Matter of De Lucla

• Decision Date: 21 April 1966
• Docket Number: Interim Decision Number 1575,A-11129289
• Court: U.S. DOJ Board of Immigration Appeals
• Parties: MATTER OF DE LUCLA<SMALL><SUP>*</SUP></SMALL> In Deportation Proceedings

11 I&N Dec. 565

MATTER OF DE LUCLA^*

In Deportation Proceedings

Interim Decision Number 1575

A-11129289

Board of Immigration Appeals

Decided by Board April 21, 1966

(1) Claim of prejudgment is rejected absent evidence the outstanding order of the Attorney General has not been followed which directs all Service and Board officers exercising hearing powers to use their "independent judgment" and "give each alien a fair and impartial trial without prejudgment."

(2) Alleged undue publicity in the press does not preclude a fair deportation hearing; neither does Government refusal to permit counsel for respondent to review a character investigation report, not introduced into evidence; nor does denial of respondent's request to subpoena certain Government officials where it is clear from the record their testimony would not have been relevant to the issues of relief under sections 249, 212(h) and 243(h).

(3) In finding a lack of good moral character for the purposes of section 249 of the Act, the special inquiry officer did not err in considering respondent's illegal gambling activities in 1962, his imprisonment from July 1959 to October 1961, and his failure to testify truthfully during the reopened hearing.

(4) Notwithstanding respondent's long residence and close family ties in the United States, since the creation of a record of admission for permanent residence pursuant to section 249 of the Act, as amended, is a matter of administrative grace, his application therefor is denied where he has submitted no affirmative evidence of his genuine reformation or rehabilitation and by his equivocal answers and his refusal to answer relevant questions during the hearing he has failed to come forward with full information within his knowledge regarding his activities which has a direct bearing on his application.

(5) Reopening of proceedings for the introduction of additional evidence on the issue of political persecution is denied as no purpose would be served thereby since ample evidence of record affirmatively establishes that respondent, if deported to Italy, would not be subject to persecution within the meaning of section 243(h) of the Act, as amended by Public Law 89-236, because of his criminal record in the United States.

CHARGES:

Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251 (a) (1)]—Excludable by the law existing at the time of entry, to wit: a

person who has not presented an unexpired passport or official document in the nature of a passport issued by the government to which he owes allegiance, or other travel document showing his origin and identity, as required by the Passport Act of May 22, 1918, and the Executive Order in effect at the time of entry.

Act of 1952—Section 241(a) (1) [8 U.S.C. 1251 (a) (1)]—Excludable by the law existing at the time of such entry, to wit: a person who has been convicted of a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, under section 3 of the Act of February 5, 1917, to wit: voluntary homicide.

The respondent is a native of Italy. He has been found deportable under the provisions of section 241 (a) (1) of the Immigration and Nationality Act as an alien who was excludable at the time of entry, in that, he did not present the required immigration documents and had been convicted of a crime involving moral turpitude prior to entry, to wit, voluntary homicide (8 U.S.C. 1251 (a) (1)).

The case was last before us in September of 1964. An order entered on that occasion granted the respondent's motion to reopen the proceedings for the "limited purposes"¹ mentioned in a stipulation between opposing counsel which was approved by the Court of Appeals for the Seventh Circuit on August 27, 1964. Pursuant to the Board's order, reopened hearings were accorded the respondent in November 1964, February, March and June 1965.

The respondent has applied for the creation of a record of his lawful entry pursuant to section 249 of the Immigration and Nationality Act (8 U.S.C. 1259); a waiver of the criminal ground of inadmissibility under section 212(h) of the Immigration and Nationality Act, as amended (8 U.S.C. 1182(h)) which if granted would remove an existing bar to relief under section 249 (supra) and the withholding of his deportation to Italy under the provisions of section 243(h) of the Immigration and Nationality Act (8 U.S.C. 1253 (h)). The special inquiry officer in an order entered on October 25, 1965 denied the respondent's applications for discretionary relief and ordered his deportation to England. An alternative order of deportation to Italy was also entered if England is unwilling to accept him. The respondent's appeal from this order is now before us.

The respondent is a male alien, 67 years of age. He last entered the United States through the port of New York on August 12, 1920. He was found deportable in 1959 as an alien who had entered the United States without proper documents and as an alien who had been convicted of voluntary homicide in 1917, a crime involving moral turpitude committed prior to entry. The order of deportation was affirmed by the Circuit Court of Appeals for the Seventh Circuit in 1961. De Lucia v. Flagg, 297 F.2d 58, cert. den. 369 U.S. 837. The respondent is married to a lawfully resident alien and is the father of two male American citizen children, veterans of World War II and a female American child, the mother of his five grand-children.

The record created during the reopened hearings consists of some 370 pages of testimony and more than 130 exhibits. Extensive briefs and supplemental briefs submitted by counsel for the alien and the Deputy General Counsel of the Immigration Service are before us for consideration. The record, the briefs and oral argument have been thoroughly reviewed. Our decision, however, will be limited solely to a determination of whether the respondent has been accorded a fair hearing and to a determination of whether an exercise of the Attorney General's discretion is warranted with respect to relief under sections 249, 212(h) and 243(h) of the Immigration and Nationality Act (supra).

THE ISSUE OF WHETHER THE RESPONDENT HAS BEEN ACCORDED A FAIR HEARING

Counsel for the respondent maintains that his client has not been accorded a fair hearing during the reopened proceeding. He alleges that the special inquiry officer prejudged the respondent's applications for discretionary relief; that respondent's case has been prejudiced by undue publicity in the press; that there was prejudicial error in that respondent was not permitted to examine a character investigation report and that favoritism was shown the Government in the issuance of subpoenas and during the cross-examination of the respondent whereas respondent's request to subpoena certain local and Government officials and to cross-examine Government witnesses was wholly denied or extremely limited.

We find no substance to counsel's claim that the respondent has been denied a fair hearing on his applications for discretionary relief.

The respondent supports his claim of prejudgment by a series of exhibits (A 106 through 124) which he alleges establish that all Attorneys General since May of 1952 and some of the Commissioners of Immigration and Naturalization have stressed the desirability of giving top priority to the deportation of aliens alleged to be in a class referred to as "racketeers." Counsel argues that published statements of the various Attorneys General including the incumbent Attorney General and certain Commissioners of Immigration and Naturalization have committed officers within the Immigration Service to an adverse course of action and bias against any alien purported to be within the so-called "racketeer" class.

Similar claims have been made in previous cases decided by this Board.² Such claims have been supported with some of the documentary evidence now before us. There was a claim of prejudgment in the Accardi and Marcello cases when they were before the Supreme Court of the United States. The claim of prejudgment was rejected in both instances.³

We reject the claim of prejudgment in the instant case for the reason that respondent has failed to introduce any substantial evidence that the incumbent Attorney General or the incumbent Commissioner of Immigration and Naturalization has issued an expressed or implied directive⁴ to rule adversely on the respondent's applications for discretionary relief. In fact, there is an outstanding order of the Attorney General, issued April 23, 1954, which directs all officers exercising hearing powers in the Immigration Service and the Board of Immigration Appeals to exercise their power "fully and faithfully" and use their "independent judgment and . . . discretion as the regulations confer upon them . . . Those charged with the duty of hearing and deciding (cases) must give each alien a fair and impartial trial without prejudgment . . ."⁵ We find no evidence that the order of the Attorney General has not been followed in this proceeding.

Counsel argues that the respondent is entitled to an evidentiary administrative hearing solely on the issue of prejudgment of his applications for discretionary relief. He relies on a decision by the Circuit Court of Appeals for the District of Columbia in the case of Buffalino v. Kennedy, 322 F.2d 1016 (June 1963) and a recent order of Judge Oliver Gasch of the United States District Court for the District of Columbia signed on February 23, 1966 (Civil Action No. 486-61).

We find counsel's plea for a separate evidentiary hearing on the issue of prejudgment without substance. Counsel has made no claim that this Board has prejudged the respondent's applications for discretionary relief. This Board has full power of decision with regard to the special inquiry officer's interpretation of the law, the facts and the exercise of the discretionary relief the respondent seeks.

Furthermore, the instant case...