Dallo v. I.N.S.

Decision Date20 June 1985
Docket Number85-1033 and 85-3092,Nos. 84-3393,s. 84-3393
Citation765 F.2d 581
PartiesPaul Ziah DALLO, Petitioner, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent, Respondent-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

Fakhri W. Yono, argued, Yono & Sarafa, P.C., Southfield, Mich., William M. Hatchett, argued, Pontiac, Mich., for P. Dallo.

Robert Kendall, Jr. (LC), argued, Office of Immigration Litigation, Crim. Div., Washington, D.C., Thomas W. Hussey, Christopher Barnes, U.S. Atty., Nicholas J. Pantel, Cincinnati, Ohio, L. Michael Wicks, argued, Asst. U.S. Atty., Detroit, Mich., for I.N.S.

Before ENGEL and MARTIN, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

BOYCE F. MARTIN, Jr., Circuit Judge.

These three consolidated matters all relate to Paul Ziah Dallo's continuing efforts to resist deportation. Nos. 84-3393 and 85-3092 challenge the Board of Immigration Appeals' refusals to reopen deportation proceedings, and No. 85-1033 is an appeal from a district court's denial of his petition for habeas corpus. We affirm in all three cases.

Facts

Dallo is a native and citizen of Iraq who entered the United States on November 9, 1977, as an immigrant. His immigrant visa was approved on September 19, 1977, based on his marriage to United States citizen Judy Henry on September 8, 1977, at Windsor, Canada. That marriage was terminated by divorce on July 13, 1978.

On November 14, 1979, an investigator for the Immigration and Naturalization Service contacted Judy Henry, and she told the investigator that the marriage was a fraudulent one arranged for immigration purposes. After notice of her rights and in the presence of the investigator, she wrote out and signed the affidavit set out in the footnote. 1 Parallel investigations of the marriages of Dallo's brothers, Vadi Zia Jajou and Khalid Zia Jajo, produced affidavits from United States citizens Patricia Ann Crombez and Esther Diaz (nee Jaime) saying that the marriages were also fraudulent ones. Patricia Crombez stated in a sworn affidavit, dated November 14, 1979, that Dallo persuaded her to travel to Cairo, Egypt, and marry Vadi Zia Jajou on August 20, 1979. She stated that Dallo paid her a total of $400 to enter an unconsummated marriage to a man she had never met. Esther Diaz stated in a sworn affidavit dated November 20, 1979, that Dallo paid her $300 to marry Khalid Zia Jajo in Cairo on August 20, 1979, although her marriage was initially arranged by a man she knew only as Billy. The United States Attorney declined prosecution of Dallo in favor of administrative action to deport him.

The INS then issued an Order to Show Cause and Notice of Hearing to Dallo on January 24, 1980. The notice alleged four bases for deportability, all essentially flowing from his fraud. 2 The deportation hearing commenced on February 21, 1980, but was not completed until July 20, 1981. The INS trial attorney moved the admittance into evidence of various documents, including Judy Henry's affidavit; Dallo's counsel stipulated to the admission of the affidavit, but reserved his right to cross-examine the witness.

After learning of petitioner's desire to cross-examine Judy Henry and before the ultimate completion of the hearing, the INS attempted to subpoena Judy Henry for testimony. A subpoena dated March 19, 1980, was returned by the Postal Service stamped "return to sender, moved not forwardable." An investigator then visited Judy Henry's parents' home, and they told him that they did not know her location, as she traveled throughout the United States in her work, but they were in occasional telephonic contact with her. They accepted a subpoena for her and promised to tell her about it when she next called. At the hearing on April 17, 1980, however, the immigration judge telephoned the Henrys and they said they had not been in touch with their daughter since the investigator's visit. A third subpoena was served on June 11, 1981, to no avail. At the June 17, 1981, hearing, Dallo's trial counsel had no suggestions as to how Judy Henry could be located. Dallo himself, when asked by an investigator prior to the hearing where his ex-wife could be located, refused to answer on advice of counsel. At no time did Dallo introduce any evidence to rebut Judy Henry's affidavit.

The immigration judge on November 20, 1981, issued a written decision ordering Dallo to voluntarily depart within thirty days, or alternatively to be deported to Iraq. The judge held that every effort possible had been made to locate the ex-wife for cross-examination and admitted her affidavit on the authority of 8 C.F.R. Sec. 242.14(c). He found the marriage fraudulent, a finding based in part on the INS investigation, including Judy Henry's affidavit, and in part on the statutory presumption of fraud in section 241(c) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1251(c). He also denied a request for asylum, finding that Dallo had failed to establish the likelihood of persecution if he were returned to Iraq. 3 Dallo timely appealed to the Board of Immigration Appeals, which on May 9, 1983, sustained the order that Dallo depart the United States voluntarily within thirty days in lieu of enforced deportation.

Dallo did not seek judicial review of the Board's order within the six months provided by section 106(a)(1) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1105a(a)(1), nor did he voluntarily depart the United States. The INS issued a Warrant of Deportation for Dallo on August 29, 1983. Petitioner applied for a stay of deportation on October 3, 1983; the application was denied on March 8, 1984, and he was ordered to report for deportation on March 15, 1984. When he failed to appear as ordered, a second notice to report was sent to him and his counsel, ordering him to report for deportation on March 29, 1984. He again failed to report as ordered, and on April 3, 1984, INS officers took him into custody, where he remains.

Dallo's counsel on April 4, 1984, telephonically requested the Board of Immigration Appeals to reconsider its decision. The Board denied this request without opinion on May 10, 1984.

On April 6, 1984, Dallo's counsel mailed a petition to review the Board's May 9, 1983, order to this Court with a motion to file the petition out of time. The petition and motion were received by the Clerk of Court on April 9, 1984, and the motion was denied and the case dismissed by a per curiam order on September 26, 1984. Dallo v. INS, No. 84-3280 (6th Cir. Sept. 26, 1984). This and the subsequent petitions to this Court have stayed the deportation until the present date, pursuant to section 106(a)(3) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1105a(a)(3).

On April 20, 1984, Dallo's counsel filed a petition for a writ of habeas corpus, attacking the deportation, in the United States District Court for the Eastern District of Michigan. After a two-hour hearing on May 7, 1984, Judge Guy denied the writ in a bench opinion. Dallo v. INS, No. 84-CV1928-DT (E.D.Mich. filed May 11, 1984). Although the court did grant Dallo a four-day temporary restraining order to give him time to appeal, no appeal was ever taken, perhaps because jurisdiction was improperly premised on Immigration and Nationality Act Sec. 106(b), 8 U.S.C. Sec. 1105a(b).

On April 30, 1984, Dallo's counsel moved the Board of Immigration Appeals to reopen and reconsider the deportation proceedings pursuant to 8 C.F.R. Secs. 103.5, 242.22. The Board denied the motion to reopen in a written opinion on May 16, 1984, which also included a more formal denial of the April 4 telephonic motion to reopen. Dallo on May 17, 1984, petitioned for review of this order to this Court, and it is No. 84-3393.

On May 21, 1984, Dallo's counsel filed a second petition for a writ of habeas corpus in the United States District Court for the Eastern District of Michigan. This petition sought his release on bond pending this court's disposition of No. 84-3393. Judge Joiner held in open count on May 25, 1984, that the District Director of the INS was within his discretion in denying bond, and a formal judgment and order denying the writ was entered on June 14, 1984. Dallo v. INS, Detroit, Mich., No. 84-CV-7253-AA (E.D.Mich. filed June 14, 1984). No appeal was taken.

On May 31, 1984, six days after Judge Joiner's bench opinion and two weeks before it was filed, Dallo's local counsel filed a third petition for a writ of habeas corpus, this time in the United States District Court for the Western District of Texas. Dallo chose this district because he was then being held at the Alien Detention Facility in El Paso, Texas, to await deportation. He again attacked the legality of the deportation order and sought release on bond pending that court's disposition of his habeas petition. Judge Hudspeth denied the writ in a written opinion on July 20, 1984. Dallo v. Giugni, No. EP-84-CA-198 (W.D.Tex. July 20, 1984). No appeal was taken.

On August 21, 1984, Dallo's counsel for the third time moved the Board of Immigration Appeals to reopen and reconsider the deportation proceedings. He now alleged that he had married a lawful permanent resident of the United States on December 11, 1983, and thus was eligible for relief under section 241(f) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1251(f). Dallo did not explain why this ground was not combined with the April 30 request to reopen. The Board denied the motion on January 4, 1985. Dallo on January 28, 1985, petitioned for review in this Court, and it is No. 85-3092.

On September 5, 1984, Dallo's counsel filed a fourth petition for a writ of habeas corpus in the United States District Court for the Eastern District of Michigan. This petition again sought Dallo's release on bond pending this court's disposition of his petitions for review. The case was referred to United States Magistrate Komives for a report and recommendation....

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