*2 all, Plasencia, deportation pro- only if at SCHROEDER, and Before WALLACE ceedings. *, and District Judges Circuit CORDOVA Judge. The distinction between exclusion deportation proceedings and is proceedings
SCHROEDER,
Judge:
our
law. Aliens
central
must decide whether
appeal
In this
we
must
seeking to enter the United States
Immigration
the
& Naturalization Service
admissibility
their
establish
border,
determine,
in sum-
at the
(INS) may
at
or
proceedings, generally held
the border
a law-
whether
mary
proceedings,
exclusion
in the
entry.
already
of
Those aliens
port
resident alien
fully admitted
may
expelled only when
United States
be
the
after
may return to
United States
a
deporta
carry
can
its burden in
brief
abroad. The district court held
visit
deporta
the alien is
proceedings
tion
against
could
such an
proceed
the INS
proceedings
generally
are
Deportation
ble.
deportation proceedings.
alien
We
only
subject
and
held near the alien’s home
are
agree and affirm.
safe
stringent procedural
to much more
Plasencia,
Appellant, Maria
a citizen of
is
proceedings.
exclusion
See
guards than
per-
El
1970
a
Salvador
since
has been
INS,
278,
Maldonado-Sandoval v.
518 F.2d
manent resident alien
the United States.
(9th Cir.1975).
280 n.3
1975,
a
returning from brief
Mexico,
was
she
arrested at the border and
if his
only
An alien is excludable
charged
smuggle
with
attempting
six
coming
is
into the United States
country.
aliens into the
She declined to
101(a)(13),
in INA
as that term is defined
§
day
obtain counsel. The next
exclusion
1101(a)(13).
Maldonado-Sando
U.S.C. §
proceedings were commenced at the border
280. If the alien is
val v.
and she was ordered
excluded
resident who is
pursuant
United
to INA
§
abroad,
journey
after a
United States
makes
U.S.C.
§
has
the return
Supreme
held
smuggling
gain
of aliens for
an excludable
if
was
amounts to an
Plasencia
proceedings
offense.
those
interruptive”
of his resi
“meaningfully
had
proving
the burden of
that she was
Rosenberg v.
su
dence America.
291,
country.
entitled to enter the
INA
pra, 374
83 S.Ct. at
Immigration Judge
1361. The
L.Ed.2d at 1008. The Court listed several
garded
appropriate
it
in the exclusion
factors which are relevant
whether
ceedings to determine whether Plasencia’s
meaningful
interrup
given departure
depar-
visit to Mexico
“a meaningful
absence,
tion,
length
of the
including
ture from the United States within the
purpose
trip,
Fleuti,”
meaning
docu
(1963).
special
alien
to obtain
travel
some or alien had interruption that the whether the appear it would could have occurring prop- journey would whether his abroad thereby of residence right to remain in the meaningful.” Id. effect on his erly ultimate ground on the It reversed States. argue, relies on Fleuti not be excluded without the that he could *3 the Immi- circularity, with some that since to which he would procedural process due gration Judge found that Plasencia was at- he never left have been entitled had gain, tempting smuggle the District of Colum- country. On remand “object since this is an which is itself con- meant that he was bia Circuit held that this immi- trary to some hearing at which the at least entitled to laws,” gration “entry” she made an in 1975 moving party and had government was the subject pro- to exclusion and is therefore requirements which proof, the burden of ceedings. This misconstrues Fleuti. The proceedings. by are not satisfied exclusion entitled issue here is whether Plasencia was Rogers, Hai v. Kwong Chew her to have violation (D.C.Cir.1958). trip laws and the of her determined than deportation pro- rather exclusion This Circuit’s decision in Maldona ceedings. presented That issue was not INS, supra, stands for the do-Sandoval v. Fleuti. Kwong same established in Hai principle permanent resident alien does not Chew: deportation
Fleuti was a case. The issue procedural protection lose the to which he is alien, was whether the who had been admit- making a brief simply by ted to otherwise entitled permanent residence in journey abroad. We held in Maldonado- “entry” in 1956 when he returned had, INS, from a supra, permanent brief visit abroad. If he then Sandoval v. that a he was arguably deportable under resident alien from a brief INA 1251(a)(1), 8 subject pro as exclud- Mexico was not to exclusion § § able at the “entry.” time of his 1956 ceedings: Court held that “entry” he had not made an appears, during When evidence an exclu- and, hence, was not deportable on that sion the alien has been proceeding, that
ground.1 granted theretofore resident status and is seeking to return to the United States neither held implied nor after a brief outside the United visit question of Fleuti’s “entry” 1956 States, proceeding shall be the exclusion could have been decided in exclusion terminated. fact, ceedings. case, In an earlier cited with approval in strongly supports F.2d at 281. 518 the view that even if a resident INS, supra, v. Maldonado-Sandoval alien does make an after a brief disputed question factual abroad, he still cannot be original by the alien had obtained his visa proceedings. exclusion fraud. The argues Service that Maldona- Kwong Hai Colding, distinguished Chew v. do-Sandoval should be be- (1953), unquestionably L.Ed. 576 cause here the alien alien left resident admitted on the basis of a valid visa but States for four ship. may months work on a have violated the laws On his during return he was excluded under a the absence. No such distinction regulation permitted Kwong Important exclusion with- was made in Hai Chew. out a hearing under certain circumstances. to our decision in Maldonado-Sandoval (1) entry 1251(a)(1) pro- 1. INA at the time of was within one or 8 U.S.C. § by vides: more of the classes of aliens excludable existing entry.... the law time of such (a) Any (including alien in the United States shall, crewman) upon an alien the order Attorney General, deported who- then, “entry,” at the time of the excludable permitting unfairness manifest course, pursuant is deportable the alien cir- proceedings to use exclusion 1251(a)(1). 241(a)(1), 8 U.S.C. § to INA proceeding deportation cumvent deportation used Indeed, has the Service the alien made a simply because quirements g., cases. E. in such procedures country. Maldona- out of the journey brief Martin-Men Rosenberg, supra; n.3. Fleuti v. INS, at 280 & do-Sandoval (9th Cir.1974), INS, F.2d 918 this case doza present unfairness The same 789, 42 denied, 95 S.Ct. cert. be the same. also the result should simply We hold that (1975). L.Ed.2d 810 that Pa argues Finally, mandatory. they are Cir.1974), F.2d 1091 latian v. Affirmed. to decide the permits the Service resi returning permanent of a WALLACE, Judge, dissenting: proceedings. dent *4 with Plasen- Although I am sympathetic alien re There the was unlike this case. require us that bind plight, cia’s the cases with to Mexico from a brief turned not simply to does me dissent. The law He was marijuana. of fifty-five pounds procedural of panoply for the full provide import for prosecuted and sentenced then re- concludes are majority which the rights the alien only It was after ing drug. the quired. marijuana for the prosecuted had been most of his sen and had served smuggling If Plaseneia “entered” the United States were com proceedings tence that exclusion object an accomplish intent to with an smuggled Whether Palatian menced. in the contrary policy is to some which in a fully litigated been marijuana had laws, must be the district court immigration enjoyed which he the in proceeding
criminal
Rosenberg
in
Supreme
reversed. The
Court
rights. Unlike
procedural
panoply
full
of
Fleuti,
by
Plaseneia,
prejudiced
was not
(1963),
that a resident
held
L.Ed.2d
deportation proceed
than
exclusion rather
alien,
does not
country,
who has left our
fact,
complain
and, in
he did not ever
ings,
if
or she did
the
he
“enter”
proceed
the
use of exclusion
of
Service’s
which
depart
“to
in a manner
not intend
simply
in the case was
ings. The issue
meaningfully interrup-
as
can be
whether,
undisputed
matter of law the
as a
residence.”
tive of the alien’s
with
smuggling
was or was not an
The Court
at 1812.
Id. at
83 S.Ct.
Palatian,
there
meaning
in the
of Fleuti.
to the deter-
relevant
stated that one factor
fore,
purpose
this case where
of
does not control
“is
of that
intent
mination
leaving
exclu
visit,
purpose
basis for the alien’s
of
disputed factual
for if
object
some
which
improperly litigated
accomplish
sion was
country is
reflected in
policy
to the
some
prejudice
contrary
and where the
itself
proceedings
appear that
safe
it would
being
procedural
immigration
alien in
denied the
our
occur-
thereby
interruption
is mani
of residence
deportation proceedings
guards
regarded as mean-
be
ring
properly
would
fest.
ingful.” Id.
unduly
not be
bur-
should
is wheth-
Thus,
of our attention
the focus
today.
decision
by
holding
dened
our
Our
leaving the United
in
Plasencia’s
er
applies only to cases in which
something in violation of
to do
a visit
alien is
resident
found to
laws. She was
our
abroad and the
is whether
majority contends
interruptive”
of the
done so. The
“meaningfully
have
depor-
in a
finding can be made
In such cases
such a
alien’s American residence.
can be
This conclusion
proceeding.
excludability
must
tation
the issues of
misreading of the case
only by
If
deportation proceedings.
reached
litigated
Palatian v.
point,
showing
directly
is most
carry
can
its burden
Cir.1974). the alien
which Palatian was ex-
The statute under
was unlike the
majority states that Palatian
cluded, however,
in Palatian
required
the alien
a conviction.
instant case because
excluded after his conviction
had been
at 1093.
F.2d
therefore,
had,
He
importing marijuana.
contrast,
the instant
the statute in
“in
proceeding
received a full criminal
which
case is 8 U.S.C. §
proce-
panoply
he
the full
enjoyed
alien who
“[a]ny
vides for the exclusion
however,
Palatian,
we
rights.”
dural
have, knowingly and for
time shall
with whether the de-
were not concerned
abetted,
induced, assisted,
gain, encouraged,
afforded him
trial had
fendant’s criminal
try
to enter or to
any other alien
or aided
Rather,
safeguards.
adequate procedural
in violation
enter the United States
whether there had
we were concerned with
require
does not
simply
law.” This statute
re-
interruption”
“meaningful
been a
exclusion,
drug
as does
a conviction for
quired
Supreme
by
Rosenfield,
1 Gordon &
possession statute.
Fleuti,
83 S.Ct. at
Procedure
2.46
Immigration Law and
language
focused on the
1812. Palatian
to this
(1980). When Plasencia returned
above, to find that a mean-
quoted
attempted
accomplish
country, she
ingful interruption of Palatian’s residence
contrary
to a
object
that was
had occurred. We further stated:
By
laws.
stat-
flected in our
attempted
What Palatian did when he
Therefore,
ute,
required.
no conviction was
country
come back to this
from Mexico
Palatian,
“meaningful
interruption”
like
accomplish some
“[attempt]
was an
*5
had occurred.
of Plasencia’s residence
object
contrary to some
which is itself
policy
laws.”
majority
relies on Maldonado-Sando-
provide
These laws
for the exclusion or
Cir.1975)
(per
val v.
deportation of an alien who has been
curiam),
perma-
that a
proposition
for the
smuggling marijuana.
convicted of
proce-
nent resident alien does not lose
U.S.C.
protection
dural
to which he or she is other-
1251(a)(ll).
This is
clear indication
making
jour-
a brief
simply by
wise entitled
gen-
that
laws reflect a
however,
case,
ney
That
is distin-.
abroad.
problem
eral concern over the
drug
guishable from Palatian and
instant
control.
case because the alien in Maldonado-Sando-
sary prior for- illegal aliens. The smuggling of
upon conviction; the lat- a criminal requires
mer statutes though the
ter does not. Even treat- disparate seemingly for a
provide has the
ment, unquestionably “Congress of undesirable exclude all classes
power to and the courts are country,
aliens from this exclusion when enforcing such
charged with it ....” has directed
Congress supra, 374 U.S. right power or
1811. We do not have the from requirements
interpolate procedural attempt Plasencia’s to another.
one statute across the border smuggle illegal departure her
made of her
meaningfully interruptive was thus to exclu-
residence. She I country. enter the attempt
sion on her holding the district court’s
conclude Immigration and Naturalization against such an alien proceed could is incor- deportation proceeding in a
rect, and, therefore, I would reverse. *6 NELSON, Petitioner/Appellant,
Raymond McCARTHY,
Daniel
Respondent/Appellee.
No. 79-2605. Appeals,
United States Court
Ninth Circuit.
Nov. 1980.