Vassiliou v. DISTRICT DIRECTOR OF IMMIGRATION & NATURALIZATION SERV., No. 71-1759.
| Decision Date | 16 June 1972 |
| Docket Number | No. 71-1759. |
| Parties | Application of Anastasios VASSILIOU and Verna K. Vassiliou, his wife, for a Writ of Habeas Corpus, Petitioners-Appellants, v. DISTRICT DIRECTOR OF IMMIGRATION AND NATURALIZATION SERVICE, El Paso, Texas, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Phillip D. Baiamonte, Albuquerque, N. M., for petitioners-appellants.
Victor R. Ortega, U.S. Atty., W. R. Hughes, Jr., Asst. U.S. Atty., Albuquerque, N. M., and William E. Weinert, Immigration and Naturalization Service, El Paso, Tex., for respondent-appellee.
Before HILL and SETH, Circuit Judges, and BRATTON, District Judge.
This is an appeal from denial by the United States District Court for the District of New Mexico of habeas corpus relief sought by appellants. The habeas corpus petition alleged a decision made by the Immigration and Naturalization Service (Service) was arbitrary and capricious. Appellants argue the Service should be estopped because the decision was contrary to previously established policy. The reliefs sought were reinstatement of the voluntary departure order, or, in lieu of that, stay of the presently valid order of deportation.
Anastasios Vassiliou, a native and citizen of Greece, arrived in the United States on May 31, 1969, as a crewman on a merchant ship. He was admitted to the United States on a temporary basis, but stayed past the period allowed. Vassiliou married an American citizen on December 30, 1969. His wife then filed a visa petition on his behalf on April 22, 1970, seeking a visa for Vassiliou to enter the United States legally under immediate relative status as her husband. The visa application was approved on August 25, 1970, and forwarded to the American Consulate in Calgary, Alberta, Canada. The procedure would then have been for Vassiliou to go to Canada, apply for admission to the United States as an immediate relative, then re-enter this country under the previously approved visa. On November 19, 1970, however, Mrs. Vassiliou withdrew her petition for Vassiliou's visa indicating there were marital difficulties, and stating that she was contemplating divorce. The visa application was automatically revoked.
On December 10, 1970, an order to show cause and notice of hearing on Vassiliou's deportability was issued. On December 11, 1970, Mrs. Vassiliou filed another statement in which she indicated there had been reconciliation between herself and Vassiliou; that she was no longer contemplating divorce; and that she requested the visa application for her husband be resubmitted. At the deportation hearing on January 20, 1971, Vassiliou admitted his deportability, but requested and was granted the privilege of voluntary departure to allow him to go to Canada, then to re-enter on the visa. The resubmitted petition for a visa had not, however, been approved at the time of the hearing, and the only way Vassiliou would be allowed to go to Canada was if there were a previously approved visa at the American Consulate there. Vassiliou would then be given permission to enter Canada, obtain the visa and return to the United States. Without the visa at the American Consulate, however, he could not enter Canada. Vassiliou was granted a voluntary departure privilege to February 20, 1971, in lieu of an order of deportation.
Vassiliou did not voluntarily leave the United States, and he was notified on February 23, 1971, that he would be deported unless he departed immediately. On February 25, 1971, the voluntary departure privilege was extended to March 29, 1971, upon the request of a United States senator. Vassiliou did not leave within the extended period, and on April 12, 1971, he was again ordered to depart immediately or face deportation. A warrant for his deportation was issued on April 19, 1971, and he was notified to report for deportation on April 27, 1971. Vassiliou did not report for deportation as...
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