In re Ruiz-Massieu

Decision Date10 June 1999
Docket NumberFile A74 163 285.,Interim Decision No. 3400.
Citation22 I&N Dec. 833
PartiesIn re Mario Salvador RUIZ-MASSIEU, Respondent.
CourtU.S. DOJ Board of Immigration Appeals

In a decision dated May 30, 1997, the Immigration Judge found the respondent not deportable under section 241(a)(4)(C)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(4)(C)(i) (1994), and terminated proceedings. The Immigration and Naturalization Service appealed. Oral argument was held at the Board of Immigration Appeals on May 27, 1998. The appeal will be sustained and the record will be remanded.


The respondent is a native and citizen of Mexico, who served as the Deputy Attorney General of Mexico in 1993 and from May 1994 until he resigned that position on November 23, 1994. He was admitted to the United States as a nonimmigrant visitor for pleasure on March 2, 1995. Later that same day, he was arrested by the United States Customs Service, as he attempted to leave the United States, on account of his alleged failure to declare approximately $26,000 in currency. Charges in that case were subsequently dropped. An Order to Show Cause and Notice of Hearing (Form I-221) was issued on December 22, 1995. The respondent was charged with being deportable under section 241(a)(4)(C)(i) of the Act, based on a determination by the United States Secretary of State, Warren Christopher, dated October 2, 1995, that, in his opinion, the presence of the respondent in the United States may have serious adverse foreign policy consequences. The determination states that the failure to return the respondent

would jeopardize our ability to work with Mexico on law enforcement matters. It might also cast a potentially chilling effect on other issues our two governments are addressing. . . . Should the U.S. Government not return Mr. Ruiz Massieu to Mexico, our support of such reforms [of the Mexican judicial system] would be seen as hollow and self-serving and would be a major setback for President Zedillo and our combined efforts to chart a new and effective course of U.S.-Mexican relations.

See Appendix.

Deportation proceedings were enjoined by a district court judge, who found the statutory provision at issue to be unconstitutional, but the United States Court of Appeals for the Third Circuit dissolved the injunction, ruling that the respondent was required first to exhaust his administrative remedies. Massieu v. Reno, 915 F. Supp. 681 (D.N.J.), rev'd and remanded, 91 F.3d 416, 420 (3d Cir. 1996). According to the Service, the respondent faces charges of money laundering, criminal unjust enrichment, embezzlement, obstruction of justice, accessory after the fact, intimidation, and torture in Mexico. The Government has tried unsuccessfully four times to extradite the respondent on the basis of embezzlement and obstruction of justice charges brought in Mexico. See generally Massieu v. Reno, 915 F. Supp. 681.2 In its appeal, the Service maintains that the Secretary of State's October 2, 1995, determination should be conclusive for the purpose of deportability under section 241(a)(4)(C)(i) of the Act. It requests that the Board reverse the decision of the Immigration Judge, find the respondent deportable, and remand the proceedings to allow the respondent the opportunity to apply for any applicable relief from deportation.


Pursuant to the statute, "an alien whose presence or activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is deportable." Section 241(a)(4)(C)(i) of the Act.3 The Service contends that the letter of the Secretary of State is sufficient to render the respondent deportable as charged. In the alternative, the Service contends that the Secretary gave in his letter facially valid reasons for his opinion, which is all that is required under the statute. See Kleindienst v. Mandel, 408 U.S. 753 (1972) (finding bona fide and facially legitimate reasons sufficient to deny a waiver for a nonimmigrant visa).

The Immigration Judge found that the Service failed to carry its burden of proof to show that the respondent is deportable by clear, unequivocal, and convincing evidence. Woodby v. INS, 385 U.S. 276 (1966). In particular the Immigration Judge found that the Service failed to show by clear, unequivocal, and convincing evidence that the opinion of the Secretary of State was reasonable. She found that the determination of the Secretary of State alone was insufficient to demonstrate that the presence of the respondent could potentially produce serious adverse foreign policy consequences.

According to the Immigration Judge, the Service has failed to show what it is about the respondent's presence here that caused the Secretary to believe that our foreign policy will be affected; for example, there is no evidence in the record of a pending criminal case in Mexico. Furthermore, she noted, his presence here is involuntary. Finally, the Immigration Judge rejected as unsupported the argument that the letter from the Secretary of State is a certification binding on the Immigration Court and that its mere existence requires that the alien be found deportable.


The authority of the Congress and executive branch to regulate the admission and status of aliens in the United States is virtually unrestricted. Fiallo v. Bell, 430 U.S. 787, 792 (1977); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210 (1953). The federal courts have long recognized that the political branches of the Federal Government have plenary authority to establish and implement substantive and procedural rules governing the admission of aliens to this country. See Jean v. Nelson, 727 F.2d 957, 964 (11th Cir. 1984) (en banc) (citing Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581 (1889)); see also Reno v. Flores, 507 U.S. 292 (1993). "The power to expel aliens, being essentially a power of the political branches of government, the legislative and executive, may be exercised entirely through executive officers, `with such opportunity for judicial review of their action as Congress may see fit to authorize or permit.'" Carlson v. Landon, 342 U.S. 524, 537 (1952) (quoting Fong Yue Ting v. United States, 149 U.S. 698, 713-15 (1893)).

United States immigration law has long allowed the exclusion of aliens whose activities would be detrimental to the United States or whom the Secretary of State had reason to believe would engage in certain illegal activities, or who belonged or had belonged to certain organizations. Former section 212(a)(27) of the Act, 8 U.S.C. § 1182(a)(27) (1988), barred the entry of aliens whom the consular officer or the Attorney General knew or had reason to believe were seeking entry "solely, principally, or incidentally" to engage in activities which would be prejudicial to the public interest or endanger the welfare, safety, or security of the United States. Former section 241(a)(7) of the Act, 8 U.S.C. § 1251(a)(7) (1988), provided for deportation of an alien who was engaged, had engaged, or at any time after entry had a purpose to engage in any of the activities described in sections 212(a)(27) or (29) of the Act.4 In interpreting these provisions, the federal courts generally held that an alien has no standing to object to his or her exclusion under these provisions on the ground that an unadmitted nonresident alien has no constitutional right of entry into the United States. See, e.g., Kleindienst v. Mandel, supra (Marxist). The courts...

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