MATTER OF MELENDEZ 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 not become final. CHARGE: Order: Act of 1952-Section 241(a)(2) [8 U.S. C. 1251 (a)(2)]—Nonimmigrant visitor for business remained longer (male respondent) Nonimmigrant visitor for pleasure-remained longer (female respondent) ON BEHALF OF RESPONDENT: Franklin S. Abrams, Esquire Abrams & Abrams One Penn Plaza New York, New York 10001 ON BEHALF OF SERVICE: Farel Bond Trial Attorney 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. 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), aff'd 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), aff'd AnayaPerchez 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, we 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. MATTER OF TAHSIR In Visa Petition Proceedings A-19450829 Decided by Board December 8, 1976 (1) This is an appeal of the denial of an immediate relative visa petition based on a report which was not shown to petitioner. (2) The regulations provide for the use of "classified" information without the petitioner's right to inspect it only upon a finding by the regional commissioner that the information is relevant and classified under E.O. 11652 (8 C.F.R. 103.2(b)(2)). In addition, the regional commissioner's authorization to use such classified information must be made a part of the record of proceeding. Also, petitioner should be given notice of the general nature of the information and an opportunity to rebut it if it can be done without jeopardizing the safety of the information and its source. (3) Where denial of the petition is based upon "classified" information which is not shown to petitioner, and the requirements of 8 C.F. R. 103.2(b)(2) are not followed, the record will be remanded to afford petitioner an opportunity to inspect and rebut the adverse information or for appropriate classification of the information by the regional commissioner in accordance with the above regulation. ON BEHALF OF PETITIONER: Alan E. Pike, Esquire 18 Tremont Street Boston, Massachusetts 02108 BY: Milhollan, Chairman; Wilson, Torrington, Maniatis, and Appleman, Board Members The United States citizen petitioner applied for immediate relative status for the beneficiary as her spouse under section 201(b) of the Immigration and Nationality Act. In a decision dated March 5, 1976, the District Director denied the petition on the ground that the petitioner had failed to establish eligibility for the status sought. The record will be remanded for further proceedings. The visa petition is supported by certificates attesting to the petitioner's birth in the United States on May 22, 1953, and marriage to the beneficiary on February 3, 1975. The District Director's decision, on the other hand, appears to be based upon a report which has not been shown to the petitioner. The District Director's decision recites that the petitioner and the beneficiary appeared for an interview, together with their attorney, on March 2, 1976. During the course of this interview, on the advice of their attorney, the parties refused to answer specific questions which appear to have been raised by the aforementioned report. When their attorney advised the parties to answer no more questions until he could see whatever report the questions came from, he was informed that he could see only the record portion of the file. The interview was then terminated and the visa petition was subsequently denied for lack of prosecution. The report, upon which the District Director appears to have based his denial, is a part of the record before us. Although the report has some type of security classification, it does not appear to have been treated as such by the District Director. The regulations provide for the use of “classified" information without the petitioner's right to inspect it, only upon a finding by the regional commissioner that the information is relevant and classified under Executive Order No. 11652 (37 FR 5209; March 10, 1972). 8 C.F.R. 103.2(b)(2). In addition, the petitioner should be given notice of the general nature of the information and an opportunity to offer opposing evidence, if it can been done without jeopardizing the safety of the information and its source. More importantly, the regional commissioner's authorization to use the "classified information" must be made a part of the record of proceeding. In this case, there is no evidence in the record that any of these procedures have been followed. There is nothing in the record to indicate that the petitioner was aware of the evidence impugning the beneficiary's capacity to contract a valid marriage with her. The regulations require that she be given an opportunity to inspect the record. See 8 C.F.R. 103.2(b)(2); Matter of Holmes, Interim Decision 2274 (BIA 1974); Matter of Arteaga-Godoy, Interim Decision 2171 (BIA 1972); Cf., Matter of Mata, Interim Decision 2454 (BIA 1975). Moreover, there is no indication that the District Director's memorandum to the Board, dated September 8, 1976, was ever served on the petitioner. The regulations require that "an appeal, cross-appeal, answers thereto and accompanying brief, if any, shall become part of the record of proceeding and, if filed by an officer of the Service, a copy shall be served on the party affected." 8 C.F.R. 103.3(a). Unless this memorandum is served on the petitioner it cannot become a part of the record. Accordingly, the record will be remanded in order that the petitioner may be given an opportunity to inspect and rebut the adverse evidence upon which the District Director relied, or for the classification of such evidence in accordance with 8 C.F.R. 103.2(b)(2). ORDER: The record is remanded to the District Director for further proceedings in accordance with the above opinion and the entry of a new decision. MATTER OF GIBSON In Deportation Proceedings A-18423427 Decided by Board December 14, 1976 (1) Respondent, who seeks suspension of deportation under section 244(a)(1) of the Immigration and Nationality Act, entered the United States as a nonimmigrant student and has been in this country for nine years. He has completed five semesters of college, has no specialized training, and has been employed as a janitor or custodian. He is unmarried and has no relatives in the United States. (2) Notwithstanding the fact that respondent meets the physical presence and good moral character requirements of the statute, his application for suspension of deportation will be denied because economic detriment which may result from deportation does not meet the test of extreme hardship within the contemplation of section 244(a)(1) of the Act. (3) In order to insure fair and complete consideration of the proceedings before the Board it is necessary that copies of all briefs, memoranda and representations filed in connection therewith shall have been served on the parties, and the record shall show the date of service. The immigration judge is primarily responsible for the physical aspects of the record in cases under his jurisdiction which come before the Board, and the District Director is similarly responsible for the physical record in cases under his jurisdiction which come before the Board. CHARGE: Order: Act of 1952-Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant studentremained longer than permitted. ON BEHALF OF RESPONDENT: Gordon G. Dale, Esquire 1815 North Broadway Santa Ana, California 92706 ON BEHALF OF SERVICE: BY: Milhollan, Chairman, Wilson, Torrington, Maniatis, and Appleman, Board Members This is an appeal from an order of an immigration judge on May 14, 1976, finding the respondent, age 32, deportable and granting his application for the privilege of voluntary departure, with an alternate order of deportation to Great Britain. The immigration judge denied the respondent's application for suspension of deportation, pursuant to the provisions of section 244(a)(1) of the Immigration and Nationality Act, as amended. The appeal will be dismissed. |