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Keywords

jurisdictionappealhearingmotionvisadeportationnaturalizationobjection

jurisdictionhearingregulationvisadeportation

Related Cases

La Franca v. Immigration and Naturalization Service

Facts

Petitioner, a native and citizen of Italy, had been deported from the United States twice before and was arrested for being in the country without a visa. After his arrest in New Jersey, he was taken to New York for a hearing where he was represented by counsel. During the hearing, he conceded his deportability and did not request voluntary departure. Following the hearing, he moved to reopen the proceedings to apply for voluntary departure, which was denied by the Board of Immigration Appeals.

Petitioner is an alien, a native and citizen of Italy. On two prior occasions he was deported from the United States. He last entered the United States on February 20, 1967, as [**2] a transient without visa and was authorized to remain for four days. He did not depart within the allotted time and remained at large until his arrest on June 13, 1968.

Issue

Whether the petitioner's arrest without a warrant was illegal, whether the hearing was jurisdictionally improper, and whether the hearing should have been reopened to allow for a request for voluntary departure.

Petitioner contends that (1) his arrest without a warrant was illegal, rendering subsequent deportation proceedings void; (2) his arrest in New Jersey and removal to New York for hearing was 'jurisdictionally improper'; and (3) he should have been afforded the opportunity to establish eligibility for voluntary departure.

Rule

Under 8 U.S.C.S. 1357(a)(2), immigration officers may arrest an alien without a warrant if they have reason to believe the alien is in violation of the law and likely to escape before a warrant can be obtained. The grant or denial of a motion to reopen a deportation proceeding is discretionary with the Board of Immigration Appeals.

8 U.S.C. 1357(a)(2) provides, inter alia, that any officer or employee of the Immigration Service may arrest an alien without a warrant 'if he has reason to believe that the alien so arrested is in the United States in violation of any * * * law or regulation and is likely to escape before a warrant can be obtained for his arrest * * *.'

Analysis

The court determined that the immigration officers had probable cause to arrest the petitioner and that even if the arrest was illegal, it did not invalidate the subsequent deportation proceedings. The court noted that the hearing's location was accessible and that the petitioner had waived any objection to it. Furthermore, the court found no merit in the petitioner's claim for reopening the proceedings, as he had not presented new evidence that could not have been discovered earlier.

Certainly there was probable cause to place petitioner under arrest, and his deportability was conceded at the hearing. The Immigration Service did not rely upon any statements taken or evidence seized at the time of his arrest. Under these circumstances, even if the arrest without a warrant were illegal, this would not invalidate the subsequent deportation proceedings.

Conclusion

The court denied the petition, holding that the petitioner's arrest was not illegal, the place of hearing was not improper, and it was not an abuse of discretion to deny the motion to reopen the proceedings.

The petition is denied.

Who won?

The Immigration and Naturalization Service prevailed in the case because the court upheld the Board's decision, finding no legal errors in the proceedings.

The courts cannot review the exercise of such discretion; they can interfere only when there has been a clear abuse of discretion or a clear failure to exercise discretion.

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