Deleon v. Immigration and Naturalization Service
| Decision Date | 18 October 1976 |
| Docket Number | D,No. 849,849 |
| Citation | 547 F.2d 142 |
| Parties | Reyes Frias DeLEON, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. ocket 75-4151. |
| Court | U.S. Court of Appeals — Second Circuit |
Anna M. Durbin, Law Student Intern, Yale Law School, New Haven, Conn. (Michael J. Churgin, Austin, Tex., Judith M. Mears, Dennis E. Curtis, Stephen Wizner and Mary F. Keller, New Haven, Conn., on the brief), for petitioner.
Taggart D. Adams, Asst. U. S. Atty., New York City (Thomas J. Cahill, U. S. Atty., Steven J. Glassman, Asst. U. S. Atty., and Mary P. Maguire, Sp. Asst. U. S. Atty., New York City, on the brief), for respondent.
Before LUMBARD, OAKES and TIMBERS, Circuit Judges.
This case presents another variation in the problems of construing the waiver of deportability provision of Section 241(f) of the Immigration and Nationality Act, 8 U.S.C. § 1251(f) (1970) (the Act). 1 That section provides for aliens whose immediate family members are lawful permanent residents of the United States a limited waiver of deportation where deportability is based on fraud at the time of entry.
On this petition to review a final order of deportation by the Board of Immigration Appeals with respect to Reyes Frias DeLeon (Frias), the essential issues are (1) whether Section 241(f) waives deportability of an alien under Section 241(a)(5) of the Act, 8 U.S.C. § 1251(a)(5) (1970), 2 where the deportation is based upon a conviction for impersonating a resident alien at the time of entry in violation of 18 U.S.C. § 1546 (1970); 3 (2) whether the Board abused its discretion in refusing to withhold deportation of Frias to the Dominican Republic under Section 243(h) of the Act, 8 U.S.C. § 1253(h) (1970), 4 on grounds of possible political persecution; and (3) whether the Board's decision was based upon information never received in evidence.
For the reasons below, we hold that Section 241(f) does not waive deportability under Section 241(a)(5); we reject Frias' other claims; and we deny the petition.
The following statement of facts is based on the evidence adduced, including Frias' testimony, at the deportation hearings that preceded the immigration judge's decision of December 20, 1974.
Frias is a 38 year old alien. He was born in the Dominican Republic and is a citizen of that country. His present wife, whom he married August 26, 1967, is a United States citizen. They have two children born June 7, 1968 and February 2, 1973. Frias, his wife and their two children reside in the United States.
Frias lived in the Dominican Republic until 1965. He was a professional baseball player. He testified that he actively supported President Juan Bosch; that he fought in the abortive 1965 revolution to bring Bosch back to power; and that during the fighting he received a bullet wound in the head.
In February 1965, shortly before the revolution, Frias was arrested in the Dominican Republic on a charge of murder. He claimed that his first wife had attacked him and their daughter with a knife and that he had beaten her to death with a baseball bat in self-defense. He was never tried on the murder charge. He claimed that a Dominican judge dismissed the charges against him after he had served 24 days in prison. The immigration judge found that the reason he was not tried was that he fled the country during the ensuing revolution.
Upon leaving the Dominican Republic in 1965, Frias went to Puerto Rico. In 1967 he entered the United States by unknown means and met his present wife in this Country. Sometime in 1968 Frias left the United States and entered Canada. His wife and month old daughter remained in New York.
Shortly after Frias arrived in Canada, the Canadian authorities ordered him to leave. He claims that he tried to return to the United States to join his wife and child but that he was refused a visa by the United States immigration authorities. He returned to the Dominican Republic. He claims that he was not deported to the Dominican Republic by the Canadian authorities but that he returned voluntarily.
He testified that before he returned to the Dominican Republic he knew that he would be harassed by the Dominican authorities because of his involvement in the 1965 revolution. He nevertheless asked his wife to join him there with their young child.
Frias testified that he was harassed continually by the Dominican police during his 15 day stay in that country and that the police pressed the murder charge against him solely for political reasons. Although he was not arrested during his stay in the Dominican Republic, he claims that the police followed him and each day interrogated him and his friends. During the first day of his stay in the Dominican Republic he remained at the home of one Carlos Corneille, a First Secretary in the Dominican Republic with the rank of Ambassador. Thereafter he lived at the Ambassador Hotel in Santo Domingo.
He testified that he avoided arrest, and ultimately obtained the papers necessary to leave the country, by paying some $9,000 in bribes to Dominican officials and by securing the help of Corneille and someone whom he identified as a general and high ranking police official. He claimed that the Dominican police would have killed him if he had not paid them the bribes.
After 15 days in the Dominican Republic, Frias appeared in the United States at JFK Airport on July 18, 1968. His wife and child were with him. He concedes that at that time he impersonated one Rafiel Lara Ortiz, a lawful permanent resident alien, and used Ortiz' papers to gain entry.
On August 27, 1968 Frias was indicted in the Eastern District of New York on a charge of attempting to evade the immigration laws by impersonating Ortiz at the time of entry in violation of 18 U.S.C. § 1546. On February 27, 1969, accompanied by counsel, Frias pleaded guilty to the charge and was released on bail pending sentence. Before he could be sentenced he jumped bail. A bench warrant was issued for him in June 1969. He went to Canada. Shortly after he returned to the United States on November 1, 1972 he was arrested. On September 4, 1973 he was sentenced to three years imprisonment based on his conviction under 18 U.S.C. § 1546.
Backing up for a moment, on July 17, 1973, while Frias was incarcerated at the Wayne County Jail in Detroit on unrelated charges, the INS commenced deportation proceedings against him. Initially he was charged as being deportable under Section 241(a)(1), 8 U.S.C. § 1251(a)(1), 5 and Section 212(a)(20), 8 U.S.C. § 1182(a)(20). 6 On August 26, 1974 a superseding Order to Show Cause and Notice of Hearing was issued and served on Frias while he was incarcerated at the Federal Correctional Facility in Danbury, Connecticut, based on his conviction under 18 U.S.C. § 1546. The superseding Order to Show Cause charged that he was deportable under Section 241(a)(5).
On October 10, 1974, accompanied by counsel, Frias appeared before the immigration judge at the Federal Correctional Facility in Danbury. Frias conceded the truth of the allegations upon which the deportability charge pursuant to Section 241(a)(5) was based, but he claimed that he was entitled to a waiver of deportability under Section 241(f). He moved to dismiss the deportation proceedings pursuant to Section 241(f) and applied for withholding of his deportation to the Dominican Republic pursuant to Section 243(h) on grounds of possible political persecution. He declined to designate a country of deportation.
On October 29, 1974 Frias was released from prison on bond and was turned over to the INS. Deportation hearings were held on November 21 and December 20, 1974. The immigration judge filed a decision and order dated December 20, 1974. He held (1) that Frias was deportable under Section 241(a)(5) because he had been convicted pursuant to 18 U.S.C. § 1546 for impersonating a resident alien at the time of his entry into the United States on July 18, 1968; (2) that Section 241(f) does not waive deportability under Section 241(a)(5); and (3) that Frias failed to establish that he is entitled to have his deportation to the Dominican Republic withheld under Section 243(h) on grounds of possible political persecution.
On July 10, 1975 the Board of Immigration Appeals, after oral argument, filed its decision and order dismissing the appeal. The instant petition to review followed.
The principal issue presented by this petition to review is whether Frias, having been ordered deported under Section 241(a)(5) because of his conviction for impersonating a resident alien at the time of his entry on July 18, 1968, is entitled to a waiver of deportability under Section 241(f). On the facts of this case we hold that he is not.
Section 212 specifies the ground for exclusion of aliens seeking admission to this Country. Section 241 specifies the grounds for deportation of aliens already here. Section 241(a)(1), see note 5 supra, incorporates the grounds for excludability under Section 212 as grounds for deportation. The remaining provisions of Section 241(a) specify additional grounds for deportation. Section 241(a)(5), the section here involved, provides, inter alia, for the deportation of any alien convicted under 18 U.S.C. § 1546 for impersonating another person at the time of entry.
The government argues that Section 241(f) waives deportability only under Section 241(a)(1) which incorporates the grounds for excludability as grounds for deportation. The government points to the language of Section 241(f) which makes inapplicable "(t)he provisions of this section relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry " because of fraud or misrepresentation (emphasis added). The government argues that its position is supported by the Supreme Court's recent decision in Reid v. INS, 420 U.S. 619 (1975).
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