Interim Decision #3101
MATTER OF DURAN
In Deportation Proceedings
A-14690913
Decided by Board March 23, 1989
(1) An immigration judge in deportation proceedings properly denied the respondent's
motion to subpoena government records where the respondent failed to comply with
the requirements of B C.F.R. § 287.4(a)(2) (1984) by not specifically stating what he
expected to prove by such documentary evidence and by not affirmatively showing a
diligent effort to obtain the records.
(2) While a subpoena is not required in the instant proceedings and access should
generally be given to a person in immigration proceedings concerning records
maintained about himself, the respondent failed to show compliance with the
requirements of 8 C.F.R. § 103.21 (1984) which permit such access.
CHARGE:
Orden Act of 1952—Sec. 241(a)(2) [
8 U.S.C. § 1251(a)(2)J—Entered without inspection
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Rudy Cardenas, Jr., Esquire Alan S. Rabinowitz
Cardenas & Fifield General Attorney
229 Main Street, Suite 111
Post Office Box 91
Brawley, California 92227
BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members
In a decision dated September 5, 1984, the immigration judge found
the respondent deportable as charged under section 241(a)(2) of the
Immigration and Nationality Act,
8 U.S.C. § 1251(a)(2) (1982), as an
alien who entered the United States without inspection by an
immigration officer, denied his requests for relief from deportation
under section 212(c) of the Act,
8 U.S.C. § 1182(c) (1982), and for
voluntary departure in lieu of deportation, and ordered that he be
deported to Mexico. The respondent has appealed from that decision.
The appeal will be dismissed.
The respondent, a 40 year old married native and citizen of
- -
Mexico, was admitted to the United States for lawful permanent
residence on July 30, 1965. The record indicates that the respondent
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Interim Decision #3101
subsequently attempted to enter the United States on January 18,
1971. On April 12, 1971, the respondent was convicted, on his plea of
guilty, in the United States District Court for the Southern District of
California, of failure to pay a special tax on marihuana and was
sentenced to 2 years in prison. The information upon which the
respondent was convicted alleged that he unlawfully imported approximately 150 pounds of marihuana.'
The respondent acknowledged that he appeared before an immigration judge in 1972. A Warrant of Deportation (Form 1-205), dated
June 16, 1972, provides for the exclusion and deportation of the
respondent pursuant to section 212(a)(23) of the Act. The record
reflects that the Warrant of Deportation was executed on June 20,
1972.
The respondent returned to the United States. In 1981, he
apparently was given administrative voluntary departure. The respondent testified that he remained in Mexico 2 weeks before coming back
to the United States.
In an Order to Show Cause, Notice of Hearing, and Warrant for
Arrest of Alien (Form I-221S), served on the respondent on July 20,
1982, it was alleged that the respondent was not a citizen or national of
the United States but that he was a native and citizen of Mexico who
entered the United States without inspection on or about July 3, 1982.
He was charged with deportability under section 241(a)(2) of the Act
for entering the United States without inspection.
At his hearing, the respondent denied the allegations in the Order to
Show Cause and denied deportability. However, he admitted that he
was a native and citizen of Mexico and that his parents were natives
and citizens of Mexico who had never been citizens of the United
States. He also admitted that he last entered the United States in 1982,
driving a car and claiming to be a United States citizen.
The respondent further admitted that he had been convicted on July
21, 1982, in a federal court, on his plea of guilty, of entry without
inspection in violation of 8 U.S.C. § 1325 (1982). The respondent
received a sentence of 120 days in prison.
On appeal, the respondent reiterates the argument he raised below,
i.e., that he was eligible for section 212(c) relief at his deportation.
hearing because his 1972 exclusion hearing resulted in a gross
miscarriage of justice. The respondent maintains that it was prejudicial error to deny his motion to subpoena the record of his 1972
exclusion hearing. In this regard, the respondent claims that he was not
afforded due process at that hearing by not being informed of his
rights, by not being allowed representation by counsel, and by not
1 The respondent alleges that the amount involved was only 80 pounds of marihuana.
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Interim Decision #3101
being given a full hearing where the Government had the burden of
proof.
The respondent submits that a subpoena is necessary in order to
obtain the records of his 1972 exclusion hearing. As pertinent, 8
C.F.R. § 287.4(a)(2) (1984) (now codified at
8 C.F.R.
§ 287.4(a)(2)(ii)(B) (1989)) provided:
A party applying for a subpoena shall be required, as a condition precedent to its
issuance, to state in writing or at the proceeding what he expects to prove by such
witnesses or documentary evidence, and to show affirmatively that he has made
diligent effort, without success to produce the same.
The record reflects that when the respondent appeared at his
deportation hearing, he requested the immigration judge to subpoena
the records of his prior hearing. However, there is no indication,
whatsoever, in this record that the respondent attempted to obtain
these records prior to his appearance before the immigration judge.
The respondent has failed to show that he made a diligent effort to
obtain the records of his 1972 hearing. The respondent also has failed
to show that he adequately stated what he expected to prove. The
respondent's generalized and conclusory assertions do not state, with
any specificity, what he was going to prove. Thus, the respondent has
failed to comply with
8 C.F.R. § 287.4(a)(2) (1984).
Further, a subpoena is not required in these proceedings. "Any
individual who seeks access to records about himself in a system of
records ... must submit a written request in person or by mail to the
manager of the particular system of records to which access is sought."
8 C.F.R. § 103.21(a) (1984). Thus, the regulations provide that an
individual may have access to the records maintained about himself. 2
See
8 C.F.R. §§ 103.10, 292.4(b) (1984). The regulations also set forth
the procedures by which an individual may seek access to those
records. See
8 C.F.R. § 103.21 (1984); see also
8 C.F.R. § 103.10(a)
(1984).3
We have no difficulty concluding that, with the exception of the
regulation exemptions, a person in immigration proceedings should be
given access to the records maintained about himself by the Immigration and Naturalization Service and by the Executive Office for
Immigration Review. In this case, however, the respondent made no
showing that he complied with the procedures for obtaining his
records. He made no showing that he even attempted to comply with
the specified procedures. Thus, the respondent failed to show that he
complied with the applicable regulations. We note the respondent
made no allegation that, prior to his appearance before the immigra-
2 Some records are exempt. See, e.g.,
8 C.F.R. §§ 103.10(b)(2), 103.22 (1984).
3 The regulations cited in this paragraph are currently in effect.
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Interim Decision #3101
tion judge at the deportation hearing, he attempted to obtain the
records of his 1972 exclusion hearing.
In addition, the respondent's claims regarding the "gross miscarriage of justice" at his 1972 exclusion hearing are not only conclusory
but also speculative. The respondent alleges no facts to support his
claims.4 Under the circumstances of this case, we find no basis to
remand the record for further proceedings.
Moreover, even if the respondent could successfully challenge the
1972 exclusion order,3 his illegal entry in July 1982 would remain as a
wholly independent ground for deportation. See Ramirez-Juarez v.
INS, 633 F.2d 174 (9th Cir. 1980); Hernandez Almanza v. United
-
States Department of Justice, 547 F.2d 100 (9th Cir. 1976). This case
arises within the jurisdiction of the United States Court of Appeals for
the Ninth Circuit. A section 212(c) waiver of inadmissibility is
authorized in deportation proceedings only where the ground of
deportability sought to be waived is also a ground of excludability
specified in section 212(c). See Cabasug v. INS,
847 F.2d 1321 (9th
Cir. 1988) (section 241(a)(14)). The respondent's reference to Gutierrez v. INS,
745 F.2d 548 (9th Cir. 1984), is not applicable inasmuch as
that case was qualified by Cabasug v. INS, supra, at 1325-26.
The respondent's deportability under section 241(a)(2) of the Act, as
an alien who entered the United States without inspection, has been
established by clear, unequivocal, and convincing evidence. See
Woodby v. INS,
385 U.S. 276 (1966);
8 C.F.R. § 242.14(a) (1989). In
addition, the respondent is ineligible as a matter of law for relief from
deportation under section 212(c). Further, the respondent has failed to
adequately identify the reasons underlying his appeal from the denial
of voluntary departure.
Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.
4 The respondent admitted, and the record reflects, that he has a 1971 conviction
involving at least 80 pounds of marihuana. We note that the respondent's 1971
marihuana conviction would have rendered him excludable under section 212(a)(23) of
the Act_ We further note that the respondent was excluded and deported pursuant to
section 212(a)(23) of the Act.
5 The respondent was statutorily ineligible for section 212(c) relief at his 1972
exclusion hearing inasmuch as he had not yet acquired the requisite domicile of 7
consecutive years.
4
