Ramirez-Durazo v. I.N.S.

• Decision Date: 02 September 1986
• Docket Number: No. 85-7213,R,RAMIREZ-DURAZ,85-7213
• Citation: 794 F.2d 491
• Parties: Rafealosa Isela Lopez de Ramirez, Luz Maria Ramirez-Alcaraz, Maria Sara Ramirez-Alcaraz, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. C.A.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 491

794 F.2d 491

91 A.L.R.Fed. 375

Rafeal RAMIREZ-DURAZO, Rosa Isela Lopez de Ramirez, Luz Maria Ramirez-Alcaraz, Maria Sara Ramirez-Alcaraz Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

C.A. No. 85-7213.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 12, 1986.

Decided July 14, 1986.

As Amended Sept. 2, 1986.

Edgar-Soto & Soto, P.C., Zada Edgar-Soto, Tucson, Ariz., for petitioners.

James A. Hunolt, Joan E. Smiley, Washington, D.C., for respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before: HUG, BEEZER and KOZINSKI, Circuit Judges.

BEEZER, Circuit Judge:

Petitioners, husband, wife, and two children, citizens of Mexico, seek review of a decision of the Board of Immigration Appeals affirming an immigration judge's order excluding the wife from admission to the United States and denying the applications of the other petitioners for suspension of deportation. We dismiss the wife's appeal for lack of jurisdiction over a direct appeal from an exclusion order, and deny the petition of the other aliens.

BACKGROUND

Rafael Ramirez-Durazo and Rosa Isela Lopez de Durazo, husband and wife, are citizens of Mexico. They have three children, one of whom is a citizen of the United States. The other two children, Luz Maria Ramirez-Alcarez and Maria Sara Ramirez-Alcarez, are Mexican citizens.

These four petitioners entered the United States in 1977 as nonimmigrant visitors for pleasure authorized to remain for fifteen days. They were for a time beneficiaries of the injunction in Silva v. Levi, No. 76-C-4268 (N.D.Ill. Mar. 22, 1977), under which Rosa, the wife and mother, returned to Mexico for three days in March, 1980. She was permitted to return to the United States pursuant to a grant of "parole."

the Immigration and Naturalization Service ("INS") was enjoined from deporting certain Western Hemisphere aliens because of an erroneous allocation of visas to Cuban refugees. The Silva injunction was vacated on November 1, 1981.

In 1982, deportation proceedings were commenced against Rafael, the husband and father, and the two Mexican children. At the same time, exclusion proceedings were commenced against Rosa. The family was represented by a layman accredited through an organization providing immigration services to indigent aliens. Through this representative, the family requested a joint exclusion-deportation hearing.

At the conclusion of the proceedings in 1983, the IJ found Rosa excludable and statutorily ineligible for suspension of deportation. The IJ denied the petitions of Rafael and the two Mexican children for suspension of deportation, finding they had not demonstrated that deportation would result in "extreme hardship." The decision was affirmed by the Board of Immigration Appeals ("BIA").

I EXCLUSION PROCEEDINGS

The IJ ordered Rosa Isela Lopez de Durazo, the wife and mother, excluded from admission to the United States. ¹ Section 235(a) of the Immigration and Nationality Act ("INA"), 8 U.S.C. Sec. 1225(a), permits the INS to examine "[a]ll aliens" who seek "admission or readmission" to the United States. Although Rosa was granted advance permission to return to this country, the INS contends she is subject to exclusion proceedings because she had left the United States and seeks readmission.

Only those aliens "entering" the United States are subject to exclusion proceedings. Landon v. Plasencia, 459 U.S. 21, 28, 103 S.Ct. 321, 326, 74 L.Ed.2d 21 (1982). However, the Supreme Court has held that the issue of whether an alien is subject to exclusion, rather than deportation, is properly litigated in exclusion proceedings. Id. at 32, 103 S.Ct. at 329.

We would have jurisdiction to hear Rosa's direct appeal from the BIA if the IJ's order were a final order of deportation. INA Sec. 106(a), 8 U.S.C. Sec. 1105a(a). However, section 106(b) of the INA, 8 U.S.C. Sec. 1105a(b), provides that "any alien against whom a final order of exclusion had been made ... may obtain judicial review of such order by habeas corpus proceedings and not otherwise." See generally Patel v. Landon, 739 F.2d 1455, 1456 n. 1 (9th Cir.1984).

In Castillo-Magallon v. INS, 729 F.2d 1227 (9th Cir.1984), we considered a similar case in which alien beneficiaries of the Silva injunction, after traveling to Mexico for two weeks, were allowed to return to the United States as "parolees." The aliens were subsequently placed in exclusion proceedings and were not permitted to apply for suspension of deportation. The aliens then sought review directly to this court. We dismissed the appeal for lack of jurisdiction, saying that "[r]eview of an exclusion proceeding, even one in which the IJ's jurisdiction is challenged, is available only in a habeas corpus proceeding in district court." Id. at 1229.

Rosa contends that a different result is mandated in this case because the IJ held a combined exclusion and deportation proceeding.

                She argues that evidence concerning whether she was subject to exclusion proceedings was decided in the "deportation phase" of the hearing, and thus this court has jurisdiction to review her claims as a petition from a "final order[ ] of deportation."    See INA Sec. 106(a), 8 U.S.C. Sec. 1105a(a).  This argument cannot be sustained
                

The IJ's decision was not made in any "phase" of the hearing, but rather at the conclusion of all the evidence. The IJ was cognizant of the distinct nature of the two proceedings and separately addressed the issues of deportability and excludability. The IJ stated that the proceeding was conducted with the understanding that Rosa was in exclusion proceedings while the other petitioners were in deportation proceedings.

More importantly, the jurisdictional statute refers to judicial review of an "order " of exclusion, not review over a certain type of hearing or proceeding. See INA Sec. 106(b), 8 U.S.C. Sec. 1105a(b). Since there is no doubt that the IJ intended to issue an order of exclusion, we lack jurisdiction to hear the appeal. See Castillo-Magallon, 729 F.2d at 1228.

II DEPORTATION PROCEEDINGS

The IJ found Rafael Ramirez-Durazo, the husband and father, and the two Mexican children deportable, and denied their petitions for suspension of deportation.

A. Joint Exclusion-Deportation Proceeding

The petitioners claim the IJ exceeded his authority in holding a combined deportation and exclusion hearing, asserting that the statute and regulations do not authorize such a proceeding. An IJ is authorized to conduct both exclusion and deportation proceedings. INA Sec. 236(a), 8 U.S.C. Sec. 1226(a); INA Sec. 242(b), 8 U.S.C. Sec. 1252(b); 8 C.F.R. Sec. 3.10. With respect to deportation proceedings, an IJ is authorized to determine deportability, to adjudicate certain applications, and "to take any other action consistent with applicable law and regulations as may be appropriate." 8 C.F.R. Sec. 242.8(a). In exclusion cases, "[s]ubject to any specific limitation prescribed by the Act and this chapter, immigration judges shall also exercise the discretion and authority conferred upon the Attorney General by the Act as is appropriate and necessary for the disposition of such cases." 8 C.F.R. Sec. 236.1. The IJ thus is empowered to exercise a reasonable degree of latitude in conducting deportation and exclusion proceedings. Petitioners' counsel conceded at oral argument that there is no express statutory or regulatory bar to the joining of exclusion and deportation proceedings; thus it was not an error per se to proceed jointly.

Still, the question remains as to whether the IJ's decision to conduct the joint hearing was an abuse of discretion under the facts of this case. It is difficult to so conclude. As the IJ noted, this was an unusual case involving members of a single family, and the family's representative had requested a joint hearing on their behalf. Under such circumstances, it was not a clear abuse of discretion to conduct the joint hearing, provided no actual prejudice to the petitioners resulted.

Joining exclusion and deportation proceedings together is an inadvisable practice, as the BIA noted in its decision, due to the possibility of prejudice against an alien subject to deportation proceedings. An alien in deportation proceedings is entitled to certain procedural protections and substantive rights not available in an exclusion proceeding. ² See generally Landon v Plasencia, 459 U.S. 21, 25-26, 103 S.Ct. 321, 325-26, 74 L.Ed.2d 21 (1982).

Most importantly, constitutional due process protections adhere to an alien who has obtained admission, lawfully or otherwise, to this country but is subject to deportation proceedings. Landon v. Plasencia, 459 U.S. at 32, 103 S.Ct. at 329. By contrast, an alien seeking admission to the country, and thus subject to exclusion proceedings, "requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative." Id.; see also Shaughnessy v. Mezei, 345 U.S. 206, 215, 73 S.Ct. 625, 630, 97 L.Ed. 956 (1953) (no due process rights for non-entrant aliens). But see Landon v. Plasencia, 459 U.S. at 33, 103 S.Ct. at 329 (returning permanent resident alien is entitled to constitutional protections if absence was not extended).

However, there are no allegations in this case that the petitioners were denied any procedural or substantive rights, of statutory or constitutional origin, generally available to those in deportation proceedings. Most significantly, they were permitted to apply for suspension of deportation, a form of discretionary relief available only to aliens in deportation proceedings. See Castillo-Magallon v. INS, 729 F.2d 1227, 1228 (9th Cir.1984); see also INA, Sec. 244, 8 U.S.C. Sec. 1254(a)(1). Had the IJ limited the rights and protections available to petitioners to that lesser level generally accorded in an exclusion proceeding, a reversible error would have resulted....