Petition of Edmond K. Palatian v. Immigration and Naturalization Service
502 F.2d 1091
9th Cir.
1974
Check Treatment

*1 DUNIWAY, Before HUFSTEDLER GOODWIN, Judges. Circuit OPINION Judge: DUNIWAY, Circuit Immigration and Naturalization appeals from an order which granted petition for a writ of corpus. habeas We reverse. undisputed facts as found district court are as follows: Hufstedler, Judge, dissented twenty-two year “Petitioner old is a opinion. and filed Sofia, Armenian who born in Bul-' garia. age sixteen, At the he en-

tered the United at New York father, City with mother and traveling after brother first to Istam- bul and then to He Beirut. became a entrant’, and, February ‘conditional 23, 1970, ‘permanent he was awarded resident’ status. remains unmar- He ried, dependents, with no and resides District of Central Califor- nia. 11,

On about December age nineteen, he traveled Tijuana, stayed Mexico, he where days. Upon two and his re- one-half entry, port turn at possession found twen- marijuana ty-eight weighing bricks of *2 fifty-five pounds. youth, of the approximately He additional factors of his record, arrested, of failure absence of a former criminal and convicted prior departures register pay the tax on the and the absence of to supra, country, Rosenberg, under from this narcotic 4755(a)(1). to was sentenced at 462 He 374 U.S. S.Ct. [83 1804].” imprisonment. two-years’ Petitioner rejected The district court appealed in the this conviction never improper claim him that it was to order of California. District Southern Bulgaria place sent to as the “from brought May 22, 1972, the Service whence he came.” From this decision On Special appealed. proceedings, and the Palatian has not exclusion Neverthe- less, reaching Inquiry him excludable “en- found its decision as to Officer (23). 1182(a) ap- try,” appears under 8 the district to have U.S.C. court upheld feeling pellate facts, that decision. relied board the same are ex- hardship remedies it His administrative would be an undue to send 1105(a) Bulgaria, hausted under 8 U.S.C. Palatian back to which he left (c).” ago, years more than six he where [1105a] subjected Bulgarian would be to the of the district court The decision regime deprived communist and thus that, re- turns on its view when Palatian enjoyed the civil he liberties which has country, did not make turned to this “entry” as that term is defined in 8 1101(a) (13) and so is not ex- U.S.C. § Rosenberg Fleuti, We do not read 1182(a). cludable 8 U.S.C. § supra, as the district court it. reads findings Here are district court’s innocent, There, the court held that “an point: and conclusions on this casual, and brief excursion a resident petitioner’s country’s “The Court concludes that alien outside this borders departure intention from the departure at his not have been ‘intended’ disruptive aas United States or about December of his resident alien status disposed 11, gard re- subject 1970 was not so as to and therefore not him to meaningfully interrup- consequences ‘entry’ it to be the country of an into the permanent Rosenberg tive residence status on his return.” country. Rosenberg Fleuti, supra, within this at 83 S.Ct. U.S. S.Ct. at 1812. The also held that “it Court (1963). arriving congressional L.Ed.2d purpose effectuates 1000] to con- conclusion, exception into Court takes strue length 101(a) (13) meaning consideration the of his ab- as an intent to de- being only part regarded sence two and one-half in a manner which can be days; any meaningfully interruptive absence of demonstra- as of the al- being permanent tion of criminal intent formed ien’s residence.” Id. One of prior during departure or from the factors that the Court determined to country; inquiry and the failure to make be relevant to the as to whether arrangements signifi- stay departure “meaningful” for a a ruption was a inter- foreign cant duration visit, in a state. was “the leaving The Court also takes into for if account 1101(a) (13) departure port foreign 1. 8 U.S.C. reads : al that his a or “(13) ‘entry’ place coming outlying possession The term means or was not States, reasonably expected by of an alien into the intended or to be foreign port place outlying presence foreign port or or from an him or his in a or possession, voluntarily place outlying possession whether in an or other- was not wise, except having voluntary: person Provided, that an alien a lawful That no departure residence in the United States whose from the United States regarded making entry by deportation proceedings, shall be as was occasioned purposes extradition, legal process into the United for the be or other shall immigration proves exception.” if laws the alien held entitled to such Attorney to the satisfaction Gener- trolling. accomplish object smuggle purpose, it- which is is to some mari- country, just reflected in to some self as “mean- ingful’ appear laws, our it would if formed first as it Mexico interruption of there- going that the residence would ifbe first formed before regarded occurring properly Mexico. meaningful.” also Id. The Court as *3 upon The district court relied Var operation noted “the these and gas-Banuelos I.&N.S., Cir., 1972, 5 possibly relevant remains other factors 1371; Yanez-Jacquez 466 F.2d v. I. developed ‘by gradual process &N.S., Cir., 1971, 5 440 F.2d 701. judicial inclusion and exclusion.’ Da- In Yanez-Jacquez, a resident alien Orleans, 97, 104 vidson New went to Mexico for the of at- L.Ed. Id. 616].” tacking enemy icepick. with an interruption hold that the We However, he could not find his intended that occurred was Palatian’s residence victim country. and returned to this “meaningful” principles of Obviously, he committed no offense at Fleuti did case. What Palatian all, much less contrary one that is ato attempted when he to come back this policy immigration reflected in our laws. “[attempt] country from Mexico was point. The case is not in accomplish object to contrary some which is itself Vargas-Banuelos There, is different. policy to some reflected our the resident alien went to Mexico and immigration provide Those laws laws.” aided and abetted four Mexican aliens in for the exclusion al entering country illegally. this smuggling ien who has been convicted of that, court held because the intent to do 1182(a) (23), marijuana. 8 what the alien did was not formed until 1251(a) (11). U.S.C. This is a clear after Mexico, inwas there was not a immigration indication that the laws re meaningful interruption residency of his general problem flect a concern over the country. previously For reasons drug generally, control. See Garcia stated, we decline to follow this decision. I.&N.S., 1965, Cir., Gonzales v. 9 344 No other court has come to the same smuggling F.2d 804. of mari conclusion as the Fifth Circuit did in insig was not a mere technical or Vargas-Banuelos. We have not done so. violation; caught nificant tempting he was at I.&N.S., Cir., In de Bilbao-Bastida v. 9 smuggle fifty-five pounds 1969, 820, 823, 409 F.2d we did not in- marijuana country. Thus, Pal quire alien, into the time when an who contrary atian’s acts were to both the Cuba, went to Mexico and then to decid- immigration letter of the laws and to a go ed to to Cuba. We held that his policy expressed in those laws. going July contrary Cuba 1961 was agree We cannot the fact policy to a then reflected in our immi- smuggle Palatian did not decide to gration laws. marijuana until after he inwas Mexico In I.&N.S., Cir., 1966, Gamero v. controlling. “purpose is of the vis- 123, 126-127, 367 F.2d we held that an it” Fleuti, supra, referred to in departed country alien who had began, have been innocent when it but it express with the to return intent within sought was not innocent when Palatian a few “temporarily months had not vis- short, re-enter this we meaning ited” Mexico within the of 8 language do not think that the 1181(b) U.S.C. when he returned sev- supra, which refers to “an intent to de- years enteen later. heldWe that the al- part” controlling. is or should be We upon departure ien’s intent was not dis- good why cannot see reason the time positive question of of whether or accomplish when the intent “to some departed “temporarily.” not he which is itself some adopted reflected in our Other circuits have not Vargas-Banuelos laws” was. first formed should be con- rationale. In Bufalino Cir., finding not “enter” 728, he did 1973, F.2d I.&N.S., from Mexico. country he returned when an alien held that 731, Third Circuit sympathize with much we However meaningfully interrupted his resi- had foolishly plight, that he the fact knowingly made a false when he dence “Although brought we himself. citizenship upon it of United States claim petitioner’s following sympathize unfortunate return to this to-uphold compelled position, we are The court trips and Cuba. to Bimini Unfortunate- of the [Service]. decision time when inquire into the did not as a ly petitioner, do not act we contra- had formed alien Barragan-Sanchez v. equity.” court immigration policy. The stan- vene this Rosenberg, Cir., ap- been in Fleuti have announced dards plied numerous occasions courts,3 yet in no Service2 appealed reversed. from is The order *4 Vargas-Banuelos, except has the case, Judge (dis- governed by time when HUFSTEDLER, the Circuit decision been senting) the intent to accom- the alien formed : contrary objective to a plish that an was following Judge portion adopt of I the in laws. reflected the my opinion own: as memorandum Lucas’ require that the intent be formed To depar- intention at his “[Petitioner’s departure could, time of before at the on or about the ture from United think, produce and in- we anomalous disposed 11, 1970, was so December deed if irrational results. Thus resident meaningfully regard inter- to it to be as alien A left the for the ruptive permanent residence sta- of his acquiring fifty-five pounds of mari- of Rosenberg country. v. tus within this caught pos- it in his 1804, 10 449 S.Ct. [83 374 U.S. return, pre- session his he would arriving (1963). at L.Ed.2d In 1000] Palatian, sumably excludable, be while conclusion, take into considera- this [I] pur- who went to for an innocent Mexico length being only tion the of his absence pose import but while there decided to days; the of two and one-half absence fifty-five pounds marijuana of of criminal intent demonstration caught country and was in the act at the during being prior de- formed to or his border, us, would not excludable. be To parture country; from this and the fail- least, at this is an irrational result. arrangements stay a of ure to make foreign significant Nor in a state. is the fact duration that Palatian Bulgaria be sent the additional back to a basis for also take into account [I] Valdovinos, Cir., 1966, 151, (holding 2228, BIA, 2. Matter that See of ID 358 F.2d 153 11, September Janati-Ataie, an innocent to two hours 1973: Matter of visit Mexico II) 2170, AG, 26, 1972; regarded meaningfully in & should October Gordon not he as Rosenfield, Procedure, terruptive Immigration presence in Law and continuous the of 1254(a) (1)) ; . 4.6c at under 8 § 4-31-4-34. United States U.S.C. § I.&N.S., Cir., 1964, F.2d Wadman 9 329 v. See, I.&N.S., ap g., (holding 3. e. v. 9 812 that the Fleuti standard Martin-Mendoza 1974, Cir., plied 1254(a)(1) (finding remand 499 F.2d 921 an en § to 8 U.S.C. try departed ing a five- where the alien for a determination of whether for the arranging entry day meaningfully interrupted illegal continuous of facilitate the of vacation to pres States); ; Barragan- ence) v. Itzcovitz Selective aliens into the United Cir., Cir., N.Y., N.Y., 1972, Rosenberg, 2 v. 9 Local Board No. 6 Sanohez 471 F.2d Service 758, 1971, 888, (holding (finding a that- F.2d 893-894 759 residence was not 447 training course, 1254(a)(1) trip a to attend § “continuous” under 8 U.S.C. three-week required by meaningful employer depart is not a when the alien was under forced to deportation) ; interruption Toon-Ming Wong not re Fleuti and would threat under I.&N.S., entry Cir., 1966, 9 sult 236 363 F.2d Lehmann, 1101(a) (13)) ; (holding pres 7 Zimmerman the issue of continuous (holding Cir., 1965, 1254(a) (1) en no F.2d ence under Fleuti and 8 U.S.C. 1101(a) (13) try solely by looking after ei was not determined at within 8 U.S.C. Canada). trips length visit) I.&N.S., ; Wong ther short of two Git Foo States, aof milial residence in youth, absence United but factors his deprivation ab also in the lib- record, of individual and of former criminal society. erties departures a democratic Petition- prior sence supra, at er’s home of com- Rosenberg, be Bulgaria. munist harsh Such a sanction 1804]. S.Ct. initially delivered to wedded one persuasive “Furthermore, find [I] country by the ideal democratic should deci authority for supplementary [the] summarily accomplished not be so in the Petitioner’s Fifth Circuit. in the sion mandate, congressional absence of clear a peti viable as position least as is at or, very least, in the in the absence of Immigra Yanez-Jacquez v. tioner’s guidelines precise more and flexible F. Service, 440 Naturalization tion and administratively which tailored case, 1971). (5th Cir. 2d 701 peculiarities to the individual of each recognized clear the Fifth case. Insofar as the failed prior to of a criminal formation factors, consider all of or con- above yet it question. And departure in sidering weight them, their dismissed controlling to be did not deem that summarily, it is deemed to be supra, Yanez-Jacquez, factor. Congress implied instruction of simply no indication 704. There acceptance treat and exclusion trip in intended Yanez aliens under circumstances attentive terruption as status each the individual characteristics A States. resident alien of *5 case, merely in and not a fashion conse- similarly fortiori, demonstrat petitioner quential application the a broad re an intention ed no indication of statutory standard. Viewed under the privileges the nounce total circumstances available consid- in the United alien status resident eration, principles and mindful of the extended The Fifth Circuit States. developed Supreme by the Court and Vargas-Banuelos Yanez-Jacquez in Circuit, willing lend Fifth not [I am] Service, Immigration & Naturalization fast’ construction to or that ‘hard and (5th 1972). The for 466 F.2d 1371 Cir. prima application of the facie statute’s part intent on the mation of the criminal language in such facts (a forty-one year old petitioner petition- this case it can be deemed place man) in took while abroad also departure er’s Mexico; however, total circumstanc meaningful one the statute. See granting petition es for in that case generally Immigration and Wadman compelling than in seemed less far Service, Naturalization point instant case. made (9th 1964). The mere inter- Cir. pe Fifth case that ruption petitioner’s permanent resi- convicted, tried, duly had been titioner dence, punished by however have and a federal court misdeeds, it, simply further sanction construed is not balance deportation hardships, attendant its consequences with the which will be lev- personal familial, should deemed Accordingly, ied as a him result. clearly to be excessive unless authorized Congress only can conclude that did [I] Vargas-Banuelos, supra, 466 statute. consequences not intend those insig certainly F.2d at It not of the Act under the nificant case additional particular of this case.” circumstances re sanction of here only deprivation sult of fa- I would affirm.