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Keywords

appealhearingmotionregulationasylumvisadeportation
hearingmotionregulationasylumvisadeportationappellant

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Duran v. Immigration and Naturalization Service

Facts

Leonillo and Shirley Duran, husband and wife from the Philippines, were subject to deportation for overstaying their visas. They admitted deportability at a hearing but later sought to reopen the proceedings, claiming they were not informed of their rights to apply for asylum and suspension of deportation. The immigration judge denied their motions, leading to their appeal.

Leonillo and Shirley Duran, husband and wife, are citizens of the Philipines. Leonillo first entered the United States as a nonimmigrant crewman in December of 1974 for a period of one month. Shirley first entered the United States as a nonimmigrant visitor in March of 1972 for a period of six months. Both overstayed their visas. Shirley apparently was trained and worked as a nurse and laboratory technician. They now own a home and have recently invested in a small restaurant. They have two American-born children. Deportation proceedings were instituted against the Durans in 1980. At the March 3, 1981 deportation hearing, while represented by counsel, they admitted deportability, designated the Philipines as the country to which they should be deported, and were granted the privilege of voluntary departure. They did not, however, leave the country. Instead, on July 21, 1981, represented by new counsel, appellants filed a motion to reopen the deportation proceedings against them.

Issue

Whether the immigration judge was required to notify the petitioners of their rights to apply for asylum and suspension of deportation during the deportation hearing.

Whether the immigration judge was required to notify the petitioners of their rights to apply for asylum and suspension of deportation during the deportation hearing.

Rule

The court applied the regulations under 8 C.F.R. 242.17(c) which do not require an immigration judge to notify an alien of the right to apply for asylum unless the special inquiry officer designates the country of deportation.

The court applied the regulations under 8 C.F.R. 242.17(c) which do not require an immigration judge to notify an alien of the right to apply for asylum unless the special inquiry officer designates the country of deportation.

Analysis

The court found that Leonillo Duran did not meet the requirements for reopening his case as he was not entitled to notice of his right to apply for asylum under the applicable regulations. In contrast, the court determined that Shirley Duran had been in the U.S. for seven years, making her eligibility for suspension of deportation apparent, and the immigration judge's failure to inform her of this right constituted an abuse of discretion.

The court found that Leonillo Duran did not meet the requirements for reopening his case as he was not entitled to notice of his right to apply for asylum under the applicable regulations. In contrast, the court determined that Shirley Duran had been in the U.S. for seven years, making her eligibility for suspension of deportation apparent, and the immigration judge's failure to inform her of this right constituted an abuse of discretion.

Conclusion

The court affirmed the denial of Leonillo's motion to reopen but vacated the denial of Shirley's motion and remanded the case to allow her to apply for suspension of deportation.

The court affirmed the denial of Leonillo's motion to reopen but vacated the denial of Shirley's motion and remanded the case to allow her to apply for suspension of deportation.

Who won?

The prevailing party was Shirley Duran, as the court ruled that she was entitled to reopen her deportation proceedings due to the immigration judge's failure to inform her of her eligibility for suspension of deportation.

The prevailing party was Shirley Duran, as the court ruled that she was entitled to reopen her deportation proceedings due to the immigration judge's failure to inform her of her eligibility for suspension of deportation.

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