said Cisneros' wife might be in Salinas, California. The INS investigator found a Salinas address in Cisneros' file and mailed a notice to appear at the deportation hearing to her at the Salinas address. There was no reply. The INS made no further effort to locate Cisneros' wife.
On cross-examination at the resumed hearing, Cisneros' counsel asked the INS investigator why he had not contacted the INS office in Salinas to assist in locating Cisneros' wife. The investigator stated that the Salinas INS office was staffed by border patrol officers, not investigators. The investigator admitted he could have easily contacted the INS office in Salinas, but he added that this was not the normal procedure.
The immigration judge also questioned the INS investigator. The judge wanted to know "why wasn't there even a phone call made up there [Salinas]?" The investigator again noted that calling the Salinas office was not the usual policy, and then stated, "I thought [my actions] would suffice." The immigration judge held that the INS did not make a "reasonable effort to locate" Cisneros' wife as required under Baliza v. INS, 709 F.2d 1231 (9th Cir.1983). The immigration judge then excluded from evidence the withdrawal petition of Cisneros' wife.
Without the wife's withdrawal petition, the immigration judge concluded that the only remaining evidence to prove lack of a valid visa and fraud by Cisneros was his testimony that he had learned about the withdrawal petition both from his jail friend and his wife. But Cisneros testified further that his wife later told him to go ahead with the petition after she learned that he had not been unfaithful. The immigration judge stated that this information did not meet the notification standard of Sec. 205 of the Act, 8 U.S.C. Sec. 1155. Relying on Matter of Salazar, 12 I. & N.Dec. 167 (BIA 1979), the immigration judge concluded that the information derived from Cisneros' testimony did not constitute actual notice of the withdrawal petition. 1
Further, the immigration judge found that Cisneros was not deportable on the labor certification issue because "[n]o evidence was presented whatsoever that the respondent ever intended to perform work in the United States, nor has any evidence been presented that he has not been issued a labor certification."
Finally, on the fraud issue, the immigration judge stated that fraud had to be proved by active participation, rather than merely by a passive act. The judge concluded that because the Embassy personnel did not ask Cisneros about the withdrawal petition, Cisneros' failure to volunteer the information was not fraud or willful misrepresentation.
The immigration judge then concluded that was not deportable and ordered the proceedings against him terminated.
The INS appealed the immigration judge's order to the Board of Immigration Appeals. The BIA found that the knowledge Cisneros had of his wife's withdrawal petition before his interview at the U.S. Embassy in Mexico was adequate to support the notice requirement of Sec. 205 of the INA.
Further, the BIA found that the wife's withdrawal petition should have been admitted by the immigration judge at the deportation hearing for two reasons. First, the BIA distinguished Cisneros' circumstances form Baliza, the case relied on by the immigration judge to exclude Cisneros' wife's withdrawal petition as evidence. In Baliza, the wife's affidavit was contradicted by the alien's testimony. The BIA stated that unlike Baliza, Cisneros' testimony did not contradict the withdrawal petition. Second, the BIA found that the INS had made a reasonable effort to locate Cisneros' wife since "[e]ven Cisneros testified that he was unaware of her current address."
The BIA found that "deportability has been established by clear, unequivocal, and convincing evidence," the standard set forth by Woodby v. INS, 385 U.S. 276 (1966), and 8 C.F.R. Sec. 242.14(a). This finding applied to the charges that Cisneros had neither a valid immigrant visa nor a labor certificate. However, the BIA did not find clear, unequivocal, and convincing evidence of fraud and willful misrepresentation.
The BIA thus overturned the immigration judge's finding that Cisneros was not deportable on the labor certification and valid immigrant visa issues, but sustained the immigration judge's finding that Cisneros was not deportable under entry by fraud. The BIA then granted Cisneros the "privilege of voluntary departure."
Cisneros now appeals the BIA's finding that the INS made a reasonable effort to locate and produce his wife at the deportation hearing. Cisneros contends that the INS did not make a reasonable effort to produce his wife, and thus the procedure was fundamentally unfair since he could not cross-examine her. Cisneros further contends that if the withdrawal petition is inadmissible because the INS failed to make a reasonable effort to locate his wife, then the remaining evidence is not clear, unequivocal, and convincing so as to support a finding of his deportability.
We review de novo the BIA's interpretation of the requirements of the Immigration and Nationality Act. Hartooni v. INS, 21 F.3d 336, 340 (9th Cir.1994); Abedini v. INS, 971 F.2d 188, 190 (9th Cir.1992). Factual findings by the BIA are conclusive if "supported by reasonable, substantial, and probative evidence on the record considered as a whole." Hartooni, 21 F.3d at 340 (quoting 8 U.S.C. Sec. 1105a(a)(4)). Nevertheless, where the agency and the ALJ disagree, the appellate court's...
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