Giambanco v. INS , 531 F.2d 141 (3rd Cir. 1976)

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1. 531 F.2d 141 531 F.2d 141 « up 531 F.2d 141 Giuseppe GIAMBANCO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE. No. 75--1401. United States Court of Appeals,…
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  • 1. 531 F.2d 141 531 F.2d 141 « up 531 F.2d 141 Giuseppe GIAMBANCO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE. No. 75--1401. United States Court of Appeals, Third Circuit. Submitted Under Third Circuit Rule 12(6) Oct. 29, 1975. Decided Feb. 25, 1976. As Amended April 14, 1976. As Amended May 14 and June 10, 1976. Rehearing En Banc Denied July 9, 1976. James J. Orlow, Wasserman, Orlow, Kaye & Rubin, Philadelphia, Pa., for petitioner. b. Franklin Taylor, James P. Morris, Chester J. Halicki, John L. Murphy, Dept. of Justice, Washington, D.C., Michael B. L. Hepps, Asst. U.S. Atty., Philadelphia, Pa., for respondent. Before GIBBONS, BIGGS and WEIS, Circuit Judges. OPINION OF THE COURT BIGGS, Circuit Judge. 1 This is a petition for review of an order from the Board of Immigration Appeals refusal to overturn an immigration judges denial of Giambancos petition for adjustment of status and waiver of a ground of excludability under the Immigration and Nationality Act of 1952. Giambanco bases his claim on his marriage to a United States citizen and requests permanent resident status on the strength of his wifes relative-immigrant visa petition. In addition, Giambanco has filed a motion of remand in this court to allow the Board of Immigration Appeals to consider the birth of a citizen child to Giambanco and his citizen wife subsequent to the Boards finding. This Court has jurisdiction under 8 U.S.C. § 1105a. FACTS 2 Giambanco, an Italian citizen, entered this country on November 11, 1969, under a visitor for pleasure visa. He was authorized to stay until November 1, 1970. He overstayed and on April 26, 1971, admitted deportability before a special inquiry officer. He was given a month within which to voluntarily depart. Giambanco failed to depart by that time and on May 20, 1971, entered into a marriage with a United States citizen that was subsequently found to be designed to defraud the United States to obtain a permanent residence visa, 18 U.S.C. § 371. As a result of the fraud conviction, Giambanco received a suspended sentence and two years probation. Sentencing took place onhttp://bulk.resource.org/courts.gov/c/F2/531/531.F2d.141.75--1401.html[9/18/2012 12:59:08 PM]
  • 2. 531 F.2d 141 February 12, 1974. At that time the trial judge recommended pursuant to section 241(b) (2), 8 U.S.C. § 1251(b)(2), of the Immigration and Nationality Act of 1952 (INA) and 8 CFR § 241, that Giambancos conviction not be the cause of deportation under section 241(a)(4), 8 U.S.C. § 1251(a)(4). 3 His first marriage ended on August 20, 1973, and, after approximately two weeks, Giambanco married the daughter of one of his co-conspirators in the fraud. On the basis of his wifes citizenship, Giambanco petitioned to reopen his deportation hearing. He sought an adjustment of status to that of a permanent resident under INA section 245, 8 U.S.C. § 1255, and waiver of a ground of excludability under INA section 212(h), 8 U.S.C. § 1182(h), controlling 8 U.S.C. § 1182(a)(9), which provides for exclusion of aliens who have been convicted of certain crimes of moral turpitude. The hearing was reopened and the immigration judge denied the adjustment. Giambancos timely petition for review to the Board of Immigration Appeals was dismissed on April 8, 1975. Subsequent to the filing of this appeal, Giambanco made a motion to remand on the basis of the birth to him and his citizen wife of a child. The government has responded by submitting a brief in opposition. This court has dispensed with oral argument proceeding under our Rule 12(6)(a). LAW 4 This action presents two questions of law. First, does the Administrative Procedure Act of 1966 (APA), 5 U.S.C. § 500 et seq., preclude from sitting as a member of the Board an attorney, who was employed by the Services general counsel at the time of the cases oral argument before the Board, but was in nowise involved with the case? Second, does the trial judges recommendation under INA section 241(b)(2) that Giambanco not be deported because of his fraud conviction prevent discretionary consideration of the conviction by the Board in an adjustment of status proceeding under INA section 245? I. 5 Giambanco argues that the presence of the two former attorneys in the office of the Immigration Services General Counsel, Irving Appleman, Esq., and David Milhollan, Esq., on the Board violated his right to due process of law under the Fifth Amendment. Further, in his reply brief, Giambanco raises for the first time, a possible violation of section 5 of the APA, 5 U.S.C. § 554(d). It is undisputed that Appleman at the time of oral argument was the supervisor of the attorney who argued the case, Paul Vincent, Esq. At the very least, Giambanco contends there is an appearance of conflict of interest. 6 In response, the government has filed with its brief affidavits from Appleman, Milhollan and Vincent. Both Appleman and Milhollan aver that they had no connection with the case prior to becoming Board members and that they were not influenced by Vincents involvement in the case. Milhollan goes further and states that there was no discussion of the case in conference after he became a member of the Board. Presumably, he and Appleman voted solely on the basis of the record. There is no indication whether they listened to a recording of or read the oral argument after becoming members of the Board. The Boards vote on the Giambanco dismissal was unanimous. 7 The issue is presented whether the APAs section 5 requirement of separation of adjudicative and prosecutorial functions, 5 U.S.C. § 554(d), applies to a proceeding to consider a petition to adjust status under section 245 of the INA, 8 U.S.C. § 1255, and to waive a ground of excludability under section 212(h), 8 U.S.C. § 1182(h). Under the former provision the Attorney General has the discretion to grant an alien permanent resident status if certain statutory conditions are met. Under the latter the Attorney General may waive exclusionhttp://bulk.resource.org/courts.gov/c/F2/531/531.F2d.141.75--1401.html[9/18/2012 12:59:08 PM]
  • 3. 531 F.2d 141 of those with certain criminal backgrounds or with citizen children, on a proper showing. 8 Various discretionary authorities of the Attorney General under the INA have been found limited by the requirements of the APA. 1 Here, the Board of Immigration Appeals declined to overturn the immigration judges refusal to revoke Giambancos deportation order. Under Marcello v. Bonds, 349 U.S. 302, 75 S.Ct. 757, 99 L.Ed. 1107 (1955), the hearing procedures of the immigration judge are not subject to the APA. The question here is whether the Board, which sits in review of these determinations and is established at the discretion of the Attorney General, 8 U.S.C. § 1252(b), is also exempt from APA requirements. We think it is, for it would be anomalous to find that the initial immigration hearing was exempt, only to say that the review of such hearing was not exempt. To so hold would interject needless complexity into what is designed to be a discretionary process 2 and require different standards for separation of adjudicative and prosecutorial functions for the immigration judges and the Board members.3 9 Complexity problems aside, this result is compelled by the language of section 242 itself. The Board has been established at the Attorney Generals discretion to implement the statutory requirements of deportation and exclusion under the INA. Subsection (b)(4) requires that the Attorney General assure by regulation that all deportations be made on grounds of reasonable substantial and probative evidence. The Attorney General is to see under subsection (c) that deportation is carried out in a proper manner after the final order under administrative processes is made. On these matters the Attorney Generals determinations are to be administratively final.4 10 To carry out these section 242 duties, as well as his exclusion obligations, the Attorney General has established the Board under 8 CFR § 3.1. In reviewing the findings of the immigration judge, the Board acts as the Attorney Generals surrogate to insure that the rights and privileges of the alien are protected and that deportation is undertaken only on the basis of sufficient evidence. The Board has been made by the Attorney General a central part of his implementation of section 242. Thus the exclusive procedure language of section 242 should apply to exempt the Board from the APA under Marcello. When the Board is asked to adjust a hearing determination under section 245 or waive a ground of excludability under section 212(h), it is acting as an integral part of the exempt section 242 procedure. The Board was in existence at the time of the passage of the INA and there is no indication that it was not intended by Congress to operate in conjunction with the exempt specialized hearing procedures of section 242. 5 To find the Board non-exempt would be to hypothesize a disjointed congressional intent that makes no appearance in the legislative history of the 1952 Act. 6 11 Accordingly, we hold that the APA has no relevance to Board review of dismissals of the section 245 and 212(h) claims here. 7 II. 12 However , the second question of law presents a difficult problem. When Congress has explicitly removed a factor as a basis for deportation, can that factor ever be used by the Attorney General under section 245 to deny discretionary relief? 13 This question is of first impression in this circuit. In this Courts en banc decision in Ameeriar v. Immigration and Naturalization Service, 438 F.2d 1028 (3d Cir. 1971), cert. dismissed, 404 U.S. 801, 92 S.Ct. 21, 30 L.Ed.2d 34 (1972), a close variation of the issue was implicitly raised, but not expressly addressed.http://bulk.resource.org/courts.gov/c/F2/531/531.F2d.141.75--1401.html[9/18/2012 12:59:08 PM]
  • 4. 531 F.2d 141 There the petitioner attempted to reopen his section 242 deportation determination by seeking section 245 adjustment of status. The court was required to interpret a 1960 amendment to section 245, Act of July 14, 1960, Pub. L. No. 89--848, § 10, 74 Stat. 505, amending 8 U.S.C. § 1255. That amendment removed the eligibility requirement that the alien enter the United States as a bona fide nonimmigrant. Judge Gibbons was not able to convince a majority of this Court that the legislative history of this amendment removed from the Attorney Generals discretionary consideration the intent of the immigrant to stay permanently, as opposed to the intent to circumvent immigrant quotas. Id. at 1032, 1037--39. The issue turned on whether the amendment went so far as to exclude those with the first intent referenced. This Court found both intents relevant in the exercise of the Attorney Generals discretion. Implicit in both the en banc majority and dissent reasoning was the premise that, if the amendment had worked to exclude from consideration the intent found, there would arise a restraint of the Attorney Generals discretion under that section. There we faced the problem of limiting discretion under a section 245 amendment; here we have the problem of whether that discretion is limited by other provisions in the INA. On the basis of legislative history and judicial policy considerations, does section 241(b)(2) act as an effective restraint on section 245 discretion? 14 It is clear from the opinion of the immigration judge that Giambancos fraud conviction was a factor, if not the only factor relied on to deny him discretionary relief under section 245.8 The immigration judge found that the relief of section 245 was discretionary and . . . not automatic upon the establishment merely of statutory eligibility. There must be outstanding equities in a meritorious case to warrant it. . . . Administrative Record, pp. 38--39 (emphasis in the original). 15 The Attorney General as promulgated no regulations to aid the immigration judges exercise of discretion when sections 241(b)(2) and 245 are jointly applicable.9 The Immigration and Naturalization Service has ruled that section 241(b) applies to both exclusion and deportation proceedings. 10 Generally, discretion under the INA can only be exercised after the statutory prerequisites have been satisfied. 11 The INA House Report is silent as to section 241(b)(2)s effect on an adjustment of status determination, 12 nor does the legislative history of section 245 add any enlightenment. 13 However, both the express language of section 241(b)(2) and the Services treatment of the closely-related expungement 14 cases elucidate the policy grounds upon which the applications of sections 241(b)(2) and 245 can be rationalized. A. 16 Under the relevant portion of section 241(a)(4), an alien is to be deported if he or she is convicted of a crime involving moral turpitude committed within five years after entry and either sentenced to confinement or confined therefor in a prison or corrective institution, for a year or more . . .. Section 241(b)(2) makes this section inapplicable if the court sentencing such alien for such crime shall make, at the time of first imposing judgment or passing sentence, or within thirty days thereafter, a recommendation to the Attorney General that such alien not be deported, due notice having been given prior to making such recommendation to representatives of the interested State, the Service, and prosecution authorities, who shall be granted an opportunity to make representations in the matter. (emphasis supplied). 17 Here, the judge at the fraud trial, Judge Gorbey, certified that the Service was represented at the time of his recommendation.15 Judge Gorbey made the determination, as a matter of judicial discretion, that, based upon all the facts leading to the conviction, that this conviction should not be a basis forhttp://bulk.resource.org/courts.gov/c/F2/531/531.F2d.141.75--1401.html[9/18/2012 12:59:08 PM]
  • 5. 531 F.2d 141 deportation. The Service argues that it should be free at its discretion to effectively overturn that recommendation, although (1) its proceeding was far more procedurally informal than the trial over which Judge Gorbey presided; and (2) the Services inquiry in its proceeding ranged perforce far beyond the facts leading to the conviction, making the Service less able to weigh the conviction facts as thoroughly.16 Thus Judge Gorbey was more able to ascertain the extent of moral turpitude involved in this conviction. Also he had the benefit of the Services expertise and experience. 18 On these grounds we feel that Judge Gorbeys discretionary determination should supersede that of the Service. To hold otherwise would make meaningless section 241(b)(2)s requirement that the Service be represented before the trial judge; for the Service would have no incentive to make a showing, if as a matter of discretion, in a later proceeding under its control it could effectively overturn the trial judges determination. B. 19 Further, the Services own treatment of the closely-related conviction expungement cases supports this result. Here, the Service argues that while section 241(b)(2) prevents the use of the fraud conviction as the sole basis for deportation, the Service can take it into account as a factor in its discretionary adjustment of status determination. However, the Service itself has held under section 241(a)(4) that state law expungement of alien convictions removes the use of convictions as a basis for deportation, with no hint of a discretionary use exception. 17 Nor does this exception appear in the expungement cases involving narcotics, where Congress has mandated an especially stern deportation rule. 18 The Service expungement policy of no deportation with no apparent discretion is long standing. It is in keeping with the Services perception that under 241(a)(4) Congress has progressively alleviated the rigor of the laws relating to convicted aliens. . . .19 Further, under federal circuit review of this Service policy, the discretionary use exception has also failed to appear. 20 20 We review the federal and state expungement precedent because the same consideration control the effect of section 241(b)(2) judicial recommendation. Both suggest the conclusion that the alien is not to be punished further by deportation. As the Supreme Court noted with respect to the predecessor of section 241(a)(4): 21 We resolve the doubts in favor of (the alien) because deportation is a drastic measure and at times the equivalent of banishment or exile, Delgadillo v. Carmichael, 332 U.S. 388. It is the forfeiture for misconduct of a residence in this country. Such a forfeiture is a penalty. To construe this statutory provision less generously to the alien might find support in logic. But since the stakes are considerable for the individual, we will not assume that Congress meant to trench on his freedom beyond that which is required by the narrowest of several possible meanings of the words used. 22 Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 376, 92 L.Ed. 433, 436 (1948). A judicial recommendation of no deportation, like the federally or state mandated expungement, on its face is designed to prevent the levy of additional penalties over and above that which the original court found appropriate. 21 Here, given the nature of Giambancos fraud, Judge Gorbey awarded a two-year suspended sentence. To say that this penalty is now to be augmented by a penalty of banishment, despite the recommendation of Judge Gorbey, would be unjust. A joint reading of sections 241(b)(2) and 245 based upon a novel nondiscretionary-discretionary use distinction would produce a very harsh result indeed. We cannot accept the governments craftily myopic argumenthttp://bulk.resource.org/courts.gov/c/F2/531/531.F2d.141.75--1401.html[9/18/2012 12:59:08 PM]
  • 6. 531 F.2d 141 that section 241(b)(2) in no way limits those factors that can be considered at the discretion of the Service under section 245. 23 Accordingly, in order (1) to maintain the integrity of the deportation recommendation of the trial judge; (2) to have the discretionary determination made by the actor best able to make it; and (3) to avoid a possibly unjust penalization of aliens such as Giambanco, we hold that the Service cannot take into account as a matter of discretion under section 245 Giambancos prior fraud conviction in determining whether he is entitled to adjustment of deportation status. 24 Since this question is one of first impression in this circuit, this Court will not remand as Giambanco requested without going, as we have seen, to this issue, even though the birth of a citizen child after the Boards findings may be of some relevance to adjustment of status. However, the prior fraud conviction issue needed to be resolved as a matter of law before any new proceeding went forward. We will reverse and remand this case to the Board for further determination consistent with this opinion and expressly direct the Board to consider the birth of Giambancos citizen child as a factor in its deliberations.22 25 GIBBONS, Circuit Judge (dissenting). 26 Although the Administrative Procedure Act, 5 U.S.C. § 551 et seq. (hereinafter APA), has been in effect since 1946, and the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. (hereinafter INA), since 1952, new issues occasionally arise concerning their interrelationship. The two cases sub judice squarely confront this court with an issue of first impression: does the mandatory disqualification provision of § 5(c) of the APA, 5 U.S.C. § 554(d), 1 govern the review by the Board of Immigration Appeals (hereinafter BIA) of decisions of an immigration judge, specifically those denying adjustment of status, a request for a waiver of a ground of excludability and a petition for suspension of deportation under §§ 245, 212(h) and 243(h) respectively of the INA, 8 U.S.C. §§ 1255, 1182(h), 1253(h)?2 If the APA applies, we must re
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