Saied Parcham v. Immigration and Naturalization Service

PARCHAM, Petitioner, Saied AND

IMMIGRATION NATURALIZA- SERVICE, Respondent.

TION

No. 81-1529. Appeals,

United States Court of

Fourth Circuit.

Argued Feb. 1985. Aug.

Decided Division, D.C., brief), Washington,

nal respondent. WINTER, Judge, Before Chief WIDEN- ER, KELLAM, Judge, Circuit and District Judge, United States District Court for the Virginia, sitting by Eastern District of des- ignation.

WIDENER, Judge: Circuit Parcham, Petitioner Saied an Iranian na- tional, appeals an order of the Board of (Board) Immigration Appeals affirming an immigration judge’s finding deportabili- ty voluntary departure. and denial of finding Parcham does not contest the deportability, appeals only and from the voluntary departure.1 denial of affirm. We dispute. The facts before us are not Parcham entered the United States as a nonimmigrant student in November 1977. He was authorized to remain in the United States, extensions, including May visa until Upon entering country, Parc- 1979. English language ham at enrolled school transferred, Washington, D.C. He later permission with from the and Service, Bay College in Naturalizаtion Baltimore, Maryland. Parcham subse- transferred, quently again permission, with Community College of Baltimore. 1979, following expiration the fall stay, his authorized Parcham transferred permission Morgan without State Uni- versity in Baltimore. April charged

On Parcham was remaining in the United States for a authorized, period longer than violation 1251(a)(2), Immi- of 8 U.S.C. under the § gration Nationality Act of as deportation hearing amended. A was held Goren, D.C., Washington, peti- David 5,1981, January time the immi- tioner. gration judge deportabili- found Parcham’s Hunolt, Justice, Dept, ty pro- A. point James Wash- established. At that (Lauri ington, Filppu, ceeding, application D.C. Steven Parcham made for a Section, Litigation Legal voluntary departure, permitted in Advice Crimi- Voluntary departure significant reentry offers advan- to the States. Seе London v. United Plasencia, tages deportation. granted over An alien who is 26 n. voluntary departure stigma depor- avoids the n. 74 L.Ed.2d Jain v. tation, denied, (2d Cir.1979), permitted to choose his own destina- 686 n. 1 cert. tion, considerably gain and finds it easier General, pursu- the exercise of his First Amendment 1254(e) and, second, to 8 U.S.C. rights, ant C.F.R. upon § that reliance application may 244.1-.2. be Such also arson and the felony immigration judge. See charge, authorized conviction, without im- also an 242.8(a), 242.17(b) and 244.1. 8 C.F.R. proper §§ factor for consideration. During presentation testimony of The permit decision of whether to whether Parcham’s circumstances merited admittedly deportable an depart alien to departure, voluntary of be- benefit voluntarily is a matter within the discretion apparent came that Parcham had not limit- Attorney of General. 8 U.S.C. in ed his activities to United States 1254(e). earlier, immigra As noted an § First, attending school. Parcham acknowl- judge qualifies as an official authoriz edged participation his in a violent demon- ed Jay to exercise such discretion. See in stration California of Shah Boyd, Iran, at police which cars were overturned 100 L.Ed. 1242 The relevant statu burned, stones and and were thrown at fire tory provision, 1254(e),provides 8 U.S.C. § Second, fighters. while Parcham contend- part: demonstration, ed he was a monitor at the The Attorney may, in his discre- responsible maintaining and was for a tion, permit any deportation alien under that, protest, it peaceful was established at proceedings ... depart voluntarily to hearing, of the time Parcham was United States his own ex- subject pending felony charge of a arson pense in lieu of deportation if stemming such alien participation from his shall establish to Third, the satisfaction of the demonstration. Parcham testified to is, General that he his involvement with another and has criminal been, person good a of charge moral arising from an altercation a character with for at police years pre- officer least five immediately while a station. ceding disorderly application Parcham his guilty voluntary was found for parture____ resisting conduct or and arrest was fined $15.00. In reviewing favorably a refusal to exer- discretionary cise the support voluntary his relief of voluntary for departure, only we examine departure, Parcham whether the testified that he сould discretion was actually leave the exercised and expense United States at his own whether it was person good arbitrary and a exercised an moral character capricious Carnejo-Molina manner. minimally required voluntary depar- for INS, (5th Cir.1981); 1254(e). F.2d ture under 8 U.S.C. He also INS, pointed Cuevas-Ortega v. to his status as a full-time student (9th Cir.1979); grades. Board, satisfactory The Femandez-Gonzalez how- ever, (7th Cir.1965). relying upon Parcham’s involvement demonstration, in a violent fel- In proceeding appli consider ony charge, resisting inci- voluntary departure, cation for the burden dent, that concluded Parcham’s behavior proof rests with the alien establish while the United States did not warrant favorable exercise of discretion is granting voluntary departure. It warranted. Cuevas-Ortegа v. immigration judge. affirmed the at 1278. Initially, statutory there are two appeal, On Parcham contends requirements voluntary departure for arbitrarily capriciously Board proving. abused which alien has the burden its application establish, first, The ability alien must voluntary departure. and, In particular, departure, second, pay Parc- for his his first, argues, ham good the reliance on years moral character for at least five preceding Parcham’s involvement in the application anti-Shah de protest was an parture. 1254(e). 8 U.S.C. § Cir.1978), (5th deportation hearing, Parc F.2d 762 which enumerat-

At the affirmatively as to both re apparently hara testified ed that had been Thus, testimony, if quirements. evidence, be dropped insufficient the re- lieved, to show that he was statuto tended spоndent appeared twice court [here] voluntary departure. rily eligible for How charge proceed- for the before the ever, these mini the satisfaction of while ings were continued due to the delicate statutory requirements necessary mum political during captivity ‍​‌‌​​‌‌‌‌​​​‌‌‌‌​‌‌​​‌‌​‌​​​​​‌​‌​​‌​‌​‌‌​​‌‌​​‌‍situation voluntary departure, it for consideration of hostages prose- in Iran. American are sufficient for does not follow appears cution therefore to remain active statute does granting. its It is clear the charges, present on the we believe contemplate that all aliens who fulfill an additional adverse factor. requirements merit re such respondent has submitted several lief as a matter of course. See Hibbert v. professors attesting letters from his (2d Cir.1977). F.2d 17 at 20-21 554 Howеver, progress. his academic dowe same, similar, context, but not the the completion not consider his successful Court has so held. v. Hintopoulos significant equity. studies to be a Fur- 72, 77, Shaughnessy, 353 U.S. 77 S.Ct. thermore, impressed by we are the 621, 1 (1957). Rather, L.Ed.2d 652 once the respondent’s only claim that he acted as met, requirements minimal are discretion a monitor in the demonstration when his Attorney yet of the General must be exer activity charges in resulted of arson cised, and Parcham still bears the burden against him. proving Attorney General abused respondent’s equities The are minimal. the exercise of his in hand, On the other he has a criminal voluntary departure. See 8 C.F.R. 242.- resulting conviction from violent conduct 17(d) (e). police subject toward officer and is the discretionary The Board considered the pending charges. arson Under these authority exercise of its in its well-reasoned circumstances, agree we with the immi- decision as follows: gration judge’s assessment that a favor- immigration judge’s decision em- exercise of able discretion is not warrant- phasized three adverse factors: the vio- ed. lent nature of the in demonstration which involved, in respondent was We concur the decision of the fact charges issue, pending of arson were Board on this and in that still the Board him, and his admission of a con- exercised in its discretion a manner that

viction for a criminal offense character- arbitrary capricious, was neither nor disorderly resisting ized as conduct or supported by that its decision was substan following an altercation with a tial evidence. officer, police he was fined holding, reject In so we Parc We believe that the denial of $15. volun- ham’s contention that the Board’s reliance tary departure was warranted. participation in on his the demonstration respondent’s conviction for behav- rights speech violated free and as ing improperly toward a officer is sembly under the First Amendment. It clearly an adverse factor which militates long residing has been held that aliens in against a favorable exercise discre- country enjoy protection Furthermore, tion. inasmuch as serious Wixon, Bridges First Amendment. v. 326 felony charges pending against are still 135, 148, 1443, 1449, U.S. 65 89 S.Ct. L.Ed. respondent, we do not believe it is (1945); 2103 Bridges California, see inappropriate to consider them in a deter- (1941). U.S. 62 S.Ct. 86 L.Ed. 192 respon- mination on the merits of the application dent's protection right relief. Included in that is the police reports peaceful Unlike [improperly] expression through pub of views employed Sierra-Reyes Brown, lic Carey demonstration. Pederson, Talavera v. 2286, 2289, Cir.1970); 100 S.Ct. U.S. v. Bir- Shuttlesworth (6th Cir.1964). Thus, L.Ed.2d find we mingham, the Board was entitled to consider However, it is 939, 22 L.Ed.2d 162 deciding whether protec- that First Amendment also the law or not to exercise its discretion in favor of not extend violent demonstra- tion does against voluntary departure.2 City Rockford, Grayned tions. Accordingly, Board decision is AFFIRMED.3 Whatever Parcham’s L.Ed.2d demonstration, no role there is was WINTER, L. Judge, HARRISON Chief participated he and there no doubt dissenting: the demonstration was doubt violent. it, impressed” by immigration the Board was “not As I judge’s While view claim that he acted as a monitor deny decision tо for voluntary demonstration, even if that claim be departure good rests upon measure im- true, participation think the fact of his we considerations, permissible specifically subsequent were indictment factors and his exercise of permitted con- his first amendment rights. By consider- deciding not to sider in whether or exercise factors, ing these his discretion favor Parcham. abused her discretion and her tainted deci- By affirming sion. We find error also judge’s disavowing decision without these pending ar felony Board’s reliance on the impermissible considerations and without charges. con son Evidence of an alien’s addressing Parcham’s constitutional chal- duct, conviction, may be con without lenge, the Appeals Board of sidered (BIA) v. Aalund voluntary similarly abused its I departure. оf See discretion. Marshall, 710, (5th Cir.1972); respectfully 461 F.2d 713 therefore dissent. I re- would INS, v. Gambino (2d 419 1358 verse the of BIA decision and remand Cir.1967); INS, acquitted 2. We are now that told Parcham was DeLucia v. 370 F.2d pending (7th Cir.1966). appeal. reading of the arson this A That careful of the deci- beginning does not alter our We think the decision. Attor- sion the Board from to end does ney General is entitled to consider the facts as part upon not disclose that was based even in particular, he In he exist the time acts. or Board delved disposition wait Thus, does not have to for the foreign policy. into Board chose not pending charges. criminal rest to its decision on factor either the dissent impermissible, considers instead and based its dissent, large greater part, 3. The even determination factors have tо we found be Immigra urges permissible that we reverse because of the otherwise We for consideration. Judge’s assume, argument consideration of Parcham’s nation are unable to as the dissent’s basing opinion demand, ality, judge's part and her by seems that factors not mentioned foreign upon policy it, factors the by dissent contends the Board taken were into consideration impermissible them, are for consideration. What the explicitly because it did not disavow and consider, however, dissent does not our proceed then to review its decision on that ba- reviewing INS, role is limited to the order (9th sis. v. Batoon 707 F.2d Cir. discretion, Board for an abuse of its broad 1983). grounds upon "The which an adminis- judgment we not our substitute for that of judged upon be are trative order must those INS, E.g. the Board. v. 465 F.2d Strаntzalis which record discloses its action was (3d Cir.1972); Rosenberg, Kalatjis v. 80, 87, Corp., Chenery based.” S.E.C. 318 U.S. Sahli, (9th Cir.1962); 305 F.2d Polites 454, 459, Indeed, (1943). 63 S.Ct. L.Ed. (6th Cir.1962), denied, cert. Judge Friendly’s opinion Hang even 371 U.S. (2d Cir.1966), upon 360 F.2d 715 which the Jong Wang, See INS Ha relies, finding heavily requires dissent that for a L.Ed.2d discretion, of abuse of the decision must rest discretion, upon exercising Id. at In consideration. its the Board is order, Immigration Judge’s 719. As this was not the there exists no bound but is concluding free make own its dis- its determination. Goon basis the Board abused (1st Wing Wah v. 293-94 cretion. agree- several times that appeared It has impermis- free from reconsideration past reached in the the denial of ment has been that influenced factors sible requirements additional have request. then that urged by country of Iran. The been I. country charged under of Iran has been fully procedures the extent to which Nations for violat- appreciate the United To her discre- ing yet abused international law and continues to portion tion, consider in full hostages. one must hold the request her decision which addresses charged uphold- we are While who pertinent voluntary departure.1 law, system ing the American will part, the decision reads: process sup- continue to accord fair privilege respondent applied for The regime present in our porters of that departure. ‍​‌‌​​‌‌‌‌​​​‌‌‌‌​‌‌​​‌‌​‌​​​​​‌​‌​​‌​‌​‌‌​​‌‌​​‌‍That country, way are com- we [sic] of discre- denied in the exercise will be favorably to pelled to exercise discretion subject of a respondent is the tion. do not country. national of that We charge in felony arson Califor- pending choose to еxercise favorable discretion nia, participation in a arising out of his petitioner partici- case has where there that received cover- demonstration against pated in a demonstration violent age national television. The demon- charges of country, where he has our includ- quite violent and stration became against him he and where burning cars at the residence ed matter in- has been involved another respondent has of the Shah’s sister. volving violence law enforcement those charged in connection with been place This is not the officers. forum He testified that the case has incidents. guilt decide the issue of or innocence during moment continued at the been cog- involving charges, those and we are holding hostages Irаn. He also persons system all in our are nizant that subject of another criminal has been the considered innocent until convicted. charge, pled guilty one to he However, compelled are not to exer- we fine, paid a which resulted after an $15 favorably and we do not cise discretion enforcement altercation with some law this case. He not certain of the exact officers. was Notwithstanding generous gloss the it nature of the offense and described put immigration judge’s BIA on the deci- resisting disorderly arrest or for either sion, empha- is clear that her decision conduct. factors, thought she re- sized four country This is faced with an internation- unfavorably: flected on Parcham his na- systems, among al assault on its value tionality; the nature of the demonstration law, respect for international them California, regard to the con- both with This honoring of commitments. content duct of the demonstrators and the negotiations country has been involved pending arson protest; their country respondent of which the with charges;2 arrest in Baltimore re- and his a national over the release of the Unit- is sulting guilty plea and fine.3 hostages currently held there. in a $15 ed States oppose request unsupported the evidence the record. The 1. The INS did not for voluntary departure; regarding only nor did it introduce evidence offered the Baltimore showing purpose that he testimony. evidence for the Parcham’s own It is un- arrest was requested not receive the relief. should clear from the record whether Parcham disorderly charged resist- conduct or with acquitted has been of the arson 2. Parcham since Parcham, According ing arrest. Parcham, (Cal. charges. State v. No. A07-8317 police occurred after he went to a Baltimore 5, 1981). Super.Ct. Oct. Upon post learn- station to bond for a friend. Iranian, ing that he and his friend were Although 3. was entitled subjected abuse and arrest- both to verbal arrest, to consider the Baltimore both she and the station ed Parcham as he tried to leave BIA characterized the incident in a manner II. Wong Wing 719; Hang, 360 F.2d at see also, INS, De La Luz v. 713 F.2d immigration judge’s Cir.1983) (9 (abuse of discretion to deny nationality alone mandates re- suspension deportation to alien because Attorney The discretion of versal. immigration judge believed she should have deny deportable or ne’er-do-well, lеft her alcoholic husband request alien’s departure though her efforts maintain her family deportation other relief from life were in keeping with religious her be- admittedly is broad. See INS v. Rios-Pine- — liefs); Sava, Bertrand v. 684 F.2d da, -, -, U.S. (2 Cir.1982) (reaffirming Wong Wing Wong Wing L.Ed.2d Hang); INS, Chung So Chun Hang (2 718-19 Cir. (3 Cir.1979) (remand required 1966). Yet that is not limitless. where denial of discretionary relief may Though finding Id. no abuse of discretion prompted have been by petitioner’s prior Rios-Pineda, Supreme Court re- receipt benefits). of welfare affirmed that case (Act) Nationality permit Act Clearly does judge considered “unreasoned or arbitrary exercise of discre- factor of the Judge sort Attorney tion” General or those who Friendly warned na- —Parcham’s — at-, for him. act origin. tional Her decision contains an ex- Moreover, where denial disсre-- tended and extraneous discussion of the tionary predicated is on several hostage Iranian crisis in which she de- factors, single consideration of a improper scribes Iran as an outlaw state and associ- factor so taint the decision as to ren- ates it with what she describes as “an der the entire determination defective. international assault value [America’s] (9 Siang Ken Wang F.2d 286 systems.” thereafter, Immediately she Cir.1969). boldly though states that obliged “to ac- process cord fair supporters” of the Ira- Judge Friendly’s discussion in Wong government nian she does feel com- Wing Hang of the limits of discretion un- pelled to favorably exercise discretion the Act der remains the authoritative state- Iranian nationals. The decision’s anti-Ira- ment of the dealing issue. patent. nian is impermissibili- animus with the denial of an alien’s ty of such invidious discrimination suspension of deportation, type another equally basis of See, clear. discretionary relief from a deportation or- e.g., Vigile Sava, F.Supp. der, the court sketched the limits of the (S.D.N.Y.), grounds, rev’d on other delegate’s General’s or his discre- Cir.1982). (2 F.2d 204 tion as follows: Without essaying comprehensive defini- deportation the context of proceed- tion, we think the denial of suspension ings, procedures aliens are entitled fair eligible an alien would be an abuse that satisfy requirements the minimum discretion if process. it were made without a ra- due Japanese Immigrant explanation, inexplicably departed tional Fisher), 86, U.S. (Yamataya Case v. 189 policies, from 100-01, 611, 614-15, established or rested on an 23 S.Ct. 47 L.Ed. 721 impеrmissible basis such as an applicants invidious While for against particular discrimination race not be range entitled to the full group____ or procedural protections afforded to aliens house. charge Parcham testified that he did assault al of such assault. Neither a any police immigration judge officers. The disorderly resisting conduct nor one of was, course, entitled to discredit Parcham’s necessarily implies against police violence offi- erred, however, version of the events. She repeated stating cers. The BIA this error in assuming that the incident involved “violence resulting Parcham "has a criminal conviction officers,” law enforcement since the police violent conduct toward officer." only evidence in the record Parcham’s deni- 1008 order, regulation.

contesting deportability, Jay Boyd, immigra- see utive or 919, judge authority exceeded her 100 L.Ed. 1242 when she 351 U.S. S.Ct. her (1956), deny foreign policy their introduced own view of the decision to into the determination of re- request by impartial rendered an must be quest deportation. for relief from immigration judge’s Yas- decision-maker. The Cf. Crosland, (9 618 F.2d application sini 1360-61 decision Cir.1980). voluntary departure casts serious doubt on impartiality. her above, For the reasons described the im- nationality migration judge abused her of Parcham’s Consideration she impermissible nationality it when considered Parcham’s was also because involved immigration judge ruling on his an unauthorized parture. A foreign policy. involving act of Decisions review of her decision makes right of aliens to enter the clear that this United Instead, her implicate States or to remain here often was not incidental to decision. foreign powers. major it was a our relations with Accord factor that so tainted her ingly, legislative and executive decision that it raises branch substantial doubt as typically power es alone are to whether or not she would accorded have exercised differently draw distinctions on the her discretion basis absent its consid- immigration Accordingly, eration. BIA area of naturaliza should have granted tion. These branches are wide lati remanded for reconsideration re- without distinctions, and, long gard tude to for Parcham’s nationality draw such so as dis- below, wholly the distinctions drawn are not irrational.cussed without adverse considera- Bell, 787, 792, Fia llo tion of his exercise of U.S. his first amendment 1473, 1477, (1977); S.Ct. L.Ed.2d freedoms. Siang Wang, Ken Cf. 287; Diaz, Mathews v. 96 S.Ct. Kovac v. 107-08 (1976); (9 Cir.1969). least, very 48 L.Ed.2d 478 At the Hari it should Shaughnessy, siades v. have disavowed this rationale ‍​‌‌​​‌‌‌‌​​​‌‌‌‌​‌‌​​‌‌​‌​​​​​‌​‌​​‌​‌​‌‌​​‌‌​​‌‍for denying U.S. 588- 512, 518-19, voluntary departure. By failing 96 L.Ed. 586 to do ei- Civiletti, ther, Narenji discretion, the BIA abused its and its (D.C.Cir.), denied, cert. decision should be reversed.4 Im- III. migration judges authority have no similar ground their decisions considerations Both the and the BIA foreign.relations except by as instructed treating further abused their discretion in statute, Congress by or the executive exec- Parcham’s exercise of his first amendment 3.1, 4. The BIA is created C.F.R. perpetuates and it is find the facts anew. Indeed it perform finding authorized to such functions as are erroneous of fact of the Director, delegated to it Executive Office that Parcham admitted to a conviction By regulation "resulting Review. from violent conduct toward a appellate jurisdiction, Board is vested with inter supra. Certainly officer.” See n. it does not alia, applications over decisions on to allow disavow reliance on the references of the immi- voluntary departure. appropriate In an gration judge nationality, to Parcham's to the review, may grant the BIA de novo but ordinari- nature of the demonstration in California both ly gives great weight to the factual determina- as to the conduct of the demonstrators and the immigration judge generally tions of the they and as protest, content of the to her view of the "inter- discretionary to relate the of relief. systems national assault” on the value of the Rosenfeld, See 1 Gordon & Law States, displeasure United and to her evident and Procedure l.lOe at 1-88.1. government Agreeing with the of Iran. "with immigration judge’s the that a assessment favor- the instant I conclude that the BIA warranted," appellate capacity give able exercise of discretion is not the acted in an and did not appeal. opinion BIA dismissed the de novo review. Its immigration judge sets forth that the acting solely "emphasized" appellate Since BIA three was in an factors capacity,' any by immigra- request adverse to Parcham's error committed the parture, judge by and it summarizes these factors sani- tion and uncorrected the Board taints opinion purport tized form. The does not the correctness of the BIA’sdecision.

1009 government may peaceable general, The and punitively. to result in some rights the еxercise of first amendment arrests because of the violent conduct of not burden person participants. a some rights by denying a benefit to Yet the dic- Grayned reasonably of his decision to exercise those tum cannot mean that first because Otherwise, speech rights rights. it could inhibit amendment of demonstrators who violently means neither nor by indirect under circumstances act aid and abet regulation clearly dependent direct be violence others is where would of on the ac- Sindermann, Thus, impermissible. Perry v. tions of those who do.5 if Parcham 2697, 593, 597, 2694, himself peacefully U.S. S.Ct. conducted Califor- demonstration, (1972). did, L.Ed.2d 570 It is well settled that nia as he claimed he residing possess deporta- within our borders denial of relief from aliens Wixon, ground rights, tion on of Bridges participation first amendment his 135, 148,. 1449, 89 65 S.Ct. the demonstration would U.S. violate the first (1945),and that first amend- L.Ed. 2103 amendment. protects public

ment demonstrations. course, any Of violent acts committed City Birmingham, Shuttlesworth may justified Parcham not be protected as 89 S.Ct. 22 L.Ed.2d U.S. speech, and State of California believed course, conduct is Of violent enough that there justify evidence to protected expression. Grayned City not arson, prosecuting felony Parcham for al- Rockford, 408 U.S. of 2294, unsuccessfully. beit existence of charges, coupled Parc- with premises, I no testimony denying any On these basic have dis- ham’s violent be- However, agreement majority. describing havior at the demonstration and monitor, step takes a in its majority further his role as a raised a factual issue I analysis, disagree. with which must as to or not participаtion whether his majority regardless peaceful, states that of Parc- pro- demonstration was and thus demonstration, during expression. ham’s conduct tected immigration Even if the participation unprotected long judge his so and BIA were entitled weigh Indeed, disfavor, became violent. did in demonstration evidence as truthfully even if says partic- Parcham has their sought his ipation described role as a monitor who the California demonstration is order, peace immigra- basically fatally Specifi- maintain more flawed. judge may cally, and BIA consider unfavor- the decision ably presence mere his at a demonstration demonstrates that she looked Parc- behind deciding where violent acts occurred ham’s conduct assessed the content of or not he speech whether should receive discretion- his his dis- ary deportation. cretionary relief. agree

I not so may do violence taints Just as an arsonist shield peaceful a demonstration that conduct of acts behind first amendment shout- match, participants protected ing slogans loses its political lights character as as he It is speech. large polit- impose not uncommon penalties a court additional demonstrations, orderly upon ical sloganeering matter how the arsonist for as he however, dramatically ty’s approach, possibility 5. To hold otherwise would chill creates the expression by making partici agent similarly provocateur's free would-be veto that would pants losing sufficiently minority permit ‍​‌‌​​‌‌‌‌​​​‌‌‌‌​‌‌​​‌‌​‌​​​​​‌​‌​​‌​‌​‌‌​​‌‌​​‌‍in demonstrations run the risk dedicated militant government by tainting benefits violence because of the stifle other voices demonstrations Supreme they oppose other demonstrators. The Court has com- with violent conduct. These rejected certainly suggest the idea of the veto.” See "heckler’s ments are not intended to Carolina, Edwards South 372 U.S. involved in the California dem- violent acts (1963); question agent 9 L.Ed.2d S.Ct. Chicago, Terminiello v. onstration in were the work provocateurs only minority L.Ed. 1131 or even of York, questions but see Feiner v. New in is- demonstrators. Those are not majori- Only 95 L.Ed. 295 case. Parcham’s conduct is. sue in this protest. content of his Ac- immigra- conduct and the if the crimes. Even commits his I that the content of cordingly, Parc- believe BIA could consider judge tion protest may in the participation Parcham’s have bеen sub- allegedly violent ham’s charges impermissibly and the stantial unfavorable factor demonstration participation, stemming immigration judge. from that considered content of him for the penalize could conduct and Because considerations of In the immi- expressed. political views immigra- interwoven content were however, content opinion, gration judge’s decision, judge’s the BIA should have tion inextricably intertwined. and conduct were Instead, for reconsideration. remanded continuing obli- speaks of the The decision disavowing the im- affirmed without either more, process, but gation to accord fair of Parc- migration judge’s consideration thereby regime,” supporters “to or her consideration of nationality ham’s support- identifying Parcham as a impliedly to do so political Its failure beliefs. impor- More government. er of the Iranian possibility that the BIA open leaves tant, that discretion the decision recites will impermissible implicitly relied on these favorably part because exercised not be Moreover, although BIA not- factors. participated a violent “petitioner has claim, it ed Parcham’s first amendment country.” our demonstration in its decision. failed to address that claim added). Clearly, immigra- (emphasis I the BIA’s decision and would reverse only possibili- judge considered not refer- remand for reconsideration without criminally ty Parcham had acted but impermissible considerations ence to the message sought that he to commu- also the have tainted the denial of Parcham’s nicate, punitivеly to the and she reacted request for relief.6 policy foreign criticism of United States context, message. perceived in that she IV. important one sees how voluntary depar- denial of Because the to the immi- consideration have been of Parc- ture is tainted judge’s decision. Her discourse on gration beliefs, there political ham’s hostage foreign affairs and the crisis con- and remand. is sufficient reason to reverse embattled, image of America tains the majority approves considera- But since the Her discus- Iran the foremost assailant. then-pending the mere fact of the tion of Parcham, “supporters of one of the sion charges resolved in Parcham’s fa- has demonstrated regime” who —now deny him additional reason to image- vor—as an “against country,” our echoes that I voluntary departure, am constrained that the ry. I do not believe deporta- Because distinguished Parcham’s comment on that factor.7 between noted, completion alien’s criminal trial. The previously trial in the dle of the 6. As Monica, Superior advantage voluntary departure California on principal Court of Santa to a judgment charges ac- ended in a deportable the quittal. alien is that an alien who leaves charges per- then-pending Even if the voluntary departure may apply for imme- under characterization of Parcham’s con- mitted the while an diate to the United States readmission remand, unprotected speech, light duct as deported apply cannot for readmis- alien whо is acquittal, would no of Parcham’s years, Attorney General sion for five unless the result, longer support such a conclusion. As a I grants permission so. 8 U.S.C. him to do permit participation would 1182(a)(17). five-year of limita- statute § demonstration to be considered as an California by Congress by amendment tions was added grant deciding factor in whether to vol- adverse Immigration and December effective untary departure unless the INS offers some Nationality Pub.L. Act Amendments charges against than the bare evidence other 97-116, 4(1), At the No. 95 Stat. 1611 shows that his involvement was Parcham that violent, BIA decid- time that the scope and therefore outside period five-year ed this limitation protected expression. effect, have been not in and Parcham would applying without for readmission disаbled from matter, policy question I the wisdom of 7. As a permission life. General’s relying pending charges under most circum- voluntary departure confers a stay Thus the where the INS could decision until stances charged, hearings though are civil rather than criminal was obviously tion even he Harisiades, 342 U.S. at would have been proceedings, presumed innocent until proven guilty any S.Ct. at the alien not invoke proceeding, criminal safeguards I panoply full of available to But am inclined think principles the to that of E.g., Chang Nai process due require the criminal defendant. more than the mere INS, (1 Cir.1976). of pending charges Chen existence justify to Therefore, voluntary departure the and BIA nial of under the cir- pending charges consider the cumstances of could where the has INS proba- Parcham as some evidence that he offered no evidence corroborative the of bly charges committed the crimes with which he guilt.8 Parcham has denied his benefit, significant though signifi- likely penalize one of lesser far people more to who are ulti- cance since the 1981 amendment. mately acquitted ultimately than those who are convicted, benefit, Voluntary departure right; safeguards variety a a since Act is not the in a Congress required against ready not the ways has of readmission of criminals. give deportable all aliens the of to tary benefit volun- departure voluntary Because also accords explicitly departure, and has excluded some benefits, alien other which are unaffected Yet, eligibility. classes of aliens the inter- statutory provisions, notably greater those most deportation play of the Act's various and exclu- destination, say regarding one’s and because I provisions why generally sion demonstrates it is imagine can circumstances where it would inbe ground deny ill-advised to tary departure the decision to volun- deportation the national to interest effect before pending charges. Had the completion proceedings, of criminal I can- stayed pending decision been the outcome of say practice weighing not that pending of trial and the criminal had Parcham been con- deciding grant whether to discretion- victed, provisions might a number of of the Act ary contrary relief is irrational and to the statu- accomplished have the same result as denial tоry purpose. But I do that believe under the voluntary departure pending of based on presented circumstances in this case it an is First, 244(e) charges. ineligible Section makes unjust policy. unwise and departure any voluntary person for convicted of involving turpitude a crime moral committed presumption The distinction between the of States, years entry within five of into the United process innocence considerations due of is prison to a if sentenced term of at least one pre nice but real. Were Parcham entitled to a year, any person or is who convicted of two sumption deportation of pro innocence in the involving turpitude crimes moral time trial, ceeding as well as at entry after whether or not the re- convictions permittеd would not be to consider sentence, prison long they sulted a so as did charges at all before verdict was rendered. arise from the same scheme of criminal Parcham, however, pre is not 1254(e), 1251(a)(4). entitled misconduct. Additionally, 8 U.S.C. §§ 244(e) sumption deportation ineligible proceeding, section makes problem departure people evidentiary weight of convicted various therefore is the crimes, given enumerated whether or not other- to be to the bare of existence wise meet conditions described above. charges. At least under most circumstances Moreover, provisions the exclusion of the Act petitioner where the relief has entry persons of bar who have been convict- guilt, denied I think that the mere existence involving turpitude. of a ed crime moral outstanding charges with no additional corrobo 1182(a)(9). Finally, U.S.C. § before Parcham rative evidence does not amount substantial lawfully could have been readmitted to Unit- supporting finding implied evidence of fact States, ed he would had have to convince a charged. that he has committed the crimes See Assuming consular officer to issue him a visa. (5 Cir.1969) Jarecha attempting he that was return as a nonimmi- (factual findings upon which denial discre- (Parcham has been the United States as tionary predicated relief is meet must substan- student, nonimmigrant perma- a not as a lawful test); Wong WingHang tial evidence immigrant), nent resident admitted (2 Cir.1966) (same). consular officer could have considered Parc- say, acquit- Needless to because Parcham past immigration history ham’s to determine ted, on remand the mere fact he was tried whether to refuse issuance on the visa probative should have value. That good

ground that Parcham lacked faith inten- not, course, does mean that the circumstanc- upon expiration leave the United States gave charges may es rise to the arson be of his visa. The decision the consular officer Although considered. State California virtually is See 1A nonreviewable. C. Gordon & prove Rosenfeld, failed to meet its burden to H. Law and Procedure doubt, guilt beyond possible it is reasonable 3.11b developed light statutory provisions, evidence ap- at trial available of these pears pending charges through other testimonial sources remand ex rel. Castro-Louzan United Statеs Cf (E.D.Pa. Zimmerman, F.Supp.

1950). by majority cited do The cases convince me otherwise.9

V. reasons, remand for

For these I would regard to Parc-

reconsideration without nationality, ‍​‌‌​​‌‌‌‌​​​‌‌‌‌​‌‌​​‌‌​‌​​​​​‌​‌​​‌​‌​‌‌​​‌‌​​‌‍participation in the Cali-

ham’s demonstration, political

fornia beliefs.

Finally, prosecu- whether or not properly considered be-

tion for arson was

fore, longer, probative it is of value light subsequent acquittal. EVANS, Appellant,

Lester R. TRUCKERS, INC., Appellee.

DAVIE EVANS, Appellee,

Lester R. TRUCKERS, INC., Appellant.

DAVIE 84-2042,

Nos. 84-2068. Appeals,

United States Court of

Fourth Circuit.

Argued May 1985. Aug.

Decided Rehearing En Banc

Rehearing and 9, 1985 in No. 84-2042. Sept.

Denied adultery; nied that that act amounted to would militate latter, parture. petitioner that she had commit conceded adultery. immigration judge denied ted 9. In none of the three cases cited did the INS discretionary petitioner relief in Gamhino prove peti rely then-pending denied, (2 Cir.), cert. tioner should not receive Marshall, deportation. In Aalund v. (1970), Talayera refused to answer because Gambino Pederson, (5 Cir.1972), F.2d 710 questions put about his to him (6 Cir.1964), independent there was prior present convictions and his activities adultery. peti evidence of In the former bearing illegitimate associations. tioner admitted to child husband, but de fathered another woman’s

Case Details

Case Name: Saied Parcham v. Immigration and Naturalization Service

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Aug 13, 1985

Citation: 769 F.2d 1001

Docket Number: 81-1529

Court Abbreviation: 4th Cir.