Matter of Perez-Jimenez

• Decision Date: 19 July 1963
• Docket Number: Interim Decision Number 1292,A-11261536
• Citation: 10 I&N Dec. 309
• Parties: MATTER OF PEREZ-JIMENEZ In DEPORTATION Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

10 I&N Dec. 309

MATTER OF PEREZ-JIMENEZ

In DEPORTATION Proceedings

Interim Decision Number 1292

A-11261536

Board of Immigration Appeals

Decided by Board July 19, 1963

When parallel deportation and extradition proceedings are pending, the outstanding order of deportation will be withdrawn and further deportation proceedings held in abeyance during the pendency of extradition proceedings, since further deportation proceedings would serve no useful purpose and the outstanding order of deportation might unnecessarily and improperly complicate the extradition proceedings.

CHARGES:

Order: Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at entry—No immigrant visa (8 U.S.C. 1182(a)(20)).

Lodged: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Remained longer than permitted as a nonimmigrant.

Respondent is a former president of the Republic of Venezuela. Early in 1958 revolutionary forces terminated his incumbency as president. He left his homeland at that time.

Our decision of September 8, 1959, affirmed the special inquiry officer's order directing respondent's deportation on the charge that he had remained in this country as a nonimmigrant longer than permitted. Respondent has not designated a country to which he would prefer to be sent if deported.¹

Subsequent to our prior order respondent applied for the benefits of section 243(h) of the Immigration and Nationality Act. The case comes here now on respondent's motion to reopen the proceedings to afford him a hearing on that application and on the Service motion to withdraw the deportation order.² We conclude that the Service motion should be granted.

Respondent last arrived in the United States at West Palm Beach, Florida on March 28, 1958. He then possessed a Venezuelan diplomatic passport and a nonimmigrant visa issued on February 10, 1958 at our Embassy in Santo Domingo.³ The Service initially paroled respondent but on January 7, 1959 admitted him as a temporary visitor. Respondent is 49 years old. His wife and four minor children are with him in this country. Only respondent is under proceedings at this time, however.

The Consul General of Venezuela in Miami informed the Service by letter of June 5, 1958 that the Venezuelan government had cancelled the diplomatic passports of respondent and his wife and children (Ex. 4).

On August 24, 1959 the Venezuelan Consul in Miami filed a complaint in the District Court for the Southern District of Florida seeking respondent's extradition to Venezuela. A district judge, sitting as a magistrate in extradition proceedings, found probable cause that respondent had committed in Venezuela certain financial crimes which are covered by the Treaty of Extradition between Venezuela and this country.⁴ He committed respondent to the custody of the United States Marshal to await the Secretary of State's action.⁵ Respondent then brought habeas corpus proceedings, which the District Court dismissed. The Court of Appeals affirmed that decision and the Supreme Court denied certiorari.⁶ The extradition proceedings now await the Secretary of State's decision whether to issue a warrant of extradition.

The Service contends that the extradition proceedings and Immigration proceedings are exclusive and independent of each other. Both the Service motion and the argument of respondent's counsel point out that if respondent's removal takes place under extradition proceedings while there is outstanding an order of deportation, the deportation order will be executed.⁷ The Service further points out that in the event of extradition any immigration proceedings will be mooted and terminated. Therefore, the Service contends, the outstanding deportation order serves no useful purpose at this time and may introduce complications.

The Service also argues that, if the Secretary of State fails to issue a warrant of extradition, resumption of deportation proceedings would enable extending to respondent all rights and privileges under the deportation laws and regulations, including adjudication of his application under section 243(h). Thus, the Service urges, the motion, in seeking to eliminate the possibility of execution of the deportation order without affording respondent his full rights and privileges under the laws pertaining to deportation, is beneficial to respondent.

Respondent contends that the Service motion, if granted, would not benefit him but would deprive him of his right to an adjudication at this time of his application under section 243(h). He apparently would risk the possibility of deportation through extradition in order to obtain such an adjudication. Respondent thus prefers to rest his case for avoiding return to Venezuela upon the Attorney General's ruling in deportation proceedings rather than the Secretary of State's ruling in the extradition proceedings. We are to determine whether to grant either of the motions before us and if so which one.

We find that we need not determine whether withdrawal of the deportation order would be beneficial or detrimental to respondent. Therefore, we do not decide whether extradition would execute an outstanding order of deportation. If granting the Service motion would benefit respondent by preventing deportation shorn of some of its procedural safeguards, such benefit would be, for our purposes, a side effect. We base our decision on the grounds that, in view of the extradition proceedings, further deportation proceedings would serve no useful purpose and may unnecessarily and improperly complicate the extradition proceedings.

As we have seen, the Service motion states that deportation and extradition proceedings are exclusive and independent of each other. Respondent asserts that the Service actions so far in these proceedings have not demonstrated the two are mutually exclusive and independent. Both the Service and respondent are correct to some extent. The two procedures are independent in the sense that the proceedings under each are separate and distinct and that a decision in one is not necessarily dependent upon the findings in the other. Though for different purposes, they are related in their effect of removing a person from the country.⁸ Where the proceedings are parallel, therefore, one should be cognizant of the other.

We may properly comment upon the pending extradition proceedings only to the extent that references to those proceedings are necessary to our decision in the matter before us. We note that, essentially, respondent seeks to avoid extradition and deportation on the same ground. He contends that the present political climate in Venezuela is decidedly adverse to him and therefore he should not be returned to Venezuela at this time.

Respondent apparently perceives that pursuing his section 243(h) application and his defense to extradition simultaneously may offer procedural advantages to him. He points to the established regulations and procedures and the avenues for judicial review which appertain to an application filed pursuant to section 243(h). Although not suggesting that he would not receive due process of law at the hands of the Secretary of State, respondent says that there are no regulations governing the Secretary of State's action and that the procedures are less tested and more nebulous than those in deportation proceedings.

At oral argument respondent's counsel suggested that a favorable conclusion to respondent's section 243(h) application should prevail over a ruling by the Secretary of State to grant extradition. This suggestion can mean only that the Secretary of State, in his discretion, should defer to the grant of the benefits of section 243(h). There is no legal basis for the granting of such an application to take precedence over the Secretary of State's issuance of a warrant of extradition. If anything, in practice, the reverse would be true.

Treaties and statutes of Congress form part of the supreme law of the land and are of equivalent effect. Except to the extent that a treaty and a federal statute may be inconsistent, neither prevails over the other. If inconsistent, the expression of the Congressional will which is later in time prevails.⁹ Nullification of a treaty by implication is not favored, however.¹⁰

Here there is no inherent inconsistency between, on the one hand, our Treaty of Extradition with Venezuela and the statutory provisions for extradition and, on the other, the statutory provisions of deportation, including withholding of deportation on the basis of impending physical persecution. Any inconsistency which might result would arise only from divergent applications of those provisions by different government officials. Statutes should be interpreted and applied, however, so as to render them harmonious and to give maximum effect to the provisions of each.

A decision by the Secretary of State granting extradition will terminate any deportation proceedings in whatever posture they might be at the time. Thus, although pending section 243(h) proceedings might support a request for reconsideration of the Secretary's decision, or for some form of judicial relief, failing either of those remedies the 243(h) proceedings would be effectively terminated. The same result would obtain if respondent had successfully prosecuted such application to a conclusion. Since the granting of the stay would not necessarily bar extradition, the stay of deportation might be abruptly terminated.

The Treaty requirement that Venezuela will try respondent only for the crimes specified in the warrant of extradition (for which the judge has already found probable cause) and the express prohibition against trial or punishment for a political crime or offense distinguish the extradition proceedings from these.¹¹ Only if Venezuela should, because of overriding political considerations, dishonor its obligations under the Treaty would the factors to be considered in the two proceedings merge. Moreover, if the Secretary of...