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MATTER OF PEREZ-JIMENEZ

In DEPORTATION Proceedings

A-11261536

Decided by Board July 19, 1963

When parallel deportation and extradition proceedings are pending, the outstand

ing order of deportation will be withdrawn and further deportation proceedings held in abeyance during the pendency of extradition proceedings, since further deportation proceedings would serve no useful purpose and the outstanding order of deportation might unnecessarily and improperly complicate the extradition proceedings.

CHARGES :

Order: Act of 1952—Section 241 (a) (1) [8 U.S.C. 1251 (a) (1)]-Excludable

at entry-No immigrant visa (8 U.S.C. 1182 (a) (20)). Lodged: Act of 1952—Section 241 (a) (2) [8 U.S.C. 1251 (a) (2)]-Remained

longer than permitted as a nonimmigrant.

Respondent is a former president of the Republic of Venezuela. Early in 1958 revolutionary forces terminated his incumbency as president. He left his homeland at that time.

Our decision of September 8, 1959, affirmed the special inquiry officer's order directing respondent's deportation on the charge that he had remained in this country as a nonimmigrant longer than permitted. Respondent has not designated a country to which he would prefer to be sent if deported.

Subsequent to our prior order respondent applied for the benefits of section 243(h) of the Immigration and Nationality Act. The case comes here now on respondent's motion to reopen the proceedings to afford him a hearing on that application and on the Service motion to withdraw the deportation order. We conclude that the Service motion should be granted.

When the special inquiry officer heard respondent's case, the regulations did not provide, as now, for the special inquiry officer to determine the place of deportation.

* Respondent has also filed in the District Court, Southern District of Florida a petition for a mandatory injunction, seeking adjudication of his application.

Respondent last arrived in the United States at West Palm Beach, Florida on March 28, 1958. He then possessed a Venezuelan diplomatic passport and a nonimmigrant visa issued on February 10, 1958 at our Embassy in Santo Domingo. The Service initially paroled respondent but on January 7, 1959 admitted him as a temporary visitor. Respondent is 49 years old. His wife and four minor children are with him in this country. Only respondent is under proceedings at this time, however.

The Consul General of Venezuela in Miami informed the Service by letter of June 5, 1958 that the Venezuelan government had cancelled the diplomatic passports of respondent and his wife and children (Ex. 4).

On August 24, 1959 the Venezuelan Consul in Miami filed a complaint in the District Court for the Southern District of Florida seeking respondent's extradition to Venezuela. A district judge, sitting as a magistrate in extradition proceedings, found probable cause that respondent had committed in Venezuela certain financial crimes which are covered by the Treaty of Extradition between Venezuela and this country. He committed respondent to the custody of the United States Marshal to await the Secretary of State's action. Respondent then brought habeas corpus proceedings, which the District Court dismissed. The Court of Appeals affirmed that decision and the Supreme Court denied certiorari. The extradition proceedings now

5

3 Then Ciudad Trujillo.
* 43 Stat. 1698, T.S. No. 675 (1923).

18 U.S.C. 3186. * Jimenez v. Aristeguieta, 311 F.2d 547 (C.A. 5, 1962), cert. den. sub nom. Jimenez v. Hixon, 373 U.S. 914 (1963).

Litigation connected with the extradition proceedings has been extensive. The judicial phase of the principal action terminated with an order of the magistrate dated June 16, 1961, committing respondents to the custody of the United States Marshal, and an order of June 23, 1961, certifying the record to the Secretary of State with the judge's findings. Earlier in that proceeding, another judge had denied respondent's motion for a protective order against the taking of certain depositions. Respondent attempted an appeal, but the Court of Appeals for the 5th Circuit held that it had no jurisdiction of an appeal from an interlocutory or final order of a magistrate in an extradition proceeding. Jimenez v. Aristeguieta, 290 F. 2d 106 (C.A. 5, 1961)-criticized, 61 Mich. L. Rev. 383 (1962).

There have been various collateral proceedings in addition to the habeas corpus proceedings cited above. Aristeguieta v. Jimenez, 274 F.2d 206 (C.A. 5, 1960, per curiam) and First National City Bank v. Aristeguieta, 287 F. 2d 219 (C.A. 2, 1960), cert. granted 365 U.S. 840 (1961)-denials of motions to quash subpeoneas duces tecum. Jimenez v. Aristeguieta, 314 F.2d 649 (1963)-denial of bail.

await the Secretary of State's decision whether to issue a warrant of extradition.

The Service contends that the extradition proceedings and Immigration proceedings are exclusive and independent of each other. Both the Service motion and the argument of respondent's counsel point out that if respondent's removal takes place under extradition proceedings while there is outstanding an order of deportation, the deportation order will be executed. The Service further points out that in the event of extradition any immigration proceedings will be mooted and terminated. Therefore, the Service contends, the outstanding deportation order serves no useful purpose at this time and may introduce complications.

The Service also argues that, if the Secretary of State fails to issue a warrant of extradition, resumption of deportation proceedings would enable extending to respondent all rights and privileges under the deportation laws and regulations, including adjudication of his application under section 213(h). Thus, the Service urges, the motion, in seeking to eliminate the possibility of execution of the deportation order without affording respondent his full rights and privileges under the laws pertaining to deportation, is beneficial to respondent.

Respondent contends that the Service motion, if granted, would not benefit him but would deprive him of his right to an adjudication at this time of his application under section 243(h). He apparently would risk the possibility of deportation through extradition in order to obtain such an adjudication. Respondent thus prefers to rest his case for avoiding return to Venezuela upon the Attorney General's ruling in deportation proceedings rather than the Secretary of State's ruling in the extradition proceedings. We are to determine whether to grant either of the motions before us and if so which one.

We find that we need not determine whether withdrawal of the deportation order would be beneficial or detrimental to respondent Therefore, we do not decide whether extradition would execute an outstanding order of deportation. If granting the Service motion would benefit respondent by preventing deportation shorn of some of its procedural safeguards, such benefit would be, for our purposes, a side effect. We base our decision on the grounds that, in view of the extraRespondent last arrived in the United States at West Palm Beach, Florida on March 28, 1958. He then possessed a Venezuelan diplomatic passport and a nonimmigrant visa issued on February 10, 1958 at our Embassy in Santo Domingo. The Service initially paroled respondent but on January 7, 1959 admitted him as a temporary visitor. Respondent is 49 years old. His wife and four minor children are with him in this country. Only respondent is under proceedings at this time, however.

* Counsel for the Service indicated at oral argument that he is unwilling to concede merit in respondent's argument that extradition with a final order of deportation outstanding would be in effect a self-executing deportation without an opportunity for respondent to be heard on his application for a stay of deportation. The Service representative pointed out, however, that granting the Service motion would avoid the situation respondent contemplates. Compare section 101 (g), Immigration and Nationality Act, 8 U.S.C. 1101(g).

The Consul General of Venezuela in Miami informed the Service by letter of June 5, 1958 that the Venezuelan government had cancelled the diplomatic passports of respondent and his wife and children (Ex. 4).

On August 24, 1959 the Venezuelan Consul in Miami filed a complaint in the District Court for the Southern District of Florida seeking respondent's extradition to Venezuela. A district judge, sitting as a magistrate in extradition proceedings, found probable cause that respondent had committed in Venezuela certain financial crimes which are covered by the Treaty of Extradition between Venezuela and this country. He committed respondent to the custody of the United States Marshal to await the Secretary of State's action. Respondent then brought habeas corpus proceedings, which the District Court dismissed. The Court of Appeals affirmed that decision and the Supreme Court denied certiorari. The extradition proceedings now await the Secretary of State's decision whether to issue a warrant of extradition.

* Then Ciudad Trujillo.
* 43 Stat. 1698, T.S. No. 675 (1923).
8 18 U.S.C. 3186.

* Jimenez v. Aristeguieta, 311 F.2d 547 (C.A. 5, 1962), cert. den. sub nom. Jimenez v. Hixon, 373 U.S. 914 (1963).

Litigation connected with the extradition proceedings has been extensive. The judicial phase of the principal action terminated with an order of the magistrate dated June 16, 1961, committing respondents to the custody of the United States Marshal, and an order of June 23, 1961, certifying the record to the Secretary of State with the judge's findings. Earlier in that proceeding, another judge had denied respondent's motion for a protective order against the taking of certain depositions. Respondent attempted an appeal, but the Court of Appeals for the 5th Circuit held that it had no jurisdiction of an appeal from an interlocutory or final order of a magistrate in an extradition proceeding. Jimenez v. Aristeguieta, 290 F. 2d 106 (C.A. 5, 1961)-criticized, 61 Mich. L. Rev. 383 (1962).

There have been various collateral proceedings in addition to the habeas corpus proceedings cited above. Aristeguieta v. Jimenez, 274 F.2d 206 (C.A. 5, 1960, per curiam) and First National City Bank v. Aristeguieta, 287 F. 2d 219 (C.A. 2, 1960), cert. granted 365 U.S. 840 (1961) --denials of motions to quash subpeoneas duces tecum. Jimenez v. Aristeguieta, 314 F.2d 649 (1963)-denial of bail.

The Service contends that the extradition proceedings and Immigration proceedings are exclusive and independent of each other. Both the Service motion and the argument of respondent's counsel point out that if respondent's removal takes place under extradition proceedings while there is outstanding an order of deportation, the deportation order will be executed. The Service further points out that in the event of extradition any immigration proceedings will be mooted and terminated. Therefore, the Service contends, the outstanding deportation order serves no useful purpose at this time and may introduce complications.

The Service also argues that, if the Secretary of State fails to issue a warrant of extradition, resumption of deportation proceedings would enable extending to respondent all rights and privileges under the deportation laws and regulations, including adjudication of his application under section 243(h). Thus, the Service urges, the motion, in seeking to eliminate the possibility of execution of the deportation order without affording respondent his full rights and privileges under the laws pertaining to deportation, is beneficial to respondent.

Respondent contends that the Service motion, if granted, would not benefit him but would deprive him of his right to an adjudication at this time of his application under section 243(h). He apparently would risk the possibility of deportation through extradition in order to obtain such an adjudication. Respondent thus prefers to rest his case for avoiding return to Venezuela upon the Attorney General's ruling in deportation proceedings rather than the Secretary of State's ruling in the extradition proceedings. We are to determine whether to grant either of the motions before us and if so which one.

We find that we need not determine whether withdrawal of the deportation order would be beneficial or detrimental to respondent. Therefore, we do not decide whether extradition would execute an outstanding order of deportation. If granting the Service motion would benefit respondent by preventing deportation shorn of some of its procedural safeguards, such benefit would be, for our purposes, a side effect. We base our decision on the grounds that, in view of the extra

* Counsel for the Service indicated at oral argument that he is unwilling to concede merit in respondent's argument that extradition with a final order of deportation outstanding would be in effect a self-executing deportation without an opportunity for respondent to be heard on his application for a stay of deportation. The Service representative pointed out, however, that granting the Service motion would avoid the situation respondent contemplates. Compare section 101 (g), Immigration and Nationality Act, 8 U.S.C. 1101(g).

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