*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 10 L.Ed.2d 1000 said that ““if the guilty He that she ments. The Court also smuggling found leaving country she is to accom and that to exclusion contrary to object which is itself proceedings. plish some * Cordova, Valdemar A. Honorable Arizona, Judge District for the District sit- ting by designation. unnecessary The Court found it to decide

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- 502 F.2d at 1093. any illegal activity val engaged was not majority goes astray by attempting attempted when he to reenter the United distinguish Palatian on the basis that Maldonado-Sandoval, we held States. there provided was no full trial to Plasencia day that the resident alien’s two or three “ provided majority as was to Palatian. The ‘innocent, casual, trip to Mexico was an ” between the overlooks the difference stat- excursion,’ and “did not mani- and brief utes involved in the two cases. The statute in a manner which depart fest ‘an intent to Palatian was 8 U.S.C. § meaningfully interrup- can be which provides “[a]ny for the exclusion of ” permanent tive of the alien’s residence.’ alien who has been convicted aof violation Fleuti, quoting Rosenberg Id. at of, violate, or a conspiracy law or supra, 374 at 83 S.Ct. at 1812. regulation relating possession to the illicit case, Palatian and in the instant on the of or drugs traffic in narcotic or marihuana hand, casual, “innocent, other there was no (emphasis added). ...” Pursuant to this excursion.” The and brief excursions in statute, we found that had an in- illegal purposes, and both cases were for accomplish object tent which was interruptive meaningfully were contrary to a reflected in the immi- aliens’ residences. therefore, gration even if Pala- Congress has made a determination tian departing formed this intent after that are nec- States, procedural safeguards from the certain “meaningful in- terruption” of his of an alien essary prior residence had occurred. to the exclusion smuggling are not neces- drug upon based alien based exclusion of an to the

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.