Jaimez-Revolla v. Bell, JAIMEZ-REVOLLA
| Decision Date | 27 March 1979 |
| Docket Number | No. 77-1949,JAIMEZ-REVOLLA,77-1949 |
| Citation | 194 U.S.App.D.C. 324,598 F.2d 243 |
| Parties | Jaimea/k/a Jaime Jaimez-Zamora, Appellant, v. Griffin B. BELL, Attorney General of the United States, United States Department of Justice, Immigration and Naturalization Service. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Charlotte B. Hallam, Washington, D. C., with whom Margaret A. Beller, Washington, D. C., was on the brief, for appellant.
Lauren S. Kahn, Atty., Dept. of Justice, Washington, D. C., with whom Richard I. Chaifetz, Atty., Department of Justice, Washington, D. C., was on the brief, for appellee.
Before BAZELON and McGOWAN, Circuit Judges, and GASCH *, United States District Court Judge for the District of Columbia.
Appellant, a citizen of Mexico currently residing in that country, has appealed from an order of the district court upholding the decision of the Regional Director of the Immigration and Naturalization Service (INS), acting for the Attorney General, denying appellant's application for permission to reapply for admission to the United States following deportation or removal. The district court found that in addition to previous violations of immigration laws, the appellant had failed to exhibit good moral character by committing adultery. The court held that the Attorney General's decision denying permission to reapply was not arbitrary or an abuse of discretion. For the reasons stated herein, we agree that the Attorney General's decision in this case did not constitute an abuse of discretion.
From 1966 to 1973 appellant resided in Mexico with Alicia Cruz-Garcia. Five children were born of this relationship with the most recent birth occurring in August, 1974. Appellant and Ms. Cruz-Garcia have never been married and Mexico does not recognize common-law marriages. On March 20, 1972 appellant entered the United States without inspection at Laredo, Texas. He was apprehended by the INS and deported on July 21, 1972. Appellant reentered the United States as a visitor for pleasure on August 5, 1972, without having first secured the permission of the Attorney General, which is required when an applicant has previously been deported or removed. 1 The terms of his admission limited his visit to certain southwestern states and required his departure by August 20, 1972. He did not abide by either of these restrictions.
On January 5, 1973, in Washington, D. C., appellant married Irene Hernandez, a naturalized citizen of the United States, who filed a petition to classify appellant as an immediate relative. 2 This petition was approved on August 2, 1973 and appellant voluntarily returned to Mexico. On August 19, 1973, he filed an application for permission to reapply for admission after deportation or removal.
While in Mexico, appellant resumed his relationship with Ms. Cruz-Garcia and a fifth child was born to them. Appellant maintains that he has not had sexual relations with her since January 5, 1974 and that Irene Hernandez Jaimez, who had moved to Mexico on July 28, 1974, is aware of and has forgiven the extramarital relationship and is also aware of appellant's continued financial support for the children born of that relationship. Mrs. Jaimez subsequently returned to the United States because of her inability to obtain permanent employment in Mexico and need to reside in the United States in order to care for her ailing mother and to look after real property located here.
On April 23, 1974, Alicia Cruz-Garcia gave a written statement to the INS in which she said that she still considered appellant to be her husband despite his U.S. marriage. Ms. Cruz-Garcia also stated that appellant "still lives here" and that they maintained a family unit. In a subsequent interview on July 21, 1975, she said that appellant had told her that he intended to arrange passports for her and their children.
On October 11, 1974, a notice of intent to revoke Mrs. Jaimez' visa petition for her husband was issued based on the alleged failure to establish a bona fide marital relationship. An investigation was conducted into the validity of the marriage and focused on appellant's relationship with Ms. Cruz-Garcia. On October 21, 1975, appellant's application for permission to reapply was denied by the District Director of the INS on the ground that appellant had "flagrantly violated" U.S. immigration laws and had not exhibited good moral character by living with another person following his legal marriage.
Appellant appealed to the Regional Commissioner. On September 7, 1976, the Regional Commissioner affirmed the initial decision and dismissed the appeal. In support of his motion to reconsider, appellant submitted an affidavit by Ms. Cruz-Garcia in which she stated that she did not want to emigrate to the United States and that she had never discussed such a move with appellant. On February 22, 1977, the Regional Commissioner denied the motion for reconsideration, stating that appellant's motion was based primarily on conflicting and unsubstantiated statements and that "nothing has been submitted that would cause any change in our prior decision." Appellant alleged error in this denial and brought this action for declaratory relief in the United States District Court for the District of Columbia. On August 23, 1977, the court granted appellee's motion for summary judgment and dismissed appellant's complaint.
Before addressing the central issue of this appeal, it is necessary to consider two threshold issues raised by appellee in its brief and at oral argument. The Attorney General takes the position that appellant, who presently resides outside the United States, lacks standing to maintain this action and there is no basis for judicial review of the decision denying permission to reapply for admission.
The strong presumption in favor of judicial review can be overcome only by "clear and convincing evidence" that Congress intended to cut off review above the agency level. Hahn v. Gottlieb, 430 F.2d 1243, 1249 (1st Cir. 1970). Such evidence is not presented here, as other courts have recognized in permitting review of decisions under 8 U.S.C. § 1182. See Murillo-Aquilera v. Rosenberg, 351 F.2d 389, 390 (9th Cir. 1965); Gonzalez-Jiminez v. Del Guerico, 253 F.2d 420, 421 (9th Cir. 1958).
Appellant has also satisfied the requirements for standing to maintain this action because he has demonstrated "injury in fact," and he is arguably "within the zone of interests to be protected or regulated by the...
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