Manguerra v. Immigration and Naturalization Service

• Decision Date: 07 March 1968
• Docket Number: No. 22035.,22035.
• Citation: 390 F.2d 358
• Parties: Milagros David MANGUERRA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

390 F.2d 358 (1968)

Milagros David MANGUERRA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 22035.

United States Court of Appeals Ninth Circuit.

March 7, 1968.

Nicholas A. Naffeo (argued), Renton, Wash, for appellant.

Albert E. Stephen (argued), Asst. U. S. Atty., Eugene G. Cushing, U. S. Atty., John P. Boyd, District Director, INS, Seattle, Wash., Steve Suffin, Atty., INS, Cecil F. Poole, U. S. Atty., San Francisco, Cal., Ramsey Clark, Atty. Gen., of the United States, Maurice A. Roberts, Dept. of Justice, Washington, D. C., for appellee.

Before HAMLEY, JERTBERG and BROWNING, Circuit Judges.

JERTBERG, Circuit Judge:

Petitioner Manguerra is in this Court under 8 U.S.C. § 1105a requesting that the order of respondent Immigration and Naturalization Service (I&NS) that she be deported be set aside.

Petitioner was born in the Phillipine Islands in 1935. On September 2, 1966, she entered the United States as a temporary visitor with leave to remain until October 2, 1966. At that time she held a Phillipine passport certifying her Phillipine citizenship.

After being in the United States some three weeks, on September 30, 1966, petitioner applied to respondent I&NS for a change of status from that of visitor to that of student. On November 30, 1966, her application was denied because she "failed to establish (her) financial ability to support and maintain (herself) during (her) stay as a full-time student," and because she "failed to establish the bona fides of (her) application."

On December 14, 1966, she appealed from that denial. On that appeal she offered a certificate from the Seattle First National Bank dated December 12, 1966, stating that on that day $1000 had been credited to the account of "Milagros D. Manguerra or Mrs. Luz L. Estigoy." Petitioner's appeal was dismissed on February 23, 1967.

In early March, petitioner was notified that she must depart from the United States by March 17, 1967. She did not do so. Consequently, on March 23, 1967, the present deportation proceedings were commenced against her by the issuance of an order to show cause why she should not be deported. The order charged her with being a nonimmigrant visitor who has "remained in the United States for a longer time than permitted."

On April 7, 1967, deportation hearings began before a Special Inquiry Officer (SIO). At petitioner's request, the hearings were twice continued. Petitioner's counsel charged the SIO with bias and requested his withdrawal from the case because he refused to allow petitioner's counsel to argue at length on a jurisdictional question. The SIO refused this request. On April 28, 1967, he entered an order of deportation against petitioner. The Board of Immigration Appeals (BIA) dismissed her appeal from this order on June 30, 1967. Petitioner seeks review of that dismissal.

Petitioner specifies four errors:

"1. The Immigration and Naturalization Service erred in instituting and prosecuting this case on the basis of an Order to Show Cause which made the entire deportation proceeding null and void. The sole and exclusive authority for the deportation of aliens is Section 242(a) (b) Of the Immigration and Nationality Act of 1952, 8 USC 1252(a) (b).

2. The deportation proceedings were nullified because petitioner did not receive a fair hearing in view of personal prejudice and bias shown by the Special Inquiry Officer, such bias and prejudice denying constitutional due process to petitioner.

3. The Immigration Service should be equitably estopped to deport the petitioner because of the petitioner\'s uncontradicted evidence that she was given permission by the Service to enter upon her studies as a nurse.

4. It was error for the Immigration Service to consider petitioner as an alien and not as an United States National."

In regard to the first specification of error, petitioner argues that the use of an order to show cause to commence the deportation proceedings was erroneous because 8 U.S.C. § 1252(a) and (b) require an arrest procedure and because the order to show cause procedure shifts the burden of proof in the proceedings to petitioner instead of leaving it on respondent. Petitioner also contends that the procedure was unconstitutional because she was not adequately notified of the seriousness of the proceedings and of her right to counsel.

There is sufficient statutory authority for the use of an order to show cause. Section 1252(a) provides that pending a determination of deportability, an "alien may, upon warrant of the Attorney General, be arrested and taken into custody." (Emphasis added). Section 1252(b) provides that:

"Proceedings before a

...