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Keywords

attorneyappealhearingmotionhabeas corpusvisadeportationnaturalizationappellantliens
attorneyappealhearinghabeas corpusvisadeportationnaturalizationappellantliens

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Gamero v. Immigration and Naturalization Service

Facts

Appellant is an alien who attacks an order of exclusion and deportation issued by a Special Inquiry Officer of the Immigration and Naturalization Service on October 4, 1961. The officer ruled that appellant, as an immigrant not in possession of a valid immigration visa, is an excludable alien under the provisions of section 212(a)(20) of the Immigration and Nationality Act of 1952, 8 U.S.C. 1182(a)(20). A private congressional bill, H.R. 8298, had been introduced on July 12, 1961, which would have permitted appellant to become a permanent resident, but it was defeated on July 25, 1963. Appellant filed a motion to reopen the exclusion proceedings after the defeat of his congressional bill, claiming he was a legal and permanent resident of the United States.

Appellant is an alien who attacks an order of exclusion and deportation issued by a Special Inquiry Officer of the Immigration and Naturalization Service on October 4, 1961. The officer ruled that appellant, as an immigrant not in possession of a valid immigration visa, is an excludable alien under the provisions of section 212(a)(20) of the Immigration and Nationality Act of 1952, 8 U.S.C. 1182(a)(20).

Issue

Whether appellant was denied full opportunity to present evidence of eligibility for discretionary relief under sections 211(b) and 212(c) of the Immigration and Nationality Act of 1952 (8 U.S.C. 1181(b), 1182(c)), and whether the order denying the petition for habeas corpus was supported by substantial evidence.

Whether appellant was denied full opportunity to present evidence of eligibility for discretionary relief under sections 211(b) and 212(c) of the Immigration and Nationality Act of 1952 (8 U.S.C. 1181(b), 1182(c)), and whether the order denying the petition for habeas corpus was supported by substantial evidence.

Rule

Section 212(c) (8 U.S.C. 1182(c)) provides, '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 paragraph 212(a)(20) of this section.'

Section 212(c) (8 U.S.C. 1182(c)) provides, '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 paragraph 212(a)(20) of this section.'

Analysis

The court found that the evidence which appellant would have introduced in a reopened hearing could not have established his eligibility for discretionary relief. The court accepted that appellant had, in the beginning, been 'lawfully admitted for permanent residence' but concluded that he had forfeited any possible eligibility for discretionary relief by absenting himself from the United States for a period exceeding that which might be reasonably characterized as temporary.

The court found that the evidence which appellant would have introduced in a reopened hearing could not have established his eligibility for discretionary relief.

Conclusion

The court of appeals affirmed the lower court's decision that denied appellant's request for habeas corpus relief, finding that appellant was not denied an opportunity to present evidence of eligibility for discretionary relief and that the order denying the petition for habeas corpus was supported by substantial evidence.

The court of appeals affirmed the lower court's decision that denied appellant's request for habeas corpus relief, finding that appellant was not denied an opportunity to present evidence of eligibility for discretionary relief and that the order denying the petition for habeas corpus was supported by substantial evidence.

Who won?

The Immigration and Naturalization Service prevailed in the case because the court found that the administrative decision was supported by substantial evidence and that appellant had not been denied a fair opportunity to present his case.

The Immigration and Naturalization Service prevailed in the case because the court found that the administrative decision was supported by substantial evidence and that appellant had not been denied a fair opportunity to present his case.

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