*1 titioner. Petitioner, CRUZ-SANCHEZ, Bauer, Foran, William J. Thomas A. Attys., Lulinski, U. S. John Peter Asst. IMMIGRATION AND NATURALIZA- Atty., Chicago 111., respondent; SERVICE, Respondent. TION Wilson, Atty. Gen., Will Paul C. Summitt, Attys., Robert Nuckles, W. United States Court Dept, Justice, Washington, C., of D. Seventh Circuit. counsel. 13, 1971. Jan. ENOCH, Before DUFFY and Senior Reconsideration and On Judges EERNER, Circuit March 1971.
ENOCH, Petitioner, Dario seeks Cruz-Sanchez deportation review of final is- order Immigration sued and Natural- Service, Department ization of Justice. July 11, entered Roma, Texas, the United States at as an immigrant permanent residence. September 1968, was ordered why deport- show cause should (11) provisions 241(a) ed under the of § Nationality of the Act. (11) Title 8 as one relating an illicit offense drugs traffic in narcotic or marihuana.1 Special At In- before a quiry pursuant Officer 8 U.S.C. at which accom- § panied by counsel, Inquiry Officer deportable found § designated 1251. Petitioner Mexico as country be de- which he should ported His ordered. appeal Immigration Ap- Board of peals July was dismissed on August 7, Warrant of issued late, or who the illicit entry cotic been convicted order ed who— cluding classes (a) (11) is, a violation any drugs Any an alien at possession or hereafter been, alien in the United States any Hs Deportable or of, or crewman) aof marihuana, time a narcotic or a regulation [*] has been convicted General, violation conspiracy at or aliens —General any shall, traffic # or drug relating time after who has of, upon deport- to vio- addict, [*] or a nar- (in- conspiracy marihuana, ulation pose exportation dispensing, giving away, portation, ing, ing, manufacture, pounding, pecaine aration of tion-sustaining pensing, giving away, transportation, or governing or the transportation, opium manufacture, production, any opium, violate, addiction-forming opiate; salt derivative or or coca leaves possession or production, sale, exchange, dis- controlling coca any importation, * * * importation, sale, exchange, leaves, law or for the compound- or addic- or heroin, isoni- prep- com- pur- tax- reg- ex- or *2 1088 Supreme the Immi- petitioner States Court and not Notification was gration 2, September and Naturalization departure date was his
that was petition for review hand asserts Petitioner on the other August 29, 1969. its face his is void on that conviction jurisdiction ap- the of the local under 21, petitioner 1968, who June citing disregarded, plea and can United counsel, peared of on his own with Freislinger, of ex rel. Behalf States on Dis- guilty, in the S. U. was Smith, Cir., 1930, Kappel 7 41 F.2d v. of the District Northern trict Court however, case, it was In that a two- on judgment the was not conceded charging that with him count indictment merely erroneous, actually but void. with- being of marihuana a transfereee tax, required in vio- the payment out of v. Hol ex rel. Marino States United 4744(a). 26 lation of Title U.S.C. Cir., 1955, ton, on which 7 suspended sentence District Court The relies, peti of a also arose out probation for on placed and corpus. for writ of habeas that years. five there had been a ease confession of er ror the General of Illinois not that was asserts Petitioner now Supreme and the United Court States charge pleaded guilty of the but in fact ruled had that based on the confession only after guilty of counsel on advice facts, undisputed of Mari- error and the being At- States assured the United process no of had denied due law. been plea torney would Court that his and the question this con The before Court stay adversely in the his affect ruling on the cerned the effect of that not constitute and would United States original The State Court conviction. says grounds deportation. he was He which the cause was remanded construed plea in promised result his would that Supreme the Court mandate without the termination of hold a mean that the State Court should having go jail. his hearing complete and determine full of decision the He also relies on the de whether Marino in fact had been Leary Supreme in Court prived rights constitutional States, 89 395 U.S. v. United just proceeded had to do the State Court holding Dr. 23 L.Ed.2d S.Ct. The confession of error on which that. Leary’s of an offense conviction Supreme relied was the Court had constitu positive stated set forth in terms and tionally is view defective. evidently facts from outside the record. longer in effect is the statute no that majority The this held that on Court prior it on based convictions Supreme Court the before the fallen the have statute. with appeared Marino relief but entitled to argues that, Leary, like Dr. Petitioner charges that whether his of violation complied the statute he could with have rights his constitutional were well by foregoing only his constitutional the founded remained undetermined against privilege incrimination. self had for that rea cause remanded been position of of Immi- The District The the Board son. Court’s denial writ cert, gration affirmed, Appeals corpus no had au- that it habeas was go thority L. behind the record the den. 350 alien’s to determine the Ed. 868. The ultimate result District guilt Immigration Offi- or innocence as and Naturalization proved properly in act in an administrative and not Service to have relied cers Respondent original judicial capacity. on the conviction as still stand a As brief, ing. pe effect No such issue its the retroactive arises here. *3 proceeding. Respondent-Appellee. attacked The conviction proceeding See itself. Cir., I.N.S., 7 Rassano Sixth Circuit. grounds) (remanded on other Feb. there and cases cited. objections use of a support- by him
statement are peti- by ed which shows warnings given complete
tioner was Miranda
accordance with the dictates Arizona, L.Ed.2d his state- voluntary.
ment was petition is dismissed. review
Petition dismissed. FOR
ON PETITION RECONSIDER- REHEARING.
ATION AND CURIAM.
PER matter on for came consideration
on a Petition for Reconsideration petitioner herein, Cruz-Sanchez, and Answer there- Respondent, to filed
and Naturalization appears
It to the Court Unit- Court,
ed States District for the North-
ern District of now vacated the sentence of June Burton, pro. per. Carl Edward 1968, upon Deporta- which the Order of George Long, Atty., J. Kenneth sought to be reviewed was based. Louisville, Tuggle, Atty., J. S.U. Ky., appellee. It is therefore ordered that this Court’s January 13, 1971, which dis- PHILLIPS, Judge, Before Chief missed the Petition for Review of that PECK, Judge, and O’SULLI- pro- Order of be modified to VAN, Senior Circuit vide instead for remand of this matter O’SULLIVAN, respondent give who is directed to
the matter further consideration appeals Carl de- Edward Burton from light of the pre- vacation the sentence petition nial of his Section 2255 which viously imposed sought on the Petitioner. vacation im- of a life sentence notes States, supra, Leary chal titioner’s conviction has not been United is lenged question ultimately of Im- United The Board courts. migration Appeals points in its out dis- is suc- missal BURTON, Carl Edward Petitioner- challenging cessful his conviction Appellant, judgment, court which rendered reopen move to America, UNITED STATES