Loza-Bedoya v. Immigration and Naturalization Service

• Decision Date: 12 June 1969
• Docket Number: No. 21696.,21696.
• Citation: 410 F.2d 343
• Parties: Eugenio LOZA-BEDOYA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

410 F.2d 343 (1969)

Eugenio LOZA-BEDOYA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 21696.

United States Court of Appeals Ninth Circuit.

April 16, 1969.

Rehearing Denied June 12, 1969.

John F. Sheffield (argued) and Norman B. Silver, Los Angeles, Cal., for petitioner.

James R. Dooley (argued), Asst. U. S. Atty., Wm. Matthew Byrne, Jr., U. S. Atty., Frederick M. Brosio, Jr., Asst. U. S. Atty., Los Angeles, Cal., Joseph Sureck, San Pedro, Cal., Stephen Suffin, I. N. S., San Francisco, Cal., John N. Mitchell, Atty. Gen., Washington, D. C., for respondent.

Before HAMLEY and MERRILL, Circuit Judges, and REAL,^* District Judge.

REAL, District Judge:

This matter comes before the Court upon Petition For Review of an Order of Deportation filed by petitioner EUGENIO LOZA-BEDOYA seeking to challenge a decision of the Board of Immigration Appeals denying his Motion To Reopen Deportation Proceedings. Jurisdiction is vested in this Court pursuant to Section 106(a) of the Immigration and Nationality Act 8 U.S.C. § 1105a(a). Giova v. Rosenberg, 379 U.S. 18, 85 S. Ct. 156, 13 L.Ed.2d 90 (1964).

Petitioner is a native and citizen of Mexico who first entered the United States, unlawfully, in 1944. Since that first entry petitioner has been deported upon several occasions. In spite of these deportations petitioner has maintained almost continuous residence, having contracted marriage to a United States citizen and fathered three native born United States citizen children.

Petitioner has never been admitted for permanent residence in the United States, although he has entered this country on five separate occasions without inspection. Petitioner was last deported from the United States on March 8, 1962. His last entry into the United States occurred May 3, 1963.

On January 8, 1964, an Order To Show Cause And Notice Of Hearing was issued by the Immigration and Naturalization Service charging petitioner to be deportable pursuant to Section 241(a) (2) of the Immigration and Nationality Act 8 U.S.C. § 1251(a) (2)¹ for entry into the United States on or about May 3, 1963, without inspection.

Hearings were had on January 15, 1964, and January 22, 1964, resulting in a decision of the Special Inquiry Officer ordering petitioner deported from the United States to Mexico.

On May 12, 1964, petitioner filed a Motion to Reopen the Deportation Proceedings for the purpose of applying for suspension of deportation as provided in Section 244(a) (1) of the Immigration and Nationality Act 8 U.S.C. § 1254(a) (1).² The Special Inquiry Officer denied this motion on May 18, 1964. On appeal to the Board of Immigration Appeals the deportation hearing was ordered reopened for the purpose of affording petitioner an opportunity to file and prosecute applications for relief from deportation.

On August 11, 1964, petitioner filed applications for (1) Suspension of Deportation, (2) Voluntary Departure, (3) Permission to Reapply for Admission into the United States after Deportation, and (4) orally applied for Benefits of the Seventh Proviso to Section 3 of the Immigration and Nationality Act of 1917 8 U.S.C. § 136(p). Granting only voluntary departure the Special Inquiry Officer denied the applications.

Appeal to the Board of Immigration Appeals was dismissed November 19, 1964.

A Petition for Preliminary Injunction and Stay of Deportation was filed in the United States District Court on May 27, 1966, and subsequently denied. On June 9, 1966, petitioner filed a petition with the Board of Immigration Appeals to reopen and reconsider its decision of November 19, 1964. This petition was denied July 8, 1966.

On August 16, 1966, petitioner filed a Petition for Review of Order of Deportation and this Court, upon motion of respondent, dismissed the proceedings upon the ground that:

"Review of the order of deportation was not timely sought by petitioner. While the petition for review was filed within six months of the order denying the motion to reopen and reconsider the order of deportation, the petition does not address itself to such order, and assigns neither error nor abuse of discretion in its entry."

In January 1967, petitioner again filed with the Board of Immigration Appeals a Petition To Reopen and Reconsider. This petition was denied March 8, 1967, and on March 20, 1967, the petitioner filed in this Court his Petition For Review Of Order Of Deportation.

The record herein relates the efforts of petitioner to become a permanent resident of the United States. Petitioner commenced his physical presence in the United States in 1944, by way of entry without inspection. His residence was interrupted by deportation in July, 1953, and resumed by entry without inspection in August, 1953. In 1957 petitioner, though in the United States unlawfully, worked with the Immigration Service in the apprehension of illegal aliens for five years until his deportation March 8, 1962. Returning to the United States, petitioner sought the help of a United States Congressman. Upon advice of the Congressman, petitioner left the United States and reported to an American Consular official in Mexico who ultimately denied his application for a visa. The only apparent reason for denial was the information furnished by the Immigration Service to the American Consulate advising that petitioner's conviction in 1951 for assisting the unlawful entry of a Mexican national as provided in Section 212(a) (31) of the Immigration and Nationality Act 8 U.S.C. § 1182 (a) (31).³ This advice was erroneous since the record discloses no finding that petitioner assisted the unlawful entry of a Mexican national for gain as required by statute to make petitioner excludable. Petitioner then made his final entry on May 3, 1963, without inspection.

Petitioner asks that we review the record to afford him an opportunity to correct errors which have precluded the consideration of discretionary relief or eligibility for a visa. Respondent argues that our review is limited to a consideration of an abuse of discretion of the denial of the Petition to Reopen of March 8, 1967, claiming that the deportation order against petitioner became final November 19, 1964, when the Board of Immigration Appeals dismissed his last appeal.

Section 106(a) of the Immigration and Nationality Act 8 U.S.C. § 1105a(a) limits review to a petition filed "not later than six months from the date of the final deportation order." Our consideration, therefore, is limited to those matters reviewable upon the denial of petitioner's motion to Reopen and Reconsider denied March 8, 1967. Chul Hi Kim v. I.N.S., 357 F.2d 904 (7th Cir. 1966); Lopez v. I.N.S., 356 F.2d 986 (3rd Cir. 1966), cert. denied 385 U.S. 839, 87 S.Ct. 88, 17 L.Ed.2d 73; Greene v. I.N.S., 313 F.2d 148 (9th Cir. 1963), cert. denied 372 U.S. 828, 83 S.Ct. 1869, 10 L.Ed.2d 1052. To review that denial of relief a consideration of abuse of discretion would necessarily be two-fold — (1) if reasonably supported by any evidence the determinations of administrative tribunals must be affirmed; (2) if however, not supported by evidence or although supported by evidence the decision is the result of a misunderstanding of the law, an administrative determination will be reversed.

Petitioner does not deny the basic allegation of deportability, but raises two issues upon his Petition to Reopen and Reconsider. First, petitioner contends that he was denied the opportunity to contest the veracity of certain damaging evidence (1951 conviction) in his files. It is his contention that unless he is permitted to correct the record and the erroneous conclusion which the Immigration Service transmitted to the American Consulate, he can never legalize his entry and residence with his wife and children in the United States. Secondly, he contends that the Board of Immigration Appeals erred in affirming a decision that he was not eligible for administrative relief from the Order of Deportation.

Congress has conferred upon consular officers authority to issue...