Fuentes v. I.N.S.

• Decision Date: 10 July 1985
• Docket Number: No. 83-7662,83-7662
• Citation: 765 F.2d 886
• Parties: Gabriel Salgado FUENTES, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 886

765 F.2d 886

Gabriel Salgado FUENTES, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 83-7662.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 14, 1985.

Decided July 10, 1985.

Teresa Bright, Redwood City, Cal., for petitioner.

Dept. of Justice, Marshall Tamor Golding, Washington, D.C., for respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before PREGERSON and FERGUSON, Circuit Judges, and GILLIAM, ^* District Judge.

FERGUSON, Circuit Judge:

Gabriel Salgado Fuentes, a native and citizen of Mexico, petitions for review of the denial by the Board of Immigration Appeals (BIA) of his motion to reopen his deportation proceedings. Petitioner Fuentes had unsuccessfully petitioned the BIA to reopen his deportation case so that he could apply for the exercise of the Attorney General's discretionary authority to suspend deportation. See 8 U.S.C. Sec. 1254(a)(1). We grant the petition so that the BIA can exercise its equitable discretion in a manner consistent with the facts explained below.

I.

Our task, like that of the BIA before us, is hampered by a less than plenary development of the factual record in this case. The primary reason for the inchoate state of the record lies in the procedure used by the Immigration and Naturalization Service (INS) in fulfilling its statutory duty to conduct a hearing on the petitioner's immigration status. The petitioner was subjected to a "mass deportation" hearing, along with several of his co-workers, in which the immigration judge conceded that the simultaneous consideration of so many cases would inevitably cause difficulties for the development of the facts of an individual case.

Piecing the record together as best we can, we can relate the following facts and issues. The petitioner, Gabriel Salgado Fuentes, is a twenty-seven-year-old male currently residing in California. Mr. Fuentes entered the United States without inspection in February 1974. A native and citizen of Mexico, Mr. Fuentes had been sent to the United States by his parents at the age of seventeen. Upon his arrival in the United States, Mr. Fuentes began working at the Ano Nuevo Ranch in Pescadero, California, as a farmworker. During the three years of his employment at Ano Nuevo Ranch, petitioner was paid wages of approximately $70 per week.

In 1977, some three years after he began working at the Ano Nuevo Ranch, Mr. Fuentes joined thirteen of his co-workers at the ranch and filed suit against his employer for violation of the minimum wage laws. In retaliation, their employer reported Mr. Fuentes and other members of the group to the INS as deportable aliens. In other words, the petitioner's deportation proceeding was proximately caused by his employer's retaliation for filing a lawsuit seeking the protection of this country's labor laws from his employer's unfair labor practices.

The record is silent as to the outcome of Mr. Fuentes' labor lawsuit. The record does reflect, however, that the petitioner was released "on his own recognizance" after he was taken into custody in September 1977. In May 1980, the District Director of the INS "decided to go forward with the deportation hearing on the grounds that the [petitioner] had been given more than enough time to seek judicial resolution of his employment claim."

At the conclusion of the mass deportation hearing, the immigration judge found the petitioner deportable after the petitioner conceded deportability but sought the exercise of the Attorney General's discretion to suspend deportation under 8 U.S.C. Sec. 1254. The petitioner and the respondent disagree on what transpired at the hearing.

According to the petitioner, the immigration judge informed petitioner's former counsel that because of the aggregate nature of the proceedings and the burden this placed on a full presentation of the facts, the judge would grant any subsequently filed motions to reopen if supported by a showing of seven years' continuous presence. See 8 U.S.C. Sec. 1254(a)(1) (permitting Attorney General to suspend deportation on showing of seven years' continuous residence, good moral character, and extreme The INS contends that the immigration judge's promises aimed at mitigating the harms associated with the truncated record of a mass deportation hearing are the subject of a second motion to reopen and therefore are not currently before this court. We agree that we cannot decide the factual dispute as to the promises made by the immigration judge or the INS trial attorney in this petition. Nonetheless, we recognize that any inducement offered to expedite the administrative hearing will have had an effect on the state of the administrative record.

hardship from deportation); 8 C.F.R. 3.2 (establishing criteria for motions to reopen as presentation of material evidence establishing prima facie case based on new information not previously available). The petitioner also claims that the INS trial attorney accepted this procedure. The respondent denies that the immigration judge promised that because of the mass hearing he would grant future motions to reopen based solely on seven years' residency.

The immigration judge denied the motion to reopen because the petitioner allegedly had not met the seven-year residency requirement and "also ... for the reasons cited by the Government's Attorney in their [sic] brief." Decision of September 1, 1982. The petitioner appealed this decision. On appeal, the BIA declined to address the residency question and instead dismissed the appeal based on a lack of evidence on extreme hardship sufficient to establish "additional equities."

II.

This case involves a reconciliation of competing legislative directives concerning the enforcement of our nation's labor and immigration laws.

On the one hand, Congress has enacted various labor laws to foster peace, security, and equal treatment in our nation's labor force. See 29 U.S.C. Sec. 151. As the Supreme Court recently noted, "If undocumented alien employees were excluded from participation in union activities and from protections against employer intimidation, there would be created a subclass of workers without a comparable stake in the collective goals of their legally resident co-workers, thereby eroding the unity of all the employees and impeding effective collective bargaining." Sure-Tan, Inc. v. NLRB, --- U.S. ----, 104 S.Ct. 2803, 2809, 81 L.Ed.2d 732 (1984). Beyond question, the Attorney General is charged with the responsibility of insuring that the labor laws of this country are duly enforced in such a manner as to prevent the creation of this type of employee subclass. "If the [federal labor laws] were inapplicable to workers who are illegal aliens, we would leave helpless the very persons who most need protection from exploitative employer practices such as occurred in this case." NLRB v. Apollo Tire Co., 604 F.2d 1180, 1184 (9th Cir.1979) (Kennedy, J., concurring).

On the other hand, we are well aware of the magnitude of the Attorney General's separate responsibility to enforce the immigration laws of this country. In keeping with the Constitution's mandate that the executive branch "take Care that the Laws be faithfully executed," art. II, Sec. 3, the Attorney General must simultaneously enforce both the labor and immigration laws of this country. On some occasions the demands of the labor laws may conflict with the dictates of the immigration laws. We have no doubt that, in many cases, fulfillment of this "dual responsibility," see United States v. Valenzuela-Bernal, 458 U.S. 858, 864, 102 S.Ct. 3440, 3444, 73 L.Ed.2d 1193 (1982), will prove a difficult task.

The deportation of illegal aliens who have relied on our nation's courts and labor laws places the Attorney General...