Interim Decision #2539
MATTER OF WIELENDEZ
In Deportation proceedings
A-20852165
A-20852166
Decided by Board October 20, 1976
Respondents, the alien parents of a United states citizen child, have no constitutional
right to remain in the United States in violation of the immigration laws merely because
of the existence of the citizen child. Notwithstanding the instant case falls within the
ambit of Acosta v. Gaffney, 413 F. Supp. 827 (D. N.J., 1976), and arises within the
jurisdiction of that District Court, the Acosta ruling (holding unconstitutional the
deportation of parents of a United States citizen minor child) is not binding in the
instant case because that ruling, which is presently pending before the United States
Court of Appeals for the Third Circuit, has mot become final.
CHARGE:
Order: Act of 1952—Section 241(a)(2) [8 U.S. C. 1251 (a)(2)1—Nonimmigrant visitor tor
business—remained longer (male respondent)
Nonimmigrant visitor for pleasure—remained longer (female
respondent)
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Franklin S. Abrams, Esquire Farel Bond
Abrams & Abrams Trial Attorney
One Penn Plaza
New York, New York 10001
This is an appeal from an immigration judge's decision dated June 18,
1976, denying the respondents' motion to reopen the proceeding. The
appeal will be dismissed
The respondents, natives and citizens of Colombia, were married in
their native country in December 1972, and entered the United States
separately, the husband in January 1973 and the wife in January 1974.
Subsequent to entry, a child was born to the couple. Both respondents
remained in the United States beyond the time authorized and deportation proceedings were initiated, at which both conceded deportability
and were granted 75 days voluntary departure. Prior to the expiration
of this period, the respondents moved for a reopening of the deportation
proceedings on the basis of the decision in Acosta v. Gaffney, 413 F.
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Interim Decision #2539
Supp. 827 (D. N.J. 1976), appeal docketed, No. 76-2094, 3d Cir., holding
unconstitutional the deportation of parents of a United States citizen
minor child. The immigration judge denied the motion on the ground
that the case was not binding upon him, and the respondents appealed.
In Acosta v. Gaffney, supra, the trial judge emphatically rejected the
prevailing doctrine of the Board and various United States Courts of
Appeals and held, under the factual situation of that case, that the
deportation of alien parents constituted an unconstitutional violation of
the rights of their United States citizen child. The present case arises in
the same jurisdiction as did Acosta.
It has been well established that the deportation of alien parents will
not deprive a minor citizen child of his constitutional rights. U.S. ex rel.
Hintopoulos v. Shaughnessy,
353 U.S. 72 (1957); Aalund v_ Marshall,
461 F.2d 710 (5 Cir. 1972); Perdido v. INS,
420 F.2d 1179 (5 Cir. 1969);
Mendez v. Major,
340 F.2d 128 (8 Cir. 1965); Application of Amoury,
307 F. Supp. 213 (S.D.N.Y. 1969); Dayao v. Staley,
303 F. Supp. 16
(S.D. Tex. 1969), affd per curiam,
424 F.2d 1131 (5 Cir. 1970). Whatever rights the child may have under the Constitution do not authorize
the respondents to remain here in violation of the immigration laws.
Matter of Anaya, Interim Decision 2243 (BIA 1973), affd AnayaPerches v. INS,
500 F.2d 574 (5 Cir. 1974); Matter of Lopez, Interim
Decision 2224 (BIA 1973).
On appeal, the respondents' counsel contends that the immigration
judge was bound by Acosta v.
Gaffney, supra, and should be required to
follow the decision of the United States District Court in all cases
arising within the same district. We note that, in Matter of Amado and
Monteiro,
13 I. & N. Dec. 179 (BIA 1969), we stated that we were
obliged to apply a ruling of a district court (which had become final) in
subsequent cases arising within that court's jurisdiction. Here we are
dealing with a different situation. In the Acosta case, on which counsel
relies, an appeal is presently pending before the United States Court of
Appeals for the Third Circuit. Therefore, vre shall continue to adhere to
the doctrine enunciated in our previous decisions. Matter of
Anaya,
supra; Matter of Lopez, supra.
The appeal will be dismissed.
ORDER: The appeal is dismissed.
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