Maldonado-Sandoval v. U.S. Immigration and Naturalization Service, MALDONADO-SANDOVA
Citation | 518 F.2d 278 |
Decision Date | 19 May 1975 |
Docket Number | No. 72-2023,A,MALDONADO-SANDOVA,72-2023 |
Parties | Poncianoppellant, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Before ELY, HUFSTEDLER and KILKENNY, Circuit Judges.
Petitioner, a native and citizen of Mexico, appeals from an order of the Immigration and Naturalization Service ("INS") excluding him from admission into the United States. Petitioner was granted status as a permanent resident alien in September 1967; he was issued a visa by the United States consul in Tijuana, Mexico, who found him exempt from the labor certification requirements of 8 U.S.C. § 1182(a)(14) because of his marriage to a United States citizen in January 1967. In 1970 an investigation by the INS disclosed that petitioner might have entered the United States fraudulently, in that apparently he was already married to a Mexican citizen when he married again in 1967.
In May 1970 petitioner went to Mexico on personal business for two or three days. When he sought to return to the United States on May 25, 1970, he was refused admission. In December 1970, after an exclusion hearing, the INS determined that petitioner was excludable under 8 U.S.C. § 1182(a)(20) as an immigrant who was not in possession of a valid immigrant visa or other reentry document. 1 The theory of the INS is that petitioner's visa is invalid because his second marriage was bigamous. 2
Petitioner argues that because of his status as a permanent resident alien and also because his (attempted) return to the United States in May 1970 did not constitute an "entry," he is entitled to deportation proceedings rather than exclusion proceedings. We agree.
The differences between proceedings of exclusion and those of deportation are significant. 3 It is certainly possible that if petitioner had been given the benefit of deportation proceedings, his cause might have been successful. Therefore, the relief petitioner seeks a de novo determination of his case in deportation proceedings is not insubstantial.
Although 8 U.S.C. § 1182(a) does not by its terms mention "entry," it is plain that this section specifies the classes of aliens excludable at the time of entry. (8 U.S.C. § 1251(a)(1); 4 see, e. g., Rosenberg v. Fleuti (1963), 374 U.S. 449, 451-52, 83 S.Ct. 1804, 10 L.Ed.2d 1000; Itzcovitz v. Selective Service Local Bd. No. 6, N.Y., N.Y. (2d Cir. 1971), 447 F.2d 888, 891-92; Zimmerman v. Lehmann (7th Cir. 1965), 339 F.2d 943, 947-49.) We conclude that section 1182(a) is not applicable to petitioner, and that exclusion proceedings were therefore inappropriate because petitioner was not an alien seeking "entry" into the United States in May 1970.
At the time of his attempted return to the United States petitioner had already been granted the status of permanent resident alien. His brief visit to Mexico did not manifest "an intent to depart in a manner which can be regarded as meaningfully interruptive of the alien's permanent residence." (Rosenberg v. Fleuti, supra, 374 U.S. at 462, 83 S.Ct. at 1812.) Thus petitioner was not subject to exclusion proceedings. To deprive petitioner of the benefit of deportation proceedings in the determination of his case merely because of his brief visit across the border would do violence to both the letter and the spirit of Fleuti :
"(A)n innocent, casual, and brief excursion by a resident alien outside this country's borders may not have been 'intended' as a departure disruptive of his resident alien status and therefore may not subject him to the consequences of an 'entry' into the country on his return." 374 U.S. at 462, 83 S.Ct. at 1812.
(See also Itzcovitz v. Selective Service Local Bd. No. 6, supra, 447 F.2d at 891-94; Zimmerman v. Lehmann, supra, 339 F.2d at 947-49; cf. Wadman v. Immigration & Naturalization Service (9th Cir. 1964), 329 F.2d 812, 815-16.) 5
When evidence appears, during an exclusion proceeding, that the alien has been theretofore granted residence status and is seeking to return to the United States after a brief visit outside the United States, the exclusion proceeding shall be terminated. If there is also evidence that the alien may have fraudulently secured his residence status, the INS can thereupon institute deportation proceedings against him. 6
The order of the Board of Immigration Appeals is vacated and this case is remanded for proceedings consistent with the views herein expressed.
1 Section 1182(a) provides in relevant part that:
2 While the provisional decision to exclude petitioner at the border on May 25, 1970, was based on the fact that he was not carrying any visa...
To continue reading
Request your trial-
Medina v. O'NEILL
...of excludable aliens, excludable aliens as a class are afforded fewer rights than are deportable aliens. See Maldonado-Sandoval v. I.N.S., 518 F.2d 278, 280 n. 3 (9th Cir.1975). 15Cf. Chairez v. County of Van Buren, 542 F.Supp. 706, 710-13 (W.D.Mich.1982) wherein the court implied a right o......
-
Haitian Centers Council, Inc. v. McNary
...are generally more favorable to the alien than exclusion proceedings." Correa, 901 F.2d at 1171 n. 5; see also Maldonado-Sandoval v. INS, 518 F.2d 278, 280 n. 3 (9th Cir.1975). 2. The 1980 Amendments to INA § 243(h). Prior to 1980, § 243(h) protected a refugee, in the Attorney General's dis......
-
Immigration Consequences of Undocumented Aliens Arrival in United States Territorial Waters
...the different entitlements under each procedure, see Landon v Plasencia, 459 U S. at 25-28. [14]See Leng Ma May v. Barber; Matdonado-Sandoval v. INS, 518 F.2d 278, 280 n3 (9th 1975); United Slates ex rel. Tom We Shung v. Murff, 176 F.Supp. 253, 260 (S.D.N.Y. 1959), affd sub nom United State......
-
People v. Superior Court (Zamudio)
...conviction. "The differences between proceedings of exclusion and those of deportation are significant." (Maldonado-Sandoval v. INS (9th Cir.1975) 518 F.2d 278, 280 (per curiam ).) The rights accorded to the alien in each are quite different. (Leng May Ma v. Barber (1958) 357 U.S. 185, 187,......