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Tupacyupanqui-Marin v. Immigration and Naturalization Service

August 24, 1971

SERGIO TUPACYUPANQUI-MARIN, PETITIONER,
v.
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT



Major, Senior Circuit Judge, and Fairchild and Pell, Circuit Judges. Fairchild, Circuit Judge (dissenting).

Author: Pell

PELL, Circuit Judge.

Petitioner Sergio Tupacyupanqui-Marin was ordered deported on May 22, 1970, by the Immigration and Naturalization Service. His application for voluntary departure in lieu of deportation was denied by the same order. He did not appeal that order but filed a motion with the special inquiry officer seeking to have his case reopened. That motion was denied and the denial appealed to the Board of Immigration Appeals. The Board dismissed the appeal. This petition for review was then filed.

Petitioner is a native and citizen of Ecuador. His wife and eight children reside there. He has no immediate relatives in this country. Petitioner first entered the United States on January 27, 1968, as a tourist. He took a job, apparently immediately, with Carson, Pirie, Scott & Co. at O'Hare International Airport in Chicago. He was apprehended by immigration authorities and was granted the privilege of voluntary departure in lieu of deportation.*fn1 He left the United States on May 16, 1968.

Petitioner reentered this country on October 20, 1968, as a visitor for pleasure with permission to remain until November 20, 1968. He immediately returned to his former job with Carson, Pirie and failed to depart on schedule.

Petitioner was again apprehended by the immigration authorities on May 22, 1970. At that time he was served with an Order to Show Cause and Notice of Hearing to determine whether he was deportable under Section 241(a) (2) of the Act, 8 U.S.C. ยง 1251(a) (2),*fn2 as a visitor for pleasure who had overstayed his authorized departure date. He executed a written request for prompt hearing before a special inquiry officer and waived any right to a more extended notice.*fn3 A hearing was held the same day.

Since petitioner stated that he did not understand English, the hearing was conducted through a Spanish interpreter. The special inquiry officer explained the nature and purpose of the show cause order and of the hearing. Petitioner stated that he understood. Petitioner was then advised that he had the right to be represented by counsel of his own choice at no expense to the Government and was asked whether he wished to obtain one or to proceed without an attorney. He answered that he wished to proceed without counsel.

Petitioner was then advised that he should immediately object whenever he felt something was unfair or not right. He was further advised that he had the right to examine all evidence against him and to present evidence on his own behalf. Under examination by the inquiry officer, petitioner admitted all the facts stated in the show cause order and admitted that he was deportable as a visitor for pleasure who had overstayed his departure date.*fn4

The inquiry officer then turned to the question of whether petitioner should be granted the privilege of voluntary departure. Under the officer's questioning, petitioner freely told of his previous visit to, employment in, and voluntary departure from the United States. He further stated that he knew his original employment had violated the law but that he had nevertheless returned less than six months following his voluntary departure with the intention of resuming that employment.

Under questioning by the trial attorney for the Immigration and Naturalization Service, petitioner admitted that he had tried to escape from the officers who had apprehended him. He stated that his reason was that he had intended to leave the United States in December, seven months later, and wished to do so on his own volition.

Based on the above evidence, the special inquiry officer found petitioner deportable. The officer further ruled that the request for voluntary departure would be denied as a matter of administrative discretion. In so ruling he stressed petitioner's abuse of the privilege on a previous occasion and also noted his attempted escape from the immigration officers.

The inquiry officer then informed petitioner of his right to appeal and of the fact that the above decision would be final unless petitioner appealed. Petitioner stated that he did not wish to appeal.

Shortly after his hearing, petitioner obtained his present attorney and filed a motion to reopen the deportation proceeding to reconsider the question of voluntary departure.*fn5 As stated above, the motion was denied and petitioner's appeal of the denial to the Board of Immigration Appeals was dismissed.

Petitioner raises several issues on this petition for review. Precisely stated, the question for our determination is only whether the refusal to reopen petitioner's deportation proceeding was an abuse of discretion. See Kladis v. Immigration and Naturalization Service, 343 F.2d 513, 515 (7th Cir. 1965). We find nothing in the various contentions of petitioner which indicates that the immigration authorities ...


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