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Vitale v. Immigration & Naturalization Service

decided: June 13, 1972.


Pell, Stevens and Sprecher, Circuit Judges.

Author: Sprecher

SPRECHER, Circuit Judge.

This is an appeal by the plaintiff, Giuseppe Vitale, from a district court order granting the motion of defendant, the Immigration & Naturalization Service, for summary judgment. The order affirmed the decision of the Board of Immigration Appeals ordering the plaintiff excluded and deported from the United States.

Giuseppe Vitale was deported from the United States on September 21, 1970. Aliens who have been deported are excluded from admission into the United States and are ineligible for visas prior to their embarkation at a place outside the United States, unless the Attorney General has consented to their applying for admission. 8 U.S.C. § 1182(a) (17). Without receiving or seeking consent, Vitale obtained a nonimmigrant visa from the American Consul in Palermo, Italy, for entry into the United States as a visitor. Since Vitale denied, in the hearing before the special inquiry officer, that he had previously been deported, it is reasonable to assume that he also denied his deportation in his application for a visa. Moreover, the issuance of a visa does not entitle an alien to enter the United States if, upon arrival at a port of entry, he is found to be inadmissible. This warning appears upon every visa application. 8 U.S.C. § 1201(h).

On March 2, 1971, Vitale arrived at O'Hare Airport, Chicago, Illinois, via Alitalia Airlines with his wife and their two-year-old son. He was informed that he was ineligible to enter because of his previous deportation. Inspection was deferred and Vitale and his wife were instructed to report to the Immigration Office in downtown Chicago on the following morning. Alitalia Airlines was served pursuant to 8 C.F.R. § 235.3(b) with Form I-259 ("Notice to Detain, Deport, Remove or Present Aliens") to present Vitale and his wife at the Immigration Office on that morning. Vitale's passport was not returned to him and it was not stamped "Admitted" as required by 8 C.F.R. § 235.4 as a condition of admission.

Vitale failed to appear on March 3 but instead presented himself on March 10, 1971. In the interim, he stayed at several hotels. Inspection was completed on March 10, at which time Vitale was served pursuant to 8 C.F.R. § 235.6(a) with Form I-122 ("Notice to Applicant For Admission Detained for Hearing Before Special Inquiry Officer") for an exclusion hearing that day before a special inquiry officer. He was represented by counsel at the hearing.

Vitale testified that on March 2 he was informed that he could not enter the United States because he had been deported; that his passport had been taken from him; that he was told by "the Alitalia people" that he had to present himself in the morning at the Immigration Office; and that his intention in coming to the United States was to reside and work here permanently and not to enter as a visitor.

The special hearing officer rendered his decision on March 19, 1971, ordering Vitale excluded and deported (1) because of his prior deportation and failure to obtain the Attorney General's consent to be readmitted under 8 U.S.C. § 1182(a) (17), and (2) because of his failure to establish that he was a bona fide nonimmigrant and his failure to have an immigrant visa under 8 U.S.C. § 1182(a) (20).

Upon Vitale's appeal from the special inquiry officer's decision, the Board of Immigration Appeals dismissed the appeal on June 18, 1971, and denied Vitale's motion for reconsideration on October 12, 1971.

On February 1, 1972, the district court entered its findings of fact and conclusions of law, affirming the decision of the Board of Immigration Appeals and ordering the plaintiff to be excluded and deported from the United States. On appeal, we affirm.

Vitale has argued that, although the Attorney General may parole any alien into the United States temporarily under such conditions as he may prescribe (8 U.S.C. § 1182(d) (5)), and although such a paroled alien is not deemed admitted, Vitale was not "paroled." Thus he "entered" the country and was entitled to a deportation hearing under 8 U.S.C. § 1252(b). He further argued that, in a deportation hearing as distinguished from an exclusion hearing, he would be entitled to greater rights than he was accorded in the March 10 proceeding.

The Board of Immigration Appeals "found ample evidence in the record that the applicant had been enlarged on parole." The district court found that "the plaintiff was temporarily paroled into this country solely for the purpose of an exclusion hearing."

In Klapholz v. Esperdy, 201 F. Supp. 294 (S.D.N.Y.1961), the alien applied for admission on shipboard on July 30, 1956, and was served with Form I-122 on August 2, 1956. The court, in confirming his exclusion, said (201 F. Supp. at 296):

"Basically, plaintiff's argument is that since the Service did not, on shipboard, parole him into the United States and since it did not exclude him it must have admitted him. It is conceded that the Service failed to give plaintiff a Form 1-122 'immediately' as required by the regulations (8 C.F.R. 235.6); but it is equally true that it failed to stamp his visa 'Admitted' which is the regulated method of marking visas of persons admitted; these stamped visas are then filed to be a permanent record of admission (8 C.F.R. 235.4 and § 240(a), Act of 1952, 8 U.S.C.A. ...

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