E.

MATTER OF BUFALINO

In Deportation Proceedings

A-10607337

Decided by Board September 30, 1965

(1) Where the special inquiry officer states unequivocally and without hesitation that he did not prejudge the cause; that he received no advice, instructions, or directions whatsoever in the cause; and that all his determinations were premised solely on his honest and sincere evaluation of the evidence ado duced and his understanding and knowledge of the applicable laws and regulations, his unequivocal statement of lack of prejudgment or prejudice effectively meets respondent's claim of prejudgment.

(2) Respondent, who, subsequent to his lawful admission to the United States for permanent residence in 1914, became deportable upon reentry without inspection by falsely claiming U.S. citizenship, is statutorily ineligible for Ithe creation of a record of lawful admission under section 249, Immigration and Nationality Act, as amended, since a record of lawful admission in his case is still available; likewise, he is statutorily ineligible for adjustment of status under section 245 of the Act, as amended, since he was not in9018 spected.

(3) Since respondent, who is deportable on grounds within the terms of both subsections (a) (1) and (a)(2) of section 244 of the Act, as amended, is thereby statutorily precluded from establishing eligibility for suspension of deportation under section 244 (a) (1), he must establish eligibility for such relief under section 244 (a) (2) of the Act..

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(4) The 10-year period of continuous physical presence required to establish statutory eligibility for suspension of deportation under section 244(a)(2) ́) of the Act, as amended, runs from the date of the last deportable act. (5) Respondent, by his evasive, equivocal, discrepant, and contradictory statements coupled with his demeanor while testifying before the special inquiry officer, is found to have given false testimony and, therefore, is precluded by section 101 (f) (6) of the Act from establishing good moral character for purposes of qualifying for the exercise of discretionary relief.

(6) Respondent, a native and citizen of Italy, who claims that his United' States-acquired criminal reputation would result in certain intensive restrictions on his liberty, social, and economic life so as to impose severe, if not total, economic sanctions, if deported to Italy, has not established that such deportation would result in "physical persecution" within the meaning of section 243 (h) of the Act, as amended, since there is no evidence re

spondent would be subject to physical persecution on account of race, religion or political viewpoint.

CHARGES:

Order: Act of 1952-Section 241(a) (2) [8 U.S.C. 1251(a)(2) ]—Entered without inspection.

Order: Act of 1952-Section 241(a)(5) [8 U.S.C. 1251(a)(5)]—Failed to furnish address and other information required by section 265 and has not established failure was reasonably excusable or was not wilful.

Lodged: Act of 1952-Section 241 (a) (1) [8. U.S.C. 1251(a)(1)]—Excludable at entry-not in possession of valid visa or other valid entry document.

The case comes forward on appeal from the order of the special inquiry officer dated March 17, 1965, denying the respondent's various applications for discretionary relief, ordering respondent deported on the charges contained in the order to show cause and on the lodged charge to Brazil, in the alternative, to Italy, and further ordering that the respondent's application for withholding of deportation to Italy under section 243 (h) of the Immigration and Nationality Act be denied.

The order of the special inquiry officer sets forth the prior action in the case. The respondent is a native and citizen of Italy, 61 years old, male, married. The proceedings were instituted on December 16, 1957 by the issuance and service of an order to show cause which charged the respondent with being deportable on the two grounds set forth in the caption. The second charge was amended by being restricted to allege the respondent's failure to furnish notification of his address to the Attorney General only during the years 1956 and 1957. A third charge was lodged that the respondent was deportable under the provisions of section 241 (a) (1) of the Immigration and Nationality Act (8 U.S.C. 1251(a)(1)) as one who was excludable at time of entry into the United States at New York, New York on May 5, 1956 because he was then an alien immigrant who entered by claiming to be a citizen of the United States and was not in possession of an unexpired immigrant visa or valid entry document.

The respondent through counsel admitted the charge of entry without inspection and the lodged charge of entry without proper documentation. The second charge under section 241(a)(5) was disputed. After hearing, the then presiding special inquiry officer entered a decision on April 2, 1958 finding respondent deportable on all three charges. Applications for discretionary relief from de

portation were denied and deportation was directed. On appeal, this Board initially remanded the cause for further hearing. Then, upon motion for reconsideration, it certified the case to the Attorney General, who, in turn, directed that a decision be entered by the Board on the merits and on September 2, 1958, this Board dismissed the respondent's appeal...

A petition for review of the order of deportation and denial of the applications for discretionary relief, filed in the United States District Court for the Eastern District of Pennsylvania, was dismissed on April 8, 1959,, This grant of summary judgment by the District Court was affirmed on April 1, 1960 by the United States. Court of Appeals for the Third Circuit (Bufalino v. Holland, 277 F.2d 270) and certiorari was denied (364 U.S. 863 (1960)).

Administratively, and not as part of the deportation proceedings, the respondent then sought the creation of a record of lawful admission for permanent residence, pursuant to the provisions of section 249 of the Immigration and Nationality Act (8 U.S.C. 1259), and alternatively, withholding of deportation to Italy, the country directed by the District Director pursuant to the provisions of section 243 (h) of the Immigration and Nationality Act (8 U.S.C. 1253(h)). The determination on each of the applications was adverse to the respondent who then sought judicial review in the United States District Court for the District of Columbia. Summary judgment was entered against the respondent on June 7, 1962. The respondent appealed and the appellate court, on June 6, 1963, reversed (Bufalino v. Kennedy, 322 F.2d 1016 (D.C. Cir.)) and directed that the cause be returned to the District Court for a trial upon the limited issue of the respondent's contention that there had been adverse prejudgment of his applications by the Immigration and Naturalization Service.

Subject to the approval of the United States Court of Appeals for the District of Columbia Circuit, respondent's counsel and the United States Attorney on September 26, 1963 stipulated that the cause be remanded through the District Court to the Immigration and Naturalization Service with directions to reopen the administrative deportation proceedings. The stipulation specifically limited the scope of the further proceedings to a redetermination of the previous administratively denied applications of the respondent for withholding of deportation and for creation of a record of lawful admission for permanent residence and to a determination of the country of deportation in accordance with section 243 (a) of the Immigration and Nationality Act (8 U.S.C. 1253 (a)). Leave was

also granted in the stipulation for the respondent to raise, promptly both before the special inquiry officer and the Board of Immigration Appeals, the claim of prejudgment which he had asserted during the litigation. After approval of this stipulation by the United States Court of Appeals for the District of Columbia Circuit on October 14, 1963, the District Court, in turn, on October 31, 1963, remanded the cause to the Immigration and Naturalization Service. The Board of Immigration Appeals then, on November 15, 1963, administratively remanded the cause for further proceedings consistent with the District Court's order and the stipulation. Pursuant to further stipulations between counsel and the trial attorney for the Service, the proceedings were enlarged to permit the respondent to file applications for suspension of deportation and voluntary departure in lieu of deportation under section 244 of the Immigration and Nationality Act, as amended (8 U.S.C. 1254, as amended), and for change of status to that of a lawful resident alien under section 245 of the Immigration and Nationality Act, as amended (8 U.S.C. 1255, as amended), and to require a determination on each of the applications.

At the outset of the reopened proceedings on March 2, 1964, respondent's counsel moved for disqualification of the special inquiry officer and for the appointment of an attorney outside the Department of Justice to conduct this hearing. The motion was denied. A similar motion had been denied by the Acting Attorney General on January 27, 1964. The applications were bottomed upon respondent's contention that the ultimate determination in this cause had been prejudged, 'as indicated by public statements made by the Attorney General with respect to the respondent and his activities. The special inquiry officer stated unequivocally and without hesitation, that he has received no advice, instructions, or directions whatsoever in this cause from anyone (other than the mere assignment to preside); that the interim determinations and rulings and this decision were premised solely upon his understanding and knowledge of the applicable laws and regulations' and his honest and sincere evaluation of the evidence adduced, including his 'appraisal of the credibility of the respondent and witnesses; that he has not been influenced to any degree by allegations (made essentially by respondent's counsel) that information outside the record exists; and this cause was not in any way prejudged by him."

In the order remanding the case on the issue of prejudgment (Bufalino v. Kennedy, 322 F.2d 1016 (D.C. Cir.)) the court relied on the case of Accardi v. Shaughnessy, 347 U.S. 260, to hold that the

word "discretion" means that the recipient of the Attorney General's authority must exercise his authority according to his understanding and conscience. The Circuit Court also cited the case of Shaughnessy v. Accardi, 349 U.S. 280. This case held that the record fully supported the District Court's conclusion that the Board's decision represented the free undictated decision of each member and that there was no proof of prejudgment. Similarly, we come to the conclusion that the special inquiry, officer's statement of lack of prejudice or prejudgment effectively meets respondent's claim of prejudgment. We note that counsel has not charged the Board with prejudgment.1

The special inquiry officer found that respondent was deportable on all three charges urged against him in the administrative deportation proceedings relying upon Bufalino v. Holland, 277 F.2d 270 (3rd Cir., 1960), certiorari denied 364 U.S. 863, 5 L. ed 2d 85 (1960). He also quoted the Court of Appeals for the District of Columbia Circuit which ruled that the validity of that deportation order can no longer be challenged. Bufalino v. Kennedy, 322 F.2d 1016 (1963), although that court did remand the case for a hearing on the issue of prejudgment. The special inquiry officer concluded that deportability of the respondent was established as a matter of law and refused to permit an attack upon the validity of the deportation order based upon the ruling of the Supreme Court in Rosenberg v. Fleuti, 374 U.S. 449. Parenthetically, the Fleuti doctrine is inapplicable in the case of a lawful permanent resident, who, following a brief, casual visit abroad, reentered the United States upon a false claim of citizenship thereby avoiding inspection as an alien. In such a case an entry has been made within the meaning of section 101 (a) (13) of the Immigration and Nationality Act upon which a ground of deportation might be predicated.2

The respondent has submitted formal applications for the creation of a record of admission for permanent residence under section 249 of the Immigration and Nationality Act, for suspension of deportation and for permission to depart voluntarily under section 244 and for adjustment of status as a lawful resident pursuant to section 245. We shall deal with these applications separately. Section 249 of the Immigration and Nationality Act provides that a record of lawful admission for permanent residence may, in the discretion

1 See Marcello v. Bonds, 349 U.S. 303.

'Matter of Kolk, Int. Dec. No. 1443. The case of Zimmerman v. Lehmann, 339 F.2d 943 (7th Cir., 1965), may be distinguished on the ground that there existed a bona fide, although erroneous, assumption on the part of the alien that he was a derivative citizen at the time of his reentry from Canada.