*1 FIGUEROA, Montano De Catalina Petitioner, AND NATURALIZA-
IMMIGRATION Respondent. SERVICE, TION
No. 73-1830. Appeals,
United States Court
Seventh Circuit.
Argued April Aug.
Decided
Joseph Gilbert, Chicago, 111., pe- B.
titioner. Murphy, Chief, Div., John L. Crim.
Mary Grotenrath, Dept, Atty., Jo U. S. Justice, Washington, C.,D. R. James Thompson, Atty., Chicago, 111., U. S. respondent. SWYGERT, Judge, Before Chief CUMMINGS, FAIRCHILD and Circuit Judges. Judge.
SWYGERT, Chief depor- This is a review an order tation. pro-
Pursuant to filed under visions of section of the Immi- gration Nationality Act, 8 U.S.C. § *2 192 1105a(a), depor- surety review an order of On June 1972 the on the against petitioner by petition- bond
tation issued
was notified to surrender
Immigration
Immigration
Chicago
and Naturalization
er at the
office in
on
hearing
1.
Service.
On that date a
special inquiry
was conducted
offi-
Figu-
Montano De
Petitioner Catalina
Shortly
cer.
special
thereafter
in-
Mexico,
eroa,
and citizen of
en-
a native
quiry officer rendered his decision. He
in March
tered the
States
1970
testimony”
found from “believable
Chicago
pleasure
for
and
at
as visitor
petitioner’s marriage had been entered
to remain in
was authorized
the United
“merely
into
for the
of circum-
September
until
Hav-
1970.
States
venting
immigration
laws” and that
ing
in
be-
remained
the United States
given
testimony
she had
false
at
yond
date,
she was served with an
hearing
relationship
about her marital
in a
order to show cause
Figueroa.
with Jose
The
decided
officer
hearing
given
and
notice of a
petitioner, having
failed
estab-
February
scheduled for
good
lish
required
moral character as
posting
did not occur. After
by statute,
qualify
privi-
did not
for the
given
petitioner
voluntary
bond
was
lege
departure
of voluntary
in lieu of de-
departure
requiring
depart
her
letter
portation.
was ordered
on March
United States
deported from the
United States Mex-
On March
1972
married
Immigration
ico.
peals
Ap-
The Bureau of
Figueroa,
Ramon
Jose
United States
affirmed and
to' re-
Thereafter, on March
citizen.
29 Jose
view followed.
petitioner’s spouse filed a
Immigration
Service to
with the
I
nonquota
of a
im-
accord her the status
The show cause order issued in Febru-
migrant under section 204 of the Immi-
ary
charged
1972
de-
gration
Nationality Act,
and
U.S.C.
8
§
portable pursuant
241(a)(2)
to section
thereby qualify
1154, and
her for an im-
Immigration
Nationality Act,
migrant
provision
8
visa under the
1251(a)(2),
8 U.S.C.
ad-
that after
§
(a)(27)(A).
U.S.C.
1101
The Attor-
nonimmigrant
mission as a
under sec-
ney
through
Immigration
General
101(a) (15)
tion
8 U.S.C. §
approved
and sent it
1101(a) (15), she remained in the United
Toronto,
American Consulate
longer
permitted.
States for a
time than
Canada,
port
entry
where
deportation hearing,
At the
for
counsel
apply
tioner indicated
intended to
she
admitted “for
the sake
immigrant
for an
visa.
deportability
record”
on the
Immigration
May
1972 two
“charges specified,” and then asked that
investigators
Service
gueroa
arrested Jose Fi-
voluntary
privilege
she be
Chicago
his
obtained
departure
expense
at her
in lieu of
own
signed
statement
which made the
he
Although
ap-
this was the
following
telling
representations. After
parent issue,
issue,
the real
as stated
immigration
pe-
papers,
him she had no
special inquiry officer,
the
petitioner
whether
was
titioner offered him
would
$500
he
subject
deportation un-
was
marry her “so she could obtain a visa.”
der
laws of the
United States.
accepted
He
the offer and received $500.
paid
but,
$500,
He was
an additional
aft-
Petitioner contends it was error
petitioner explained
er
deportable
pe
that “the Immi-
to decide she
since a
was
gration
looking
her,”
re-
tition
of a non-
he
to accord
the status
immigrant
quota
turned the second sum because it was to
under section 205 had
approved
Attorney
be used “in
of a
case
bond.” Thereaf-
been
General.
ter,
they
Although
previously
on March
mar-
wére
this circuit has
together
ried,
spoken
persuad
question,
never lived
but
“as man
on the
we are
and wife.”
ed to hold that an
aof
statutory
provision
not mere
a visa in her
does
behalf
under this
deportability.
did not affect her
give
alone
immigrant
right
to an
an immediate
Rosenberg, 326
Amarante v.
visa. See
II
(9th
1964)
Scalzo
F.2d 58
Cir.
(E.D.Pa.1963).
F.Supp.
attempts
Hurney,
to avoid
*3
foregoing
beneficiary
by contending
required if
of
conclusion
out
the
The
is
though
immigrant
immigrant
country
request
visa
even
issued,
no
an
visa had been
petition
officer at
consular
husband’s
under
from a United States
sec
charge
entry.
approved
port
tion 205 mooted
The
the
the
contained in
of
merely prima
of
evidence
the order to show
An
tion is
facie
cause.
additional
qualification
the
fact must
noted in
for issuance of
visa.
be
order to consider
only
may
1,
this
1972,
if
con-
contention.
The visa
be issued
the
being
by
Immigration
while
that the alien is
held
sular officer concludes
fully
the
immigration
agents,
Figueroa signed
qualified
under the
Jose
a
immigration
petition
of- withdrawal of
laws for the visa. The
the
he had filed
inspects
upon
29,
Accordingly,
on March
the alien
his ar-
ficer who
at the
deportation hearing
the
is
of
rival
satisfied that
alien
time
the
must be
or
the
permanent
der to
If
show cause had
for
residence.
not been
admissible
su
living
already
argues,
perseded,
by
ap
in the
the alien
as
is
an
proved petition
States,
may
circum-
under certain
accord
the
he
status
immigrant.
stances,
nonquota
of
the
a
apply under
245 of
section
adjustment
Act,
1255,
of
for
U.S.C. §
argues, however,
the
permanent
status to that of a
resi-
his
withdrawal of the
was accom-
leaving
necessity of
dent and avoid the
plished
agents
by
subjecting
the
after
country
apply for a
the
visa. Such
her husband to duress
of
virtue
his
however,
requires
adjustment,
also
an
any event,
provi-
that in
arrest and
inspection
application
process
before
immigration regulations
sions of the
immigrant
may
approved.
be
Since no
respect
were not followed with
had
at the
been issued
hearing,
petition.1
time of her
it is clear that
withdrawal of the
pertinent
regulations
(2) Upon
read:
1. The
the death of
or
beneficiary.
AP-
PART
OF
205 —REVOCATION
(3) Upon
legal
PROVAL
PETITIONS
OF
rela-
termination of the
tionship
See.
of husband and wife when a
spouse
revocation.
205.1 Automatic
has accorded status
as the
of a citi-
respectively,
alien,
205.2 Revocation on notice.
zen or lawful
resident
un-
201(b),
203(a)(2)
205.3 Procedure.
der section
section
of
or
Authority:
provisions
The
this Part
the Act.
beneficiary
(4) Upon
reaching
under secs.
205 issued
a child
166, 173, 175, 178,
205, 212,
age
66 Stat.
accorded imme-
when he has been
179, 180,
;
1101, 1103,
201(b) ;
8 U.S.C.
diate relative
status under
section
1153, 1154, 1155,1182.
except
independ-
however,
a native of an
Hemisphere
country
205.1 Automatic revocation.
ent
or
Western
approval
Zone,
sec-
a
made under
ac-
such
is valid to
Canal
203(a)(1)
with
tion 204 of the Act and
accordance
of the
cord status under section
chapter
beneficiary
as of
Part 204
is revoked
unmarried or
of this
Act
if the
remains
following
any
marries,
the date of
if he
is valid to ac-
such
beneficiary’s
203(a)
circumstances
occur before
cord status under
section
journey
or,
relationship.
if the
commences
Act for the duration of the
U. S.
adjustment
beneficiary
applicant
Upon
an
ac-
is
resident,
permanent
before
citizen
status
to that of
child of U. S.
corded status
201(b)
application
final:
his
becomes
Act or status
the decision on
under section
(1) Upon
(a)
petitions.
daughter
formal
under
Relative
S. citizen
son or
of U.
Act;
however,
203(a)(1)
ex-
of withdrawal
filed
section
country
approved
petition.
independent
cept
the officer who
for a native of an
with
underlying
,
under the
it is
circumstances
.
.
ad-
circumstances
petition are not
ditional evidence that
the withdrawal
properly
not bona
for consideration.
us
before
fide.”
a collateral
circumstances
raised
Those
respect
argument
petitioner’s
With
subject
review
not
to our
issue
is
comport
did not
withdrawal
say
col
of the order of
We
regulations,
with
more troublesome
relating to
the matter
lateral because
question
presented
would be
if we were
pe
and withdrawal of visa
‘free to consider
it. The Government
scope
of a de
titions
is not within
says that
the notice of withdrawal was
portation
under
section
“duly” signed by
Jose
before
1252(b),
242(b)
U.S.C. §
Immigration
an officer of the
Service at
a court
therefore
reviewable
approved
the same office which had
appeals
under section
“obviously”
and that
meets
Cheng
1105a(a).
Act, 8
See
U.S.C. §
requirements
of 8 C.F.R. 205.-
*4
INS,
206,
Fan Kwok v.
392 U.S.
88 S.Ct.
1(a)(1).
sanguine
We are not as
as
(1968).
1970,
this
support of unless the certifica- only upon § 205.2 shall be made thereafter tion is revalidated. oppor- the tunity an who shall be (2) Upon death or support in to offer evidence beneficiary. opposition grounds al- and in (3) Upon formal notice withdrawal filed of leged approval. If revocation of ap- with the officer who upon previously reconsideration the proved third-preference a granted revoked, shall be is case. reasons informed of the decision with the (4) Upon filed formal notice of withdrawal days therefor and shall have 15 after ap- with the officer' who service of the of decision within notification proved sixth-preference petition in a appeal provided in Part 3 of case. chapter, a if filed for this employer’s (5) Upon termination paragraph (1), (2), (4), preference or under sixth-preference business in a case. (5) 203(a) Act, an or for section (c) [Reserved] in section immediate relative as defined (d) appear Notice. shall a dis- When it 201(b) a child as de- of the Act other than trict a director that Act, 101(b)(1)(F) or fined in section automatically revoked, has been he shall chapter, provided of this Part 103 cause a notice of such be sent revocation to preference a under was filed for juris- promptly having to the consular office (6) paragraph of section or copy application a diction over the visa Act, in section for a child as defined or petition- of such notice to be mailed to the (b) (F) and the consular 101 er’s last known address. jurisdiction appli- having office over 30, 14775, 1965, [30 F.R. Nov. as amended cation shall be notified of the revocation. Apr. 1967; 6260, 21, at 32 F.R. 35 F.R. 11470, 8, 1972] June F.R. [37 May 11, 7285, 9, ; 2861, Feb. 1970 36 F.R. 1971; 30, 5836, 36 1971] F.R. Mar.
195
literally comport
severity
remedy,
taken did not
with the
In
view the
provision.
procedural
However,
not think
we do
fairness is essential at a
point
hearing culminating
should turn on the
case
in a
or-
light of what we have
about
re- der.
lawfully
said
its
Once
alien
an
has been
“
viewability.
States,
admitted to the United
‘not
Congress may expel
even
him without al-
lowing
opportunity
him
to be
Ill
fair
Kwong
Colding
heard.’
Hai Chew v.
Finally, petitioner contends that
590, 597-598,
[344 U.S.
73 S.Ct.
97
is valid under the
laws
added).
(1953)]
(Emphasis
L.Ed. 576
marriage,
Illinois
some
It
adequate
is likewise axiomatic that
unspecified manner,
deporta
bars her
prereq-
notice is
first and
foremost
tion. The contention
not relevant
is
hearing.”
uisite of
fair
Aalund v.
marriage since a
valid
Marshall,
(5th
Cir.,
461 F.2d
712
exempt
States citizen does not of itself
1972).
an alien
Rogers,
from
Silverman
(1st
1970),
surety
F.2d 102
437
Cir.
received
denied,
surety produce
cert.
402 U.S.
91 S.Ct.
written demand that the
Rog petitioner
hearing” August
(1971).
29 L.Ed.2d
“for
Swartz v.
be-
ers,
U.S.App.D.C. 1,
special inquiry
fore
cial false; testimony that her no- to advance not entitled
that she was proof would use the Service tice challenge testimony support
voluntary departure.1 however, posi- terms, practical In concerning mar-
tion petition probably riage the visa holding
brought about the dominated, hearing, con-
trolled, to me that result. It seems required fairness
fundamental po-
tioner advance be on those take
sition Service would
matters. CAMPBELL, Petitioner,
Bruce A. DISTRICT COURT
UNITED STATES FOR NORTHERN DISTRICT *6 Respondent. CALIFORNIA,
No. 73-3022. Appeals, States Court
Ninth Circuit.
April 19, 1974. 15, 1974. Aug.
As amended
Rehearing Rehearing En Banc Sept. Denied supra, Aalund, F.2d at 713. Cf.