Hernandez-Garza v. I.N.S., HERNANDEZ-GARZ
| Decision Date | 29 August 1989 |
| Docket Number | HERNANDEZ-GARZ,Nos. 88-4883,P,89-4044,s. 88-4883 |
| Citation | 882 F.2d 945 |
| Parties | Apolinaretitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
David Swaim, Samuel M. Tidwell & Assoc., Dallas, Tex., for petitioner.
Alice M. Smith, Robert L. Bombough, Director, Office of Immigration Litigation, Civ. Div., Washington, D.C. for respondent.
Ronald Chandler, Dist. Director, Dallas, Tex., John B.Z. Caplinger, Dis. Director, I.N.S., New Orleans, La., for other interested persons.
Petition for Review of an Order of the Immigration and Naturalization Service.
Before POLITZ, KING and SMITH, Circuit Judges.
An immigration judge ordered Apolinar Hernandez-Garza deported pursuant to section 241(a)(13) of the Immigration and Nationality Act (INA), 8 U.S.C. Sec. 1251(a)(13). The Board of Immigration Appeals (BIA) dismissed Hernandez' appeal. The BIA also found Hernandez ineligible for discretionary relief under section 212(c) of the INA, 8 U.S.C. Sec. 1182(c). For the reasons assigned we grant Hernandez' petition for review of the deportation order, vacate that order, and remand for further proceedings.
Hernandez, a native and citizen of Mexico, was admitted to the United States as a lawful, permanent resident on January 23, 1975. On January 11, 1980 Hernandez traveled to Mexico. Two days later he was apprehended by the United States Border Patrol near Del Rio, Texas with four Mexican nationals in his car. Hernandez was convicted on a guilty plea of knowingly and unlawfully aiding and abetting one of the smuggled aliens, Arnulfo Rojas-Rubio ("Arnulfo"), to enter the United States in violation of section 275(a) of the INA, 8 U.S.C. Sec. 1325(a) 1 and 8 U.S.C. Sec. 2. 2
In due course deportation proceedings were commenced pursuant to INA section 241(a)(13), 8 U.S.C. Sec. 1251(a)(13), 3 charging Hernandez with knowingly and for gain assisting an alien, Arnulfo Rojas-Rubio, to enter the United States unlawfully. At a deportation hearing on November 20, 1980 the immigration judge found Hernandez deportable. Eight years later the BIA dismissed Hernandez' appeal.
During the pendency of Hernandez' appeal to the BIA he accrued more than seven consecutive years of lawful domicile. In December 1988 Hernandez moved to reopen the deportation proceeding so that he could apply for discretionary relief from deportation. The BIA denied the motion because Hernandez' status as a lawful permanent resident, a requirement for discretionary relief, ceased in October 1988 when the order of deportation became final. Hernandez timely petitioned this court for review of the orders as to his deportability and ineligibility for discretionary relief.
In deportation hearings, the Immigration and Naturalization Service (INS) has the burden of proving deportability by "clear, unequivocal, and convincing evidence." Woodby v. Immigration & Naturalization Service, 385 U.S. 276, 286, 87 S.Ct. 483, 488, 17 L.Ed.2d 362 (1966). See also, 8 C.F.R. Sec. 242.14(a). Thereafter judicial review is typically limited to a determination whether the deportation order is supported by reasonable, substantial, and probative evidence on the record considered as a whole, 8 U.S.C. Sec. 1105a(a)(4), and whether the alien was accorded a fair hearing, Kielema v. Crossman, 103 F.2d 292 (5th Cir.1939). "To render a hearing unfair, the defect or practice complained of must have been such as might have led to a denial of justice, or there must have been absent an element deemed essential to due process." Id. at 293. A due process challenge requires a showing of substantial prejudice to the petitioning alien. Equan v. United States Immigration & Naturalization Service, 844 F.2d 276 (5th Cir.1988); Ka Fung Chan v. Immigration & Naturalization Service, 634 F.2d 248 (5th Cir.1981).
At the deportation hearing the INS offered evidence of Hernandez' guilty plea to the charge of aiding and abetting Arnulfo to enter the United States illegally and an affidavit which Hernandez gave to the Border Patrol at the time of his arrest. Although none of the aliens testified, the INS offered affidavits which three of them had given while detained prior to their release into Mexico. In addition, the INS offered the testimony of the two Border Patrol agents who took statements from the aliens.
Hernandez correctly concedes that the evidence of his guilty plea to a charge of violating section 275(a) of the INA conclusively established all of the elements of deportability under section 241(a)(13) except for the element of gain. But to establish gain, the INS must prove by clear and convincing evidence that Hernandez received a tangible and substantial financial benefit from Arnulfo which clearly exceeded foreseeable expenses. Soto-Hernandez v. Immigration & Naturalization Service, 726 F.2d 1070 (5th Cir.1984). Gain is not an element of the offense proscribed by section 275(a); therefore, Hernandez' plea of guilty to that offense did not establish that he acted for gain in assisting Arnulfo to enter the United States. Id. Likewise, Hernandez' admission to the Border Patrol agents that the aliens offered to pay him "an undetermined amount of money" is insufficient to establish the gain element. Id.
The INS offered the affidavit by Arnulfo wherein he states that Hernandez offered to take him into the United States for $300. 4 That affidavit was written in English, a language that Arnulfo could not read, write, or understand.
The INS sought to buttress the accuracy and reliability of the affidavit with the testimony of agents Kenneth Prescott and Eugenio Rodriguez. The agents testified that Rodriguez asked Arnulfo questions in Spanish, Arnulfo responded in Spanish, and Prescott translated and transcribed the answers into English. Arnulfo signed the English language statement after it was read to him in Spanish. On direct examination agents Prescott and Rodriguez assured the court of their fluency in Spanish.
Hernandez' attorney sought to test the language fluency of agent Prescott by asking him to read a paragraph in Spanish from one of the affidavits. The immigration judge summarily prevented that cross-examination as well as similar cross-examination of agent Rodriguez, rhetorically inquiring as to who would qualitate their language fluency. In doing so the immigration judge dismissed counsel's observation that a qualified interpreter was present. In this the judge erred.
An alien is entitled to a reasonable opportunity to cross-examine government witnesses, 8 U.S.C. Sec. 1252(b)(3), particularly with...
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