United States v. Gustavo Osuna-Picos
443 F.2d 907
9th Cir.
1971
Check Treatment

UNITED STATES of America, Plaintiff-Appellee, v. Gustavo OSUNA-PICOS, Defendant-Appellant.

No. 26549

United States Court of Appeals, Ninth Circuit

May 26, 1971

443 F.2d 907

Gray, District Judge, filed a concurring opinion.

the plaintiff. In its order of December 9, 1970, the district court stated the facts and its conclusions of law. We affirm on that order.1

Affirmed.

George Haverstick (argued), San Diego, Cal., for defendant-appellant.

Joseph Sureck (argued), Regional Counsel, I & NS, San Pedro, Cal., Harry D. Steward, U. S. Atty., Brian E. Michaels, Asst. U. S. Atty., San Diego, Cal., for plaintiff-appellee.

Before BARNES and DUNIWAY, Circuit Judges, and GRAY, District Judge.*

PER CURIAM:

Appellant seeks review of his conviction under 8 U.S.C. § 1326 for illegally re-entering the United States after deportation. Our jurisdiction rests upon 28 U.S.C. § 1291. Both entries into the United States were made upon fraudulent claims of citizenship. Appellant‘s defense at trial was based upon the fact that he is the child of an alien lawfully admitted for permanent residence. He now asserts that the deportation order was rendered invalid by 8 U.S.C. § 1251(f), thereby negating an essential element of the crime. The trial court,

, rejected this contention and upheld the order of deportation on the basis of the decision of the Attorney General in
.

Subsequently, we considered the scope of § 1251(f) and reversed the said Attorney General‘s decision in

, pet. rh. denied (Feb. 11, 1971). In that case we held that an alien who has the requisite family ties and meets the qualitative requirements of the Immigration and Naturalization Act is entitled to the relief provided by § 1251(f), even though he has obtained entry by misrepresentation. No petition for certiorari has been filed by the government.

Because this case is factually indistinguishable from

, we must reverse the judgment of conviction. It is so ordered.

GRAY, District Judge (concurring):

I agree that this case is covered by the opinion of this Court in

. Being bound by that decision, I concur in this one.

Notes

1
Computer Servicenters, Inc. of Greenville v. Beacon Manufacturing Company, 328 F.Supp. 653, (D.S.C.1970).
*
Hon. William P. Gray, United States District Judge, Central District of California, sitting by designation.