Miguel Angel LEAL-RODRIGUEZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 91-3692.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 23, 1992. Decided April 6, 1993. As Amended April 19, 1993.
990 F.2d 939
The only issue left for us to resolve is whether the district court abused its discretion in awarding attorney‘s fees and costs. Pursuant to
III.
For the foregoing reasons, the judgment of the district court is affirmed in all respects. Each party is to bear its own costs on appeal.10
Fred Foreman, U.S. Atty., Office of the U.S. Atty., Criminal Div., Chicago, IL, Mark C. Walters, Lori L. Scialabba, Joseph F. Ciolino (argued), Dept. of Justice, Office of Immigration Litigation, Richard L. Thornburg, U.S. Atty. Gen., Office of the U.S. Atty. Gen., Washington, DC, A.D. Moyer, Michael L. Harper, Samuel Der-Yeghiayan, I.N.S., Chicago, IL, for respondent.
Before CUMMINGS, FLAUM, and KANNE, Circuit Judges.
FLAUM, Circuit Judge.
Miguel Leal-Rodriguez (“Leal“) brings this appeal from an order of deportation affirmed by the Board of Immigration Appeals (BIA). An immigration judge ordered Leal deported on two grounds: as an alien convicted of a controlled substance violation, see
We begin with a reprise of the events that ultimately led to Leal‘s order of deportation. We accept the BIA‘s factual findings as supported by reasonable, substantial, and probative evidence. See
Leal was born in Mexico in 1949. He entered the United States in 1970 and married Irma Montenegro, an American citizen, one year later. After the birth of the couple‘s first daughter in 1974, Leal became a lawful permanent resident alien of the United States. Except for the one trip discussed below, Leal has lived continuously in this country since his first arrival in 1970.
In 1980, Leal was convicted in the Northern District of Illinois of possession with intent to distribute heroin. He was sentenced to six months work-release as part of a five-year period of probation. While on probation, Leal planned a short trip to Mexico to visit his ailing grandfather and to sell a piece of land that he owned there. Before leaving, he consulted his probation officer and obtained written permission to travel.2 Leal crossed into Mexico by car on December 21, 1982; he attempted to return through the Immigration and Naturalization Serviсe‘s (INS) inspection point at Eagle Pass, Texas, on January 6, 1983.
At Eagle Pass, Leal presented himself for inspection, seeking readmission as a returning resident alien. While they were checking his baggage, immigration officers found the letter from Leal‘s probation officer, which alerted them to his 1980 drug conviction. After verifying this information, the officers determined that Leal should not be admitted into the United States. They then took several actions. The officers accepted a sworn and signed statement by Leal describing the nature and circumstances of his drug violation. See CR 200. They also served him with a Form I-122, an immigration document that advised Leal that he was not presently entitled to enter the United States because of his drug conviction, but that he would be notified by mail (to be sent to an address in Mexico that Leal provided) of the time and place of his exclusion hearing before an immigration judge. See CR 170. Finally, the officers confiscated his “green” or alien registration card.
Before the immigration judge and the BIA, Leal complained that the officials at Eagle Pass did not inform him that he was entitled to receive a formal exclusion hearing. Both courts found this testimony incredible. See CR 3, 37-41. The immigration judge noted that Leal claimed he did not remember receiving any documentation at Eagle Pass, even though only one week later he handed his attorney in Chicago the Form I-122, which stated his right to present his case before an immigration judge. See CR 38. The judge found more believable the rebuttal testimony of Inspector Charles E. Cunningham, the supervisory immigration inspector who signed the Form I-122. According to Cunningham, INS follows a standard procedure in all cases involving denials of entry. An immigration officer advises the alien of the charge of excludability against him and of his right to appear before an immigration judge. The officer also provides him with a list of legal aid attorneys, including their addresses and phone numbers. See CR 105-06, 122. Finally, a returning resident alien is told to return during hours when a supervisor is present who can determine whether he may be permitted to enter under the Fleuti doctrine. See CR 106, 112. Cunningham confirmed that all aliens are told their rights in Spanish—in fact, he testified that he and the two other inspectors who witnessed Leal‘s written statement speak Spanish. See CR 121-22. Leal‘s individual
Leal, however, neither waited for his exclusion hearing to be scheduled, nor returned to see an immigration supervisor, nor called any lawyer on the legal aid list. Instead, he took a bus that same day from Eagle Pass to the port of entry near Laredo, Texas, and crossed the border by wading through the Rio Grande. He then walked for some twenty hours until being picked up by a traveler and taken to Chicago. According to later testimony, Leal felt he needed to return quickly because his oldest daughter was hospitalized. Upon his return to Chicago, Leal contacted his attorney, Consuela Bedoya, who moved to terminate the exclusion proceedings in Texas since her client had already entered the country.
Leal testified that he had been told the wait for his exclusion hearing could last indefinitely—that it “could take a day, could take a week, could take a month, could take a year or two years.”3 CR 69. In fact, INS sent a letter to Leal‘s address in Mexico on March 17, 1983, scheduling his exclusion hearing for April 19, 1983. After receiving Bedoya‘s letter, INS administratively closed its exclusion case. On June 15, 1983, INS charged Leal with deportability under
II.
The first issue before us involves the BIA‘s ruling that Leal is properly deportable for entering the United States without inspection. Leal contends that the BIA‘s interрretation of the INA does not deserve deference because it violates Supreme Court precedent.
A.
Immigration law features two parallel statutory schemes for regulating the movements of non-citizens. One involves exclusion, or the process of excluding people who seek to enter the United States, while the other involves deportation, or the process of expelling people who are already present in the country.
One of the more venerable principles of immigration law is the “entry” or “reentry doctrine,” under which an alien is subject to possible exclusiоn every time he seeks to be readmitted to this country after a trip abroad. Even if the alien‘s inadmissibility is not detected at the time of admission, he can still be placed in deportation proceed-
Fleuti involved a four-year permanent resident alien, George Fleuti, who crossed the border into Mexico and then returned after a visit of several hours. At the time of his return, Fleuti was excludable as an alien “afflicted with psychopathic personality” because he was a homosexual, see
The Supreme Court exprеssed concern about the fairness of expelling a lawful resident who unwittingly jeopardized his right to live in this country by going abroad for a matter of hours. The Court explained:
Certainly when an alien like Fleuti who has entered the country lawfully and has acquired a residence here steps across a border and, in effect, steps right back, subjecting him to exclusion for a condition, for which he could not have been deported had he remained in the country seems to be placing him at the mercy of the “sport of chance” and the “meaningless and irrational hazards” to which Judge Hand alluded. Di Pasquale [v. Karnuth], 158 F.2d 878, 879 (2d Cir. 1947). In making such a casual trip the alien would seldom be aware that he was possibly walking into a trap, for the insignificance of a brief trip to Mexico or Canada bears little rational relation to the punitive consequence of subsequent excludability.
Fleuti, 374 U.S. at 460-61, 83 S.Ct. at 1811. In order to remedy this inequitable result, the Court fashioned an exception to the strict reentry doctrine.
Construing the definitional section of the INA,6 the Court reasoned that an alien makes an “entry” only when he “inten[ds] to depart in a manner which can be regarded as meaningfully interruptive of the alien‘s permanent residence.” Id. at 462, 83 S.Ct. at 1812. In a phrase, it held that returns to this country will not count as “entries” if they follow foreign excursions that are “innocent, cаsual, and brief.” Id. Some factors proposed by the Court for determining whether a departure yields a true entry are the duration of the alien‘s absence, the purpose of his visit, and whether he procured travel documents that would have alerted him to the possible consequences of leaving the country. As the Court explained, subjecting a returning alien to the exclusion process only if he has knowingly undertaken a meaningful trip “protects the resident alien from unsuspected risks and unintended consequences of such a wholly innocent action.” Id.
B.
In Leal‘s case, the BIA found that Leal‘s departure qualified as “meaningfully interruptive” of his residence under two of
The BIA also relied on the reasoning of its own decision in Matter of Kolk, 11 I. & N. Dec. 103 (BIA 1965), to hold as a general matter that Fleuti does not apply to permanent resident aliens who enter without inspection. In Matter of Kolk, the BIA stated that the policy of inspecting aliens dаted back to the Act of March 3, 1875, 18 Stat. 477 (1875), and has been a continuous feature of the immigration system ever since. It cited the section of the INA that provides: “All aliens arriving at ports of the United States shall be examined by one or more immigration officers at the discretion of the Attorney General and under such regulations as he may prescribe.”
Because this case involves an agency‘s interpretation of congressional legislation, as reflected through the lens of Supreme Court precedent, we must defer to the BIA‘s views so long as they are a reasonable reading of the INA on a question to which Congress has not spoken. Zalega v. INS, 916 F.2d 1257, 1259 (7th Cir.1990); Variamparambil v. INS, 831 F.2d 1362, 1367 (7th Cir.1987) (citing Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984)). Leal‘s attempts to criticize the Board‘s decision as unreasonable, while ably argued, ultimately do nоt convince us.
Leal argues that an illegal act performed at the very end of a trip cannot vitiate an innocent purpose that attended the excursion up to that point. He cites several decisions suggesting that rule, but there are counterbalancing decisions holding that the time of formation of an illegal purpose is irrelevant to the Fleuti analysis. See, e.g., Cuevas-Cuevas v. INS, 523 F.2d 883, 884 (9th Cir.1975) (holding, in the case of an alien who helped others illegally cross the border, that his visit lost its innocent purpose when he decided to engage in the unlawful act); Palatian v. INS, 502 F.2d 1091, 1093 (9th Cir.1974) (ruling that returning alien who tried to smuggle in twenty-eight bricks of marijuana committed an entry because “[t]he ‘purpose of the visit’ referred to in Fleuti ... may have been innocent when it began, but it was not innocent when [the alien] sought to re-enter this country“); Bufalino v. INS, 473 F.2d 728, 731 (3d Cir.) (holding that conscious misrepresentation of citizenship at the time of entry cannot be characterized as an innocent excursion calling for Fleuti relief), cert. denied, 412 U.S. 928, 93 S.Ct. 2751, 37 L.Ed.2d 155 (1973). This court has approved the Palatian analysis. See Lozano-Giron v. INS, 506 F.2d 1073, 1078 (7th Cir.1974). In sum, whether a trip must be “wholly innocent” to qualify as “innocent, casual, and brief” is an open question to which neither Congress nor the courts have provided a definitive answer. It is thus an issue on which deference to the BIA is particularly appropriate.7
Leal contends that INS‘s interpretation of “entry” is not entitled to deference because the BIA has, over time, advanced several different interpretations of “entry” that are not themselves consistent. See INS v. Cardoza-Fonseca, 480 U.S. 421, 446 n. 30, 107 S.Ct. 1207, 1221 n. 30, 94 L.Ed.2d 434 (1987). Leal concedes that in Matter of Kolk, the BIA held that a returning alien who entered this country without inspection could not avail himself of the Fleuti doctrine. But he raises the decision in Matter of Wong, 12 I. & N. Dec. 271 (BIA 1976), which only two years later decided that Fleuti applied to applicants for suspension of deportation under
We are not convinced that the agency has taken different stands on this issue. Since its decision in Matter of Kolk, the BIA has reaffirmed its adherence to the principles stated there. See Matter of Ruis, 18 I. & N. Dec. 320 (BIA 1982) (holding that a resident alien‘s deportability for entering without inspection is not overcome by his subsequent dеparture and readmission). The Matter of Wong decision is not inconsistent with Kolk. Wong applied the Fleuti doctrine regarding departures and entries to the requirement that applicants for discretionary suspension of deportation prove continuous residence in this country for seven years. The fact that an alien is deportable for entering without inspection after a short trip says nothing about whether the Attorney General should be vested with the discretion to waive deporta-
ment that if a person turns himself in after knowingly violating the law, he must not have aimed to do anything illegal in the first place. The dissent also argues that Leal could not have intended to give up his residence in the United States, since he had family ties and other connections to this country. We agree. No alien fighting deportation wants to lose his residence in this country. The central fact in this case that determines Leal‘s deportability is not his subjective intent, but the illegal character of his actions.
Matter of Romero-Ballesteros is an unpublished BIA decision; by INS‘s own regulations, such decisions carry no precedential weight. See 8 C.F.R. § 3.1(g) (1992). A survey of unpublished BIA decisions shows that they are treated as limited to their facts. They do not serve as authority for later proceedings involving the same issues, nor do they make new law. It is thus inсorrect to say that the BIA has reversed its policy on the deportability of aliens who entered the United States without inspection. We will not bind the BIA with a single non-precedential, unpublished decision any more than we ourselves are bound by our own unpublished orders.9
C.
Ultimately, it does not matter whether we defer to the BIA‘s interpretation of
gration officials] to keep track of the alien after his entry.” Goon Mee Heung v. INS, 380 F.2d 236, 237 (1st Cir.), cert. denied, 389 U.S. 975, 88 S.Ct. 479, 19 L.Ed.2d 470 (1967).
The legislative history of the INA reveals that Congress viewed entry without inspection to be one of “the more important grounds for deportation.” H.R.Rep. No. 1365, 82d Cong., 2nd Sess. (1952), reprinted in 1952 U.S.C.C.A.N. 1653, 1715; see also Gunaydin v. INS, 742 F.2d 776, 778 (3d Cir.1984); Bufalino v. INS, 473 F.2d 728, 731 (3d Cir.), cert. denied, 412 U.S. 928, 93 S.Ct. 2751, 37 L.Ed.2d 155 (1973). In fact, Congress mandated criminal penalties for “any alien who ... eludes examination or inspection by immigration officers....”
We believe that Fleuti should not be read as altering this solid statutory framework. Fleuti was concerned with the inequities to which strict application of the reentry doctrine gives rise—the fact that, because of the disparity between the grounds that support exclusion and those that support deportation under the INA, a returning resident alien could be excluded from this country for reasons that would never have caused him immigration troubles at home. See Sam Bernsen, The Reentry Doctrine 20 Years After Fleuti, Immigr. J., Apr.-June 1983, at 7. The idea that a penalty as severe as the loss of his right to live in this country should depend
Deportation for entering without inspection is a different kind of penalty—it punishes an alien for flouting the immigration laws during his trip, not for having engaged earlier in apparently innocuous behavior. Fleuti was being deported for a previously existing condition that, unexpectedly, ripened into a ground for exclusion when he crossed into Mexico. Leal, by contrast, is being deported for violating a requirement to which every returning alien is subject. Aliens are charged with knowing that they must pass through inspection points at the border, and Leal himself knew that he was so obligated, as shown by his decision to wade through the Rio Grande after one frustrated attempt to reenter. The deportation Leal faces for entering without inspection was not, as in Fleuti, an “unsuspected risk[] and unintended consequence[] of ... a wholly innocent action,” Fleuti, 374 U.S. at 462, 83 S.Ct. at 1812, nor was Leal “walking into a trap,” id. at 461, 83 S.Ct. at 1811. This ground for deportation simply did not place him at the mercy of the same “sport of chance” or “meaningless and irrational hazard,” id. at 460, 83 S.Ct. at 1811, about which the Fleuti Court worried.
It is true that the Fleuti doctrine has enjoyed life in other immigration сontexts, such as the suspension of deportation and legalization processes.10 But Congress has never indicated that entry without inspection falls within the scope of Fleuti. It certainly has never shown an intention to exempt an entire class of aliens from the universal requirement that non-citizens undergo inspection when they seek admission into this country. For us to do so today would be to establish a rule that such aliens can simply ignore immigration checkpoints when they return from trips abroad. It is difficult to accept that the Fleuti Court, even if aiming to “ameliorate the severe effects of the strict ‘entry’ doctrine,” id. at 462, 83 S.Ct. at 1812, meant to fashion a rule that so undermines a fundamental policy of immigration law.
Whether Fleuti shields resident aliens from deportation for entering this country without inspection after short trips abroad is a matter of first impression in the circuit courts. In Zimmerman v. Lehmann, 339 F.2d 943 (7th Cir.), cert. denied, 381 U.S. 925, 85 S.Ct. 1559, 14 L.Ed.2d 683 (1965), this court held that Fleuti did protect an alien who had a previous criminal conviction and attempted to enter the United States without proper documentation—but from exclusion proceedings, not deportation. In another case, Yanez-Jacquez v.
The Third Circuit has indicated that it views the legislative history of the INA and pertinent case law as supporting strict application of the reentry doctrine. See Gunaydin v. INS, 742 F.2d 776 (3d Cir.1984) (holding that subsequent entry with inspection does not nullify prior deportation ground of entry without inspection); Bufalino v. INS, 473 F.2d 728, 731 (3d Cir.) (holding that false claim of citizenship to avoid inspection cannot be characterized as innocent excursion calling for application of Fleuti), cert. denied, 412 U.S. 928, 93 S.Ct. 2751, 37 L.Ed.2d 155 (1973). One leading authority has concluded that despite Fleuti, returns without inspection even after short trips abroad qualify as entries. See 3 Gordon & Mailman, supra, § 71.03[6][b], at 71-52 to 71-53 & n. 75. We, too, believe that the Fleuti doctrine should not apply to cases of entries without inspection.
III.
Having found Leal deportable due to his entry without inspection, we now face the question of his eligibility for discretionary relief from deportation. As discussed above, both the statutory provisions involving exclusion and those involving deportation grant discretion to the Attorney General to waive most grоunds supporting action against an alien.
In accordance with its literal language,
Under Francis‘s and Silva‘s rationale, certain deportable aliens may receive exclusion-type relief as if they were subject to exclusion rather than deportation. But that fiction requires that the aliens be excludable for the same reasons that render them deportable—a situation not necessarily true for all aliens facing deportations. Accordingly,
In 1990, the BIA unexpectedly reversed its position on this issue, holding that
In Leal‘s case, the BIA found that Hernandez-Casillas II precluded any discretionary relief under
We consider this semantic argument wholly unconvincing. The point of the wording in
Leal claims that sections 545 and 601 of the Immigration Act of 1990, Pub.L. No. 101-649, 104 Stat. 4978 (1990), buttress his textual argument that Congress intended relief to be available even to aliens deportable on grounds for which no comparable ground of exclusion exists. Section 545 states that aliens who do not appear at deportation or asylum-related proceedings are not eligible for
None of this helps Leal, since the 1990 amendments apply only to admissions occurring after the date of enactment, while Leal‘s entry occurred more than seven years earlier. But we also note that the amendments do not support Leal‘s reading
Finally, Leal raises the constitutional objection that the Attorney General‘s construction violates the equal protection component of the Fifth Amendment Due Process Clause. Leal complains that there is no legitimate governmental interest that justifies denial of
Leal‘s argument that there is no “facially legitimate and bona fide reason” comes in two parts. First, he claims that Congress could not have intended to deny
Leal‘s first point, obviously, is true. That
We are reluctant, however, to conclude that once the initial judicial extension of waiver of exclusion relief was made from no grounds for deportation to most grounds for deportation, further action by the judiciary must be taken to expand
To be sure, when to avoid perceived equal protection problems the statute was stretched beyond its language to apply to deportation proceedings, problems crept in. If impatience with the legislative language had not resulted in adding nonexistent provisions to the statute in the first place, Congress would likely have recognized the defects and long ago repaired any problems at the instance of the Attorney General, the INS and those concerned with the welfare of resident aliens. The question now becomes whether to engage in a second judicial rewriting of the statute in order to improve upon the first rewriting.... Continued judicial redrafting simply insures that the statute will less and less be the recognizable product of the legislative will. We think a statute of this detailed nature is best left to the ministrations of the Congress. We decline to tinker further.
Campos, 961 F.2d at 316-17. We therefore leave the Attorney General‘s decision intact and hold that
IV.
For the foregoing reasons, the judgment of deportation based on Leal‘s entry without inspection and the denial of
CUMMINGS, Circuit Judge, dissenting.
Miguel Leal-Rodriguez is a legal resident alien who has lived in this country for twenty-two years. His wife and two daughters are U.S. citizens. In 1983, he travelled briefly to Mexico to visit an ailing grandfather after obtaining express written permission from his probation officer and a federal district judge. When the Immigration and Naturalization Service (INS) refused to allow him back into the United States, he crossed the border illegally because his daughter was in the hospital, and he believed the permission of his probation officer would resolve his problems with the INS once he returned to the United States. Against the obvious import of these facts, the majority today concludes that Leal intended to interrupt his status as a lawful resident alien and therefore that he is not entitled to equitable relief from deportation offered by Rosenberg v. Fleuti, 374 U.S. 449, 83 S.Ct. 1804, and
The dispositive question in this case is whether when Leal returned to the United States by crossing the border illegally, he made a statutory “entry” under the immigration laws as defined by
I agree with the majority‘s statement in Part II(A) of the opinion that “returns to this country will not count as ‘entries’ [under immigration law] if they follow foreign excursions that are ‘innocent, casual and brief.‘” Parts II(B) and II(C) of the opinion are more problematic. In Part II(B), the majority endorses the BIA‘s conclusion that under Palatian v. INS, 502 F.2d 1091 (9th Cir.1974), Cuevas-Cuevas v. INS, 523 F.2d 883 (9th Cir.1975), and Matter of Kolk, 11 I & N Dec. 103 (BIA 1965), Fleuti should not apply to Leal‘s trip. In my view, Part II(B) is flawed because it ignores cases holding that Fleuti covered trips no less “innocent, casual and brief” than Leal‘s. In Part II(C), the majority concludes that we need not conduct a Fleuti analysis in this case because Fleuti does not apply to those immigration laws proscribing entry without inspection.1 This also seems incorrect. Fleuti governs all immigration law on entries because it interprets the definition of “entry.” I submit that Parts II(B) and II(C) of the majority‘s opinion distort and rigidify Fleuti, undermining its authority as a precedent.
The majority is able to assert that Fleuti does not apply to entry without inspection only because it treats Fleuti as a court-created equitable doctrine. Fleuti is no such thing—it interprets a statute, and that interpretation binds this Court whether we like it or not. Returning to that statute for a moment,
[A]n alien having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for purposes of the immigration laws if the alien proves to the satisfaction of the Attorney General that his departure to a foreign port or place or to an outlying possession was not intended ***
This Court has noted before that passive constructions can leave a statute subject to varying interpretations. Sherman v. Community Consolidated School District 21 of Wheeling Township, 980 F.2d 437, 442 (7th Cir.1992). Such is the case with
I believe that the majority also errs in Part II(B), where it endorses the BIA‘s conclusion that Leal‘s trip is not “innocent, casual and brief” when analyzed under Fleuti. Part II(B) begins by deferring to Matter of Kolk, 11 I & N Dec. 103 (BIA
Fleuti reviewed the application of
If Leal‘s trip is as “innocent, casual and brief” as trips in earlier cases where Fleuti applied, Fleuti applies here. If Leal‘s trip resembles cases where Fleuti did not apply, Fleuti does not apply here. The majority avoids this simple analysis, concluding instead that Fleuti only applies where an alien had no notice prior to travel that he might be excludable upоn his return. For the majority, an illegal entry, no matter what its surrounding context, bars Fleuti‘s application to a trip where that entry occurred. No court has held this before, and nothing about Leal‘s case suggests a need for such constricting innovation.
Yanez-Jacquez v. INS, 440 F.2d 701 (5th Cir.1971), rebuts the majority‘s suggestion that a single illegal entry means that a trip can no longer be “innocent, casual and brief” under Fleuti. Yanez crossed the Mexican border with an ice pick for the dubious purpose of seeking revenge on a thief, and he did not return to the United States via an INS check point. The INS argued that Yanez‘s action showed an intent contrary to the policy of U.S. immigration law. Id. at 704. The court ignored the fact that Yanez re-entered the United States by wading the Rio Grande instead of passing the INS‘s inspection point at the Santa Fe bridge, and focused instead on the ice pick and the purpose of Yanez‘s trip. The court wrote:
We agree petitioner‘s purpose was less than salutary in nature. We disagree, however, that this one factor [i.e. crossing the border with the ice pick] is controlling. We think that application of the other factors outlined in Fleuti point[s] markedly to a conclusion that the petitioner did not intend by the trip to Juarez to interrupt his status as a resident alien.
Leal‘s situation is also close to the facts of Zimmerman v. Lehmann, 339 F.2d 943 (7th Cir.1965), which applied Fleuti to an alien who went to Canada on a brief trip and claimed to be a United States citizen when he was stopped at the border on his return. He was not a citizen—but his wife was, his three children were, and he claimed to believe that after thirty-five years in the United States, he was too. The INS tried to deport him for “attempt[ing] to enter the United States without a visa ***” Id. at 944-945. This Court would not allow it:
[Zimmerman] was married to an American citizen, had three minor children who were born in this country, all dependent upon him for support, and had a residence and business in Chicago. From the fact that he took his family on an innocent, harmless vacation trip to Canada, it would border on the absurd to ascribe to him an intention of impairing his status as a permanent resident of this country.
Id. at 948-949. Leal, like Zimmerman, had a good faith reason to believe he could return to the United States. His river crossing at the border should not by itself erase the otherwise innocent character of his entire trip.
The majority cites two Ninth Circuit cases, Cuevas-Cuevas v. INS, 523 F.2d 883 (9th Cir.1975), and Palatian v. INS, 502 F.2d 1091 (9th Cir.1974), for the proposition that Leal‘s illegal entry bars Fleuti from applying to his trip. The alien in Palatian was сaught at the border with fifty-five pounds of marijuana. Id. at 1091-1092. Palatian held that Fleuti did not apply because the alien was “attempting to accomplish some object which is itself contrary to some policy reflected in our immigration laws.” Id. at 1093, quoting Fleuti, 374 U.S. at 462, 83 S.Ct. at 1812. It is absurd to suggest that Leal resembles the alien in Palatian, who tried to smuggle huge quantities of drugs across the border. The alien in Cuevas-Cuevas was caught guiding other illegal aliens across the border for a fee. Both cases thus are different from Leal‘s in that they involve illegal action apart from the entry itself.
Fleuti offered several factors beyond the words “innocent, casual and brief” to help courts determine whether an alien‘s trip interrupted his resident status, and Leal‘s trip satisfies this more detailed Fleuti scrutiny as well. First we must consider the duration of Leal‘s trip abroad. The trip in Fleuti lasted a few hours, while Lozano-Giron v. INS, 506 F.2d 1073 (7th Cir.1974), declined to apply Fleuti to a month-long trip. Zimmerman, 339 F.2d 943, held that a two-week trip like Leal‘s was sufficiently “brief” to be covered under Fleuti.
A second factor stressed by Fleuti is whether an alien needs travel documents to go abroad. The INS argues that because Leal needed permission from the district court and his probation officer to travel, Fleuti does not apply to Leal‘s trip. Recall Fleuti‘s exact words on this point, however, and the INS‘s argument supports the opposite position: “Still another [factor to be considered] is whether the alien has to procure any travel documents in order to make his trip, since the need to obtain such items might well cause the aliеn to consider more fully the implications involved in his leaving the country.” 374 U.S. at 462, 83 S.Ct. at 1812 (emphasis added). The proper question is whether Leal‘s need for permission from his probation officer should have alerted him to the “implications” of leaving the country. The answer: of course not. Because Leal was on probation, he could not have travelled at all without permission.
The majority argues that Leal would have needed permission to travel “anywhere” and therefore he could not assume that a letter from his probation officer would resolve any immigration problems raised by his trip to Mexico. This defies common sense. Although we do not know
A third and crucial factor under Fleuti is whether the alien‘s actions over the course of his entire trip show an intent to remain a lawful, permanent U.S. resident. Leal‘s actions do. When Leal took the letter from his probation officer with him on his trip, he showed his intent to return to his family and abide by the laws of the United States. He further assumed the letter would clear the difficulties he encountered at the border. His one illegal act—entry without inspection—must be viewed in the context of his entire trip. The majority appears to assume Leal‘s trip ended when he waded the Rio Grande, but it did not. When he returned home, he contacted a lawyer who notified the INS that Leal was no longer in Mexico. Leal did not vanish from the INS‘s jurisdiction. After hurrying to the bedside of his hospitalized daughter, he submitted himself to the INS‘s authority and tried to resolve his immigration status. Taken together, the facts of Leal‘s trip—permission from his probation officer and a district judge to travel to Mexico and back, a hospitalized daughter, submission to the INS in Chicago—suggest that he did not have an illegal aim or intent when he crossed the border without inspection.
Lozano-Giron v. INS, 506 F.2d 1073 (7th Cir.1974), supports this analysis of Leal‘s intent. There we reviewed several Fleuti factors to conclude that Lozano made an entry under
The majority apparently reads this dissent to argue that an alien‘s subjective intent controls whether a trip is innocent under Fleuti. I argue no such thing. The issue under Fleuti is whether a court can find that an alien‘s actions meaningfully interrupted his or her resident alien status in the context of an entire trip. This Court‘s analysis in Zimmerman and Lozano-Giron shows that an alien‘s subjective intent is an important but not determinative element of a court‘s objective analysis of the alien‘s entire trip.
In summary, three points underscore the conclusion that Fleuti should apply to Leal‘s trip. First, Leal had permission from his probation officer and a district court to travel. It would be grossly unjust if Leal lost an equitable hearing on his deportation because he thought this permission would allow him to resolve his immigration problems here instead of in Mexico. Second, Leal did not attempt to avoid the INS‘s jurisdiction by crossing the border illegally. When he returned home, he immediately contacted the INS to resolve his immigration status. Aliens who “enter without inspection” usually do so to avoid the INS, and strict regulation of illegal entries aims to punish those who attemрt to evade the INS, not those who submit to the INS. Finally, a decision in Leal‘s favor would not reward illegal entry. If Leal had waited in Mexico as the INS ordered, he could have applied for
A holding in Leal‘s favor would not legalize entry without inspection, as the majority seems to fear. If facts similar to Leal‘s trip were not present in a future case, a
Notes
Any alien in the United States (including an alien crewman) shall, upon order of the Attorney General, be deported who—
... entered the United States without inspection or at any time or place other than as designated by the Attorney General or is in the United States in violation of this chapter or in violation of any other law of the United States.
The term “entry” means any coming of an alien into the United States, from a foreign port or place or from an outlying possession, whether voluntarily or otherwise, except that an alien having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for the purposes of thе immigration laws if the alien proves to the satisfaction of the Attorney General that his departure to a foreign port or place or to an outlying possession was not intended or reasonably to be expected by him or his presence in a foreign port or place or in an outlying possession was not voluntary: Provided, That no person whose departure from the United States was occasioned by deportation proceedings, extradition, or other legal process shall be held to be entitled to such exception.
Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to the provisions of paragraphs (1) to (25), (30), and (31) of subsection (a) of this section. Nothing contained in this subsection shall limit the authority of the Attorney General to exercise the discretion vested in him under section 1181(b) of this title.