Matter of Caudillo-Villalobos
| Decision Date | 15 January 1965 |
| Docket Number | A-8469070,Interim Decision Number 1423 |
| Citation | 11 I&N Dec. 15 |
| Parties | MATTER OF CAUDILLO-VILLALOBOS In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
The case comes forward on appeal by the trial attorney from the decision of the special inquiry officer dated September 14, 1964, ordering that the proceedings be terminated.
The respondent, a native and citizen of Mexico, 42 years old, male, married, last entered the United States on or about January 31, 1963 and was admitted as a returning resident alien upon presentation of his Form I-151, Alien Registration Receipt Card. He was returning after a brief visit with the family that had been involved in a criminal matter which will be discussed below. The respondent had been admitted for lawful residence as a nonquota immigrant on April 10, 1953 and he testified that he had been entering the United States illegally for some four years prior to his legal admission. Since his lawful admission on April 10, 1953, the respondent had made numerous short visits to Mexico, returning each time upon presentation of his Form I-151. However, he testified that he was arrested in the month of July 1960 at Jaurez, Mexico, charged with the crime of incest and was kept in jail for two months. He was then released on bond around September 26, 1960 and thereafter reported weekly to the office of the clerk of the Second Penal Court, Jaurez, Mexico to sign the bond book and appeared weekly for a period of two or three months, thereafter receiving permission to appear not less than once per month. The respondent continued to report to the clerk's office in Jaurez to sign the bond book until either November 1961 or January 1962.
On September 27, 1961 in the Second Penal Court, Jaurez, Chihuahua, Mexico the respondent was convicted of the crime of incest and was sentenced to a term of imprisonment of two years and six months. On November 22, 1961 the First Penal Branch of the Supreme Tribunal of Justice of the State of Chihuahua, Mexico dismissed his appeal from this conviction. A further appeal in the nature of an application for an "amparo" was made by his lawyer to a higher court in Mexico and he testified that the application for the "amparo" was dismissed on August 24, 1962, a fact which he first learned from an immigration investigator on February 1, 1963 when the investigator required him to surrender his Form I-151. The respondent testified that since surrendering this document he has been unable to go to Mexico to consult with his attorney about any further action in the criminal case relating to the conviction for incest and has not communicated with his attorney in Jaurez, despite the fact that he knows the attorney's address, and does not know the present status of the case. He has testified that except for the two months' imprisonment after his arrest, he has not subsequently served any imprisonment as a result of his sentence for conviction of incest.
In his original order dated June 26, 1963, the special inquiry officer found the respondent deportable on the charge contained in the order to show cause. The respondent applied for a waiver nunc pro tunc under section 212(g) of the Immigration and Nationality Act of his excludability under section 212 (a) (9) of the Act, based upon the claim that his exclusion would result in extreme hardship to his citizen wife and citizen daughter whom, he testified, resided with him and were dependent upon him for support. At the hearing the respondent alleged that his wife and daughter were living with him at 1000 East San Antonio Street, Apartment 16, El Paso, Texas. A report of investigation with reference to discretionary relief under section 212(g) was received into evidence pursuant to stipulation, and counsel for the respondent has declined to make application for reopening to present evidence that would overcome the adverse matter contained therein (Ex. 7). The report of investigation shows that the respondent has not lived with his wife for the past 14 months; that she had instituted divorce proceedings in El Paso early in 1957 but did not complete these proceedings because of lack of funds; that she and the respondent were reconciled in 1960 and lived together until March 1962 when they separated. She stated that the source of their difficulties was that the respondent had a woman and daughters in Jaurez, Mexico and spent all of his money on them. Apparently this Mexican family was involved in the incest case. The respondent's wife stated that he visited her frequently and gave her a little money but does not contribute materially to her support; that she has worked continuously since 1957 and is employed at a restaurant in El Paso, earning $30.00 a week plus tips; that she supports herself and their daughter as well as her divorced daughter's baby. The respondent's wife stated that under the present situation it would not constitute an economic detriment to her if the respondent were deported. In the exercise of discretion the special inquiry officer on the basis of this evidence denied discretionary relief for a nunc pro tunc waiver under section 212(g) or for voluntary departure.
On June 27, 1963, the special inquiry officer ordered that his prior order and decision entered June 26, 1963, be withdrawn and that the hearing be reopened for further consideration in the light of the holding in Rosenberg v. Fleuti, 374 U.S. 449 (June 17, 1963). On September 14, 1964, the special inquiry officer found that, notwithstanding the respondent's conviction for incest which became final on November 22, 1961, he did not make an "entry" on the occasions that he returned to the United States thereafter following brief visits to Juarez, Mexico at weekly intervals which were for the purpose of signing the bond book in the office of the clerk of the court in Juarez and also for the purpose of pleasure and to visit relatives in that city; that consequently he fell within the purview of Rosenberg v. Fleuti, supra, and ordered that the proceedings be terminated.
The case of Rosenberg v. Fleuti, 374 U.S. 449, 10 L.ed. 2d 1000, concerned an alien who was originally admitted to the United States for permanent residence in 1952 and had resided here...
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