Fernandez-Gonzalez v. Immigration & Naturalization Serv.

Decision Date21 June 1965
Docket NumberNo. 14933.,14933.
Citation347 F.2d 737
CourtU.S. Court of Appeals — Seventh Circuit

Joseph B. Gilbert, Chicago, Ill., for petitioner.

Edward V. Hanrahan, U. S. Atty., John Peter Lulinski, John Powers Crowley, Frederick E. McLendon, Jr., Asst. U. S. Attys., Chicago, Ill., for respondent.

Before HASTINGS, Chief Judge, DUFFY, Circuit Judge, and MERCER, District Judge.

HASTINGS, Chief Judge.

This is a petition for review of the order of deportation and denial of voluntary departure entered against petitioner Enrique Fernandez-Gonzalez by the Immigration and Naturalization Service. The matter was heard before a special inquiry officer upon an order to show cause why petitioner should not be deported pursuant to the provisions of Section 241(a) (2) of the Immigration and Nationality Act, 8 U.S.C.A. § 1251 (a) (2), because after he was admitted as a non-immigrant visitor, he remained in the United States for a longer time than permitted.

At the hearing, petitioner admitted that he was subject to deportation on the charge contained in the order and the hearing proceeded on his application for voluntary departure from the United States at his own expense in lieu of deportation. The special inquiry officer found petitioner to be statutorily eligible for voluntary departure but denied the application as a matter of discretion.

Petitioner appealed the decision to the Board of Immigration Appeals, which, while conceding that petitioner was statutorily eligible for the discretionary relief of voluntary departure, affirmed the order appealed from as a proper exercise of administrative discretion.

Petitioner is a native and citizen of Mexico, who was admitted to the United States as a nonimmigrant visitor for pleasure on November 14, 1962, authorized to remain in the United States until February 14, 1963. He has remained without authority since that date.

Petitioner has been employed since about the middle of December, 1962, at a meat market, bakery and the Acme Specialties Corporation. He has a wife and six children in Mexico and is supporting them.

There was no evidence introduced at the hearing that he had been arrested in this or any other country or that he had ever been a member of the Communist Party or any of its affiliated organizations.

In December, 1962, petitioner, on the advice of a boy working with him at the meat market where he was employed, wrote to Oscar Rodriguez in Nuevo Laredo, Mexico, asking him what it would cost to fix his papers so that he could stay in the United States permanently. After receiving a reply, he sent $100, his passport and two photographs of himself to Rodriguez. About twelve days later his passport was returned to him with an alien registration card in the name of Francisco Ochoa Cazarez, with his photograph affixed to the back.

Petitioner, in a sworn statement before an officer of the Immigration and Naturalization Service, admitted at the hearing as Government Exhibit No. 2, stated that he wrote Rodriguez he could not use this card because it was not in his name and did not have his correct birth date, but the letter was returned to him. He further stated that prior to receiving the passport he thought it would be legal but that when he saw the card was in another's name he knew it was not good and never used it. He did, however, get a social security number in the name of Francisco Ochoa Cazarez and showed the card on one occasion to a prospective employer in order to get the job.

Petitioner was represented by counsel at the hearing before the special inquiry officer. The special inquiry officer, in ordering petitioner deported and denying him the discretionary relief of voluntary departure, relied, inter alia, upon the following facts. In the sworn statement, referred to supra, petitioner was asked whether he knew it was a criminal offense to obtain false immigration papers in order to remain in the United States. He answered in the affirmative. Petitioner obtained a social security card in the name of Francisco Ochoa Cazarez and exhibited it and the false alien registration card to Acme Specialties Corporation to obtain employment. When the investigator from the Immigration and Naturalization Service first questioned petitioner, petitioner told the investigator his name was Cazarez and that he was a lawful permanent resident of the United States. The special inquiry officer discredited petitioner's statement that he thought he could get his papers fixed legally so that he could remain in the United States permanently by sending his passport, photos and $100 to a man in Mexico.

Subsequent to the order of the special inquiry officer and dismissal of petitioner's appeal to the Board of Immigration Appeals, petitioner was tried by a federal district court, without a jury, on a stipulation of facts. He was charged with willfully and knowingly having possession of a false alien registration card (Count 1), unlawfully using a fraudulent alien registration card by presenting such card to Acme Specialties Corporation to obtain employment with knowledge that the card was false (Count 2) and receiving and accepting a false alien registration card for the purpose of falsely claiming to be a non-quota immigrant (Count 3), all in violation of Section 1546, Title 18 U.S.C.A.

The district court found petitioner not guilty of the charges made against him in all three counts of the indictment for the reason that Section 1546 is concerned with visas. The court stated, "There is no reason to believe * * * that Congress intended Section 1546 of Title 18, dealing with visas, permits and other entry documents, to cover alien registration cards as well, since it adopted at the same time separate and express provisions 8 U.S.C.A. § 1302 et seq. to deal with such alien registration cards."

Thereafter, petitioner filed a motion before the Board of...

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12 cases
  • Parcham v. I.N.S.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • 13 August 1985
    ...v. INS, 649 F.2d 1145, 1151 (5th Cir.1981); Cuevas-Ortega v. INS, 588 F.2d 1274, 1278 (9th Cir.1979); Fernandez-Gonzalez v. INS, 347 F.2d 737, 740 (7th Cir.1965). In a proceeding to consider an application for voluntary departure, the burden of proof rests with the alien to establish that a......
  • Castaneda-Delgado v. Immigration and Naturalization Service, CASTANEDA-DELGADO and S
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 26 November 1975
    ...Ng. v. Pilliod, 279 F.2d 207, 210 (7th Cir. 1960), cert. denied, 365 U.S. 860, 81 S.Ct. 828, 5 L.Ed.2d 823 (1961); Fernandez-Gonzalez v. INS, 347 F.2d 737, 740 (7th Cir. 1965); Jarecha v. INS, 417 F.2d 220, 224 (5th Cir. 1969); Aalund v. Marshall,461 F.2d 710, 711 (5th Cir. 1972). While the......
  • Cuevas-Ortega v. Immigration and Naturalization Service
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 2 January 1979
    ...was actually exercised and whether the manner in which it was exercised was arbitrary or capricious. See Fernandez-Gonzalez v. INS, 347 F.2d 737, 740 (7th Cir. 1965). The alien has the burden of proof to establish that he is eligible for voluntary departure. Trias-Hernandez v. INS, 528 F.2d......
  • Padula v. Immigration & Naturalization Serv., Civ. No. H-82-92.
    • United States
    • U.S. District Court — District of Connecticut
    • 31 March 1982
    ...416 (D.Md.1962); 8 C.F.R. § 244.2, it is at least clear that the scope of review is very narrow. Fernandez-Gonzalez v. Immigration and Naturalization Service, 347 F.2d 737 (7th Cir. 1965). Only in the case of a clear showing of abuse of discretion can this court upset the decision of the Di......
  • Request a trial to view additional results

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